2 - (a) the Existing Credit Agreement shall be 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...
Exhibit 10.1 Execution Version SIXTH AMENDMENT This SIXTH AMENDMENT, dated as of February 8, 2024 (this βAgreementβ), to the THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 31, 2018, (as amended by that certain FIRST AMENDMENT, dated as of February 19, 2020, that certain SECOND AMENDMENT, dated as of March 13, 2020, that certain THIRD AMENDMENT, dated as of March 1, 2021, that certain FOURTH AMENDMENT, dated as of July 2, 2021 and that certain FIFTH AMENDMENT, dated as of June 30, 2022 and as otherwise amended from time to time prior to the date hereof, the βExisting Credit Agreementβ), among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (the βBorrowerβ), the Subsidiaries of the Borrower party hereto, the Lenders party thereto immediately prior to the Sixth Amendment Effective Date (as defined below) (the βExisting Lendersβ) and CITIBANK, N.A., as Administrative Agent and Collateral Agent (capitalized terms used but not defined herein have the meaning provided in the Amended Credit Agreement (as defined below)). CITIBANK, N.A., PNC CAPITAL MARKETS LLC, BOFA SECURITIES, INC., CAPITAL ONE, NATIONAL ASSOCIATION, JPMORGAN CHASE BANK, N.A., MUFG BANK, LTD., SUMITOMO MITSUI BANKING CORPORATION, TD SECURITIES (USA) LLC, TRUIST SECURITIES, INC., U.S. BANK NATIONAL ASSOCIATION and XXXXX FARGO SECURITIES, LLC, have been appointed to act as joint lead arrangers and bookrunners in connection with this Agreement (in such capacities, the βArrangersβ). FIFTH THIRD BANK, NATIONAL ASSOCIATION has been appointed to act as senior managing agent. W I T N E S S E T H WHEREAS, the Borrower desires, pursuant to Section 2.24 of the Existing Credit Agreement, to obtain Tranche B3 Loans, the proceeds of which shall be used to refinance all existing Tranche B Loans and Tranche B2 Loans (collectively, the βRefinanced Tranche B Loansβ) with a new tranche of Specified Refinancing Debt (the βTranche B3 Loansβ); Whereas, each Tranche B3 Lender (as defined below) has indicated its willingness to lend, severally and not jointly, the Tranche B3 Loans on the terms and subject to the conditions set forth in this Agreement and in the Amended Credit Agreement; WHEREAS, each Rollover Lender (as defined below) has agreed to have its Refinanced Tranche B Loans in the principal amount of its Rollover Amount (as defined below) converted into a like principal amount of Tranche B3 Loans, and Citibank, N.A. (in such capacity, the βRefinancing Fronting Lenderβ, and together with each Rollover Lender, each, a βTranche B3 Lenderβ) has agreed to provide Tranche B3 Loans in an aggregate principal amount equal to the outstanding principal amount of the Refinanced Tranche B Loans, minus the aggregate Rollover Amounts of all Rollover Lenders, in each case on the Sixth Amendment Effective Date and in accordance with the terms and conditions set forth herein and in the Amended Credit Agreement. NOW, THEREFORE, for good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as follows: SECTION 1. Amendment of the Existing Credit Agreement. Effective as of the Sixth Amendment Effective Date (as defined below): AMERICAS/2024177444.5
- 2 - (a) the Existing Credit Agreement shall be 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 Third Amended and Restated Credit Agreement attached as Exhibit A hereto (the βAmended Credit Agreementβ). (b) A new Schedule I-B is hereby added to the Amended Credit Agreement in the form attached hereto as Exhibit B. (c) A new Exhibit A-5 is hereby added to the Amended Credit Agreement in the form attached hereto as Exhibit C. (d) All other schedules and exhibits to the Existing Credit Agreement shall continue in full force and effect. SECTION 2. Transactions on the Sixth Amendment Effective Date. (a) Each Tranche B3 Lender party hereto severally agrees to make, on the Sixth Amendment Effective Date, Tranche B3 Loans in Dollars to the Borrower in accordance with the terms hereof (i) in the case of each Rollover Lender, in an amount (a βRollover Amountβ) equal to the principal amount of Refinanced Tranche B Loans held by such Rollover Lender as of the Sixth Amendment Effective Date immediately prior to giving effect to this Amendment (or such lesser amount as determined by the Administrative Agent) and (ii) in the case of the Refinancing Fronting Lender, in an amount equal to the outstanding principal amount of the Refinanced Tranche B Loans, minus the aggregate Rollover Amounts of all Rollover Lenders, as of the Sixth Amendment Effective Date (each such commitment, a βTranche B3 Commitmentβ). (b) On the Sixth Amendment Effective Date: (i) each Tranche B3 Lender, severally and not jointly, shall make (or in the case of any Rollover Lender, shall be deemed to make) a Tranche B3 Loan to the Borrower in accordance with the terms of Section 2.24 of the Existing Credit Agreement and the terms hereof and of the Amended Credit Agreement by delivering immediately available funds to the Administrative Agent (or in the case of any Rollover Lender, by exchanging its Refinanced Tranche B Loans into Tranche B3 Loans) in an amount equal to its Tranche B3 Commitment; and (ii) the Borrower shall prepay in full the Refinanced Tranche B Loans by (A) delivering to the Administrative Agent funds in an amount equal to the sum of (1) the excess, if any of the aggregate principal amount of Refinanced Tranche B Loans owing to the Existing Lenders, over the aggregate Rollover Amounts (for the avoidance of doubt, the payment required by this clause (1) may be made by the Borrower directing the Administrative Agent to apply any Tranche B3 Loans provided by the Refinancing Fronting Lender for such purpose), plus (2) all accrued and unpaid interest and other amounts with respect to the Refinanced Tranche B Loans under the Existing Credit Agreement and (B) directing the Administrative Agent to apply the funds and exchanged Tranche B3 Loans made available to the Administrative Agent pursuant to clauses (i) and (ii)(A) above, as applicable, to prepay in full the Refinanced Tranche B Loans. (c) Any Existing Lender may elect for a βcashless rollβ of 100% of its Refinanced Tranche B Loans into Tranche B3 Loans in the same principal amount by executing AMERICAS/2024177444.5
- 3 - its appropriate signature page to this Amendment and delivering such signature page to the Administrative Agent (such electing Existing Lender, a βRollover Lenderβ). It is understood and agreed that (i) simultaneously with the deemed making of the Tranche B3 Loans by each Rollover Lender and the payment to such Rollover Lender of all accrued and unpaid interest, fees and other amounts in respect of the Refinanced Tranche B Loan in respect of the Rollover Amount, such elected amount of the Refinanced Tranche B Loans held by such Rollover Lender shall be deemed to be extinguished, repaid in full and no longer outstanding and such Rollover Lender shall thereafter hold a Tranche B3 Loan in an aggregate principal amount equal to such Rollover Lenderβs Rollover Amount, (ii) no Rollover Lender shall receive any prepayment being made to other Existing Lenders holding Refinanced Tranche B Loans from the proceeds of the Tranche B3 Loans to the extent of such Rollover Lenderβs Rollover Amount and (iii) any Refinanced Tranche B Loan held by a Rollover Lender that is not so allocated to such Rollover Lender as a Rollover Amount shall be repaid in full on the Sixth Amendment Effective Date together with all accrued and unpaid interest and other amounts owing to such Existing Lender in respect of such amount in accordance with the terms hereof and under the Amended Credit Agreement. (d) Each Tranche B3 Lender (i) confirms that it has received a copy of the Existing Credit Agreement and the other Loan Documents and the schedules and exhibits attached thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Existing Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Existing Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent or the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Existing Credit Agreement are required to be performed by it as a Lender. (e) Each Tranche B3 Lender that executes and delivers a signature page to this Agreement as a βLenderβ hereby, as applicable, (a) agrees to provide Tranche B3 Loans in the aggregate amount set forth under the heading βTranche B3 Commitmentβ opposite such Tranche B3 Lenderβs name on such schedule as on file with the Administrative Agent and (b) agrees to the terms of, and to perform all obligations under, this Agreement and the Amended Credit Agreement as a Lender. Each Tranche B Lender shall have all of the rights and obligations of an βIncremental Term Lenderβ, a βTerm Lenderβ and a βLenderβ holding an βIncremental Term Commitmentβ under the Amended Credit Agreement and the other Loan Documents. (f) Each of the Tranche B3 Lenders, the Administrative Agent and the Borrower agree that this Section 2 is necessary and appropriate, in each of their reasonable opinions, to effect the provisions of Section 2.24 of the Existing Credit Agreement and shall constitute a Refinancing Amendment pursuant to and in accordance with Section 2.24 of the Existing Credit Agreement. Pursuant to Section 2.24 of the Existing Credit Agreement, the Administrative Agent hereby consents to each Tranche B3 Lender providing its Tranche B3 Commitment under the Amended Credit Agreement as set forth on such schedule as on file with AMERICAS/2024177444.5
- 5 - incorporation (or comparable organizational document) of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (iii) immediately below and (D) as to the incumbency and specimen signature of each Responsible Officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party. (ii) A certificate of another Responsible Officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (i) above. (iii) Certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Sixth Amendment Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity). (iv) A favorable opinion of Xxxxxxx and Knight LLP, counsel for the Borrower and the other Loan Parties, dated as of the Sixth Amendment Effective Date, addressed to the Administrative Agent, the Collateral Agent and the Tranche B3 Lenders in form and substance reasonably satisfactory to the Administrative Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion. (v) Any Notes, to the extent requested at least three Business Days prior to the Sixth Amendment Effective Date by the respective Tranche B3 Lender pursuant to Section 2.16 of the Amended Credit Agreement (the βNew Notesβ). (c) the Administrative Agent shall have received a Notice of Borrowing with respect to the Tranche B3 Loans to be made on the Sixth Amendment Effective Date setting forth the information specified in Section 2.02(a) of the Amended Credit Agreement. (d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form of Exhibit H to the Amended Credit Agreement. (e) (i) All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and the Arrangers or the Tranche B3 Lenders and all invoiced expenses of the Administrative Agent and the Arrangers relating hereto (including those of counsel to the Administrative Agent and the Arrangers), (ii) all accrued but unpaid interest on all of the outstanding Tranche B Loans and Tranche B2 Loans that has accrued through but excluding the Sixth Amendment Effective Date (as calculated in accordance with the Existing Credit Agreement) and (iii) solely with respect to any Lender (as defined in the Existing Credit Agreement) who has any outstanding Tranche B Loans or Tranche B2 Loans prior to the Sixth Amendment Effective Date and does not have any Commitments following the Sixth Amendment Effective Date, all other Obligations owed to such Lender under the Existing Credit Agreement, shall have in each case been paid. AMERICAS/2024177444.5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written. BORROWER SCIENCE APPLICATIONS INTERNATIONAL CORPORATION By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer GUARANTORS SAIC INTERNATIONAL HOLDINGS, INC. By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer SAIC GEMINI HUNTSVILLE, LLC By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer VALINAR, LLC By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer KOVERSE, INC. By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer SIGNATURE PAGE TO SIXTH AMENDMENT
XXXXXXXX AND ASSOCIATES, LLC By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer TASC SERVICES CORPORATION By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer ATAC SERVICES, LLC By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer ODYSSEY DRIVE I, LTD. A CALIFORNIA LIMITED PARTNERSHIP By: SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, its General Partner By: /s/ Xxxxxxx XxXxx Name: Xxxxxxx XxXxx Title: Treasurer SIGNATURE PAGE TO SIXTH AMENDMENT
CITIBANK, N.A., as the Administrative Agent, the Collateral Agent and Refinancing Fronting Lender By: /s/ Xxxxx Xxxx Name: Xxxxx Xxxx Title: Vice President SIGNATURE PAGE TO SIXTH AMENDMENT
[ROLLOVER LENDER SIGNATURE PAGES ON FILE WITH THE ADMINISTRATIVE AGENT] [Signatures end here] SIGNATURE PAGE TO SIXTH AMENDMENT
EXHIBIT A AMENDED CREDIT AGREEMENT
Execution Version Deal CUSIP: 00000XXX0 Tranche B Loans CUSIP: 00000XXX0 Tranche B2 Loans CUSIP: 00000XXX0 Tranche B3 Loans CUSIP: 00000XXX0 Revolving Credit Advances CUSIP: 00000XXX0 Term Advances CUSIP: 00000XXX0 THIRD AMENDED AND RESTATED CREDIT AGREEMENT Dated as of October 31, 2018 Among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION as Borrower and THE LENDERS PARTY HERETO and CITIBANK, N.A. as Administrative Agent and Collateral Agent CITIBANK, N.A., BOFA SECURITIES, INC., MUFG BANK, LTD. PNC CAPITAL MARKETS LLC, SUNTRUST XXXXXXXX XXXXXXXX, INC., U.S. BANK NATIONAL ASSOCIATION AND XXXXX FARGO SECURITIES, LLC as Joint Lead Arrangers and Joint Bookrunners CAPITAL ONE, NATIONAL ASSOCIATION, SUMITOMO MITSUI BANKING CORPORATION, AND TD SECURITIES (USA) LLC as Co-Documentation Agents [[NYCORP:3521679v22:3676W: 05/01/2015--09:39 AM]] 163758982v8
Schedules Schedule I β Commitments Schedule I-A β Tranche B2 Commitments Schedule I-B β Tranche B3 Commitments Schedule II β Guarantors Schedule 1.01(a) - Mortgaged Property Schedule 1.01(b) β Existing Contracts Prohibiting Subsidiary Guarantees Schedule 4.01(l) β Subsidiaries Schedule 4.01(o) β Intellectual Property Schedule 4.01(v) β UCC Filing Offices Schedule 4.01(y) β Insurance Schedule 4.01(z)-1 β Real Property Owned Schedule 4.01(z)-2 β Real Property Leased Schedule 4.01(aa) β Mortgage Filing Offices Schedule 5.01(n) β Post-Closing Obligations Schedule 5.03(a) - Existing Liens Schedule 5.03(k)(viii) - Existing Indebtedness Schedule 5.03(l) - Burdensome Agreements Exhibits Exhibit A-1 - Form of Revolving Credit Note Exhibit A-2 - Form of Term Note Exhibit A-3 - Form of Tranche B Note Exhibit A-4 - Form of Tranche B2 Note Exhibit A-5 - Form of Tranche B3 Note Exhibit B - Form of Notice of Borrowing Exhibit C - Form of Assignment and Assumption Exhibit D - [Reserved] Exhibit E - Form of Tax Compliance Certificates Exhibit F -Form of Guarantee and Collateral Agreement Exhibit G -Form of Perfection Certificate Exhibit H -Form of Solvency Certificate Exhibit I -Form of Mortgage iv
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 31, 2018 (as further amended, amended and restated, supplemented or otherwise modified from time to time, this βAgreementβ), among SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (the βBorrowerβ), the Lenders (as defined in Article I), and CITIBANK, N.A. (βCitibankβ), as administrative agent hereunder (in such capacity, the βAdministrative Agentβ) and as collateral agent hereunder and under the Security and Guarantee Documents (in such capacity, the βCollateral Agentβ and together in its capacity as Administrative Agent and Collateral Agent, the βAgentβ) for the Lenders. Pursuant to the Credit Agreement dated as of June 27, 2013 (the βOriginal Credit Agreementβ), the Lenders (as defined therein) extended credit to the Borrower in the form of Term Advances (as defined therein) in an initial aggregate principal amount of $500,000,000, Revolving Credit Commitments (as defined therein) and Letter of Credit Commitments (as defined therein). Pursuant to the Amended and Restated Credit Agreement dated as of March 17, 2015 (the βFirst Amended & Restated Credit Agreementβ), among the Borrower, Citibank, as administrative agent, and the Lenders (as defined therein), the Original Credit Agreement (including the exhibits and schedules thereto) was amended and restated in its entirety and replaced by the First Amended & Restated Credit Agreement. Pursuant to the Second Amended and Restated Credit Agreement dated as of May 4, 2015 (the βSecond Amended & Restated Credit Agreementβ), among the Borrower, Citibank, as administrative agent, and the Lenders (as defined therein), the First Amended & Restated Credit Agreement (including the exhibits and schedules thereto) was amended and restated in its entirety and replaced by the Second Amended & Restated Credit Agreement. The Borrower has requested that upon satisfaction of the conditions set forth in Section 3.01, the Second Amended & Restated Credit Agreement (including the exhibits and schedules thereto) be amended and restated in its entirety and replaced by this Agreement. The Borrower and the Agent have agreed to so amend and restate the Second Amended & Restated Credit Agreement on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto, intending to be legally bound, agree as follows: 1
Rate for such Currency for such Interest Period divided by (b) one minus the Eurocurrency Reserve Percentage. βAdjusted Term SOFRβ means, for purposes of any calculation, the rate per annum equal to (1) with respect to Term Advances other than the Tranche B3 Loans (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment and (2) with respect to the Tranche B3 Loans, Term SOFR for such calculation; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR shall be deemed to be the Floor. βAdvanceβ means a Revolving Credit Advance, a Term Advance, an Incremental Advance, Tranche B Loan, Tranche B2 Loan and/or a Tranche B2B3 Loan, as the context may require. βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffiliateβ 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. βAgentβ has the meaning specified in the preamble hereto. βAgent Partiesβ has the meaning specified in Section 9.02(d)(ii). βAgentβs Accountβ means (a) in the case of Advances denominated in Dollars, the account of the Agent maintained by the Agent at Citibank at its office at 0000 Xxxxx Xxxx, XXX XXX, Xxx Xxxxxx, Xxxxxxxx 00000, Account No. 36852248, Attention: Agency Operations, (b) in the case of Advances denominated in any Committed Currency, the account of the Agent designated in writing from time to time by the Agent to the Borrower and the Lenders for such purpose and (c) in any such case, such other account of the Agent as is designated in writing from time to time by the Agent to the Borrower and the Lenders for such purpose. βAgreementβ has the meaning specified in the preamble hereto. βAlabama Propertyβ means the real property and improvements thereon located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000. βAnti-Corruption Lawsβ means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including the United States Foreign Corrupt Practices Act of 1977 (12 U.S.C. Β§78dd-1) and the U.K. Bribery Act of 2010. βApplicable Lending Officeβ means, with respect to each Lender, such Lenderβs Domestic Lending Office in the case of a Base Rate Advance or Term SOFR 3
Advance and such Xxxxxxβs Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance or Daily Simple XXXXX Advance. βApplicable Marginβ means, as of any date, (a) prior to the Sixth Amendment Effective Date with respect to Tranche B Loans and Tranche B2 Loans, (x) for Tranche B Loans and Tranche B2 Loans in the form of Term SOFR Advances, 1.875% per annum and (y) for Tranche B Loans and Tranche B2 Loans in the form of Base Rate Advances, 0.875% per annum, (b) on and after the Sixth Amendment Effective Date with respect to Tranche B3 Loans, (x) for Tranche B3 Loans in the form of Term SOFR Advances, 1.875% and (y) for Tranche B3 Loans in the form of Base Rate Advances, 0.875%, (c) with respect to any Term Advance or Revolving Credit Advance, (i) a percentage per annum determined by reference to the Leverage Ratio at the end of the most recent fiscal quarter of the Borrower as set forth below; provided that, until the end of the first full fiscal quarter ending after the Fifth Amendment Effective Date, the βApplicable Marginβ shall be determined as if Level 4 was applicable and (cd) with respect to any Incremental Advance, the rate(s) set forth in the applicable Incremental Assumption Agreement: Applicable Margin for Term SOFR/Daily Leverage Ratio Level 1 <1.00:1.00 Level 2 < 2.00:1.00 but β₯1.00:1.00 Simple XXXXX/Eurocurrency Rate Advances 0.75% 0.875% Applicable Margin for Base Rate Advances 0.00% 0.00% Level 3 < 2.75:1.00 but β₯ 2.00:1.00 1.00% Level 4 0.00% < 3.50:1.00 but β₯ 2.75:1.00 Level 5 1.25% 0.25% < 4.00:1.00 but β₯ 3.50:1.00 Level 6 1.50% 0.50% β₯ 4.00:1.00 1.75% 0.75% Following the last day of the first full fiscal quarter ending after the Fifth Amendment Effective Date, the Leverage Ratio shall be determined on the basis of the most recent certificate of the Borrower to be delivered pursuant to Section 5.01(i) for the most recently ended fiscal quarter or fiscal year and any change in the Leverage Ratio shall be effective one Business Day after the date on which the Agent receives such certificate; provided, that for so long as the Borrower has not delivered such certificate when due pursuant to Section 5.01(i), the Leverage Ratio shall be deemed to be at Level 6 until the respective certificate is delivered to the Agent. 4
βApplicable Percentageβ means, as of any date, a percentage per annum determined by reference to the Leverage Ratio at the end of the most recent fiscal quarter of the Borrower as set forth below; provided that, until the end of the first full fiscal quarter ending after the Fifth Amendment Effective Date, the βApplicable Percentageβ shall be determined as if Level 4 was applicable: Leverage Ratio Level 1 <1.00:1.00 Level 2 < 2.00:1.00 but β₯1.00:1.00 Applicable Percentage 0.125% 0.15% Level 3 < 2.75:1.00 but β₯ 2.00:1.00 0.175% Level 4 < 3.50:1.00 but β₯ 2.75:1.00 0.20% Level 5 < 4.00:1.00 but β₯ 3.50:1.00 0.225% Level 6 β₯ 4.00:1.00 0.25% Following the last day of the first full fiscal quarter ending after the Fifth Amendment Effective Date, the Leverage Ratio shall be determined on the basis of the most recent certificate of the Borrower to be delivered pursuant to Section 5.01(i) for the most recently ended fiscal quarter or fiscal year and any change in the Leverage Ratio shall be effective one Business Day after the date on which the Agent receives such certificate; provided that for so long as the Borrower has not delivered such certificate when due pursuant to Section 5.01(i), the Leverage Ratio shall be deemed to be at Level 6 until the respective certificate is delivered to the Agent. βAppropriate Lenderβ means, at any time, (a) with respect to any of the Term Facility, the Revolving Credit Facility, the Tranche B Facility, the Tranche B2 Facility, the Tranche B3 Facility or any Specified Incremental Facility, a Lender that has a Commitment with respect to such Facility or holds a Term Advance, Revolving Credit Advance, Tranche B Loan, Tranche B2 Loan, Tranche B3 Loan or Specified Incremental Term Advance, respectively, at such time and (b) with respect to the Letter of Credit Facility, (i) the Issuing Banks and (ii) if any Letters of Credit have been issued hereunder, the Revolving Credit Lenders. βApproved Fundβ means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. βArrangersβ means Citibank, N.A., BofA Securities, Inc. (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporationβs or any of its subsidiariesβ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), MUFG Bank Ltd., PNC Capital Markets LLC, SunTrust 5
Xxxxxxxx Xxxxxxxx, Inc., U.S. Bank National Association and Xxxxx Fargo Securities, LLC. βAsset Saleβ means the Disposition (by way of merger, casualty, condemnation or otherwise) by the Borrower or any of its Subsidiaries to any Person other than a Loan Party of (a) any Equity Interests of any of the Borrowerβs Subsidiaries (other than directorsβ qualifying shares) or (b) any other assets of the Borrower or any of its Subsidiaries, other than, in the case of either (a) or (b), as applicable, (i) inventory, cash and Cash Equivalents Disposed of in the Ordinary Course of Business, (ii) damaged, obsolete, surplus or worn out assets and scrap, (iii) assets Disposed of in transactions constituting Investments permitted under Section 5.03(j), Restricted Payments permitted under Section 5.03(h), or Dispositions permitted under 5.03(n)(x) and (iv) any Dispositions or series of related Dispositions having a value not in excess of $3,000,000 (which shall automatically be increased to $10,000,000 on the Engility Closing Date without any action by any party hereto). βAssignment and Assumptionβ means an assignment and assumption entered into by a Xxxxxx and an Eligible Assignee (with the consent of any party whose consent is required by Section 9.07), and accepted by the Agent, in substantially the form of Exhibit C or any other form approved by the Agent. βAssuming Lenderβ has the meaning specified in Section 2.22(d). βAssumption Agreementβ has the meaning specified in Section 2.22(d). βAuto-Extension Letter of Creditβ has the meaning specified in Section 2.01(d)(ii). βAvailable Amountβ of a Letter of Credit at any time means the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any L/C Related Document, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time. βAvailable Amount Basketβ means, at any time of determination (any such time, the applicable βReference Timeβ), an amount equal to, without duplication: (x) the sum of: (i) $70,000,000; plus (ii) the Borrowerβs Aggregate Excess Cash Flow Share; plus 6
(iii) the Net Cash Proceeds of any Qualified Equity Issuance received by the Borrower after the Effective Date and on or prior to the Reference Time and at such time Not Otherwise Applied; plus (iv) the Net Cash Proceeds of any Indebtedness of the Borrower or any Subsidiary of the Borrower owed or issued to any Person (other than the Borrower or any Subsidiary of the Borrower) that has been incurred or issued after the Effective Date and prior to the Reference Time and subsequently exchanged or converted into a Qualified Equity Issuance and at such time Not Otherwise Applied; plus (v) the aggregate amount of cash and Cash Equivalents received by the Borrower or any of its Subsidiaries from any sale of any Investment (other than to the Borrower or any Subsidiary of the Borrower) and cash and Cash Equivalent returns, profits, distributions and similar amounts received by the Borrower or any Subsidiary of the Borrower on Investments, in each case (A) solely with respect to Investments made in a Person that is not the Borrower or any Subsidiary of the Borrower using the Available Amount Basket and (B) to the extent (1) not already included in Consolidated Net Income, (2) not in excess of the original Investment made using the Available Amount Basket and (3) at such time Not Otherwise Applied; minus (vi) all or any portion of the Available Amount Basket that has been applied after the Effective Date but prior to the Reference Time to make Investments, Restricted Payments or prepayments, redemptions, purchases, defeasements or other satisfactions of Junior Financing prior to the scheduled maturity thereof. βAvailable Tenorβ means, as of any date of determination and with respect to the then-current Benchmark for any Currency, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of βInterest Periodβ pursuant to Section 2.08(v). βB Type Term Loansβ has the meaning specified in Section 2.23(b)(i). βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. βBail-In Legislationβ means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time that is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United 7
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). βBankruptcy Lawβ means any proceeding of the type referred to in Section 6.01(e) or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors. βBase Rateβ means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of: (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as Citibankβs base rate; (b) Β½ of one percent per annum above the Federal Funds Rate; and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00%. βBase Rate Term SOFR Determination Dayβ has the meaning specified in the definition of βTerm SOFR.β βBase Rate Advanceβ means an Advance denominated in Dollars that bears interest as provided in Section 2.07(a)(i). βBeneficial Ownership Regulationβ means 31 C.F.R. Β§ 1010.230. βBenefit Planβ means any of (a) an βemployee benefit planβ (as defined in ERISA) that is subject to Title I of ERISA, (b) a βplanβ 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 βemployee benefit planβ or βplanβ. βBenchmarkβ means, initially, with respect to any (a) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark for Dollars, then βBenchmarkβ means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.08(f) and (ii) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Pounds Sterling, the Adjusted Daily Simple XXXXX; provided that if a Benchmark Transition Event has occurred with respect to Adjusted Daily Simple XXXXX or the then-current Benchmark for Pounds Sterling, then βBenchmarkβ means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to 8
Section 2.08(f) and (iii) Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, EURIBOR; provided that if a Benchmark Transition Event has occurred with respect to EURIBOR or the then-current Benchmark for Euros, as applicable, or the then-current Benchmark for such Currency, then βBenchmarkβ means, with respect to such Obligations, interest, fees, commissions or other amounts, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.08(f). βBenchmark Replacementβ means, with respect to any Benchmark Transition Event for any then-current Benchmark, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided, that with respect to a Benchmark with respect to any Obligations, interest, fees, commissions or other amounts denominated in any currency other than Dollars or calculated with respect thereto, the alternative set forth in clause (b) below: (a) Daily Simple SOFR plus 0.10%; or (b) the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for such Benchmark giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for such Benchmark for syndicated credit facilities denominated in the applicable Currency at such time and (ii) the related Benchmark Replacement Adjustment. If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. βBenchmark Replacement Adjustmentβ means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Currency at such time. 9
βBenchmark Replacement Dateβ means the earliest to occur of the following events with respect to the then-current Benchmark for any Currency: (a) in the case of clause (a) or (b) of the definition of βBenchmark Transition Eventβ, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or (b) in the case of clause (c) of the definition of βBenchmark Transition Eventβ, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date. For the avoidance of doubt, the βBenchmark Replacement Dateβ will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof). βBenchmark Transition Eventβ means, with respect to the then-current Benchmark for any Currency, the occurrence of one or more of the following events with respect to such Benchmark: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, the central bank for the Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available 10
Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative. For the avoidance of doubt, a βBenchmark Transition Eventβ will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof). βBenchmark Unavailability Periodβ means, with respect to any then-current Benchmark for any Currency, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.08 and (b) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.08. βBookrunnerβ means Citibank, N.A., BofA Securities, Inc. (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporationβs or any of its subsidiariesβ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), MUFG Bank Ltd., PNC Capital Markets LLC, SunTrust Xxxxxxxx Xxxxxxxx, Inc., U.S. Bank National Association and Xxxxx Fargo Securities, LLC. βBorrowerβ has the meaning specified in the preamble hereto. βBorrower Noticeβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βBorrower Refinancingβ means, the refinancing of all outstanding Indebtedness for borrowed money under the Second Amended and Restated Credit Agreement. βBorrowerβs Aggregate Excess Cash Flow Shareβ means, as of any Reference Time and with respect to each fiscal year of the Borrower for which a compliance certificate has been delivered pursuant to Section 5.01(i)(i) as of such Reference Time (commencing with the fiscal year ending on or about February 3, 2020), an aggregate amount (in no event less than zero) equal to the sum, for each such fiscal 11
year, of (i) the Borrowerβs Retained Percentage for such fiscal year multiplied by (ii) Excess Cash Flow for such fiscal year. βBorrowerβs Retained Percentageβ means, with respect to any fiscal year of the Borrower, (a) 100% minus (b) the Excess Cash Flow Percentage with respect to such fiscal year. βBorrowingβ means Advances of the same Class and Type made, converted or continued on the same date and, in the case of Term SOFR Advances or Eurocurrency Rate Advances, as to which a single Interest Period is in effect, and may refer to a Revolving Credit Borrowing, a Tranche B Borrowing, a Tranche B2 Borrowing, a Tranche B3 Borrowing, a Term Borrowing or an Incremental Term Borrowing, as the context may require. βBorrowing Minimumβ means, in respect of any Advance denominated in Dollars, $5,000,000, in respect of any Advance denominated in Pounds Sterling, Β£5,000,000 and, in respect of any Advance denominated in Euros, β¬5,000,000. βBorrowing Multipleβ means, in respect of any Advance denominated in Dollars, $1,000,000, in respect of any Advance denominated in Pounds Sterling, Β£1,000,000 and, in respect of any Advance denominated in Euros, β¬1,000,000. βBuildingβ means a building or structure with at least two walls and a roof or any such building or structure in the course of construction. βBusiness Dayβ means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agentβs chief executive office is located; provided that: (a) if such day relates to any interest rate settings as to any Advance that bears interest by reference to Adjusted Term SOFR, any fundings, disbursements, settlements and payments in respect of any such Advance, or any other dealings in Adjusted Term SOFR to be carried out pursuant to this Agreement in respect of any such Advance shall also exclude any day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of the its members be closed for the entire day for purposes of trading in United States government securities; (b) if such day relates to any interest rate settings as to any Advance denominated in Euros, any fundings, disbursements, settlements and payments in Euros in respect of any such Advance, or any other dealings in Euros to be carried out pursuant to this Agreement in respect of any such Advance, means a Business Day that is also a TARGET Day; and (c) if such day relates to any interest rate settings as to an Advance denominated in Pounds Sterling, means a day other than a day banks are closed for 12
general business in London because such day is a Saturday, Sunday or a legal holiday under the laws of the United Kingdom. βCapital Expendituresβ means, for any period, the additions to property, plant and equipment and other capital expenditures of the Borrower or any of its Subsidiaries that are (or should be in accordance with GAAP) set forth in a consolidated statement of cash flows of the Borrower and its Subsidiaries for such period prepared in accordance with GAAP, but excluding in each case any such expenditure made to restore, replace or rebuild property subject to any damage, loss, destruction or condemnation, to the extent such expenditure is made with insurance proceeds, condemnation awards or damage recovery proceeds relating to any such damage, loss, destruction or condemnation. βCapital Leaseβ has the meaning specified in the definition of Capital Lease Obligations. βCapital Lease Obligationsβ means all monetary obligations of any Person under any leasing or similar arrangement which, in accordance with GAAP, is classified as a capital lease (βCapital Leaseβ). βCash Collateralβ shall have a meaning specified in the definition of Cash Collateralize. βCash Collateralizeβ means to pledge and deposit with or deliver to the Agent, for the benefit of one or more of the Issuing Banks or Revolving Credit Lenders, as collateral for L/C Obligations or obligations of Revolving Credit Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances or, if the Agent and each applicable Issuing Bank shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the Agent and each applicable Issuing Bank (such collateral and other credit support, including the proceeds thereof, βCash Collateralβ). βCash Equivalentsβ 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 issuance thereof; (b) Investments in commercial paper maturing within 270 days from the date of issuance thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Xxxxxβx; (c) Investments in certificates of deposit, bankerβs acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Agent or any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 and that issues (or the parent of which issues) commercial paper rated at least βPrime 2β (or the then equivalent grade) by Xxxxxβx or βA 2β (or the then equivalent grade) by S&P; (d) fully collateralized repurchase agreements with a term of 13
not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (c) above; (e) Investments in βmoney market fundsβ within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in Investments of the type described in clauses (a) through (d) above; (f) securities with average maturities of 12 months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, by any political subdivision or taxing authority of any such state, commonwealth or territory having an investment grade rating from either S&P or Xxxxxβx (or the equivalent thereof); and (g) investment funds investing substantially all of their assets in securities of the types (including as to credit quality and maturity) described in clauses (a) through (f) above. βCash Management Agreementβ means any agreement to provide Cash Management Services to any Loan Party or their respective Subsidiaries. βCash Management Bankβ means each provider of Cash Management Services, the obligations under which constitute Secured Cash Management Obligations. βCash Management Servicesβ means treasury management services (including depository arrangements, controlled disbursements, zero balance arrangements, cash sweeps, automated clearinghouse transactions, return items, overdrafts, temporary advances, interstate depository network services, electronic funds transfer, purchasing or debit card arrangements and other customary cash management arrangements) provided to any Loan Party or their respective Subsidiaries. βChange in Controlβ means an event or series of events by which any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act), directly or indirectly, of Voting Stock of the Borrower (or other securities convertible into or exchangeable for such Voting Stock) representing 35% or more of the combined voting power of all Voting Stock of the Borrower (on a fully diluted basis). βChange in Lawβ means the occurrence, after the Fifth Amendment Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a βChange in Lawβ, regardless of the date enacted, adopted or issued. 14
βCitibankβ has the meaning specified in the preamble hereto. βClassβ, when used in reference to any Advance or Borrowing, refers to whether such Advance, or the Advances comprising such Borrowing, are Revolving Credit Advances, Term Advances, Incremental Advances, Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment, a Letter of Credit Commitment, a Term Commitment, an Incremental Commitment, Tranche B Commitment or a, Tranche B2 Commitment or Tranche B3 Commitment. βCo-Documentation Agentsβ means Capital One, National Association, Sumitomo Mitsui Banking Corporation, and TD Securities (USA) LLC. βCodeβ means the Internal Revenue Code of 1986. βCollateralβ means all the βCollateralβ as defined in any Security and Guarantee Documents and shall also include the Mortgaged Properties. βCollateral Agentβ has the meaning specified in the preamble hereto. βCommitmentβ means a Revolving Credit Commitment, a Letter of Credit Commitment, a Term Commitment, an Incremental Commitment, Tranche B Commitment or a, Tranche B2 Commitment or a Tranche B3 Commitment, as the context may require. βCommitted Currenciesβ means lawful currency of the United Kingdom of Great Britain and Northern Ireland and Euros. βCommodity Exchange Actβ means the Commodity Exchange Act (7 U.S.C. Β§ 1 et seq.), any successor statute, and any rule, regulation or order promulgated thereunder, in each case as amended from time to time. βCommodity Futures Trading Commissionβ means the U.S. Commodity Futures Trading Commission. βCommunicationsβ has the meaning specified in Section 9.02(d)(ii). βConforming Changesβ means, with respect to either the use or administration of an initial Benchmark or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of βBase Rateβ (if applicable), the definition of βBusiness Day,β the definition of βEurocurrency Banking Day,β the definition of βInterest Periodβ or any similar or analogous definition (or the addition of a concept of βinterest periodβ), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.16 and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and 15
implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. βConsolidatedβ refers to the consolidation of accounts in accordance with GAAP. βConsolidated Groupβ means the Borrower and its Subsidiaries. βConsolidated Net Incomeβ means, for any Person and any period, the net income of such Person and its Consolidated Subsidiaries for such period. βControlβ 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. βControlledβ has a meaning correlative thereto. βConvertβ, βConversionβ and βConvertedβ each refers to a conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08 or 2.09. βCurrenciesβ means Dollars and each Committed Currency, and βCurrencyβ means any of such Currencies. βCurrent Assetsβ means, at any time, the Consolidated current assets (other than cash and Cash Equivalents) of the Borrower and its Consolidated Subsidiaries at such time, but excluding the current portion of deferred tax assets. βCurrent Liabilitiesβ means, at any time, the Consolidated current liabilities of the Borrower and its Consolidated Subsidiaries at such time, but excluding, without duplication, (a) the current portion of any long term Indebtedness, (b) outstanding Revolving Credit Advances and Letters of Credit, (c) the current portion of interest and (d) the current portion of current and deferred income taxes. βDaily Simple SOFRβ means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining βDaily Simple SOFRβ for syndicated business loans; provided that if the Administrative Agent decides that any such convention is not 16
administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its reasonable discretion. βDaily Simple XXXXX Advanceβ means an Advance that bears interest at a rate based on Adjusted Daily Simple XXXXX. βDaily Simple XXXXX Borrowingβ means, as to any Borrowing, the Advances bearing interest at a rate based on Adjusted Daily Simple XXXXX comprising such Borrowing. βDebtor Relief Lawsβ means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect. βDefaultβ means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both. βDefault Interestβ has the meaning specified in Section 2.07(b). βDefaulting Lenderβ means, subject to Section 2.18(c), any Lender that (a) has failed to (i) fund all or any portion of its Advances within three Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lenderβs determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Bank, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within three Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxxβs obligation to fund a Loan hereunder and states that such position is based on such Xxxxxxβs determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in 17
such a capacity or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(c)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank, and each Lender. βDispositionβ or βDisposeβ means the sale, transfer, license, lease or other disposition of any property by any Person (including any sale and leaseback transaction and any issuance of Equity Interests by a Subsidiary of such Person), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. βDisqualified Equity Interestβ means any Equity Interest which, by its terms (or by the terms of any security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests that are not Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Advances and all other accrued and payable Obligations), (b) is redeemable at the option of the holder thereof (other than solely for Equity Interests that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests and except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Advances and all other accrued and payable Obligations), in whole or in part, (c) requires scheduled cash payments of dividends or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in the case of clauses (a) through (d), prior to the date that is 91 days after the latest maturity or expiration date applicable to any Term Advance, Tranche B Loan, Tranche B2 Loan, Tranche B3 Loan, Revolving Credit Advance, Revolving Credit Commitment, Incremental Commitment or Incremental Advance that is outstanding at any date of determination. Notwithstanding the preceding sentence, (A) if such Equity Interest is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the 18
Ordinary Course of Business of the Borrower or its Subsidiaries, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interest held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Borrower (or any Subsidiary of the Borrower) shall be considered a Disqualified Equity Interest because such Equity Interest is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time. βDollarsβ and the β$β sign each means lawful currency of the United States of America. βDomestic Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βDomestic Lending Officeβ in its Administrative Questionnaire delivered to the Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent. βDomestic Subsidiaryβ shall mean any Subsidiary of the Borrower incorporated or organized under the laws of the United States of America, any state thereof or the District of Columbia. βEBITDAβ means, for any Person and for any period, an amount equal to the Consolidated Net Income of such Person and its Consolidated Subsidiaries for such period plus without duplication and, (except in the case of clauses (k) and (l)(ii) below) to the extent deducted in the calculation of Consolidated Net Income, (a) Interest Expense of, and purchase discount fees in respect of any Receivables Facility incurred by, such Person and its Consolidated Subsidiaries for that period, plus (b) the aggregate amount of Consolidated federal and state taxes on or measured by income of such Person and its Consolidated Subsidiaries for that period whether or not payable during that period, plus (c) Consolidated depreciation, amortization and all other noncash items including non-cash compensation and impairment charges of such Person and its Consolidated Subsidiaries for that period, minus (d) any gains attributable to the sale of assets outside the Ordinary Course of Business, plus (e) any losses attributable to the sale of assets outside the Ordinary Course of Business and any loss on the sale of accounts receivable pursuant to a Receivables Facility, plus (f) one-time costs and expenses related to the Engility Acquisition and any other transactions in connection therewith, including any reorganization expenses, plus (g) transaction fees and expenses related to any issuance of Equity Interests or incurrence of Indebtedness permitted under this Agreement (in each case whether or not consummated), plus (h) one-time costs and expenses related to any Permitted Acquisition and any other transactions in connection therewith, including any reorganization expenses (in each case whether or not consummated), plus (i) any earn-out obligation expense incurred in connection with any Permitted Acquisition or other permitted Investment made in compliance with Section 5.03(j), plus (j) the amount of any fee, cost, expense or reserve to the extent actually 19
reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that such Person in good faith expects to receive reimbursement for such fee, cost, expense or reserve within the next four fiscal quarters (it being understood that to the extent not actually received within such fiscal quarters, such reimbursement amounts shall be deducted in calculating EBITDA for the fiscal quarter immediately following such four fiscal quarter period), plus (k) to the extent not otherwise included in the determination of EBITDA for such period, the amount of any proceeds of any business interruption insurance policy representing the earnings for such period that such proceeds are intended to replace (whether or not then received) so long as such Person in good faith expects to receive such proceeds within the next four fiscal quarters (it being understood that to the extent not actually received within such period such reimbursement amounts so added back but not so received shall be deducted in calculating EBITDA for the fiscal quarter immediately following such four fiscal quarter period), plus (l) (i) restructuring charges and related charges, accruals or reserves; and business optimization expense and related charges or expenses, including costs related to the opening, closure and/or consolidation of offices and facilities, retention charges, contract termination costs, recruiting and signing bonuses and expenses, systems establishment costs, conversion costs and consulting fees relating to the foregoing plus (ii) pro forma βrun rateβ cost savings, operating expense reductions and synergies (net of actual amounts realized) related to Permitted Acquisitions and other Investments, Dispositions and other Specified Transactions (including, if continuing to be applicable for Specified Transactions occurring prior to the Effective Date), cost savings initiatives and other similar initiatives that are reasonably identifiable, factually supportable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which substantial steps have been taken or are expected to be taken (in the good faith determination of the Borrower) and realized with 18 months after such Permitted Acquisition or other Investment, Disposition or other Specified Transactions, cost savings initiative or other initiative (provided that the aggregate amount of add backs made pursuant to clauses (h) and (l) above for any Test Period shall not exceed an amount equal to 15% of EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (and such determination shall be made prior to the making of, and without giving effect to, any adjustments pursuant to clauses (h), and (l) above)), plus (m)(i) any losses or charges (and minus any gains) attributable to the early extinguishment of Indebtedness (and the termination of any associated Hedge Agreements or other derivative instruments) and (ii) any write-offs or amortizations made in such period of deferred financing costs and premiums paid or other expenses or charges incurred directly in connection with any early extinguishment of Indebtedness, and minus (n) any items of income or loss in respect of equity in the income or loss of unconsolidated affiliates or minority interests in the income or loss of Consolidated Subsidiaries in each case as determined in accordance with GAAP, it being understood that any items of loss or expense would be added to and any items of gain or income would be deducted from Consolidated Net Income for the purpose of determining EBITDA. βEEA Financial Institutionβ means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an 20
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 clause (a) or (b) of this definition and is subject to consolidated supervision with its parent. βEEA Member Countryβ means any member state of the European Union, Iceland, Liechtenstein and Norway. βEEA Resolution Authorityβ 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. βEffective Dateβ has the meaning specified in Section 3.01. βEligible Assigneeβ means any Person that meets the requirements to be an assignee under Section 9.07(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.07(b)(iii)). βEngility Acquisitionβ shall mean the acquisition by the Borrower or one of its Subsidiaries of Engility Holdings, Inc. (together with its subsidiaries, the βAcquired Businessβ) pursuant to the Agreement and Plan of Merger, dated as of September 9, 2018 by and among Engility Holdings, Inc., the Borrower and Raptors Merger Sub, Inc. (the βEngility Acquisition Agreementβ) βEngility Acquisition Agreementβ has the meaning assigned to such term in the definition of βEngility Acquisitionβ. βEngility Acquisition Agreement Material Adverse Effectβ means with respect to any Person (as defined in the Engility Acquisition Agreement) means any fact, circumstance, effect, change, event or development (an βEffectβ) that, individually or in the aggregate with all other Effects, (1) materially adversely affects or would reasonably be expected to materially adversely affect the business, financial condition or results of operations of such Person and its Subsidiaries (as defined in the Engility Acquisition Agreement), taken as a whole or (2) would reasonably be expected to prevent or materially impair or delay the consummation of the transactions contemplated by the Engility Acquisition Agreement excluding any Effect to the extent that, either alone or in combination, it results from or arises out of (i) changes or conditions generally affecting the industries in which such Person and any of its Subsidiaries operate, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in such industries in respect of the business conducted in such industries, (ii) general economic or political conditions or securities, credit, financial or other capital markets conditions, in each case in the United States or any foreign jurisdiction, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries 21
operate in respect of the business conducted in such industries, (iii) any failure, in and of itself, by such Person to meet any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the facts or occurrences giving rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been, or is reasonably expected to be, an Engility Acquisition Agreement Material Adverse Effect, to the extent permitted by this definition), (iv) the public announcement or pendency of the transactions contemplated hereby, including the impact thereof on the relationships, contractual or otherwise, of such Person or any of its Subsidiaries with employees, labor unions, customers, suppliers or partners, (v) any change, in and of itself, in the market price or trading volume of such Personβs securities or in its credit ratings (it being understood that the facts or occurrences giving rise to or contributing to such change may be deemed to constitute, or be taken into account in determining whether there has been, or is reasonably expected to be, an Engility Acquisition Agreement Material Adverse Effect, to the extent permitted by this definition), (vi) any change in applicable Law, regulation or GAAP (or authoritative interpretation thereof), except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (vii) geopolitical conditions, the outbreak or escalation of hostilities, any acts of war (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism threatened or underway as of the date of the Engility Acquisition Agreement, except to the extent such Effect has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries (viii) any hurricane, tornado, flood, earthquake or other natural disaster, except to the extent such fact, circumstance, effect, change, event or development has a materially disproportionate adverse effect on such Person and its Subsidiaries, taken as a whole, relative to others in the industries in which such Person and any of its Subsidiaries operate in respect of the business conducted in such industries, (ix) any litigation arising from allegations of a breach of fiduciary duty or other violation of applicable Law relating to the Engility Acquisition Agreement or the transactions contemplated hereby, or (x) any taking of any action not required by the Engility Acquisition Agreement at the written request of the other Loan Parties hereto. βEngility Acquisition Agreement Representationsβ means such representations and warranties made by or on behalf of the Acquired Business in the Engility Acquisition Agreement as are material to the interests of the Lenders or the Arrangers (in their capacities as such), but only to the extent that the Borrower (or any of its affiliates) has the right to terminate its (or their) obligations (or to refuse to consummate the Engility Acquisition) under the Engility Acquisition Agreement as a result of a breach of any of such representations and warranties. βEngility Closing Dateβ has the meaning specified in Section 3.02. 22
βEngility Loan Partyβ means Engility Holdings, Inc. and any subsidiary which would be required to be a Loan Party following the consummation of the Engility Acquisition without giving effect to the time periods set forth in Section 5.01(l). βEngility Transactionβ shall mean (i) the Engility Acquisition, (ii) repayment of outstanding indebtedness for borrowed money of Engility Holdings, Inc. under the Credit Agreement dated as of August 12, 2016 (as amended on February 13, 2017, August 14, 2017, and March 21, 2018), (iii) redemption, repurchase, repayment, dischargement or defeasement of all outstanding indebtedness for borrowed money of Engility Holdings, Inc.βs under the Indenture, dated August 12, 2016 and (iv) all fees, costs and expenses incurred in connection with the foregoing (including debt prepayment premiums, if any). βEnvironmental Lawβ means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial or agency interpretation, policy or guidance relating to pollution or protection of the environment, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of, or exposure to, any hazardous or toxic material. βEnvironmental Permitβ means any permit, approval, identification number, license or other authorization required under any Environmental Law. βEquity Interestsβ means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity interests in any Person, and any option, warrant or other right (other than Indebtedness that is convertible into, or exchangeable for, any such equity interests) entitling the holder thereof to purchase or otherwise acquire any such equity interest. βEquivalentβ (i) in Dollars of any Committed Currency on any date, means the rate quoted by the Agent or an Issuing Bank, as applicable, as the spot rate for the purchase by such Person of Dollars with such Committed Currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made and (ii) in any Committed Currency of Dollars on any date, means the rate quoted by the Agent or an Issuing Bank, as applicable, as the spot rate for the purchase by such Person of such Committed Currency with Dollars through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided, in each case, that the Agent or such Issuing Bank may obtain such spot rate from another financial institution designated by the Agent or such Issuing Bank if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that such Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in any Committed Currency. 23
βERISAβ means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated and rulings issued thereunder. βERISA Affiliateβ means any Person that for purposes of Title IV of ERISA is a member of the Borrowerβs controlled group, or under common control with the Borrower, within the meaning of Section 414 of the Internal Revenue Code. βERISA Eventβ means (a) the occurrence of a βreportable eventβ, within the meaning of Section 4043 of ERISA with respect to any Plan unless the 30-day notice requirement with respect to such event has been waived; (b) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA and the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (d) any failure by any Plan to meet the minimum funding standards (as defined in Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each instance, whether or not waived; (e) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (f) the withdrawal or partial withdrawal by the Borrower or any ERISA Affiliate from (i) a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA or (ii) a Multiemployer Plan; (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning a determination that a Multiemployer Plan is, or is reasonably expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or in βendangeredβ or βcriticalβ status within the meaning of Section 305 of ERISA or Section 432 of the Code; (h) the conditions for the imposition of a lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (i) a determination that any Plan is, or is expected to be, in βat riskβ status (within the meaning of Section 303 of ERISA); (j) the occurrence of a non-exempt βprohibited transactionβ (as defined in Section 4975 of the Code or Section 406 of ERISA) with respect to a Plan with respect to which the Borrower or any ERISA Affiliate is a βdisqualified personβ (within the meaning of Section 4975 of the Code) or a βparty in interestβ (within the meaning of Section 406 of ERISA) which results in liability to the Borrower or any of its Subsidiaries; or (k) the institution by the PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan. βErroneous Paymentβ has the meaning assigned to it in Section 8.12(a). βErroneous Payment Deficiency Assignmentβ has the meaning assigned to it in Section 8.12(d)(i). 24
βErroneous Payment Impacted Classβ has the meaning assigned to it in Section 8.12(d)(i). βErroneous Payment Return Deficiencyβ has the meaning assigned to it in Section 8.12(d)(i). βErroneous Payment Subrogation Rightsβ has the meaning assigned to it in Section 8.12(e). βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. βEURIBORβ has the meaning specified in the definition of βEurocurrency Rateβ. βEURIBOR Rateβ has the meaning specified in the definition of βEurocurrency Rateβ. βEuroβ means the lawful currency of the European Union as constituted by the Treaty of Rome which established the European Community, as such treaty may be amended from time to time and as referred to in the EMU legislation. βEurocurrency Banking Dayβ means, for Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Euros, a TARGET Day. βEurocurrency Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βEurocurrency Lending Officeβ in its Administrative Questionnaire delivered to the Agent, or such other office of such Lender as such Lender may from time to time specify to the Borrower and the Agent. βEurocurrency Liabilitiesβ has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time. βEurocurrency Rateβ means, with respect to any Borrowing denominated in Euros, for any Interest Period, the rate per annum equal to the Euro Interbank Offered Rate (βEURIBORβ) as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate) for a period comparable in length to such Interest Period (the βEURIBOR Rateβ), at approximately 11:00 a.m. (Brussels time) two Eurocurrency Banking Days prior to the commencement of such Interest Period; provided that if such rate is not available at such time for any reason, or if the EURIBOR Rate shall ever be less than the Floor, then the βEURIBOR Rateβ with respect to such Eurocurrency Rate Borrowing for such Interest Period shall be the Floor. 25
βEurocurrency Rate Advanceβ means an Advance that bears interest based on the Eurocurrency Rate. βEurocurrency Reserve Percentageβ means, for any day during any Interest Period, the reserve percentage in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, special, supplemental or other marginal reserve requirement) with respect to eurocurrency funding (currently referred to as βEurocurrency liabilitiesβ in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Advances. The Adjusted Eurocurrency Rate for each outstanding Advance shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage. βEvents of Defaultβ has the meaning specified in Section 6.01. βEvidence of Flood Insuranceβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βExcess Cash Flowβ means, for any fiscal year of the Borrower, the excess of (a) the sum, without duplication, of (i) EBITDA for such fiscal year and (ii) reductions to noncash working capital of the Borrower and its Subsidiaries for such fiscal year (i.e., the absolute value of the decrease, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year; provided that, for purposes of calculating Excess Cash Flow, increases or decreases in working capital shall exclude (A) any changes in Current Assets or Current Liabilities solely as a result of acquisitions or Dispositions by the Borrower and its Subsidiaries during the applicable period and (B) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent) over (b) the sum, without duplication, of (i) the amount of any Taxes payable in cash by the Borrower and its Subsidiaries with respect to such fiscal year, (ii) Interest Expense for such fiscal year paid in cash, (iii) Capital Expenditures made in cash during such fiscal year, except to the extent financed with the proceeds of Indebtedness (other than a Revolving Credit Advance), equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in EBITDA, (iv) permanent repayments of Indebtedness (other than mandatory prepayments of Advances under Section 2.10(b) or optional prepayments or repurchases of Advances pursuant to Section 2.10(a)) made in cash by the Borrower or any of its Subsidiaries during such fiscal year, but only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness, (v) additions to noncash working capital for such fiscal year (i.e., the increase, if any, in Current Assets minus Current Liabilities from the beginning to the end of such fiscal year), (vi) any Restricted Payments permitted under Section 5.03(h)(ii), 5.03(h)(iii) and 5.03(h)(iv), in each case made in cash by the Borrower during such fiscal year, (vii) cash consideration paid during such fiscal year by the Borrower or any of its Subsidiaries to make Permitted Acquisitions or other Investments in third parties (other than any Subsidiary) permitted 26
under Section 5.03(j) (except to the extent funded with the proceeds of Indebtedness, equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in EBITDA), (viii) the aggregate amount of expenditures actually made by the Borrower or any of its Subsidiaries in cash during such periods to the extent that such expenditures are not expensed or deducted (or exceed the amount expensed or deducted) in calculating EBITDA for such period, (ix) all other amounts added back to Consolidated Net Income for the purposes of calculating EBITDA to the extent paid in cash during such fiscal year and (x) any purchase discount fees or loss on the sale of accounts receivable incurred pursuant to a Receivables Facility. βExcess Cash Flow Percentageβ means 50.0% (or, if the Senior Secured Leverage Ratio as of the last day of the applicable fiscal year shall have been (x) equal to or greater than 2.50 to 1.00 but less than 3.00 to 1.00, 25%, or (y) less than 2.50 to 1.00, 0%). βExchange Actβ means the Securities Exchange Act of 1934, as amended. βExcluded Subsidiaryβ means any Subsidiary that is (a) a Foreign Subsidiary or a Subsidiary that has no assets other than equity interests of one or more Foreign Subsidiaries, (b) not wholly owned directly by the Borrower or one or more of its wholly owned Subsidiaries and is prohibited from guaranteeing the Facilities by any contractual obligation (which obligation, for any such Subsidiary as of the Effective Date, shall be in existence on the Effective Date and such Subsidiary shall be listed on Schedule 1.01(b) hereto), (c) a Receivables Subsidiary, (d) prohibited by applicable law from guaranteeing the Facilities, or which would require governmental (including regulatory) consent, approval, license or authorization to provide a guarantee unless, such consent, approval, license or authorization has been received or (e) Raptors Merger Sub, Inc. until the occurrence of the Engility Closing Date. βExcluded Swap Obligationβ means, with respect to any Guarantor, any Swap Obligation (a) if, and to the extent that, and only for so long as, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, as applicable, 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) by virtue of such Guarantorβs failure for any reason to constitute an βeligible contract participant,β as defined in the Commodity Exchange Act and the regulations thereunder, at the time the guarantee of, or grant of such security interest by, such Guarantor becomes or would become effective with respect to such Swap Obligation or (b) upon the designation as such in any agreement with respect to such Swap Obligations between the relevant Guarantor and counterparty applicable to such Swap Obligations, and agreed by the Agent; provided that 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. 27
βExcluded Taxesβ means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an Advance or Commitment pursuant to a law in effect on the date on which (x) such Lender acquires such interest in the Advance or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.18(b)) or (y) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lenderβs assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipientβs failure to comply with Section 2.14(f) and (d) any withholding Taxes imposed under FATCA. βExisting Mortgageβ means that certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of February 24, 2017 by Odyssey Drive I, Ltd. in favor of the Collateral Agent with respect to the Alabama Property, as amended. βExtension Dateβ has the meaning specified in Section 2.22(a). βFacilityβ means the Revolving Credit Facility, the Letter of Credit Facility, the Term Facility, the Tranche B Facility, the Tranche B2 Facility, the Tranche B3 Facility or any Specified Incremental Facility, as the context may require. βFATCAβ means (i) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), (ii) any current or future regulations or official interpretations thereof and (iii) any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, official rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. βFederal Funds Rateβ means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Agent from three Federal funds brokers of 28
recognized standing selected by it; provided that in no event shall the Federal Funds Rate be less than 0% per annum for any day. βFederal Reserve Boardβ means the Board of Governors of the Federal Reserve System of the United States. βFifth Amendmentβ shall mean that certain Fifth Amendment, dated as of the Fifth Amendment Effective Date, among the Borrower, the Guarantors, the lenders party thereto and the Administrative Agent. βFifth Amendment Effective Dateβ means June 30, 2022. βFifth Amendment Refinancingβ shall have the meaning set forth in the Fifth Amendment. βFinancial Covenantβ means the covenant contained in Section 5.05 of this Agreement. βFinancial Covenant Event of Defaultβ has the meaning specified in Section 6.01(c)(ii). βFinancial Covenant Step-upβ has the meaning specified in Section 5.05(c). βFinancial Officerβ of any Person means the chief financial officer, principal accounting officer, treasurer or controller of such Person. βFinancial Stability Boardβ means the international body of that name, established in April 2009, that monitors and makes recommendations about the global financial system. βFirst Amendment Effective Dateβ means February 19, 2020. βFirst Amended & Restated Credit Agreementβ has the meaning specified in the introductory statements hereto. βFlood Insurance Policyβ has the meaning specified in Section 5.01(c)(iii). βFlood Lawsβ means the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994, the Xxxxxxx-Xxxxxx Flood Insurance Act of 2012, as such statutes may be amended or re-codified from time to time, any substitution therefor, any regulations promulgated thereunder, and all other legal requirements relating to flood insurance. βFlood Hazard Determinationβ means a βLife-of-Loanβ FEMA Standard Flood Hazard Determination obtained by the Administrative Agent. 29
βFlood Lawsβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βFlood Hazard Propertyβ means any Mortgaged Property that on the relevant date of determination includes a Building and, as shown on a Flood Hazard Determination, such Building is located in a Special Flood Hazard Area. βFloorβ means a rate of interest equal to 0.00% per annum. βForeign Lenderβ means a Lender that is not a U.S. Person. βForeign Subsidiaryβ shall mean any Subsidiary that is not a Domestic Subsidiary. βFronting Exposureβ means, with respect to any Issuing Bank at any time there is a Defaulting Lender, such Defaulting Lenderβs Ratable Share of the outstanding L/C Obligations with respect to Letters of Credit issued by such Issuing Bank other than L/C Obligations as to which such Defaulting Lenderβs participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof. βFundβ means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. βFunded Debtβ means, for the Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP, an amount equal to (a) all indebtedness in respect of borrowed money, (b) all obligations of such Person evidenced by bonds, notes, debentures or similar instruments, (c) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement agreements with respect thereto) to the extent such letters of credit or other similar instruments are drawn and unreimbursed, (d) all obligations of such Person to pay the deferred and unpaid purchase price of any property (including Capital Lease Obligations), but excluding trade accounts payable or accrued liabilities arising in the Ordinary Course of Business, and (e) all obligations attributable to Synthetic Leases related to tangible property, of the Borrower and its Consolidated Subsidiaries as of the last day of such period. βGAAPβ has the meaning specified in Section 1.03. βGovernmental Authorityβ means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank). βGuarantee and Collateral Agreementβ means the Guarantee and Collateral Agreement dated as of the Effective Date and the form of which is attached 30
hereto as Exhibit F among the Borrower, the Guarantors and the Collateral Agent for the benefit of the Secured Parties. βGuarantorsβ means each Domestic Subsidiary of the Borrower listed on Schedule II (such Domestic Subsidiaries of the Borrower not to include any Excluded Subsidiary) and each other Domestic Subsidiary of the Borrower that is or becomes a party to any of the Security and Guarantee Documents, unless and until released as a Guarantor pursuant to the terms hereof or of the Security and Guarantee Documents. βHazardous Materialsβ means (a) petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, polychlorinated biphenyls and radon gas and (b) any other chemicals, materials or substances designated, classified or regulated as hazardous or toxic or as a pollutant or contaminant under any Environmental Law. βHedge Agreementsβ means interest rate swap, cap or collar agreements, interest rate future or option contracts, currency swap agreements, currency future or option contracts and other similar agreements. βHedge Bankβ means each counterparty to any Hedge Agreement with a Loan Party or their respective Subsidiaries, the obligations under which constitute Secured Hedging Obligations. βIncremental Advancesβ means the Incremental Revolving Credit Advances and the Incremental Term Advances. βIncremental Assumption Agreementβ means an Incremental Assumption Agreement among, and in form and substance reasonably satisfactory to, the Borrower, the Agent and one or more Incremental Lenders. βIncremental Commitmentβ means, with respect to any Lender, such Lenderβs Incremental Revolving Credit Commitment and Incremental Term Commitment. βIncremental Facility Amountβ means (i) the greater of (a) $359,000,000 (which amount shall be increased to $615,000,000 on the Engility Closing Date) or (b) 100% of EBITDA of the Borrower and its Consolidated Subsidiaries for the most recently completed four consecutive fiscal quarters ending on or prior to such date minus the aggregate amount of all Incremental Term Commitments and Incremental Revolving Credit Commitments established prior to such time pursuant to Section 2.23(b) plus (ii) such additional amounts, so long as, for the purposes of this clause (ii), either (x) after giving pro forma effect to the incurrence or issuance of any such Incremental Term Advances or Incremental Revolving Credit Commitments and the pro forma adjustments described in Section 1.07 or (y) solely in the case of the proceeds of any such Incremental Term Advances or Incremental Revolving Credit Commitments which are, concurrently with the receipt thereof, to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition, after giving pro forma effect to the incurrence or issuance of any such Incremental Term Advances or Incremental Revolving Credit Commitments and the 31
pro forma adjustments described in Section 1.07, in each case, calculated as of the date of the applicable acquisition agreement (and for the avoidance of doubt clause (ii)(x) shall not be required to be satisfied), the Senior Secured Leverage Ratio (calculated as if any Incremental Revolving Credit Commitment being incurred were fully drawn on either the effective date thereof or the date of the applicable acquisition agreement, as applicable) is equal to or less than 3.50 to 1.00. βIncremental Lendersβ means the Incremental Revolving Credit Lenders and the Incremental Term Lenders. βIncremental Revolving Credit Advancesβ means Revolving Credit Advances made by one or more Lenders to the Borrower pursuant to an Incremental Revolving Credit Commitment. βIncremental Revolving Credit Commitmentβ means the commitment of any Lender, established pursuant to Section 2.23(b), to make Revolving Credit Advances to the Borrower. βIncremental Revolving Credit Lenderβ means a Revolving Credit Lender with an Incremental Revolving Credit Commitment. βIncremental Term Advancesβ means any Advance made by one or more Lenders to the Borrower pursuant to Section 2.23(b), made in the form of (a) additional Term Advances, (b) additional Tranche B Loans, (c) additional Tranche B2 Loans or, (d) additional Tranche B3 Loans or (e) to the extent permitted by Section 2.23(b) and provided for in the relevant Incremental Assumption Agreement, Specified Incremental Term Advances. βIncremental Term Borrowingβ means a Borrowing comprised of Incremental Term Advances. βIncremental Term Commitmentβ means the commitment of any Lender, established pursuant to Section 2.23(b), to make any Incremental Term Advance to the Borrower. βIncremental Term Lenderβ means a Lender with an Incremental Term Commitment or an outstanding Incremental Term Advance. βIndebtednessβ of any specified Person means, without duplication, (a) all indebtedness in respect of borrowed money, (b) all obligations of such Person evidenced by bonds, notes, debentures or similar instruments, (c) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement agreements with respect thereto), (d) the Indebtedness of any other Persons to the extent guaranteed by such Person, (e) all obligations of such Person to pay the deferred and unpaid purchase price of any property (including Capital Lease Obligations), but excluding trade accounts payable or accrued liabilities arising in the Ordinary Course of Business, (f) all obligations under any accounts receivable financings, (g) all obligations attributable to Synthetic Leases related to tangible property, (h) all indebtedness referred 32
to in clauses (a) through (g) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contracts rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness; but only, for each of clause (a), (b), (e) and (g), if and to the extent any of the foregoing indebtedness would appear as a liability upon an unconsolidated balance sheet of such Person prepared in accordance with GAAP (but does not include contingent liabilities which appear only in a footnote to a balance sheet). Notwithstanding the foregoing, in no event shall the term βIndebtednessβ be deemed to include letters of credit that secure performance, bonds that secure performance, surety bonds or similar instruments that are issued in the Ordinary Course of Business. βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes. βIndemniteeβ has the meaning specified in Section 9.04(b). βInformationβ has the meaning specified in Section 9.08. βInitial GAAPβ has the meaning specified in Section 1.03. βInterest Coverage Ratioβ means, the ratio, determined as of the end of the last fiscal quarter of the Borrower occurring prior to the applicable proposed Restricted Payment for the most-recently ended four fiscal quarters, of (a) EBITDA to (b) Interest Expense paid or payable in cash, all calculated for the Borrower and its Consolidated Subsidiaries. βInterest Expenseβ means, for any period, for any Person, the sum, without duplication, of total Consolidated interest expense (including that portion attributable to Capital Leases in conformity with GAAP) of such Person and its Consolidated Subsidiaries. βInterest Periodβ means, for each Term SOFR Advance or Eurocurrency Rate Advance comprising part of the same Borrowing, the period commencing on the date of such Term SOFR Advance or Eurocurrency Rate Advance or the date of the Conversion of any Base Rate Advance into such Term SOFR Advance or Eurocurrency Rate Advance and ending on the last day of the period selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent period commencing on the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the Borrower pursuant to the provisions below. The duration of each such Interest Period shall be one, three or six months, as the Borrower may select, (or, (i) with respect to the Tranche B2B3 Facility, such shorter period as the Agent and all of the Tranche B2 Lenders shall agree); provided, however, that: 33
(a) (i) with respect to the Revolving Credit Facility, the Borrower may not select any Interest Period that ends after the Termination Date, (ii) with respect to the Term Facility, the Borrower may not select any Interest Period that ends after the Term Loan Maturity Date, (iii) with respect to the Tranche B Facility, the Borrower may not select any Interest Period that ends after the Tranche B Maturity Date and, (iv) with respect to the Tranche B2 Facility, the Borrower may not select any Interest Period that ends after the Tranche B2 Maturity Date and (v) with respect to the Tranche B3 Facility, the Borrower may not select any Interest Period that ends after the Tranche B3 Maturity Date; (b) Interest Periods commencing on the same date for Term SOFR Advances or Eurocurrency Rate Advances comprising part of the same Borrowing shall be of the same duration; (c) [Reserved]; (d) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, however, that, if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; (e) whenever the first day of any Interest Period occurs on a day of an initial calendar month for which there is no numerically corresponding day in the calendar month that succeeds such initial calendar month by the number of months equal to the number of months in such Interest Period, such Interest Period shall end on the last Business Day of such succeeding calendar month; and (f) the Borrower, as agreed with the Administrative Agent, may select a shorter Interest Period with respect to the Term Advances and the Revolving Credit Advances, solely for the first Interest Period following the Fifth Amendment Effective Date. βInvestmentβ means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs debt of the type referred to in clause (d) of the definition of Indebtedness in respect of such Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any 34
returns or distributions of capital or repayment of principal actually received in cash by such Person with respect thereto. βIP Rightsβ has the meaning specified in Section 4.01(o). βIRSβ means the United States Internal Revenue Service. βISPβ means, with respect to any Letter of Credit, the βInternational Standby Practices 1998β published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance). βIssuanceβ with respect to any Letter of Credit means the issuance, amendment, renewal or extension of such Letter of Credit. βIssueβ has a corresponding meaning. βIssuing Bankβ means the banks and other institutions listed on Schedule I hereto or any Eligible Assignee to which a portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section 9.07 or any other Revolving Credit Lender so long as such Eligible Assignee or Lender expressly agrees to perform in accordance with their terms all of the obligations that by the terms of this Agreement are required to be performed by it as an Issuing Bank and notifies the Agent of its Applicable Lending Office (which information shall be recorded by the Agent in the Register), for so long as such Initial Issuing Bank, Eligible Assignee or Lender, as the case may be, shall have a Letter of Credit Commitment. βJunior Financingβ has the meaning specified in Section 5.03(l)(i). βL/C Cash Deposit Accountβ means an interest bearing cash deposit account to be established and maintained by the Agent, over which the Agent shall have sole dominion and control, upon terms as may be satisfactory to the Agent. βL/C Disbursementβ shall mean a payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit. βL/C Exposureβ means, at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. βL/C Obligationsβ means, as of any date, the aggregate Available Amount of outstanding Letters of Credit and Revolving Credit Advances made by an Issuing Bank in accordance with Section 2.03 that have not been funded by the Lenders. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be βoutstandingβ in the amount so remaining available to be drawn. 35
βL/C Related Documentsβ has the meaning specified in Section 2.06(b)(i). βLender Insolvency Eventβ means that (a) a Lender or its Parent Company is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b) such Lender or its Parent Company has become the subject of a proceeding under any Debtor Relief Law, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment. βLendersβ means each lender that has a Commitment hereunder with respect to any Facility, each lender that holds a Term Advance, Revolving Credit Advance, Tranche B Loan, Tranche B2 Loan, Tranche B3 Loan or any Specified Incremental Term Advance, each Issuing Bank, each Lender that becomes a party hereto pursuant to Section 2.23 and each Person that shall become a party hereto pursuant to Section 9.07. βLetter of Creditβ has the meaning specified in Section 2.01(d)(i). βLetter of Credit Agreementβ has the meaning specified in Section 2.03(a)(i). βLetter of Credit Commitmentβ means, with respect to each Issuing Bank, the obligation of such Issuing Bank to issue Letters of Credit for the account of the Borrower and its specified Subsidiaries in (a) the Dollar amount set forth opposite the Issuing Bankβs name on Schedule I hereto under the caption βLetter of Credit Commitmentβ or (b) if such Issuing Bank has entered into one or more Assignment and Assumptions, or if such Person became an Issuing Bank after the Fifth Amendment Effective Date, the Dollar amount set forth for such Issuing Bank in the Register maintained by the Agent pursuant to Section 9.07(c) as such Issuing Bankβs βLetter of Credit Commitmentβ, in each case as such amount may be reduced prior to such time pursuant to Section 2.05. βLetter of Credit Facilityβ means, at any time, an amount equal to the least of (a) the aggregate amount of the Issuing Banksβ Letter of Credit Commitments at such time, (b) $15,000,000 and (c) the aggregate amount of the Revolving Credit Commitments, as such amount may be reduced at or prior to such time pursuant to Section 2.05. βLeverage Ratioβ means, as of the last day of any fiscal quarter, the ratio of (a) the amount equal to the Consolidated Funded Debt on such date less unrestricted cash and Cash Equivalents of the Borrower and its Consolidated Subsidiaries in an amount not to exceed $350,000,000, to (b) EBITDA for the most recently completed four consecutive fiscal quarters of the Borrower and its Consolidated Subsidiaries ending on or prior to such date. 36
βLienβ means (a) with respect to any asset, (i) any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, assignment, deposit arrangement, encumbrance, license, charge preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever in or on such asset (including any conditional sale or other title retention agreement, Capital Lease, any easement, right of way or other encumbrance on title to real property) and (ii) 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 effect as any of the foregoing) relating to such asset and (b) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. βLimited Condition Acquisitionβ means any Permitted Acquisition which the Borrower or any of its Subsidiaries is contractually committed to consummate upon the satisfaction of certain conditions other than the availability of, or the obtaining of, third party financing. βLoan Document Obligationsβ means (a) the due and punctual payment by the Loan Parties of (i) the principal of and interest (including any interest and fees that accrue after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding) on each of the Advances, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide Cash Collateral, and (iii) all other monetary obligations of any Loan Party to the Agent, any of the Lenders, any Issuing Bank or any other Secured Parties pursuant to any Loan Document, including fees, costs, expenses and indemnities, whether primary, secondary, direct, indirect, absolute, contingent, fixed, due or to become due, now existing or hereafter arising or otherwise (including monetary obligations incurred after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding), and (b) the due and punctual performance of all other obligations of the Borrower or any other Loan Party under or pursuant to this Agreement and each of the other Loan Documents. βLoan Documentsβ means this Agreement, each Note, if any, each L/C Related Document, any Incremental Assumption Agreement and each of the Security and Guarantee Documents. βLoan Partiesβ means the Borrower and each of the Guarantors. βMaterial Adverse Changeβ means any material adverse change in the business, assets, operations and condition, financial or otherwise of the Consolidated Group taken as a whole. 37
βMaterial Adverse Effectβ means a material adverse effect on (a) the business, assets, operations and condition, financial or otherwise of the Consolidated Group taken as a whole, (b) the rights and remedies of the Agent or any Lender under this Agreement or any Note or (c) the ability of any Loan Party to perform its obligations under this Agreement or any Note. βMaximum Rateβ has the meaning specified in Section 9.18. βMinimum Collateral Amountβ means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 110% of the Fronting Exposure of all Issuing Banks with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by the Agent and the Issuing Banks in their sole discretion. βMortgageβ means the Existing Mortgage and all mortgages, deeds of trust, assignments of leases and rents, modifications and other security documents delivered pursuant to Section 3.01(o) and paragraphs (l), (m) and (n) of Section 5.01, each substantially in the form of Exhibit I with such changes thereto as shall be acceptable to the Collateral Agent, including all such changes as may be required to account for local law matters. βMortgage Amendmentsβ has the meaning specified in Section 3.01(p). βMortgaged Propertiesβ means initially, the owned real property of the Loan Parties specified on Schedule 1.01(a), and shall include each other parcel of real property and improvements thereto with respect to which a Mortgage is granted pursuant to paragraphs (l), (m) and (n) of Section 5.01. βMultiemployer Planβ means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions. βMultiple Employer Planβ means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and at least one Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were to be terminated. βNet Cash Proceedsβ means (a) with respect to any Asset Sale, the cash proceeds (including casualty insurance settlements and condemnation awards and cash proceeds subsequently received (as and when received) in respect of noncash consideration initially received) from such Asset Sale, net of (1) selling expenses (including reasonable brokerβs fees or commissions, legal fees, transfer and similar Taxes and the Borrowerβs good faith estimate of income Taxes paid or payable in connection with such sale), (2) amounts provided as a reserve by the Borrower and its Subsidiaries, in accordance with GAAP, against any liabilities under any indemnification obligations 38
or purchase price adjustment associated with such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds) and (3) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness which is secured by the asset sold in such Asset Sale and which is required to be repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such asset or that is so secured by a lien ranking junior in priority to any lien thereon securing the Obligations); provided, however, that, if (x) the Borrower shall deliver a certificate of a Financial Officer to the Agent at the time of receipt thereof setting forth the Borrowerβs intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Subsidiaries within 12 months of receipt of such proceeds and (y) no Default or Event of Default shall have occurred and shall be continuing at the time of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent (A) not so used (or committed to be used) at the end of such 12-month period or (B) if committed to be used within such 12-month period, not so used within 180 days after the end of such 12-month period, at which time such proceeds shall be deemed to be Net Cash Proceeds and (b) with respect to any issuance or incurrence of Indebtedness for borrowed money or any Qualified Equity Issuance, the cash proceeds thereof, net of all Taxes and customary fees, commissions, costs and other expenses incurred in connection therewith. βNFIPβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βNon-Approving Lenderβ means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.01 and (ii) has been approved by the Required Lenders. βNon-Defaulting Lenderβ means, at any time, each Lender that is not a Defaulting Lender at such time. βNon-Extending Lenderβ has the meaning specified in Section 2.22(b). βNon-Extension Notice Dateβ has the meaning specified in Section 2.01(d)(ii). βNot Otherwise Appliedβ means, with reference to any proceeds of any transaction or event or of the Available Amount Basket that is proposed to be applied to a particular use or transaction, that such amount (a) was not required to prepay Loans under Section 2.10(b) and (b) has not previously been (and is not simultaneously being) applied to anything other than such particular use or transaction. βNoteβ means a Revolving Credit Note, Term Note, Tranche B Note or, Tranche B2 Note or Tranche B3 Note, as the context may require. βNotice Dateβ has the meaning specified in Section 2.22(b). 39
βNotice of Borrowingβ has the meaning specified in Section 2.02(a). βNotice of Issuanceβ has the meaning specified in Section 2.03(a). βNotice of Renewalβ has the meaning specified in Section 2.01(d)(ii). βObligationsβ means each of the (a) Loan Document Obligations, (b) Secured Cash Management Obligations, (c) the Erroneous Payment Subrogation Rights and (d) Secured Hedging Obligations; provided that the Obligations shall not include any Excluded Swap Obligations; and provided further that (a) Secured Cash Management Obligations and Secured Hedging Obligations shall be secured and guaranteed pursuant to the Security and Guarantee Documents only to the extent that, and for so long as, the Loan Document Obligations are so secured and guaranteed and (b) any release of collateral or Guarantors effected in the manner permitted by any of the Loan Documents shall not require the consent of any Cash Management Bank or Hedge Bank (in each case, in its capacity as such). βOIDβ has the meaning specified in Section 2.23(b)(i). βOlympus Acquisitionβ shall mean the acquisition by the Borrower of certain assets of Xxxxxx Xxxxxxxxxxx pursuant to the Asset Purchase Agreement, dated as of February 5, 2020 by and between Xxxxxx Xxxxxxxxxxx and Borrower. βOrdinary Course of Businessβ means, in respect of any transaction involving any Person, the ordinary course of such Personβs business. βOriginal Credit Agreementβ has the meaning specified in the introductory statement. βOriginal Tranche B Loan Amountβ means $1,050,000,000. βOriginal Tranche B2 Loan Amountβ means $600,000,000. βOriginal Tranche B3 Loan Amountβ means $510,250,000. βOther Connection Taxesβ means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan Document or Advance). βOther Taxesβ means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan 40
Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.18(b)). βParent Companyβ means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, of such Lender, or if such Lender does not have a bank holding company, then any corporation, association, partnership or other business entity owning, beneficially or of record, directly or indirectly, a majority of the Voting Stock of such Lender. βParticipantβ has the meaning specified in Section 9.07(d). βParticipant Registerβ has the meaning specified in Section 9.07(d). βPatriot Actβ means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001. βPayment Officeβ means such office of Citibank as shall be from time to time selected by the Agent and notified by the Agent to the Borrower and the Lenders. βPayment Recipientβ has the meaning assigned to it in Section 8.12(a). βPBGCβ means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions. βPerfection Certificateβ means the Perfection Certificate substantially in the form of Exhibit B to the Guarantee and Collateral Agreement. βPeriodic Term SOFR Determination Dayβ has the meaning specified in the definition of βTerm SOFR.β βPermitted Acquisitionβ has the meaning specified in Section 5.03(j)(vi); provided that, for the avoidance of doubt, the Engility Acquisition and the Olympus Acquisition shall each be a Permitted Acquisition hereunder. βPermitted Liensβ means such of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens for taxes, assessments and governmental charges or levies to the extent that any such tax, assessment, government charge or levy is not overdue for a period of more than 30 days or is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained; (b) Liens imposed by law, such as materialmenβs, mechanicsβ, carriersβ, workmenβs and repairmenβs Liens and other similar Liens arising in the Ordinary Course of Business securing obligations that are not overdue for a period of more than 30 days or, if more than 30 days overdue, are unfiled and no 41
other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate proceedings diligently conducted and as to which appropriate reserves are being maintained; (c) (A) pledges or deposits to secure obligations under workersβ compensation laws or similar legislation or to secure public or statutory obligations, (B) pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements in respect of such obligations in the ordinary course of business and (C) pledges or deposits securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance to any Loan Party in the Ordinary Course of Business; (d) Liens securing the performance of statutory obligations or bids, surety, appeal or customs bonds, standby letters of credit, performance or return-of-money bonds or other obligations of a like nature incurred in the Ordinary Course of Business of a Loan Party or any of their Subsidiaries; (e) easements, rights of way and other encumbrances on title to real property that do not, in the aggregate, materially interfere with the Ordinary Course of Business of the Consolidated Group, taken as a whole; (f) Liens securing reimbursement obligations with respect to trade letters of credit entered into in the Ordinary Course of Business that encumber documents and other assets relating to such letters of credit and the products and proceeds thereof; (g) customary rights of set-off in favor of banks; (h) precautionary Uniform Commercial Code filings made by a lessor pursuant to an operating lease of the Borrower or any of its Subsidiaries entered into in the Ordinary Course of Business; and (i) Liens arising by virtue of the rendition, entry or issuance against the Borrower or any of its Subsidiaries, or any property of the Borrower or any of its Subsidiaries, of any judgment, writ, order, or decree to the extent the rendition, entry, issuance or continued existence of such judgment, writ, order or decree (or any event or circumstance relating thereto) has not resulted in the occurrence of an Event of Default hereunder. βPermitted Refinancingβ means, with respect to any Person, any modification, refinancing, refunding, renewal, replacement, exchange 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, replaced, exchanged or extended except by an amount equal to accrued and unpaid interest and a reasonable premium thereon plus other reasonable amounts paid, and fees and expenses reasonably 42
incurred, in connection with such modification, refinancing, refunding, renewal, replacement, exchange or extension and by an amount equal to any existing commitments unutilized thereunder; (b) such modification, refinancing, refunding, renewal, replacement, exchange or extension has a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended; (c) if the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement, exchange or extension is subordinated in right of payment to the Obligations on terms, taken as a whole, as favorable in all material respects to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended; (d) if the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended is secured, such modification, refinancing, refunding, renewal, replacement, exchange or extension is unsecured or secured and subject to intercreditor arrangements, if any, on terms, taken as a whole, as favorable in all material respects to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended; (e) the terms and conditions (including, if applicable, as to collateral) of any such modified, refinanced, refunded, renewed, replaced, exchanged or extended Indebtedness are, (A) either (i) customary for similar types of Indebtedness in light of then-prevailing market conditions (it being understood that such Indebtedness shall not include any financial maintenance covenants and that any negative covenants shall be incurrence-based) or (ii) not materially less favorable to the Loan Parties or the Lenders, taken as a whole, than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed, replaced, exchanged or extended, and (B) when taken as a whole (other than interest rate and redemption premiums), not more restrictive to the Borrower and its Subsidiaries in any material respect than those set forth in this Agreement; (f) such modification, refinancing, refunding, renewal, replacement, exchange or extension is incurred by the Person who is the obligor or guarantor (or any successor thereto) on the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended; and (g) at the time thereof, no Default or Event of Default shall have occurred and be continuing. βPersonβ means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. βPhase Isβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βPlanβ means a Single Employer Plan and a Multiple Employer Plan. βPlatformβ has the meaning specified in Section 9.02(d)(i). 43
βPounds Sterlingβ or βΒ£β means the lawful currency of the United Kingdom (or Great Britain). βPrimary Currencyβ has the meaning specified in Section 9.11(c). βPTEβ 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. βQualified Equity Issuanceβ means any issuance of Equity Interests (other than any Disqualified Equity Interests) by the Borrower (but excluding any issuances of Equity Interests to any Subsidiary of the Borrower). βRatable Shareβ of any amount means (a) with respect to any Term Lender at any time, the percentage of the Term Facility represented by the principal amount of such Xxxx Xxxxxxβs Term Advances or Term Commitment at such time (b) with respect to any Tranche B Lender at any time, the percentage of the Tranche B Facility represented by the principal amount of such Tranche B Lenderβs Tranche B Loans at such time, (c) with respect to any Tranche B2 Lender at any time, the percentage of the Tranche B2 Facility represented by the principal amount of such Tranche B2 Lenderβs Tranche B2 Loans at such time and, (d) with respect to any Tranche B3 Lender at any time, the percentage of the Tranche B3 Facility represented by the principal amount of such Tranche B3 Lenderβs Tranche B3 Loans at such time, and (e) with respect to any Revolving Credit Lender at any time, the percentage of the Revolving Credit Facility represented by such Revolving Credit Xxxxxxβs Revolving Credit Commitment at such time. If the commitment of each Revolving Credit Lender to make Revolving Credit Advances and the obligation of the Issuing Banks to Issue Letters of Credit have been terminated pursuant to Section 6.01, or if the Revolving Credit Commitments have expired, then the Ratable Share of each Revolving Credit Lender in respect of the Revolving Credit Facility shall be determined based on the Ratable Share of such Revolving Credit Lender in respect of the Revolving Credit Facility most recently in effect, giving effect to any subsequent assignments. βReal Estate Collateral Requirementsβ means the requirement that on the Effective Date, with respect to the Mortgaged Properties listed on Schedule 1.01(a) and thereafter as required by Section 5.01(l)(iii), the Collateral Agent shall have received a Mortgage for each Mortgaged Property in form and substance reasonably acceptable to the Collateral Agent and suitable for recording or filing, together, (I) with respect to each Mortgage for any property located in the United States, the following documents: (a) a fully paid policy of title insurance (or βpro formaβ or marked up commitment having the same effect of a title insurance policy) (i) in a form approved by the Collateral Agent insuring the Lien of the Mortgage encumbering such property as a valid first priority Lien, (ii) in an amount reasonably satisfactory to the Collateral Agent, (iii) issued by a nationally recognized title insurance company reasonably satisfactory to the Collateral Agent (the βTitle Companyβ) and (iv) that includes (A) such coinsurance and direct access reinsurance as the Collateral Agent may deem necessary or desirable and (B) such endorsements or affirmative insurance required by the Collateral Agent and available in the applicable jurisdiction (including, without limitation, endorsements on matters 44
relating to usury, first loss, last dollar, zoning, revolving credit, doing business, variable rate, address, separate tax lot, subdivision, tie in or cluster, contiguity, access and so-called comprehensive coverage over covenants and restrictions), (b) with respect to any property located in any jurisdiction in which a zoning endorsement is not available (or for which a zoning endorsement is not available at a premium that is not excessive), if requested by the Collateral Agent, a zoning compliance letter from the applicable municipality or a zoning report from Planning and Zoning Resource Corporation (or another person acceptable to the Collateral Agent, in each case reasonably satisfactory to the Collateral Agent, (c) upon the request of the Collateral Agent, a survey certified to Collateral Agent and the Title Company in form and substance reasonably satisfactory to the Collateral Agent, (d) upon the request of the Collateral Agent, an appraisal complying with the requirements of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, by a third-party appraiser selected by the Collateral Agent, (e) if requested by the Collateral Agent, an opinion of local counsel reasonably acceptable to the Collateral Agent and in form and substance satisfactory to the Collateral Agent, (f) no later than ten Business Days prior to the delivery of the Mortgage, the following documents and instruments, in order to comply with the Flood Laws: (1) a completed Flood Hazard Determination obtained by the Administrative Agent, (2) if any Building on a Mortgaged Property is located in a Special Flood Hazard Area, a notification to the Borrower (βBorrower Noticeβ) and, if applicable, notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (βNFIPβ) is not available because the community does not participate in the NFIP, (3) documentation evidencing the Borrowerβs receipt of the Borrower Notice and (4) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of a Flood Insurance Policy, the Borrowerβs application for a Flood Insurance Policy plus proof of premium payment, a declaration page confirming that a Flood Insurance Policy has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being βEvidence of Flood Insuranceβ), (g) upon the reasonable request of the Collateral Agent, Phase I environmental site assessment reports prepared in accordance with the current ASTM E1527 standard (βPhase Isβ) (to the extent not already provided) and reliance letters for such Phase Is (which Phase Is and reliance letters shall be in form and substance reasonably acceptable to the Collateral Agent) and any other environmental information as the Collateral Agent shall reasonably request and (h) such other instruments and documents (including consulting engineerβs reports and lien searches) as the Collateral Agent shall reasonably request and (II) with respect to each Mortgage for any property located outside the United States, equivalent documents available in the applicable jurisdiction and required by the Collateral Agent. βReceivables Facilityβ shall mean any of one or more receivables financing facilities (and any guarantee of such financing facility), as amended, supplemented, modified, extended, renewed, restated, or refunded from time to time, the obligations of which are non-recourse (except for customary representations, warranties, covenants, and indemnities made in connection with such facilities) to the Consolidated Group (other than a Receivables Subsidiary) pursuant to which the Consolidated Group sells, directly or indirectly, grants a security interest in or otherwise transfers its accounts receivable to either (i) a Receivables Subsidiary that in turn funds such purchase by 45
purporting to sell its accounts receivable to a Person that is not a part of the Consolidated Group or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person or (ii) a Person that is not a part of the Consolidated Group. βReceivables Subsidiaryβ shall mean any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto or another Person formed for the purposes of engaging in a Receivables Facility in which the Borrower or any Subsidiary makes an Investment and to which the Borrower or any Subsidiary transfers accounts receivables and related assets. βRecipientβ means (a) the Agent, (b) any Lender and (c) any Issuing Bank, as applicable. βReference Banksβ means Citibank, Bank of America, N.A., and U.S. Bank National Association. βReference Timeβ has the meaning specified in the definition of Available Amount Basket. βRefinancing Amendmentβ means an amendment to this Agreement, in form and substance reasonably satisfactory to the Agent, among the Borrower, the Agent and the Lenders providing Specified Refinancing Debt, effecting the incurrence of such Specified Refinancing Debt in accordance with Section 2.24. βRegisterβ has the meaning specified in Section 9.07(c). βRelated Partiesβ means, with respect to any Person, such Personβs Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Personβs Affiliates. βRelevant Governmental Bodyβ means (a) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any Committed Currency, (1) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (2) any working group or committee officially endorsed or convened by (A) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (B) any central bank or other supervisor that is responsible for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (C) a 46
group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof. βRemoval Effective Dateβ has the meaning specified in Section 8.06(b). βRepricing Eventβ has the meaning specified in Section 2.10(a)(ii). βRequired Lendersβ means at any time Lenders owed or holding at least a majority in interest of the sum of the (a) aggregate principal amount of all Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lenderβs risk participation and funded participation in Letters of Credit being deemed βheldβ by such Revolving Credit Lender for purposes of this definition), (b) the aggregate principal amount of the Term Facility, (c) the aggregate unused amount of the Commitments, (d) the aggregate principal amount of the Tranche B Facility and, (e) the aggregate principal amount of the Tranche B2 Facility and (f) the aggregate principal amount of the Tranche B3 Facility; provided that the Total Revolving Credit Outstandings of, the Advances owed to or Commitments held by any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. βRequired RC/TLA Lendersβ means at any time Lenders owed or holding at least a majority in interest of the sum of the (a) aggregate principal amount of all Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lenderβs risk participation and funded participation in Letters of Credit being deemed βheldβ by such Revolving Credit Lender for purposes of this definition), (b) the aggregate principal amount of the Term Facility and (c) the aggregate unused amount of the Commitments (other than any Tranche B Commitment, any Tranche B2 Commitment, any Tranche B3 Commitment or any Specified Incremental Tranche B Commitment); provided that (i) the Total Revolving Credit Outstandings of, the Advances owed to or Commitments held by any Defaulting Lender shall be excluded for purposes of making a determination of Required RC/TLA Lenders. βRequired Revolving Credit Lendersβ means, as of any date of determination, Revolving Credit Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate amount of each Revolving Credit Lenderβs risk participation and funded participation in Letters of Credit being deemed βheldβ by such Revolving Credit Lender for purposes of this definition) and (b) aggregate Unused Revolving Credit Commitments; provided that the Unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Credit Lenders. βRequired Term Lendersβ means, as of any date of determination, Term Lenders holding more than 50% of the Term Facility and Term Commitments on such date; provided that the portion of the Term Facility and Term Commitments held by any Defaulting Lender shall in each case be excluded for purposes of making a determination of Required Term Lenders. 47
βRequired Tranche B Lendersβ means, as of any date of determination, Tranche B Lenders holding more than 50% of the Tranche B Facility on such date; provided that the portion of the Tranche B Facility held by any Defaulting Lender shall in each case be excluded for purposes of making a determination of Required Tranche B Lenders. βRequired Tranche B2 Lendersβ means, as of any date of determination, Tranche B2 Lenders holding more than 50% of the Tranche B2 Facility on such date; provided that the portion of the Tranche B2 Facility held by any Defaulting Lender shall in each case be excluded for purposes of making a determination of Required Tranche B2 Lenders. βRequired Tranche B3 Lendersβ means, as of any date of determination, Tranche B3 Lenders holding more than 50% of the Tranche B3 Facility on such date; provided that the portion of the Tranche B3 Facility held by any Defaulting Lender shall in each case be excluded for purposes of making a determination of Required Tranche B3 Lenders. βResignation Effective Dateβ has the meaning specified in Section 8.06(a). βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βResponsible Officerβ of any Person means any executive officer or Financial Officer of such Person and any other officer or similar official thereof responsible for the administration of the obligations of such Person in respect of this Agreement. βRestricted Paymentsβ has the meaning specified in Section 5.03(h). βRevolving Credit Advanceβ means an advance by a Revolving Credit Lender to the Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate Advance, Term SOFR Advance, Daily Simple XXXXX Advance or a Eurocurrency Rate Advance (each of which shall be a βTypeβ of Revolving Credit Advance). Unless the context shall otherwise require, the term βRevolving Credit Advanceβ shall include any Incremental Revolving Credit Advances. βRevolving Credit Borrowingβ means a Borrowing consisting of simultaneous Revolving Credit Advances of the same Type made by each of the Revolving Credit Lenders. βRevolving Credit Borrowing Minimumβ means, in respect of Revolving Credit Advances denominated in Dollars, $1,000,000, in respect of Revolving Credit Advances denominated in Pounds Sterling, Β£1,000,000 and, in respect of Revolving Credit Advances denominated in Euros, β¬1,000,000. βRevolving Credit Borrowing Multipleβ means, in respect of Revolving Credit Advances denominated in Dollars, $500,000, in respect of Revolving Credit 48
Advances denominated in Pounds Sterling, Β£500,000 and, in respect of Revolving Credit Advances denominated in Euros, β¬500,000. βRevolving Credit Commitmentβ means as to any Lender (a) the Dollar amount set forth opposite such Lenderβs name on Schedule I hereto as such Lenderβs βRevolving Credit Commitmentβ, (b) if such Lender has become a Revolving Credit Lender hereunder pursuant to an Assumption Agreement, the Dollar amount set forth in such Assumption Agreement, as such Lenderβs βRevolving Credit Commitmentβ or (c) if such Lender has entered into an Assignment and Assumption, the Dollar amount set forth for such Lender in the Register maintained by the Agent pursuant to Section 9.07(c), as such Xxxxxxβs βRevolving Credit Commitmentβ, as such amount may be reduced pursuant to Section 2.05 or increased pursuant to Section 2.23. The aggregate amount of the Lendersβ Revolving Credit Commitments as of the Fifth Amendment Effective Date is $1,000,000,000. Unless the context shall otherwise require, the term βRevolving Credit Commitmentsβ shall include any Incremental Revolving Credit Commitments. βRevolving Credit Exposureβ means, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding Revolving Credit Advances of such Lender, plus the aggregate amount at such time of such Xxxxxxβs L/C Exposure. βRevolving Credit Facilityβ means, at any time, (a) on or prior to the Termination Date, the aggregate amount of the Revolving Credit Commitments at such time and (b) thereafter, the sum of the aggregate principal amount of the Revolving Credit Advances outstanding at such time plus the Available Amount of all Letters of Credit outstanding at such time. βRevolving Credit Lenderβ means, at any time, any Lender that has a Revolving Credit Commitment or a Revolving Credit Advance at such time. βRevolving Credit Noteβ means a promissory note of the Borrower payable to any Revolving Credit Lender and its registered assigns, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A-1 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Revolving Credit Advances made by such Lender to the Borrower. βSanctioned Countryβ has the meaning specified in Section 4.01(p). βSanctioned Personβ has the meaning specified in Section 4.01(q). βSanctionsβ has the meaning specified in Section 4.01(p). βSECβ means the Securities and Exchange Commission. βSecond Amended & Restated Credit Agreementβ has the meaning specified in the introductory statements hereto. 49
βSecond Amendment Effective Dateβ means March 13, 2020. βSecured Cash Management Obligationsβ means the due and punctual payment and performance of any and all obligations of each Loan Party or their respective Subsidiaries (whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) arising in respect of Cash Management Services that (a) are owed to the Agent, the Arrangers or an Affiliate of any of the foregoing, or to any Person that, at the time such obligations were incurred, was the Agent, the Arrangers or an Affiliate of any of the foregoing, (b) were owed on the Effective Date to a Person that was a Lender or an Affiliate of a Lender as of the Effective Date, or (c) are owed to a Person that was a Lender or an Affiliate of a Lender at the time such obligations were incurred. βSecured Hedging Obligationsβ means the due and punctual payment and performance of any and all obligations of each Loan Party or their respective Subsidiaries (whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) arising in respect of Hedge Agreements that (a) are owed to the Agent, the Arrangers or an Affiliate of any of the foregoing, or to any Person that, at the time such obligations were incurred, was the Agent, the Arrangers or an Affiliate of any of the foregoing, (b) were owed on the Effective Date to a Person that was a Lender or an Affiliate of a Lender as of the Effective Date, or (c) are owed to a Person that was a Lender or an Affiliate of a Lender at the time such obligations were incurred; provided that Secured Hedging Obligations shall not include any Excluded Swap Obligations. βSecured Partiesβ means (a) each of the Lenders, (b) the Agent, (c) the Collateral Agent, (d) each Issuing Bank, (e) each Cash Management Bank, (f) each Hedge Bank, (g) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (h) the successors and assigns of each of the foregoing. βSecurities Actβ means the Securities Act of 1933, as amended. βSecurity and Guarantee Documentsβ means each and any of the Mortgages, Mortgage Amendments, Guarantee and Collateral Agreement, security agreements, and/or other instruments and documents executed and delivered on or after the Effective Date in connection with securing and/or guaranteeing the Facilities. βSenior Secured Leverage Ratioβ means, on any date, the ratio of (a) Total Senior Secured Debt on such date less unrestricted cash and Cash Equivalents of the Borrower and its Consolidated Subsidiaries in an amount not to exceed $350,000,000 to (b) EBITDA for the most recently ended Test Period. βSequoia Acquisitionβ shall mean the acquisition by the Borrower of Xxxxxxxx and Associates, LLC, pursuant to the Equity Purchase Agreement, dated as of 50
June 3, 2021 by and between Xxxx Xxxxxxxx, Xxxxxxxx and Associates, LLC, and the Borrower. βSingle Employer Planβ means a single employer plan, as defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the Borrower or any ERISA Affiliate and no Person other than the Borrower and the ERISA Affiliates or (b) was so maintained and in respect of which the Borrower or any ERISA Affiliate could have liability under Section 4069 of ERISA in the event such plan has been or were to be terminated. βSixth Amendmentβ shall mean that certain Sixth Amendment, dated as of the Sixth Amendment Effective Date, among the Borrower, the Guarantors, the lenders party thereto and the Administrative Agent. βSixth Amendment Effective Dateβ means February 8, 2024. βSOFRβ means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. βSOFR Administratorβ means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). βSOFR Administratorβs Websiteβ means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. βSolventβ means, as to any Person as of any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Personβs ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Personβs property would constitute an unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. βXXXXXβ means a rate equal to the Sterling Overnight Index Average as administered by the XXXXX Administrator. βXXXXX Administratorβ means the Bank of England (or any successor administrator of the Sterling Overnight Index Average). βXXXXX Administratorβs Websiteβ means the Bank of Englandβs website, currently at xxxx://xxx.xxxxxxxxxxxxx.xx.xx, or any successor source for the Sterling 51
Overnight Index Average identified as such by the XXXXX Administrator from time to time. βXXXXX Xxxx Dayβ has the meaning specified in the definition of βAdjusted Daily Simple XXXXXβ. βSpecial Flood Hazard Areaβ means an area that the Federal Emergency Management Agency (or its successor) has designated as an area subject to special flood or mud slide hazards. βSpecified Incremental A Capβ means $150,000,000. βSpecified Incremental Facilityβ means the Specified Incremental Tranche A Facility and the Specified Incremental Tranche B Facility, as the context may require. βSpecified Incremental Term Advancesβ has the meaning specified in Section 2.23(b). βSpecified Incremental Tranche A Advancesβ has the meaning specified in Section 2.23(b). βSpecified Incremental Tranche A Commitmentsβ has the meaning specified in Section 2.23(b). βSpecified Incremental Tranche A Facilityβ means, at any time, the aggregate principal amount of any Specified Incremental Tranche A Advances outstanding at such time. βSpecified Incremental Tranche B Advancesβ has the meaning specified in Section 2.23(b). βSpecified Incremental Tranche B Commitmentsβ has the meaning specified in Section 2.23(b). βSpecified Incremental Tranche B Facilityβ means, at any time, the aggregate principal amount of any Specified Incremental Tranche B Advances outstanding at such time. βSpecified Refinancing Debtβ has the meaning specified in Section 2.24(a). βSpecified Representationsβ means the representations and warranties set forth in Sections 4.01 (a) (only with respect to the first clause), (b) (other than clauses (ii) and (iii)), (d), (g), (h), (j), (p), (q), (r), (s) (only with respect to the second sentence), (v) and (w). βSpecified Transactionsβ means (a) the Engility Acquisition and (b) (i) any Investment that results in a Person becoming a Subsidiary of the Borrower, (ii) any 52
Permitted Acquisition, (iii) any Disposition that results in a Subsidiary of the Borrower ceasing to be a Subsidiary of the Borrower (other than a Disposition of an Excluded Subsidiary), (iv) any Disposition of a business unit, line of business or division of the Borrower or any of its Subsidiaries, in each case whether by merger, consolidation, amalgamation or otherwise and (v) any other transaction that by the terms of this Agreement requires any financial ratio or test to be determined on a βpro forma basisβ or to be given βpro forma effectβ. βSpringing Maturity Dateβ means the date that is 91 days prior to the earliest Tranche B Maturity Date. βSubsidiaryβ of any Person means any corporation, partnership, joint venture, limited liability company, entity, trust or estate of which (or in which) more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, joint venture, limited liability company or entity, or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Personβs other Subsidiaries. βSwapβ has the meaning assigned to such term in Section 1a(47) of the Commodity Exchange Act. βSwap Obligationβ means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a Swap. βSynthetic Leaseβ means, as to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. Federal income tax purposes, other than any such lease under which such Person is the lessor. βSynthetic Lease Obligationsβ means, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such Person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations. βTARGET Dayβ means any day on which TARGET2 is open for business. βTARGET2β means the Trans-European Automated Real Time Gross Settlement Express transfer payment system which utilizes a single shared platform and which was launched on 19 November 2007. βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other 53
charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. βTerm Advanceβ means an advance by a Term Lender to the Borrower under the Term Facility and refers to a Base Rate Advance or a Term SOFR Advance (each of which shall be a βTypeβ of Term Advance). βTerm Advance Amountβ means as of the Fifth Amendment Effective Date, $1,230,000,000. βTerm Borrowingβ means a portion of the Term Advances (as to which each Term Lender has a ratable part) that (a) bears interest by reference to the Base Rate or (b) bears interest by reference to the Adjusted Term SOFR Rate and has a single Interest Period. βTerm Commitmentβ means as to any Lender (a) the Dollar amounts set forth opposite such Lenderβs name on Schedule I hereto as such Lenderβs βTerm Commitmentβ and βRefinancing Term Subcommitmentβ, or (b) if such Lender has entered into an Assignment and Assumption, the Dollar amount set forth for such Lender in the Register maintained by the Agent pursuant to Section 9.07(c) as such Lenderβs βTerm Commitmentβ, which Term Commitment shall automatically terminate upon the funding of all Term Advances on the Fifth Amendment Effective Date. The aggregate amount of the Lendersβ Term Commitment as of the Fifth Amendment Effective Date is $1,230,000,000. βTerm Facilityβ means, at any time, the aggregate principal amount of the Term Advances outstanding at such time. βTerm Lenderβ means, at any time, any Lender with a Term Commitment or an outstanding Term Advance at such time. βTerm Loan Maturity Dateβ means the earlier of (a) fifth anniversary of the Fifth Amendment Effective Date or (b) the Springing Maturity Date. βTerm Noteβ means a promissory note of the Borrower payable to any Term Lender and its registered assigns, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A-2 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Term Advances made by such Lender to the Borrower. βTerm SOFRβ means, (a) for any calculation with respect to a Term SOFR Advance, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the βPeriodic Term SOFR Determination Dayβ) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day 54
the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day, and (b) for any calculation with respect to an Base Rate Advance on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the βBase Rate Term SOFR Determination Dayβ) that is two (2) Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Base Rate Term SOFR Determination Day. βTermination Dateβ means the earlier of (a) the fifth anniversary of the Fifth Amendment Effective Date subject to the extension thereof pursuant to Section 2.22, and (b) the Springing Maturity Date and (c) the date of termination in whole of the Revolving Credit Commitments pursuant to Section 2.05 or 6.01; provided, however, that the Termination Date of any Lender that is a Non-Extending Lender with respect to any requested extension pursuant to Section 2.22 shall be the Termination Date in effect immediately prior to the applicable Extension Date for all purposes of this Agreement. βTerm SOFR Adjustmentβ means, for any calculation with respect to a Term SOFR Advance, a percentage per annum as set forth below and (if applicable) Interest Period therefor: 55 Interest Period Percentage Three months 0.10% Six months 0.10% One month 0.10%
βTerm SOFR Administratorβ means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion). βTerm SOFR Advanceβ means an Advance that bears interest at a rate based on Adjusted Term SOFR other than pursuant to clause (c) of the definition of βBase Rateβ. βTerm SOFR Borrowingβ means, as to any Borrowing, the Loans bearing interest at a rate based on Adjusted Term SOFR comprising such Borrowing other than pursuant to clause (c) of the definition of βBase Rateβ. βTerm SOFR Reference Rateβ means the forward-looking term rate based on SOFR. βTest Periodβ has the meaning specified in Section 1.07(b). βThird Amendmentβ shall mean that certain Third Amendment, dated as of the Third Amendment Effective Date, among the Borrower, the Continuing Tranche B2 Lenders (as defined therein), the New Tranche B2 Lender (as defined therein) and the Administrative Agent. βThird Amendment Effective Dateβ means March 1, 2021. βTitle Companyβ has the meaning assigned to such term in the definition of βReal Estate Collateral Requirementsβ. βTotal Assetsβ means the total assets of the Borrower and its Consolidated Subsidiaries, as shown on the Consolidated balance sheet of the Borrower for the most recently completed fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(i). βTotal Revolving Credit Outstandingsβ means the aggregate outstanding amount of all Revolving Credit Advances and Letters of Credit. βTotal Senior Secured Debtβ means, at any time, for the Borrower and its Subsidiaries on a Consolidated basis in accordance with GAAP, the aggregate amount of (i) (a) all indebtedness in respect of borrowed money, (b) all obligations of such Person evidenced by bonds, notes, debentures or similar instruments, (c) all obligations of such Person in respect of letters of credit or other similar instruments (including reimbursement agreements with respect thereto) to the extent such letters of credit or other similar instruments are drawn and unreimbursed, (d) all obligations of such Person to pay the deferred and unpaid purchase price of any property (including Capital Lease Obligations), but excluding trade accounts payable or accrued liabilities arising in the Ordinary Course of Business, and (e) all obligations attributable to Synthetic Leases related to tangible property, in each case that is secured by a Lien on any asset or property 56
of the Borrower or any of its Subsidiaries and (ii) without duplication, Capital Lease Obligations of the Borrower or any of its Subsidiaries. βTrade Dateβ has the meaning specified in Section 9.07(b)(i)(B). βTranche B Borrowingβ means a Borrowing comprised of Tranche B Loans. βTranche B Commitmentβ means, as to any Lender, the Dollar amount set forth opposite such Lenderβs name on Schedule I hereto as such Xxxxxxβs βTranche B Commitmentβ. βTranche B Facilityβ means, at any time, the aggregate principal amount of Tranche B Loans outstanding at such time. βTranche B Lendersβ means, at any time, any Lender with a Tranche B Commitment or a Tranche B Loan outstanding at such time. The Tranche B Lenders as of the Effective Date are set forth on Schedule I. βTranche B Loansβ means the advances by the Tranche B Lenders to the Borrower under the Tranche B Facility and may refer to Base Rate Advances or Term SOFR Rate Advances (each of which shall be a βTypeβ of Tranche B Loans). Unless the context shall otherwise require, βTranche B Loansβ shall include any Incremental Term Advances (other than any additional Term Advances or any Specified Incremental Term Advances). The aggregate principal amount of the Tranche B Loans as of the Effective Date is $1,050,000,000. βTranche B Maturity Dateβ means the date that is seven years after the Effective Date. βTranche B Noteβ means a promissory note of the Borrower payable to any Tranche B Lender and its registered assigns, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Tranche B Loans made by such Lender to the Borrower. βTranche B2 Borrowingβ means a Borrowing comprised of Tranche B2 Loans. βTranche B2 Commitmentβ means, as to any Lender, the Dollar amount set forth opposite such Lenderβs name on Schedule I hereto as such Lenderβs βTranche B2 Commitmentβ. βTranche B2 Facilityβ means, at any time, the aggregate principal amount of Tranche B2 Loans outstanding at such time. 57
βTranche B2 Lendersβ means, at any time, any Lender with a Tranche B2 Commitment or a Tranche B2 Loan outstanding at such time. The Tranche B2 Lenders as of the Second Amendment Effective Date are set forth on Schedule I-A. βTranche B2 Loansβ means the advances by the Tranche B2 Lenders to the Borrower under the Tranche B2 Facility and may refer to Base Rate Advances or Term SOFR Advances (each of which shall be a βTypeβ of Tranche B2 Loans). The aggregate principal amount of the Tranche B2 Loans as of the Second Amendment Effective Date is $600,000,000. βTranche B2 Maturity Dateβ means the date that is seven years after the Second Amendment Effective Date. βTranche B2 Noteβ means a promissory note of the Borrower payable to any Tranche B2 Lender and its registered assigns, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A-4 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Tranche B2 Loans made by such Lender to the Borrower. βTranche B3 Borrowingβ means a Borrowing comprised of Tranche B3 Loans. βTranche B3 Commitmentβ means, as to any Lender, the Dollar amount set forth opposite such Lenderβs name on Schedule I-B hereto as such Lenderβs βTranche B3 Commitmentβ. βTranche B3 Facilityβ means, at any time, the aggregate principal amount of Tranche B3 Loans outstanding at such time. βTranche B3 Lendersβ means, at any time, any Lender with a Tranche B3 Commitment or a Tranche B3 Loan outstanding at such time. The Tranche B3 Lenders as of the Sixth Amendment Effective Date are set forth on Schedule I-B. βTranche B3 Loansβ means the advances by the Tranche B3 Lenders to the Borrower under the Tranche B3 Facility and may refer to Base Rate Advances or Term SOFR Advances (each of which shall be a βTypeβ of Tranche B3 Loans). The aggregate principal amount of the Tranche B3 Loans as of the Sixth Amendment Effective Date is $510,250,000. βTranche B3 Maturity Dateβ means the date that is seven years after the Sixth Amendment Effective Date. βTranche B3 Noteβ means a promissory note of the Borrower payable to any Tranche B3 Lender and its registered assigns, delivered pursuant to a request made under Section 2.16 in substantially the form of Exhibit A-4 hereto, evidencing the aggregate indebtedness of the Borrower to such Lender resulting from the Tranche B3 Loans made by such Lender to the Borrower. 58
βTransactionsβ means collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and the initial funding of the Tranche B Loans hereunder and (b) the payment of all fees, costs and expenses incurred or payable by the Borrower or any of its Subsidiaries in connection with the foregoing. βTypeβ, when used in respect of any Advance or Borrowing, shall refer to the Rate by reference to which interest on such Advance or on the Advances comprising such Borrowing is determined. For the purposes hereof, the term βRateβ means the Base Rate, Adjusted Term SOFR, Adjusted Daily Simple XXXXX or the Eurocurrency Rate. βUCPβ means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (βICCβ) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance). βUK Financial Institutionβ means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. βUK Resolution Authorityβ means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. βUnadjusted Benchmark Replacementβ means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment. βUnfunded Advances/Participationsβ means (a) with respect to the Agent, the aggregate amount, if any (i) made available to the Borrower on the assumption that each Lender has made such Xxxxxxβs share of the applicable Borrowing available to the Agent as contemplated by Section 2.02(d) and (ii) with respect to which a corresponding amount shall not in fact have been returned to the Agent by the Borrower or made available to the Agent by any such Lender and (b) with respect to any Issuing Bank, the aggregate amount, if any, of amounts drawn under Letters of Credit in respect of which a Revolving Credit Lender shall have failed to make Revolving Credit Advances to reimburse such Issuing Bank pursuant to Section 2.03(c). βUniform Commercial Codeβ and βUCCβ have the meanings assigned to such terms in the Guarantee and Collateral Agreement. βUnissued Letter of Credit Commitmentβ means, with respect to any Issuing Bank, the obligation of such Issuing Bank to Issue Letters of Credit for the account of the Borrower or its specified Subsidiaries in an amount equal to the excess of 59
(a) the amount of its Letter of Credit Commitment over (b) the aggregate Available Amount of all Letters of Credit issued by such Issuing Bank. βUnused Revolving Credit Commitmentβ means, with respect to each Revolving Credit Lender at any time, (a) such Xxxxxxβs Revolving Credit Commitment at such time minus (b) the sum of (i) the aggregate principal amount of all Revolving Credit Advances made by such Lender (in its capacity as a Revolving Credit Lender) and outstanding at such time, plus (ii) such Xxxxxxβs Ratable Share of (A) the aggregate Available Amount of all the Letters of Credit outstanding at such time and (B) the aggregate principal amount of all Advances made by each Issuing Bank pursuant to Section 2.03(c) that have not been ratably funded by such Xxxxxx and outstanding at such time. βU.S. Personβ means any Person that is a βUnited States personβ as defined in Section 7701(a)(30) of the Code. βU.S. Tax Compliance Certificateβ has the meaning assigned to such term in Section 2.14(f)(ii)(B)(iii). βVoting Stockβ means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency. βWeighted Average Life to Maturityβ means, when applied to any Indebtedness at any date, the number of years (and/or portion thereof) obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness. βWithholding Agentβ means any Loan Party and the Agent. βWrite-Down and Conversion Powersβ 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 60
Advances on the date of borrowing. Upon the making of any Term Advances by a Xxxx Xxxxxx, such Term Lenderβs Term Commitment shall be permanently reduced to zero. (b) The Revolving Credit Advances. Each Revolving Credit Lender severally agrees, on the terms and conditions hereinafter set forth, to make Revolving Credit Advances to the Borrower from time to time on any Business Day during the period from the Effective Date until the Termination Date applicable to such Lender in an amount (based in respect of any Revolving Credit Advances to be denominated in a Committed Currency by reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of Borrowing) not to exceed such Revolving Credit Lenderβs Unused Revolving Credit Commitment. Each Revolving Credit Borrowing shall be in an amount not less than the Revolving Credit Borrowing Minimum or the Revolving Credit Borrowing Multiple in excess thereof and shall consist of Revolving Credit Advances of the same Type and in the same currency made on the same day by the Revolving Credit Lenders ratably according to their respective Revolving Credit Commitments. Within the limits of each Xxxxxxβs Revolving Credit Commitment, the Borrower may borrow under this Section 2.01(c), prepay pursuant to Section 2.10 and reborrow under this Section 2.01(c). (c) Letters of Credit. (i) Each Issuing Bank agrees, on the terms and conditions hereinafter set forth, in reliance upon the agreements of the Revolving Credit Lenders set forth in this Agreement, to issue letters of credit (each, a βLetter of Creditβ) denominated in Dollars or any Committed Currency for the account of the Borrower and its specified Subsidiaries from time to time on any Business Day during the period from the Effective Date until 30 days before the Termination Date in an aggregate Available Amount (based in respect of any Letters of Credit to be denominated in a Committed Currency by reference to the Equivalent thereof in Dollars determined on the date of delivery of the applicable Notice of Issuance) (i) for all Letters of Credit issued by each Issuing Bank not to exceed at any time the lesser of (x) the Letter of Credit Facility at such time and (y) such Issuing Bankβs Letter of Credit Commitment at such time and (ii) for each such Letter of Credit not to exceed an amount equal to the Unused Revolving Credit Commitments of the Lenders at such time; provided that no Letter of Credit may expire after the Termination Date of any Non-Extending Lender if, after giving effect to such issuance, the aggregate Revolving Credit Commitments of the Revolving Credit Lenders (including any replacement Revolving Credit Lenders) for the period following such Termination Date would be less than the Available Amount of the Letters of Credit expiring after such Termination Date. Within the limits referred to above, the Borrower may from time to time request the issuance of Letters of Credit under this Section 2.01(d). (ii) No Letter of Credit shall have an expiration date (including all rights of the Borrower or the beneficiary to require renewal) later than the earlier of 10 Business Days before the Termination Date and one year after the date of Issuance thereof (or such longer period agreed to by the applicable Issuing Bank in its sole discretion), but may by its terms be renewable annually automatically or upon written notice (a βNotice of Renewalβ) given to the applicable Issuing Bank and the Agent on or prior to any date for Notice of Renewal set forth in such Letter of Credit but in any event 66
accruing on the Tranche B3 Loans on the Sixth Amendment Effective Date. Upon the making of any Tranche B3 Loans by a Tranche B3 Lender, such Tranche B3 Lenderβs Tranche B3 Commitment shall be permanently reduced to zero. Section 2.02. Making the Advances. iv) Except as otherwise provided in Section 2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Term SOFR Advances, (y) 4:00 P.M. (London time) on the fifth Business Day prior to the date of the proposed Borrowing in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances or Daily Simple XXXXX Advances denominated in the respective Committed Currency, or (z) 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Revolving Credit Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which shall give to each Appropriate Lender prompt notice thereof by e-mail. Each such notice of a Borrowing (a βNotice of Borrowingβ) shall be by telephone, confirmed immediately in writing in substantially the form of Exhibit B hereto, specifying therein the requested (i) date and Facility of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Term SOFR Advances and/or Eurocurrency Rate Advances initial Interest Period and, if a Revolving Credit Borrowing, currency for each such Advance. Each Appropriate Lender shall (1) before 11:00 A.M. (New York City time) on the date of such Borrowing, in the case of a Borrowing consisting of Term SOFR Advances denominated in Dollars, (2) before 11:00 A.M. (London time) on the date of such Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate Advances or Daily Simple XXXXX Advances denominated in any Committed Currency and (3) before 1:00 P.M. (New York City time) on the date of such Borrowing, in the case of a Borrowing consisting of Base Rate Advances, make available for the account of its Applicable Lending Office to the Agent at the applicable Agentβs Account, in same day funds, such Xxxxxxβs ratable portion of such Borrowing. After the Agentβs receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to the Borrower at the Agentβs address referred to in Section 9.02 or at the applicable Payment Office, as the case may be. (a) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Term SOFR Advances, Eurocurrency Rate Advances or Daily Simple XXXXX Advances for any Borrowing if the aggregate amount of such Borrowing is less than the Borrowing Minimum or if the obligation of the Lenders to make such Advances shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Term SOFR Advances, Eurocurrency Rate Advances or Daily Simple XXXXX Advances may not be outstanding as part of more than six separate Term Borrowings, Tranche B Borrowings or, Tranche B2 Borrowings or Tranche B3 Borrowings and ten separate Revolving Credit Borrowings. (b) Each Notice of Borrowing shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Term SOFR Advances, Eurocurrency Rate Advances or Daily Simple 68
Issuing Bank and not reimbursed by the Borrower on the date made, or of any reimbursement payment required to be refunded to the Borrower for any reason, which amount will be advanced, and deemed to be a Revolving Credit Advance to the Borrower hereunder, regardless of the satisfaction of the conditions set forth in Section 3.04. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit 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 Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Credit Lender further acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Xxxxxxβs Ratable Share of the Available Amount of such Letter of Credit at each time such Xxxxxxβs Revolving Credit Commitment is amended pursuant to an assignment in accordance with Section 9.07 or otherwise pursuant to this Agreement. (c) Drawing and Reimbursement. (i) The payment by an Issuing Bank of a draft drawn under any Letter of Credit which is not reimbursed by the Borrower on the date made shall constitute for all purposes of this Agreement the making by any such Issuing Bank of an Advance, which shall be a Base Rate Advance, in the amount of such draft, without regard to whether the making of such an Advance would exceed such Issuing Bankβs Unused Revolving Credit Commitment. Each Issuing Bank shall give prompt notice of each drawing under any Letter of Credit issued by it to the Borrower and the Agent. The Borrower shall reimburse such Issuing Bank (which, in the case of any standby Letter of Credit, shall be through the Agent) in Dollars (in the case of Letters of Credit denominated in Dollars) or in the applicable Committed Currency (in the case of Letters of Credit denominated in a Committed Currency), unless (A) such Issuing Bank (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Borrower shall have notified such Issuing Bank promptly following receipt of the notice of drawing that the Borrower will reimburse such Issuing Bank in Dollars. In the case of any such reimbursement in Dollars of a drawing under a Letter of Credit denominated in a Committed Currency, the applicable Issuing Bank shall notify the Borrower of the Equivalent of the amount of the drawing promptly following the determination thereof, on (A) the date the Borrower receives such notice of payment by the applicable Issuing Bank; provided that such notice is given not later than 11:00 A.M. (New York City time) on such day, or (B) the first Business Day next succeeding such day if notice of such payment is given after such time. If the Borrower fails to so reimburse the applicable Issuing Bank by such time, the Agent shall promptly notify each Revolving Credit Lender the amount of the unreimbursed drawing, and the amount of such Xxxxxxβs Ratable Share thereof. Each Revolving Credit Lender acknowledges and agrees that its obligation to make Advances pursuant to this paragraph in respect of Letters of Credit 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 Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, 71
withholding or reduction whatsoever. Promptly after receipt thereof, the Agent shall transfer such funds to such Issuing Bank. Each Revolving Credit Lender agrees to fund its Ratable Share of an outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank, provided that notice of such demand is given not later than 1:00 P.M. (New York City time) on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such demand is given after such time. If and to the extent that any Revolving Credit Lender shall not have so made the amount of such Advance available to the applicable Issuing Bank, such Xxxxxx agrees to pay to the Agent forthwith on demand such amount together with interest thereon, for each day from the date of demand by any such Issuing Bank until the date such amount is paid to the Agent, at the higher of the Federal Funds Rate and a rate determined by the Issuing Bank in accordance with banking industry rules on interbank compensation. A certificate of an Issuing Bank submitted to any Lender (through the Agent) with respect to any amounts owing under this Section 2.03(c) shall be conclusive absent manifest error. If such Lender shall pay to the Agent such amount for the account of any such Issuing Bank on any Business Day, such amount so paid in respect of principal shall constitute an Advance made by such Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of the Advance made by such Issuing Bank shall be reduced by such amount on such Business Day. (ii) If any payment received by the Agent for the account of an Issuing Bank pursuant to Section 2.03(c)(i) is required to be returned because it is invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Issuing Bank in its discretion) to be repaid to a trustee, receiver or any other party in connection with any proceeding under any Debtor Relief Law or otherwise, each Revolving Credit Lender shall pay to the Agent for the account of such Issuing Bank its Ratable Share thereof on demand of the Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to (x) with respect to any amount denominated in Dollars, the greater of (1) the Federal Funds Rate and (2) an overnight rate determined by the Agent or such Issuing Bank, as the case may be, in accordance with banking industry rules on interbank compensation, and (y) with respect to any amount denominated in a Committed Currency, the rate of interest per annum at which overnight deposits in the applicable Committed Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the Agent or such Issuing Bank in the applicable offshore interbank market for such currency to major banks in such interbank market. The obligations of the Revolving Credit Lenders under this clause shall survive the payment in full of the obligations and the termination of this Agreement. (d) Letter of Credit Reports. Each Issuing Bank shall furnish (i) to the Agent (with a copy to the Borrower), on the first Business Day of each week a written report summarizing Issuance and expiration dates of trade Letters of Credit issued by such Issuing Bank during the preceding week and drawings during such week under all trade Letters of Credit issued by such Issuing Bank, (ii) to the Agent (with a copy to the Borrower), on the first Business Day of each month a written report summarizing Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the 72
instrument relating thereto (all of the foregoing being, collectively, the βL/C Related Documentsβ); (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the obligations of the Borrower in respect of any L/C Related Document or any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents; (iii) the existence of any claim, set-off, defense or other right that the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for which any such beneficiary or any such transferee may be acting), any Issuing Bank, the Agent, any Lender or any other Person, whether in connection with the transactions contemplated by the L/C Related Documents or any unrelated transaction; (iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by any Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; (vi) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the obligations of the Borrower in respect of the L/C Related Documents; (vii) waiver by any Issuing Bank of any requirement that exists for such Issuing Bankβs protection and not the protection of the Borrower or any waiver by such Issuing Bank which does not in fact materially prejudice the Borrower; (viii) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft; (ix) any payment made by any Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP or the UCP, as applicable; or (x) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor. (c) Term Advances. The Borrower shall repay to the Agent for the ratable benefit of the Term Lenders the Term Advance Amount on the following dates in 75
Interest Period therefor, (1) if such Advances are Term SOFR Advances, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances and (2) if such Advances are Eurocurrency Rate Advances, either (x) prepay such Advances or (y) exchange such Advances into an Equivalent amount of Dollars and Convert such Advances into Base Rate Advances and (B) the obligation of the Appropriate Lenders to make, or to Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances, as applicable, shall be suspended until the Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no longer exist. (c) If the Borrower shall fail to select the duration of any Interest Period for any Term SOFR Advances or Eurocurrency Rate Advances in accordance with the provisions contained in the definition of βInterest Periodβ in Section 1.01, the Agent will forthwith so notify the Borrower and the Appropriate Lenders and such Advances will automatically, on the last day of the then existing Interest Period therefor, (i) if such Advances are Term SOFR Advances, Convert into Base Rate Advances and (ii) if such Advances are Eurocurrency Rate Advances, be exchanged for an Equivalent amount of Dollars and Convert into Base Rate Advances. (d) On the date on which the aggregate unpaid principal amount of Term SOFR Advances or Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than the Revolving Credit Borrowing Minimum, such Advances shall automatically (i) if such Advances are Term SOFR Advances, Convert into Base Rate Advances and (ii) if such Advances are Eurocurrency Rate Advances, be exchanged for an Equivalent amount of Dollars and Convert into Base Rate Advances. (e) Upon the occurrence and during the continuance of any Event of Default under Section 6.01, (i) each Term SOFR Advance and Eurocurrency Rate Advance will, upon request of the Required Lenders to the Agent, on the last day of the then existing Interest Period therefor, (A) if such Advances are Term SOFR Advances, be Converted into Base Rate Advances and (B) if such Advances are Eurocurrency Rate Advances, be exchanged for an Equivalent amount of Dollars and be Converted into Base Rate Advances and (ii) the obligation of the Lenders to make, or to Convert Advances into, Term SOFR Advances or Eurocurrency Rate Advances, as applicable, shall, if so requested by the Required Lenders, be suspended. (f) Benchmark Replacement (i) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to any setting of any Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is 79
determined in accordance with clause (b) of the definition of βBenchmark Replacementβ for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis. (ii) In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document. (iii) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Administrative Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark and the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.08, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.08. (iv) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate or EURIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of βInterest Periodβ (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or 80
will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of βInterest Periodβ (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. (v) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if any then-current Benchmark is a term rate (including the Term SOFR Reference Rate or EURIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of βInterest Periodβ (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of βInterest Periodβ (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor. (vi) Upon the Borrowerβs receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, (i) the Borrower may revoke any pending request for a Term SOFR Borrowing, Daily Simple XXXXX Borrowing or Eurocurrency Borrowing of, conversion to or continuation of Term SOFR Advances, or a Eurocurrency Rate Advances in each case, to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable Currency and, failing that, (A) in the case of any request for any affected Term SOFR Borrowing, if applicable, the Borrower will be deemed to have converted any such request into a request for an Base Rate Advance or conversion to Base Rate Advance in the amount specified therein and (B) in the case of any request for any affected Daily Simple XXXXX Borrowing or Eurocurrency Rate Borrowing, in each case, in an Committed Currency, if applicable, then such request shall be ineffective and (ii)(A) any outstanding affected Term SOFR Advances, if applicable, will be deemed to have been converted into a Base Rate Advance at the end of the applicable Interest Period and (B) any outstanding affected Daily Simple XXXXX Advances or Eurocurrency Rate Loans, in each case, denominated in an Committed Currency, at the Borrowerβs election, shall either (I) be converted into a Base Rate Advance denominated in Dollars (in an amount equal to the Dollar Equivalent of such Committed Currency) immediately or, in the case of Eurocurrency Rate Loans, at the end of the applicable Interest Period or (II) be prepaid in full immediately or, in the case of Eurocurrency Rate Loans, at the end of the applicable Interest Period; provided that, with respect to any Daily Simple XXXXX Advances, if no election is made by the Borrower by the date that is three Business Days after receipt by the Borrower of such notice, the Borrower shall be deemed to have 81
aggregate Revolving Credit Commitments of the Revolving Credit Lenders on such date; provided that if the Borrower has Cash Collateralized Letters of Credit in accordance with Section 2.20(a), the Available Amount of the outstanding Letters of Credit shall be deemed to have been reduced by the amount of such Cash Collateral. The Agent shall give prompt notice of any prepayment required under this Section 2.10(b)(i) to the Borrower and the Revolving Credit Lenders, and shall provide prompt notice to the Borrower of any such notice of required prepayment received by it from any Revolving Credit Lender. (ii) Each prepayment made pursuant to this Section 2.10(b) shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Term SOFR Advance or Eurocurrency Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Borrower shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 9.04. (iii) No later than three Business Days after the date on which the financial statements with respect to each fiscal year are required to be delivered pursuant to Section 5.01(i)(ii) (commencing with the Borrowerβs fiscal year ending on or about January 31, 2020), the Borrower shall prepay outstanding Term Advances, Tranche B Loans and, Tranche B2 Loans and Tranche B3 Loans in accordance with Section 2.10(b)(vi) in an aggregate principal amount equal to the excess, if any, of (A) the Excess Cash Flow Percentage of Excess Cash Flow for such fiscal year then ended minus (B) any optional prepayments or repurchases of Term Advances, Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans pursuant to Section 2.10(a) made during such fiscal year, or in the following fiscal year before the making of any prepayment required in respect of such fiscal year pursuant to this Section 2.10(b)(iii), but only to the extent that (i) such prepayments do not occur in connection with a refinancing of all or any portion of such Term Advances, Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans and (ii) such prepayment was not previously applied to reduce the amount of any prepayment required by this Section 2.10(b)(iii) in respect of a prior fiscal year. (iv) In the event that the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of any Indebtedness for borrowed money of the Borrower or any of its Subsidiaries (other than any cash proceeds from the issuance of Indebtedness for borrowed money permitted under this Agreement), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by the Borrower or any such Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Advances, Tranche B Loans and, Tranche B2 Loans and Tranche B3 Loans in accordance with Section 2.10(b)(vi). (v) Not later than the third Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Advances, Term 84
any right of counterclaim or set-off, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent at the applicable Agentβs Account in same day funds. The Borrower shall make each payment hereunder with respect to principal of, interest on, and other amounts relating to, Advances denominated in a Committed Currency, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M. (at the Payment Office for such Committed Currency) on the day when due in such Committed Currency to the Agent, by deposit of such funds to the applicable Agentβs Account in same day funds. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest, fees or commissions ratably (other than amounts payable pursuant to Section 2.04(b), 2.11, 2.14 or 9.04) to the applicable Lenders for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. Upon any Assuming Xxxxxx becoming a Lender hereunder as a result of an extension of the Termination Date pursuant to Section 2.22 and upon the Agentβs receipt of such Xxxxxxβs Assumption Agreement and recording of the information contained therein in the Register, from and after the applicable Extension Date, the Agent shall make all payments hereunder and under any Notes issued in connection therewith in respect of the interest assumed thereby to the Assuming Lender. Upon its acceptance of an Assignment and Assumption and recording of the information contained therein in the Register pursuant to Section 9.07(c), from and after the effective date specified in such Assignment and Assumption, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves. (a) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Xxxxxx is not made when due hereunder or under the Note held by such Xxxxxx, to charge from time to time against any or all of the Borrowerβs accounts with such Lender any amount so due. (b) All computations of interest based on Citibankβs base rate and Adjusted Daily Simple XXXXX shall be made by the Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Term SOFR or Eurocurrency Rate or the Federal Funds Rate or and of fees and Letter of Credit fees shall be made by the Agent on the basis of a year of 360 days (or, in each case of Advances denominated in Committed Currencies where market practice differs, in accordance with market practice), in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest, fees or commissions are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. (c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, fee or commission, as the case may be; 88
deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (a) Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Agent timely reimburse it for the payment of, any Other Taxes. (b) Indemnification by the Loan Parties. The Loan Parties shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender, setting forth in reasonable detail the calculation of the amount being requested, shall be conclusive absent manifest error. (c) Indemnification by the Lenders. Each Lender shall severally indemnify the Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Xxxxxxβs failure to comply with the provisions of Section 9.07(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the 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 Agent to the Lender from any other source against any amount due to the Agent under this paragraph (d). (d) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 2.14, such Loan Party shall deliver to the 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 Agent. (e) Status of Recipients. (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Agent, at the time or times 90
reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Agent as will enable the Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation by any Lender (other than such documentation set forth in Sections 2.14(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lenderβs reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii) Without limiting the generality of the foregoing, (A) any Lender that is a U.S. Person shall deliver to the Borrower and the Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), whichever of the following is applicable: (i) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty; (ii) executed copies of IRS Form W-8ECI; 91
(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-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, a β10 percent shareholderβ of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a βcontrolled foreign corporationβ described in Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or (iv) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Agent as may be necessary for the Borrower and the Agent to comply with their obligations under 92
this Agreement, as determined by the Agent; fifth, if so determined by the Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lenderβs potential future funding obligations with respect to Advances under this Agreement and (y) Cash Collateralize the Issuing Banksβ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.19; sixth, to the payment of any amounts owing to the Lenders or the Issuing Banks as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Issuing Banks against such Defaulting Lender as a result of such Defaulting Lenderβs breach of its obligations under this Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lenderβs breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Advances or L/C Obligations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Advances were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.04 were satisfied or waived, such payment shall be applied solely to pay the Advances of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Advances of, or L/C Obligations owed to, such Defaulting Lender until such time as all Advances and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 2.20(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.20(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. (iii) Certain Fees. (A) Each Defaulting Lender under the Revolving Credit Facility, Term Facility shall not be entitled to receive a commitment fee pursuant to Section 2.04(a) for any period during which that Lender is a Defaulting Lender. (B) Each Defaulting Lender under the Revolving Credit Facility shall be entitled to receive letter of credit fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Ratable Share of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.19. (C) With respect to any commitment fee or letter of credit fee not required to be paid to any Defaulting Lender pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lenderβs participation in L/C Obligations that has been reallocated to 99
date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice, unless the Agent shall otherwise agree) and (z) in the case of Incremental Term Commitments, whether such Incremental Term Commitments are (i) commitments to make additional Term Advances, additional Tranche B Loans or, additional Tranche B2 Loans or additional Tranche B3 Loans or (ii) commitments to make new A Type Term Loans (as defined below) with terms different from the Term Advances (such loans, βSpecified Incremental Tranche A Advancesβ and such commitments βSpecified Incremental Tranche A Commitmentsβ) or new B Type Term Loans (as defined below) with terms different from the Tranche B Loans and, the Tranche B2 Loans and the Tranche B3 Loans then outstanding (such loans, βSpecified Incremental Tranche B Advancesβ (and together with any Specified Incremental Tranche A Advances, βSpecified Incremental Term Advancesβ) and such commitments βSpecified Incremental Tranche B Commitmentsβ). (i) The Borrower and each applicable Incremental Lender shall execute and deliver to the Agent an Incremental Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of any Incremental Term Advances to be made thereunder; provided that (1) (A) (i) the final maturity date of any Specified Incremental Tranche A Advances shall be (x) for any Specified Incremental Tranche A Advances up to an aggregate initial principal amount of all such Specified Incremental Tranche A Advances less than or equal to the Specified Incremental A Cap, no earlier than the Term Loan Maturity Date or (y) for any Specified Incremental Tranche A Advances in excess of the Specified Incremental A Cap, no earlier than the later of the Tranche B Maturity Date and the Tranche B2B3 Maturity Date and (ii) the Weighted Average Life to Maturity of any Specified Incremental Tranche A Advances shall be (x) for any Specified Incremental Tranche A Advances up to an aggregate initial principal amount of all such Specified Incremental Tranche A Advances less than or equal to the Specified Incremental A Cap, no shorter than the laterlatest of the Weighted Average Life to Maturity of the Term Advances, or (y) for any Specified Incremental Tranche A Advances in excess of the Specified Incremental A Cap, no shorter than the laterlatest of the Weighted Average Life to Maturity of the Tranche B Loans and the Weighted Average Life to Maturity of the Tranche B2B3 Loans; (B) the final maturity date of any Specified Incremental Tranche B Advances shall be no earlier than the later of the Tranche B Maturity Date and the Tranche B2B3 Maturity Date and the Weighted Average Life to Maturity of the Specified Incremental Tranche B Advances shall be no shorter than the laterlatest of the Weighted Average Life to Maturity of the Tranche B Loans and Weighted Average Life to Maturity of the Tranche B2B3 Loans; (C) if the initial yield on such Specified Incremental Tranche A Advances incurred at any time or Specified Incremental Tranche B Advances incurred on or prior to the date that is 18 months following the Sixth Amendment Effective Date, as the case may be (as determined by the Agent to be equal to the sum of (x) the margin above the Adjusted Term SOFR Rate on such Advances (which shall be increased by the 103
amount that any interest rate βfloorβ applicable to such Advances on the date such Advances are made would exceed the Adjusted Term SOFR Rate for a three-month Interest Period commencing on such date) and (y) if such Advances are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any of its Subsidiaries for doing so (but excluding the effect of any bona fide arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders thereof) (the amount of such discount or fee, expressed as a percentage of such Advances, being referred to herein as βOIDβ), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Advances and (B) four) exceeds by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the βYield Differentialβ) the sum of (A) the Applicable Margin then in effect for Term SOFR Term Advances (in the case of Specified Incremental Tranche A Advances) or Term SOFR Tranche B Loans or, Term SOFR Tranche B2 Loans or Term SOFR Tranche B3 Loans, respectively (in the case of Specified Incremental Tranche B Advances), and (B) the amount of the OID initially paid in respect of the Term Advances (in the case of Specified Incremental Tranche A Advances) or the Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans, respectively, (in the case of Specified Incremental Tranche B Advances), divided by four, then the Applicable Margin then in effect for Term Advances (in the case of Specified Incremental Tranche A Advances) or the Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans, respectively, (in the case of Specified Incremental Tranche B Advances) shall automatically be increased by the Yield Differential, effective upon the making of the Specified Incremental Tranche A Advances or the Specified Incremental Tranche B Advances, as applicable, and (2) the other terms of any Specified Incremental Term Advances shall be reasonably satisfactory to the Agent. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Advances evidenced thereby. For purposes of this Section 2.23(b), βA Type Term Loansβ means any term loans which have (x) scheduled amortization in excess of 1.00% per annum and (y) a final maturity of five years or less, and βB Type Term Loansβ means any term loans that are not A Type Term Loans. (ii) Notwithstanding the foregoing, no Incremental Commitment shall become effective under this Section 2.23(b) unless (i) on the date of such effectiveness, (A) (1) the representations and warranties contained in Section 4.01 are true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) and (2) no Default or Event of Default shall have occurred and be continuing (and the Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower); provided that, in connection with any Incremental Term Commitment, the proceeds of which are, concurrently with the receipt thereof, to be used by the Borrower to finance, in whole or in part, a Permitted Acquisition, then the 104
conditions set forth in (1) and (2) above must only be satisfied at the time the acquisition agreement for such Permitted Acquisition is entered into, and the only representations and warranties that will be required to be true and correct as of the funding of the Term Advances thereunder shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or any of its Subsidiaries) has the right to terminate or elect not to perform its obligations under such acquisition agreement as a result of the inaccuracy of any such representations or warranties in such acquisition agreement and (B) the Borrower shall be in compliance with the Financial Covenant set forth in Section 5.05(c) after giving pro forma effect to the incurrence of such Incremental Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, the making of Advances to be made on the date of effectiveness thereof, any Permitted Acquisition consummated simultaneously therewith, and the pro forma adjustments described in Section 1.07; (ii) all fees and expenses owing to the Agent and the Lenders in respect of such Incremental Term Commitment and/or Incremental Revolving Credit Commitment shall have been paid in full, (iii) to the extent not consistent with this Agreement, the other terms and documentation in respect of the Incremental Term Advances shall be reasonably satisfactory to the Agent unless otherwise expressly permitted in this Section 2.23(b) and (iv) except as otherwise specified in the applicable Incremental Assumption Agreement, the Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Agent and consistent with those delivered on the Effective Date. (iii) Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Advances (other than Specified Incremental Term Advances), when originally made, are included in each Borrowing of outstanding Revolving Credit Advances, Term Advances, Tranche B Loans or, Tranche B2 Loans or Tranche B3 Loans, as applicable, on a pro rata basis. This may be accomplished by, among other things, requiring each outstanding Eurocurrency Borrowing or Term SOFR Borrowing to be Converted into a Base Rate Borrowing on the date of such Incremental Advance, or by allocating a portion of such Incremental Advance to each outstanding Eurocurrency Borrowing or Term SOFR Borrowing under the relevant Facility on a pro rata basis. Any Conversion of Term SOFR Advances or Eurocurrency Rate Advances to Base Rate Advances required by the preceding sentence shall be subject to Section 9.04(f). If any Incremental Advance is to be allocated to an existing Interest Period for a Term SOFR Advance or Eurocurrency Rate Advance, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Assumption Agreement. In addition, to the extent any Incremental Term Advances are Term Advances, the scheduled amortization payments under Section 2.06(c), required to be made after the making of such Incremental Term 105
applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Tranche B Loans, Tranche B2 Loans, Tranche B3 Loans, Term Advances, as applicable, being so refinanced, in each case pursuant to Section 2.10; provided however, that such Specified Refinancing Debt (x) may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the lenders thereof and applicable only during periods after the latest maturity date of any of the Facilities (and Commitments) that remain outstanding after giving effect to such Specified Refinancing Debt or the date on which all non-refinanced Obligations are paid in full and (y) shall not have a principal or commitment amount (or accreted value) greater than the Tranche B Loans, Tranche B2 Loans, Tranche B3 Loans or Term Advances, as applicable, being refinanced (plus accrued interest, fees, discounts, premiums or expenses payable in connection therewith). (a) The Borrower shall make any request for Specified Refinancing Debt pursuant to a written notice to the Agent specifying in reasonable detail the proposed terms thereof. No Lender shall have any obligation hereunder to provide Specified Refinancing Debt. To achieve the full amount of a requested issuance of Specified Refinancing Debt, and subject to the approval of the Agent (which approval shall not be unreasonably withheld), the Borrower may invite additional Eligible Assignees to become Lenders in respect of such Specified Refinancing Debt pursuant to a joinder agreement to this Agreement in form and substance reasonably satisfactory to the Agent. (b) The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 3.04 and, to the extent reasonably requested by the Agent, receipt by the Agent of legal opinions, board resolutions, officersβ certificates and/or reaffirmation agreements, including any supplements or amendments to the Security and Guarantee Documents providing for such Specified Refinancing Debt to be secured thereby, consistent with those delivered on the Effective Date under Section 3.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counselβs form of opinion reasonably satisfactory to the Agent). The Lenders hereby authorize the Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new tranches of Specified Refinancing Debt and to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the Borrower in connection with the establishment of such new tranches, in each case on terms consistent with this Section 2.24. (c) Each class of Specified Refinancing Debt incurred under this Section 2.24 shall be in an aggregate principal amount that is (x) not less than $25,000,000 and (y) an integral multiple of $5,000,000 in excess thereof. (d) Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Specified Refinancing Debt incurred pursuant thereto (including the addition of such 107
(iii) Certified copies of the certificate or articles of incorporation (or comparable organizational document), including all amendments thereto, of each Loan Party as in effect on the Effective Date, certified as of a recent date by the Secretary of State (or comparable entity) of the jurisdiction of its organization, and a certificate as to the good standing (where such concept is applicable) of each Loan Party as of a recent date, from such Secretary of State (or comparable entity). (iv) A favorable opinion of Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, counsel for the Borrower and the other Loan Parties, dated as of the Effective Date, addressed to the Administrative Agent, the Collateral Agent, the Issuing Bank and each Lender in form and substance reasonably satisfactory to the Agent and covering such other matters relating to the Loan Documents and the Transactions as the Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion. (v) Any Notes, to the extent requested at least three Business Days prior to the Effective Date by any Lender pursuant to Section 2.16. (c) The Administrative Agent shall have received a Notice of Borrowing as required under Section 2.02 and in the form attached hereto as Exhibit B. (d) The Administrative Agent shall have received a solvency certificate from a Financial Officer of the Borrower in the form attached hereto as Exhibit H. (e) The representations and warranties contained in Section 4.01 and in each other Loan Document are correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be correct in all respects) except where such representations and warranties expressly refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be correct in all respects) on and as of such date. The Administrative Agent shall have received a certificate, dated the Effective Date, from a Financial Officer of the Borrower certifying compliance with this Section 3.01(e). (f) All fees required to be paid by the Borrower hereunder or as separately agreed by the Borrower and any of the Arrangers or the Tranche B Lenders or the Term Lenders and all invoiced expenses of the Agent and the Arrangers relating hereto (including those of counsel to the Agent and the Arrangers), shall have in each case been paid. (g) After giving effect to the Transactions and the other transactions contemplated hereby, no Loan Party shall have any outstanding Indebtedness for borrowed money or preferred stock other than the Indebtedness under the Tranche B 109
Facility and Revolving Credit Facility and any applicable Indebtedness permitted pursuant to Section 5.03(k). (h) Since February 2, 2018, there shall not have been any event that has resulted or would reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. (i) No event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default or Event of Default. (j) The Agent and the Arrangers shall have received, at least four Business Days prior to the Effective Date, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable βknow your customerβ and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing at least ten Business Days prior to the Effective Date by the Agent or the Arrangers,. (k) The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.01(c) and the applicable provisions of the Security and Guarantee Documents, each of which shall be endorsed or otherwise amended to include a customary lenderβs loss payable endorsement and to name the Collateral Agent as additional insured, in form and substance reasonably satisfactory to the Agent. (l) The Collateral Agent shall have received (i) a Perfection Certificate with respect to the Loan Parties dated the Effective Date and duly executed by a Responsible Officer of the Borrower and (ii) the results of a recent lien search made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons, in which the chief executive office of each such Person is located and in the other jurisdictions in which such Persons maintain property, as applicable, in each case as indicated on the Perfection Certificate referred to above, together with copies of the financing statements (or similar documents) disclosed by such search, and accompanied by evidence reasonably satisfactory to the Collateral Agent that the Liens indicated in any such financing statement (or similar document) would be permitted under Section 5.03(a) of this Agreement or have been or will be contemporaneously released or terminated. (m) The Security and Guarantee Documents shall have been duly executed by each Loan Party that is to be a party thereto and shall be in full force and effect on the Effective Date. The Collateral Agent, on behalf of the Secured Parties, shall have a security interest in the Collateral of the type and priority described in each Security and Guarantee Document. (n) Each document (including any UCC financing statements but excluding any Mortgages) required by the Security and Guarantee Documents or under applicable law or reasonably requested by the Collateral Agent to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Lenders 110
and the other Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to any other person (subject to applicable Liens permitted under Section 5.03(a) of this Agreement), shall have been filed, registered or recorded or delivered to the Collateral Agent in proper form for filing, registration or recordation. On or prior to the Effective Date, the Collateral Agent shall have received all Pledged Collateral (as defined in the Guarantee and Collateral Agreement) required to be delivered to the Collateral Agent pursuant to the Guarantee and Collateral Agreement, together with undated proper instruments of assignment duly executed by the applicable Loan Party in blank and such other instruments or documents as the Collateral Agent may reasonably request. (o) Other than as set forth in Section 5.01(n), (i) each of the Security and Guarantee Documents, in form and substance reasonably satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged Properties shall not be subject to any Lien other than those permitted under Section 5.03(a) of this Agreement, (iii) each such Security and Guarantee Document shall have been filed and recorded in the recording office as specified on Schedule 4.01(bb) (or a lenderβs title insurance policy, in form and substance reasonably acceptable to the Collateral Agent, insuring such Security and Guarantee Document as a first lien on such Mortgaged Property (subject to applicable Liens permitted under Section 5.03(a) of this Agreement) shall have been received by the Collateral Agent) and, in connection therewith, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing and recordation and (iv) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than Permitted Liens, together with such surveys, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders. (p) The Collateral Agent shall have received: (i) with respect to any Existing Mortgage, evidence that an amendment, supplement or modification in form reasonably satisfactory to the Collateral Agent (the βMortgage Amendmentsβ) with respect to each such Existing Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing and recording in all filing or recording offices that the Collateral Agent may deem necessary or desirable in order to maintain or protect the lien of the related Existing Mortgage and the priority thereof, (ii) with respect to the real properties subject to the Mortgage Amendments, fully paid title searches and mortgage modification and continuation endorsements confirming ownership of the related real property by the applicable Loan Party and showing no Liens of record other than Permitted Liens and (iii) evidence that all filing, documentary, stamp, intangible and recording taxes and fees in respect to such Mortgage Amendments have been paid in connection with the preparation, execution, filing and recordation of the Mortgage Amendments. 111
Loan Party that is a party thereto. This Agreement is, and each other Loan Document when delivered hereunder will be, the legal, valid and binding obligation of the Borrower and each other Loan Party that is a party thereto, enforceable against the Borrower and each other Loan Party that is a party thereto in accordance with their respective terms except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditorsβ rights generally or by equitable principles relating to enforceability. (e) The audited Consolidated balance sheet of the Borrower and its Subsidiaries, and the related Consolidated statements of income, equity and cash flows as of and for each of the fiscal years ended January 29, 2016, February 3, 2017 and February 2, 2018: (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (ii) are complete and accurate in all material respects and fairly present, in all material respects, the financial condition of the Borrower and its Consolidated Subsidiaries as of the date thereof and results of operations for the period covered thereby. Since February 2, 2018, there has been no Material Adverse Change. (f) There is no pending or (to the knowledge of the Borrower) threatened action, suit, investigation, litigation or proceeding pending or threatened in writing, including pursuant to any Environmental Law, affecting the Consolidated Group before any court, Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby. (g) None of the Loan Parties is engaged in the business of purchasing or carrying, or extending credit for the purpose of purchasing or carrying, margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. (h) None of the Loan Parties is an βinvestment companyβ, within the meaning of the Investment Company Act of 1940, as amended. (i) The Borrower has made available, through the reports and other filings made by the Borrower under the Exchange Act or Securities Act or through the Agent, to the Lenders all material agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject and all reports or other filings made by the Borrower under the Exchange Act or Securities Act, and disclosed, through the reports and other filings made by the Borrower under the Exchange Act or Securities Act or otherwise, all other matters known to it that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No reports, financial statements, certificates or other information furnished by or on behalf of the Borrower or any of its Subsidiaries to the Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other 114
information so certified) contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, taken as a whole and in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions the Borrower believed to be reasonable at the time. (j) The Borrower and its Subsidiaries, on a Consolidated basis, are Solvent. (k) The Borrower and its Subsidiaries have timely filed all material Tax returns and reports required to be filed, and have paid all material Taxes, levied or imposed upon them or their property, income or assets, that are due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP. (l) As of the Effective Date, the Borrower has no Subsidiaries other than those specifically disclosed on Schedule 4.01(l). (m) The on-going operations of the Borrower and each of its Subsidiaries comply in all respects with all Environmental Laws, except such non-compliance which would not reasonably be likely to have a Material Adverse Effect. The Borrower and each of its Subsidiaries have obtained all Environmental Permits that are required under any Environmental Law necessary for its ordinary course operations, all such Environmental Permits are in good standing, and the Borrower and each of its Subsidiaries are in compliance with all material terms and conditions of such Environmental Permits, except where the failure to obtain or maintain such Environmental Permits or such noncompliance would not be reasonably likely to have a Material Adverse Effect. (n) The Borrower and each of its Subsidiaries have good and marketable title to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for Liens permitted by Section 5.03(a) and for such defects in title as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (o) The Borrower and each of its Subsidiaries owns, or is licensed to use, all trademarks, service marks, tradenames, copyrights, patents, franchises, licenses and other intellectual property (collectively, βIP Rightsβ) material to its business, and the use thereof by such Loan Party 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. Set forth on Schedule 4.01(o) is a complete and accurate list of all material registered or applications to register IP Rights owned or exclusively licensed by Borrower or any of its Subsidiaries as of the Effective Date. To the knowledge of the Borrower, the conduct of the business of each of the Borrower and its Subsidiaries as currently conducted does not infringe upon or violate any rights held by any other Person, except for such infringements and 115
violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Borrower, threatened, which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. (p) Neither the Borrower nor any of its Subsidiaries or Affiliates, nor any director or officer, nor, to the knowledge of the Borrower or any of its Subsidiaries, any agent, representative, employee or other person associated with or acting on behalf of the Borrower or any of its Subsidiaries or Affiliates is, or is (to the knowledge of the Borrower) Controlled by Persons that are, (a) currently the subject or the target of any sanctions or trade embargoes administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State and including, without limitation, the designation as a βspecially designated nationalβ or βblocked personβ), the United Nations Security Council, the European Union, any European Member State, Her Majestyβs Treasury, or any other relevant sanctions authority (collectively, βSanctionsβ), (b) nor are the Borrower or any of its Subsidiaries located, organized or resident in a country, region or territory that is the subject or target of Sanctions, including, without limitation, the so β called Donetsk Peopleβs Republic, the so β called Luhansk Peopleβs Republic, the Crimea Region of Ukraine, Cuba, Iran, North Korea and Syria (each, a βSanctioned Countryβ). The Borrower has implemented and maintains in effect policies and procedures reasonably designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents under their control with Anti-Corruption Laws and applicable Sanctions. (q) No Advance, nor the proceeds from any Advance or Letter of Credit, has been or will be used, to lend, contribute, provide or has otherwise been made or will otherwise be made available for the purpose of funding any activity or business in any Sanctioned Country or for the purpose of funding any prohibited activity or business of any Person located, organized or residing in any Sanctioned Country or who is a Person who is the subject or target of Sanctions or, to the knowledge of the Borrower or any of its Subsidiaries, any Person owned by or controlled by, or acting for or on behalf of a Person who is the subject or target of Sanctions, absent valid and effective licenses and permits issued by the government of the United States or otherwise in accordance with applicable laws, or in any other manner that will result in any violation by any Lender, any Issuing Bank or the Agent of any Sanctions (any such Person, a βSanctioned Personβ). None of the Borrower, any Subsidiary of the Borrower or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees or agents (under control of the Borrower) of the Borrower or any Subsidiary that will act in any capacity in connection with the credit facility established hereby, is a Sanctioned Person. (r) Neither the Borrower nor any of its Subsidiaries or Affiliates, nor any director, officer, or employee, nor, to the knowledge of the Borrower or any of its Subsidiaries, any agent, representative or other person associated with or acting on behalf of the Borrower or any of its Subsidiaries or Affiliates, has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the 116
payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any βgovernment officialβ (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any Person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action or secure an improper advantage to the extent the same would be a violation of any law applicable to the Borrower, such Subsidiary or such Affiliate; and the Borrower and each of its Subsidiaries and Affiliates have conducted their respective businesses in compliance with anti-corruption laws applicable to the Borrower or such Subsidiary or Affiliate and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein. (s) The Borrower and its Subsidiaries are in compliance with all laws, regulations and orders and have all requisite governmental licenses, authorizations, consents and approvals to operate their respective business, except for any such non-compliance or failure to have which would not reasonably be likely to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in violation of any legal requirement relating to any laws with respect to terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 and the Patriot Act. (t) (i) No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. As of the most recent valuation date for any Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to result in the funding attainment percentage dropping below 60% as of the most recent valuation date. (ii) As of the Effective Date and throughout the term of this Agreement, the Borrower is not using βplan assetsβ (within the meaning of 29 CFR Β§ 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Advances or the Commitments. (iii) The Administrative Agent, the Arrangers and each Lender hereby inform the Borrower that such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person or an Affiliate has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (1) may receive interest or other payments with respect to the Advances or the Commitments, (2) may recognize a gain if it purchased the Advances or the Commitments for an amount less than the par amount thereof or sells the Advances or the Commitments for an amount in excess of what it paid therefor or extended to the Borrower hereunder and/or (3) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan 117
Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankerβs acceptance fees, breakage or other early termination fees or fees similar to the foregoing. (u) The Borrower has the power and authority to make the Borrowings herein provided for, to grant to the Collateral Agent the Liens described in the Security and Guarantee Documents executed by the Borrower and to perform all of its obligations hereunder and under the other Loan Documents executed by it. Each other Loan Party has the power and authority to grant to the Collateral Agent the Liens described in the Security and Guarantee Documents executed by such Person, and to perform all of its obligations under the Loan Documents executed by it. (v) The Guarantee and Collateral Agreement, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditorsβ rights generally or by equitable principles relating to enforceability) security interest in the Collateral and the proceeds thereof and (1) when the Pledged Collateral (as defined in the Guarantee and Collateral Agreement) is delivered to the Collateral Agent, the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of the Loan Parties in such Pledged Collateral, in each case prior and superior in right to any other Person, and (2) when the financing statements in appropriate form describing the Collateral as βall assetsβ or using language of similar import or otherwise containing a reasonable description of the Collateral are filed in the offices specified on Schedule 4.01(v), the Lien created under the Guarantee and Collateral Agreement in the Collateral that may be perfected by the filing of a financing statement in such office will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in such Collateral, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 5.03(a). (w) Upon the recordation of the Guarantee and Collateral Agreement (or a short-form security agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent) with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements in appropriate form filed in the offices specified on Schedule 4.01(o), the Lien created under the Guarantee and Collateral Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in the Intellectual Property (as defined in the Guarantee and Collateral Agreement) in which a security interest may be perfected by filing in the United States and its territories and possessions, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 5.03(a) (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States 118
Copyright Office may be necessary to perfect a Lien on registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the Effective Date). (x) Neither the Borrower nor any of its Subsidiaries is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other material agreement or instrument to which it is a party or by which it or any of its properties or assets are or may be bound, where such default has resulted or could reasonably be expected to result in a Material Adverse Effect. (y) Schedule 4.01(y) sets forth a true, complete and correct description of all insurance maintained by the Borrower or by its Subsidiaries as of the Effective Date. Such insurance is in full force and effect and all premiums have been duly paid. The Borrower and its Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in accordance with normal industry practice. (z) Schedule 4.01(z)-1 lists completely and correctly as of the Effective Date all real property owned by the Borrower and the Guarantors and the addresses thereof and (ii) Schedule 4.01(z)-2 lists completely and correctly as of the Effective Date each parcel of real property leased, subleased, licensed or sublicensed by the Borrower and the Guarantors, the address and the owner thereof, and the expiration date of the related lease, sublease, license or sublicense. (aa) Each Mortgage is effective to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable (except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditorsβ rights generally or by equitable principles relating to enforceability) first priority Lien on all of the applicable Loan Party's right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgage is filed in the offices specified on Schedule 4.01(aa), such Mortgage shall constitute a fully perfected first priority Lien on, and security interest in, all right, title and interest of such Loan Party in such Mortgaged Property and the proceeds thereof, in each case prior and superior in right to any other Person, other than with respect to Liens expressly permitted by Section 5.03(a). (bb) As of the Effective Date, there are no strikes, lockouts or slowdowns against the Borrower or any of its Subsidiaries pending or, to the knowledge of the Borrower, threatened, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. Except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect, (a) the hours worked by and payments made to employees of each of the Borrower and its Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters; (b) all payments due from each of the Borrower and its Subsidiaries, or for which any claim may be made 119
or associations in such amounts and covering such risks as is usually carried by companies engaged in similar businesses and owning similar properties in the same general areas in which the Borrower or such Subsidiary operates. (ii) Cause all such policies covering any Collateral to be endorsed or otherwise amended to include a customary lender's loss payable endorsement, in form and substance satisfactory to the Administrative Agent and the Collateral Agent and to contain such other provisions as the Administrative Agent or the Collateral Agent may reasonably require from time to time to protect their interests; deliver original or certified copies of all such policies to the Collateral Agent; and deliver to the Administrative Agent and the Collateral Agent, prior to the cancellation, modification or nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Administrative Agent and the Collateral Agent) together with evidence reasonably satisfactory to the Administrative Agent and the Collateral Agent of payment of the premium therefor. (iii) If at any time the area in which the Premises (as defined in the Mortgages) are located is designated (1) a Special Flood Hazard Area by the Federal Emergency Management Agency (or any successor agency), obtain flood insurance, if so requested by any Lender, in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require and otherwise comply with the NFIP as set forth in the Flood Laws (each, a βFlood Insurance Policyβ) or (2) a βZone 1β area, obtain earthquake insurance in such total amount as the Administrative Agent, the Collateral Agent or the Required Lenders may from time to time reasonably require. The Administrative Agent will provide copies of each Flood Hazard Determination, Borrower Notice and all other Evidence of Flood Insurance to the Lenders promptly after its receipt of such documentation. Following the Effective Date, the Borrower shall deliver to the Collateral Agent annual renewals of the Flood Insurance Policy or annual renewals of a force-placed Flood Insurance Policy for each Mortgaged Property if flood insurance for such Mortgaged Property was requested by any Lender. In connection with and as a condition to any amendment to this Agreement (other than an amendment executed in connection with any Advance contemplated to be funded on or before the Fifth Amendment Effective Date) pursuant to which any increase, extension, or renewal of Advances is contemplated, the Administrative Agent shall obtain Flood Hazard Determinations for each of the Mortgaged Properties and Borrower shall cause to be delivered to the Administrative Agent for any Mortgaged Property, a Borrower Notice and Evidence of Flood Insurance, as applicable. (iv) With respect to any Mortgaged Property, carry and maintain comprehensive general liability insurance including the βbroad form CGL endorsementβ and coverage on an occurrence basis against claims made for personal injury (including bodily injury, death and property damage) and umbrella liability insurance against any and all claims, in no event for a combined single limit of less than that which is customary for companies in the same or similar businesses operating in the same or similar locations, naming the Collateral Agent as an additional insured, on forms satisfactory to the Collateral Agent. 121
and cause each of its Subsidiaries to conduct, all transactions otherwise permitted under this Agreement with any of their Affiliates on terms that are fair and reasonable and no less favorable to the Borrower or such Subsidiary than it would obtain in a comparable armβs- length transaction with a Person not an Affiliate. (i) Reporting Requirements. Furnish to the Agent for further distribution to the Lenders: (i) as soon as available and in any event within 50 days after the end of each of the first three quarters of each fiscal year of the Borrower, a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter and Consolidated statements of income and cash flows of the Borrower and its Consolidated Subsidiaries for such fiscal quarter and for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, duly certified by a Financial Officer, the Controller or the Treasurer of the Borrower as having been prepared in accordance with GAAP (subject to the absence of footnotes and year-end audit adjustments) and certificates of a Financial Officer, the Controller or the Treasurer of the Borrower (x) as to compliance with the terms of the Loan Documents and setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.05 and (y) containing the calculation of the Available Amount Basket as of the end of such quarter and the amount of the Available Amount Basket used during such quarter; (ii) as soon as available and in any event within 100 days after the end of each fiscal year of the Borrower, (a) a copy of the annual audit report for such year for the Borrower and its Consolidated Subsidiaries, containing a Consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of the end of such fiscal year and Consolidated statements of income and cash flows of the Consolidated Group for such fiscal year prepared in accordance with GAAP, in each case audited and accompanied by an unqualified report and opinion by Xxxxx & Young LLP or other independent public accountants of recognized national standing and certificates of a Financial Officer, the Controller or the Treasurer of the Borrower as to (x) compliance with the terms of the Loan Documents, including setting forth in reasonable detail the calculations necessary to demonstrate compliance with Section 5.05, and (y) the calculation of the Available Amount Basket as of the end of such fiscal year, the amount of the Available Amount Basket used during such fiscal year, Excess Cash Flow for such fiscal year and the related Excess Cash Flow Percentage and (b) a certificate of a Financial Officer setting forth the information required pursuant to the Perfection Certificate or confirming that there has been no change in such information since the date of the Perfection Certificate delivered on the Effective Date or the date of the most recent certificate delivered pursuant to this Section 5.01(i)(ii); (iii) as soon as possible and in any event within five Business Days after the occurrence of each Default continuing on the date of such statement, a 123
statement of a Financial Officer of the Borrower setting forth details of such Default and the action that the Borrower has taken and proposes to take with respect thereto; (iv) promptly after the sending or filing thereof, copies of all reports that the Borrower sends to any of its securityholders, and copies of all reports and registration statements that the Borrower files with the SEC or any national securities exchange; (v) promptly after the commencement thereof, notice of all actions and proceedings before any court, Governmental Authority or arbitrator affecting the Consolidated Group of the type described in Section 4.01(f); (vi) such other information respecting the Consolidated Group, or compliance with the terms of the Loan Documents, and as any Lender through the Agent may from time to time reasonably request, including all documentation and other information that such Lender reasonably requests in order to comply with its ongoing obligations under applicable βknow your customerβ and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation; and (vii) as soon as possible and in any event within five Business Days, a prompt written notice of (A) any development that has resulted or could reasonably be expected to result in a Material Adverse Effect, (B) any change in the Borrowerβs public corporate rating by S&P or public corporate family rating by Moodyβs or the ratings of any of the Facilities by S&P or Moodyβs, or any notice from either such agency indicating its intent to effect such a change or to place the Borrower or the Facilities on a βCreditWatchβ or βWatchListβ or any similar list, in each case with negative implications, or its cessation of, or its intent to cease, rating the Borrower or the Facilities, (C) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to have a Material Adverse Effect, or (D) the incurrence of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.10(b). At the request of the Administrative Agent or the Required Lenders, no later than (i) 10 days after the delivery of any financial statements pursuant to subclause (i) or (ii) of Section 5.01(i) or (ii) such other time as reasonably agreed by the Borrower and the Administrative Agent, the appropriate Financial Officers of the Borrower shall participate in one conference call per fiscal quarter (and additional calls at the discretion of the Borrower) with the Administrative Agent and the Lenders to discuss in reasonable detail such financial statements and the financial condition and results of operations of the Borrower and its Subsidiaries, as well as to answer any reasonable questions from the Administrative Agent or the Lenders about such financial statements. 124
(j) Use of Proceeds. Use the proceeds of any Advances in accordance with Section 2.17 or any applicable Incremental Assumption Agreement, as applicable. (k) Regulatory Approvals. Maintain, and cause each of its Subsidiaries to, maintain all material licenses, permits, authorizations and regulatory approvals necessary to conduct its business and to comply with all applicable laws and regulations, except for such non-maintenance or non-compliance as would not be reasonably expected to have a Material Adverse Effect. (l) Further Assurances. (i) Execute any and all further documents, financing statements, agreements and instruments, and take all further action (including filing UCC and other financing statements, mortgages and deeds of trust and any applicable flood documentation) that may be required under applicable law, or that the Required Lenders or the Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan Documents and, if applicable, in order to grant, preserve, protect and perfect the validity and first priority (subject to any Liens permitted under Section 5.03(a)) of the security interests created or intended to be created by the Security and Guarantee Documents. (ii) If, following the Effective Date, any Domestic Subsidiary (other than an Excluded Subsidiary) is acquired or organized by any Loan Party, the Borrower shall promptly (and in any event within 30 days (or such longer period as the Collateral Agent shall agree) of such event) (A) notify the Collateral Agent thereof, (B) cause such Domestic Subsidiary (other than an Excluded Subsidiary) to become a Loan Party by executing the Guarantee and Collateral Agreement (or a supplement thereto in the form specified therein), (C) cause the Equity Interest of such Domestic Subsidiary (other than an Excluded Subsidiary) and the Equity Interest of any Subsidiary owned by such Domestic Subsidiary (other than an Excluded Subsidiary) (limited to, in the case of any first-tier Foreign Subsidiary owned by such Domestic Subsidiary (other than an Excluded Subsidiary), 65% of the voting and 100% of the non-voting Equity Interests of such first-tier Foreign Subsidiary, and in the case of any other Foreign Subsidiary owned by such Domestic Subsidiary (other than an Excluded Subsidiary), 100% of the non-voting Equity Interests of such other Foreign Subsidiary) to be pledged to the Collateral Agent on a first priority basis and deliver to the Collateral Agent all certificates or other instruments representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank to the extent required by the Security and Guarantee Documents, (D) cause all documents and instruments, including UCC financing statements and Mortgages, required by law or reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by the Security and Guarantee Documents and perfect or record such Liens to the extent, and with the priority, required by the Security and Guarantee Documents, to be filed, registered or recorded or delivered to the Collateral Agent for filing, registration or recording, (E) cause each Loan Party to take all other action required under the Security and Guarantee Documents or reasonably requested by the Collateral Agent to perfect, register and/or record the Liens granted by it 125
incurred no later than 3 months after completion of such refurbishment, improvement or construction, and all renewals, extensions, refinancings, replacements or refundings of such obligations; and (2) (A) Liens given to secure the payment of the purchase price incurred in connection with the acquisition (including acquisition through merger or consolidation) of assets (including shares of stock), including Capital Lease transactions in connection with any such acquisition, and (B) Liens existing on assets at the time of acquisition thereof or at the time of acquisition by the Borrower or any of its Subsidiaries of any Person then owning such assets whether or not such existing Liens were given to secure the payment of the purchase price of the assets to which they attach; provided that, with respect to clause (A), the Liens shall be given within 3 months after such acquisition and shall attach solely to the property acquired or purchased and any improvements then or thereafter placed thereon; provided further that the aggregate principal amount of the Indebtedness secured by the Liens referred to in these clauses (ii)(1) and (ii)(2) shall not exceed $30,000,000 (which shall automatically be increased to $50,000,000 on the Engility Closing Date without any action by any party hereto) at any time outstanding; (iii) the Liens existing on the Effective Date and described on Schedule 5.03(a) hereto (or to the extent not listed on such Schedule, where the fair market value of asset to which such Lien is attached is less than $2,500,000); (iv) Liens on property of a Person existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the Borrower; provided that such Liens were not created in contemplation of such merger, consolidation or acquisition and do not extend to any assets other than those of the Person so merged into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such Subsidiary; (v) other Liens securing Indebtedness; provided that the sum of (1) the aggregate principal amount of the Indebtedness then outstanding and secured by the Liens referred to in this clause (v) and (2) the aggregate fair value of property sold pursuant to sale and lease-back transactions permitted by Section 5.03(f)(iv) below with respect to which the applicable lease remains in effect, shall not exceed the greater of (x) $45,000,000 (which shall automatically be increased to $100,000,000 on the Engility Closing Date without any action by any party hereto) and (y) 2.0% of Total Assets at any time; (vi) Liens encumbering customary initial deposits and margin deposits and other Liens in the Ordinary Course of Business, in each case securing obligations under Hedge Agreements and forward contracts, options, futures contracts, futures options, equity xxxxxx or similar agreements or arrangements 127
designed to protect from fluctuations in interest rates, currencies, equities or the price of commodities; (vii) the replacement, extension or renewal of any Lien permitted by clause (iii) or (iv) above upon or in the same property theretofore subject thereto or the replacement, extension or renewal (without increase in the amount or change in any direct or contingent obligor) of the Indebtedness secured thereby; (viii) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility in an amount outstanding at any time not to exceed the greater of (x) $300,000,000 and (y) 6.5% of Total Assets; (ix) receipt of progress payments and advances from customers in the Ordinary Course of Business to the extent same creates a Lien on the related inventory and proceeds thereof; (x) Liens arising out of consignment or similar arrangements for the sale by the Borrower or any of its Subsidiaries of goods through third parties in the Ordinary Course of Business; (xi) Liens solely on any xxxx xxxxxxx money deposits made by the Borrower or any of its Subsidiaries in connection with an Investment permitted by Section 5.03(j); (xii) Liens on specific items of inventory or other goods and proceeds of the Borrower or any of its Subsidiaries arising in the Ordinary Course of Business securing such Personβs obligations in respect of bankersβ acceptances and letters of credit issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods; (xiii) Liens on cash or Cash Equivalents used to defease or to satisfy and discharge Indebtedness; provided that such defeasance or satisfaction and discharge is not prohibited hereunder; (xiv) Liens on Equity Interests in joint ventures securing obligations of such joint venture; (xv) Liens securing Indebtedness or other obligations of the Borrower or any of its Subsidiaries in favor of the Borrower or any other Loan Party; and (xvi) Liens on intellectual property owned or developed by, or licensed to, the Borrower, or any of its Subsidiaries consisting of licenses of such intellectual property to third parties in the Ordinary Course of Business on customary terms which do not materially interfere with the business of the Borrower and its Subsidiaries. (b) [Reserved] 128
(c) Accounting Changes. The Borrower will not make or permit, or permit any of its Subsidiaries to make or permit, any change in accounting policies or reporting practices, except as required or permitted by GAAP. (d) Change in Nature of Business. The Borrower will not make any material change in the nature of the business of the Borrower and its Subsidiaries, taken as a whole, from the business as carried out by the Borrower and its Subsidiaries on the Effective Date; it being understood that this Section 5.03(d) shall not prohibit (i) the Engility Acquisition or (ii) members of the Consolidated Group from conducting any business or business activities incidental or related to the business as carried out by the Borrower and its Subsidiaries on the Effective Date or the Acquired Business on the Engility Closing Date or any business or activity that is reasonably similar or complementary thereto or a reasonable extension, development or expansion thereof or ancillary thereto. (e) Hedge Agreements. The Borrower will not enter into, or permit any of its Subsidiaries to enter into, any Hedge Agreement, other than Hedge Agreements entered into to hedge or mitigate risks to which the Borrower or any of its Subsidiaries, is exposed in the conduct of its business or management of its assets or liabilities. (f) Limitation on Sale and Lease-Back Transactions. The Borrower will not enter into, or permit any of its Subsidiaries to enter into, any sale and lease-back transaction for the sale and leasing back of any property, whether now owned or hereafter acquired, unless: (i) such transaction was entered into (x) prior to the Effective Date, (y) with respect to any Acquired Entity, prior to the merger or consolidation of the Acquired Entity with the Borrower provided such sale and lease-back transaction was not entered into in contemplation of such transaction, or (z) in the Ordinary Course of Business of the Borrower or any of its Subsidiaries; (ii) such transaction was for the sale and leasing back to the Borrower or any of its Subsidiaries of any property by one of the Borrowerβs Subsidiaries; (iii) such transaction was for the sale and leasing back to the Borrower or any of its Subsidiaries of any property by any domestic or foreign Governmental Authority in connection with pollution control, industrial revenue, private activity bonds or similar financing; (iv) the aggregate fair value of property sold pursuant to such transactions involving a lease for more than three years that is then outstanding shall not exceed, together with the aggregate principal amount of Indebtedness that is then outstanding and secured by the Liens referred to in Section 5.03(a)(v) above, the greater of (x) $45,000,000 (which shall automatically be increased to $80,000,000 on the Engility Closing Date without any action by any party hereto) and (y) 2.0% of Total Assets; 129
(iv) the Borrower may make additional Restricted Payments in an aggregate amount not to exceed the portion, if any, of the Available Amount Basket as of such time that the Borrower elects to apply to this Section 5.03(h)(iv), such election to be specified in a written notice of a Financial Officer of the Borrower calculating in reasonable detail the amount of the Available Amount Basket immediately prior to such election and the amount thereof elected to be so applied; provided that (i) before and after giving effect to any such Restricted Payment, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) after giving effect to any such Restricted Payment, the Interest Coverage Ratio is equal to or greater than 2.00 to 1.00 on a pro forma basis after giving effect to such Restricted Payment and the pro forma adjustments described in Section 1.07. (i) Negative Pledge. The Borrower will not enter into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist, any agreement (other than the Loan Documents) prohibiting or conditioning the creation or assumption of any Lien upon any of the Borrowerβs property or assets for the benefit of the Agent, the Lenders and the Issuing Banks with respect to the Obligations under the Loan Documents except (a) agreements in favor of the Agent and the Lenders; (b) prohibitions or conditions under (i) any Indebtedness or agreements existing on the Effective Date, (ii) any purchase money Indebtedness not prohibited hereunder solely to the extent that the agreement or instrument governing such Indebtedness prohibits a Lien on the property acquired with the proceeds of such Indebtedness, (iii) any Capital Lease not prohibited hereunder solely to the extent that such Capital Lease prohibits a Lien on the property subject thereto, (iv) any Indebtedness outstanding or agreements existing on the date any Person first becomes a Subsidiary of the Borrower (so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of the Borrower), (v) any Indebtedness permitted pursuant to Section 5.03(k)(vii) to the extent no more restrictive than the covenants in this Agreement or (vi) or relating to any Receivables Facility; (c) software and other intellectual property licenses pursuant to which the Borrower or any of its Subsidiaries is the licensee of the relevant software or intellectual property, as the case may be (in which case, any prohibition or limitation shall relate only to the assets that are subject of the applicable license); (d) customary provisions contained in joint venture agreements and other similar agreements applicable to joint ventures entered into in the Ordinary Course of Business; or (e) customary provisions restricting assignment of any agreement entered into in the Ordinary Course of Business. (j) Investments, Loans and Advances. The Borrower will not (and will not permit any of its Subsidiaries to) make, hold or acquire any Investments, except: (i) (a) Investments by the Borrower and its Subsidiaries existing on the Effective Date in any Subsidiary of the Borrower and (b) additional Investments by the Borrower and its Subsidiaries in the Borrower or any of its Subsidiaries; provided that the aggregate amount of Investments made after the Effective Date in Subsidiaries of the Borrower that are not Loan Parties, taken together with loans and advances made after the Effective Date by Loan Parties to 131
Subsidiaries of the Borrower that are not Loan Parties (determined without regard to any write-downs or write-offs of such investments, loans and advances) shall not exceed $20,000,000 (which shall automatically be increased to $40,000,000 on the Engility Closing Date without any action by any party hereto); (ii) Investments in cash or Cash Equivalents; (iii) loans or advances made by the Borrower to any of its Subsidiaries and made by any of its Subsidiaries to the Borrower or any other Subsidiary of the Borrower; provided that (a) any such loans and advances made by a Loan Party shall be evidenced by a promissory note or global intercompany note pledged pursuant to any Security and Guarantee Document and (b) the amount of such loans and advances made by Loan Parties to any Subsidiaries of the Borrower that are not Loan Parties shall be subject to the limitation set forth in clause (i) above; (iv) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the Ordinary Course of Business; (v) the Borrower and its Subsidiaries may make loans and advances in the Ordinary Course of Business to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $5,000,000 (which shall automatically be increased to $10,000,000 on the Engility Closing Date without any action by any party hereto) in any fiscal year; (vi) the Borrower or any of its Subsidiaries may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other than directorsβ qualifying shares) of a Person (referred to herein as the βAcquired Entityβ); provided that (a) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Borrower or any of its Subsidiaries; (b) the Acquired Entity shall be in a line of business reasonably similar, ancillary or incidental to the business of that of the Borrower and its Subsidiaries as conducted during the current and most recent calendar year; and (c) (A) both before and after giving effect thereto, no Event of Default shall have occurred and be continuing, in each case at and as of the date the agreement for such acquisition is signed, (B) on the date the agreement for such acquisition is signed, the Senior Secured Leverage Ratio, after giving pro forma effect to such acquisition and the pro forma adjustments described in Section 1.07, is equal to or less than 3.75 to 1.00, (C) at the time of the consummation of such transaction, the Borrower shall have delivered a certificate of a Financial Officer, certifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Agent, and (D) at the time of the consummation of such transaction, the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.03(k) and any Security and Guarantee Documents; provided that the total consideration paid 132
by or on behalf of the Borrower or any of its Subsidiaries for any such acquisition of a Person that does not become a Loan Party (including by way of merger) or of assets that do not become collateral under any Security and Guarantee Documents, when aggregated with the total consideration paid by or on behalf of the Borrower or any of its Subsidiaries for all other acquisitions made by the Borrower or any of its Subsidiaries of Persons that do not become Loan Parties (including by way of merger) or of assets that do not become collateral under any Security and Guarantee Documents, shall not exceed the greater of (x) $75,000,000 (which shall automatically be increased to $150,000,000 on the Engility Closing Date without any action by any party hereto) and (y) 3.5% of Total Assets (any acquisition of an Acquired Entity meeting all the criteria of this Section 5.03(j)(vi) being referred to herein as a βPermitted Acquisitionβ); provided that, notwithstanding any of the foregoing, the Engility Acquisition shall constitute a Permitted Acquisition; (vii) in addition to Investments permitted by paragraphs (i) through (vi) above, additional investments, loans and advances by the Borrower and its Subsidiaries so long as the aggregate amount invested, loaned or advanced pursuant to this paragraph (vii) (determined without regard to any write-downs or write-offs of such investments, loans and advances) does not exceed $100,000,000 in the aggregate; (viii) in addition to Investments permitted by paragraphs (i) through (vii) above, additional investments, loans and advances by the Borrower and its Subsidiaries so long as (1) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (2) the Borrower would be in compliance with the covenant set forth in Section 5.05, after giving pro forma effect to such investment, loan or advance and the pro forma adjustments described in Section 1.07 and (3) on a pro forma basis after giving effect to such investment, loan or advance and the pro forma adjustments described in Section 1.07, the Leverage Ratio is equal to or less than 3.00 to 1.00; (ix) the Borrower and each of its Subsidiaries may make Investments in an aggregate amount not to exceed the portion, if any, of the Available Amount Basket as of such time that the Borrower or such Subsidiary elects to apply to this Section 5.03(j)(ix), such election to be specified in a written notice of a Financial Officer of the Borrower calculating in reasonable detail the amount of the Available Amount Basket immediately prior to such election and the amount thereof elected to be so applied; provided that before and after giving effect to any such Investment, no Default or Event of Default shall have occurred and be continuing or would result therefrom; (x) Investments relating to any Receivables Subsidiary that, in the good faith determination of the Borrower, are necessary or advisable to effect a Receivables Facility or any repurchases or other transactions in connection therewith; 133
(xi) Non-speculative Investments consisting of Hedge Agreements permitted hereunder; (xii) Investments arising directly out of the receipt by the Borrower or any of its Subsidiaries of non-cash consideration for any Disposition permitted under Section 5.03(n); provided that such non-cash considering shall in no event exceed 25% of the total consideration received for such sale; (xiii) Investments resulting from pledges and deposits referred to in clauses (c) and (d) of the βPermitted Liensβ definition; (xiv) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons which do not materially interfere with the business of the Borrower and its Subsidiaries; (xv) any Investment in a Foreign Subsidiary to the extent such Investment is substantially contemporaneously repaid in full with a dividend or other distribution from such Foreign Subsidiary; (xvi) Investments in the Ordinary Course of Business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers constituent with past practices; (xvii) Advances of payroll payments to employees, or fee payments to directors or consultants, in the Ordinary Course of Business; (xviii) Investments of any Person that becomes a Subsidiary of the Borrower after the Effective Date; provided that (a) such Investments exist at the time such Person becomes a Subsidiary or such asset is acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such asset being acquired; and (xix) Investments in Raptors Merger Sub, Inc. to the extent made to effectuate the closing of the Engility Acquisition. For purposes of compliance with this Section 5.03(j), the amount of any Investment shall be the amount actually invested (measured at the time made), without adjustment for subsequent increases or decreases in the value of such Investment but, except to the extent it would increase the Available Amount Basket, giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such other Person with respect thereto (but only to the extent that the aggregate amount of all such returns, distributions and repayments with respect to such Investment does not exceed the original amount of such Investment). (k) Indebtedness. The Borrower will not (and will not permit any of its Subsidiaries to) incur, create, assume or permit to exist any Indebtedness, except: 134
(i) Indebtedness created hereunder and under the other Loan Documents; (ii) intercompany Indebtedness of the Borrower and its Subsidiaries to the extent permitted by Section 5.03(j)(iii); provided that (x) upon request of the Agent any such Indebtedness owed to a Loan Party shall be evidenced by a promissory note (including a global intercompany note), pledged and delivered to the Agent as additional security for the obligations of such Loan Party, together with an appropriate allonge or note power and (y) any such Indebtedness owed by a Loan Party to a Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the obligations of the Loan Party pursuant to an affiliate subordination agreement reasonably satisfactory to the Agent; (iii) Indebtedness of the Borrower or any of its Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (a) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (b) the aggregate principal amount at any time outstanding of Indebtedness permitted by this Section 5.03(k)(iii), when combined with the aggregate principal amount of all Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant to Section 5.03(k)(iv), shall not exceed the greater of (x) $100,000,000 (which shall automatically be increased to $200,000,000 on the Engility Closing Date without any action by any party hereto) and (y) 5.0% of Total Assets; (iv) Capital Lease Obligations and Synthetic Lease Obligations in an aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 5.03(k)(iii), not exceeding the greater of (x) $100,000,000 (which shall automatically be increased to $200,000,000 on the Engility Closing Date without any action by any party hereto) and (y) 5.0% of Total Assets; (v) Indebtedness under performance or surety bonds or with respect to workersβ compensation claims, in each case incurred in the Ordinary Course of Business; (vi) Indebtedness of any Person that becomes a Subsidiary of the Borrower after the Effective Date or Indebtedness acquired or assumed by the Borrower or any of its Subsidiary in connection with any Permitted Acquisition or other acquisition permitted under Section 5.03(j); provided that (a) such Indebtedness exists at the time such Person becomes a Subsidiary or such asset is acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such asset being acquired, (b) immediately before and after such Person becomes a Subsidiary, no Default shall have occurred and be continuing and (c) at the time such Indebtedness is acquired or assumed or such Person becomes a Subsidiary, the Borrower shall be in compliance with the 135
financial covenant set forth in Section 5.03 after giving pro forma effect to the acquisition or assumption of such Indebtedness and the pro forma adjustments described in Section 1.07 and any Permitted Refinancing thereof; (vii) unsecured Indebtedness of the Borrower or any of its Subsidiaries in an aggregate amount not to exceed the greater of (x) $100,000,000 and (y) such other amount, so long as after giving pro forma effect to the incurrence of such Indebtedness (and the use of proceeds therefrom) and the pro forma adjustments described in Section 1.07, the Leverage Ratio is equal to or less than 4.50 to 1.00; provided that, if the proceeds of such unsecured Indebtedness are being used to finance, in whole or in part, a Permitted Acquisition then the Leverage Ratio set forth in clause (y) above must only be satisfied at the time the acquisition agreement for such Permitted Acquisition is entered into and if the proceeds of such unsecured Indebtedness are being used to finance, in whole or in part, the Olympus Acquisition then the Leverage Ratio set forth in clause (y) above must only be satisfied on the First Amendment Effective Date; provided further that (a) the terms of such Indebtedness are not, when taken as a whole, materially more favorable to the lenders providing such Indebtedness than those applicable to the Facilities or are otherwise on current market terms for such type of Indebtedness, as determined by the Borrower, (b) the final maturity date of such Indebtedness shall be no earlier than 181 days after the final maturity date of any of the Facilities outstanding at the time of incurrence of such Indebtedness, (c) the aggregate amount of principal payments required to be made on such Indebtedness prior to the date that is 181 days after the final maturity date of any of the Facilities outstanding at the time of incurrence of such Indebtedness shall not exceed 10% of the original principal amount of such Indebtedness, (d) on a pro forma basis after giving effect to the incurrence of such Indebtedness (and the use of proceeds therefrom), no Event of Default shall have occurred and be continuing or would result therefrom, in the case of a Permitted Acquisition, at the time the acquisition agreement for such Permitted Acquisition is entered into and in the case of the Olympus Acquisition, on the First Amendment Effective Date and (e) the aggregate amount of all such Indebtedness incurred by Subsidiaries of the Borrower that are not Loan Parties shall not exceed the greater of (x) $100,000,000 and (y) 2.5% of Total Assets; provided further that the foregoing requirements of clause (b) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which any such customary bridge facility is to be converted or exchanged satisfies the requirements of clause (b) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges as determined by the Borrower; (viii) Indebtedness outstanding as of the Effective Date, as set forth on Schedule 5.03(k)(viii) and any Permitted Refinancing thereof; 136
(ix) guarantees of any Loan Party in respect of Indebtedness of the Borrower (or any Permitted Refinancing thereof) or any other Loan Party otherwise permitted hereunder; (x) Indebtedness in respect of purchase price adjustments or other similar adjustments incurred by the Borrower or any of its Subsidiaries in a Permitted Acquisition, Receivables Facility or Disposition under agreements which provide for the adjustment of the purchase price or for similar adjustments; (xi) Indebtedness consisting of obligations of the Borrower or any of its Subsidiaries under deferred consideration (e.g., earn-outs, indemnifications, incentive non-competes and other contingent obligations) or other similar arrangements incurred by such Person in connection with the Engility Acquisition, any Permitted Acquisition or other Investment permitted under Section 5.03(j); (xii) Indebtedness in respect of a Receivables Facility in an amount outstanding at any time not to exceed the greater of (x) $300,000,000 and (y) 6.5% of Total Assets; (xiii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or any of its Subsidiaries in the Ordinary Course of Business against insufficient funds, so long as such Indebtedness is promptly repaid; (xiv) Indebtedness of the Borrower or any of its Subsidiaries as an account party in respect of letters of credit in the Ordinary Course of Business; (xv) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the Ordinary Course of Business; (xvi) (i) Indebtedness representing deferred compensation or stock-based compensation to employees of Borrower or any of its Subsidiaries incurred in the Ordinary Course of Business and (ii) Indebtedness consisting of obligations of the Borrower or any of its Subsidiaries under deferred compensation or other similar arrangements incurred in connection with any Investment permitted hereunder; (xvii) Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the Ordinary Course of Business; (xviii) Indebtedness of Borrower or any of its Subsidiaries undertaken in connection with cash management and related activities with respect to any Subsidiary or joint venture in the Ordinary Course of Business and (ii) Indebtedness of the Borrower or any of its Subsidiaries to any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the 137
Ordinary Course of Business in connection with the cash management operations (including in respect of intercompany self-insurance arrangements) of the Borrower or any of its Subsidiaries; and (xix) all premium (if any), interest (including post-petition interest), fees, expenses, charges, accretion or amortization of original issue discount, accretion of interest paid in kind and additional or contingent interest on obligations described in the foregoing clauses (i) through (xviii). (l) Other Indebtedness and Agreements. (i) The Borrower will not (and will not permit any of its Subsidiaries to) effect (x) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any unsecured Indebtedness, any Indebtedness that is expressly subordinated in right of payment to the obligations of the Loan Parties in respect of the Loan Documents or any Indebtedness that is secured by junior-priority security interest in any collateral securing the Facilities (collectively, together with any Permitted Refinancing of the foregoing, βJunior Financingβ) if the effect of such waiver, supplement, modification, amendment, termination or release would be adverse to the Lenders in any material respect or (y) any waiver, supplement, modification or amendment of its certificate of incorporation, by-laws, operating, management or partnership agreement or other organizational documents, to the extent any such waiver, supplement, modification or amendment would be adverse to the Lenders in any material respect. (ii) The Borrower will not (and will not permit any of its Subsidiaries to) prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Junior Financing (it being understood that payments of regularly scheduled interest and principal shall be permitted) or make any payment in violation of any subordination terms of any Junior Financing, except (a) the refinancing of any Junior Financing with any Permitted Refinancing thereof, (b) the prepayment, redemption, purchase, defeasement or other satisfaction prior to the scheduled maturity of any Junior Financing or Permitted Refinancing thereof, in an aggregate amount not to exceed the greater of (x) $50,000,000 (which shall automatically be increased to $80,000,000 on the Engility Closing Date without any action by any party hereto) and (y) such other amount, so long as after giving pro forma effect to the incurrence of such Indebtedness (and the use of proceeds therefrom) and the pro forma adjustments described in Section 1.07, (1) the Leverage Ratio is equal to or less than 3.00 to 1.00 and (2) no Event of Default shall have occurred and be continuing or would result therefrom, and (c) the prepayment, redemption, purchase, defeasement or other satisfaction prior to the scheduled maturity of any Junior Financing in an aggregate amount not to exceed the portion, if any, of the Available Amount Basket as of such time that the Borrower elects to apply to this Section 5.03(l)(ii)(c), such election to be specified in a written notice of a Financial Officer of the Borrower calculating in reasonable detail the amount of the Available Amount Basket immediately prior to such election and the amount thereof elected to be so applied; provided that, in the case of this Section 138
5.03(l)(ii)(c), before and after giving effect to any such prepayment, redemption, purchase, defeasement or other satisfaction, no Default or Event of Default shall have occurred and be continuing or would result therefrom. (iii) The Borrower will not (and will not permit any of its Subsidiaries to) enter into or permit to exist any contractual obligation (other than this Agreement or any other Loan Document) that limits the ability of any of its Subsidiaries to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to or invest in the Borrower or any Guarantor, except for (i) any agreement in effect on the Effective Date and described on Schedule 5.03(l), (ii) any agreement in effect at the time any Person becomes a Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation of such Person becoming a Subsidiary of the Borrower, (iii) any agreement representing Indebtedness of a Subsidiary of the Borrower which is not a Loan Party which is permitted by Section 5.03(k), (iv) any agreement in connection with a Disposition permitted hereunder, (v) customary provisions in joint venture agreements or other similar agreements applicable to joint ventures permitted under Section 5.03(j) and applicable solely to such joint venture entered into in the Ordinary Course of Business, (vi) customary provisions restricting assignment of any agreement entered into in the Ordinary Course of Business, (vii) customary provisions restricting the subletting or assignment of any lease governing a leasehold interest, (viii) in each case so long as no Subsidiary of the Borrower is restricted from making Restricted Payments or transfers to the Borrower, customary restrictions contained in Indebtedness permitted under this Agreement to the extent no more restrictive to the Borrower and its Subsidiaries than the covenants contained in this Agreement, (ix) restrictions regarding licenses or sublicenses by the Borrower and its Subsidiaries of intellectual property in the Ordinary Course of Business (in which case such restriction shall relate only to such intellectual property) and (x) any agreement entered into in connection with a Receivables Facility. (m) Fundamental Changes. The Borrower will not (and will not permit any of its Subsidiaries to) merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that, so long as no Event of Default would result therefrom: (i) any Subsidiary of the Borrower may merge, amalgamate or consolidate with (x) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction in any State of the United States of America); provided that the Borrower shall be the continuing or surviving Person or the surviving Person shall expressly assume the obligations of the Borrower pursuant to documents reasonably acceptable to the Agent or (y) any other Subsidiary of the Borrower; provided that when any Guarantor is merging with another Subsidiary of the Borrower that is not a Loan Party (A) the Guarantor shall be the continuing or surviving Person, (B) to the extent 139
constituting an Investment, such Investment must be a permitted Investment in accordance with Section 5.03(j) and (C) to the extent constituting a Disposition, such Disposition must be permitted hereunder; (ii) (x) any Subsidiary of the Borrower that is not a Loan Party may merge, amalgamate or consolidate with or into any other Subsidiary of the Borrower that is not a Loan Party and (y) any Subsidiary of the Borrower may liquidate or dissolve, or the Borrower or any of its Subsidiaries may (if the validity, perfection and priority of the Liens securing the Obligations is not adversely affected thereby) change its legal form, if the Borrower determines in good faith that such action is in the best interest of the Borrower and its Subsidiaries and is not disadvantageous to the Lenders in any material respect (it being understood that in the case of any dissolution of a Subsidiary that is a Guarantor, such Subsidiary shall at or before the time of such dissolution transfer its assets to another Subsidiary that is a Guarantor unless such Disposition of assets is permitted hereunder; and in the case of any change in legal form, a Subsidiary that is a Guarantor will remain a Guarantor unless such Guarantor is otherwise permitted to cease being a Guarantor hereunder); (iii) any Subsidiary of the Borrower may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any of its other Subsidiaries; provided that if the transferor in such a transaction is a Guarantor, then (i) the transferee must either be the Borrower or a Guarantor and (ii) to the extent constituting an Investment, such Investment must be a permitted in accordance with Section 5.03(j); (iv) the Borrower and its Subsidiaries may consummate the Engility Acquisition; (v) any Subsidiary of the Borrower may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of all or substantially all of its assets in order to effect a Disposition permitted pursuant to Section 5.03(n) (other than Section 5.03(n) (ii)(A)); (vi) any Investment permitted by Section 5.03(j) may be structured as a merger, consolidation or amalgamation; and (vii) any Receivables Subsidiary may merge, dissolve, liquidate, amalgamate, consolidate with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, in each case, in connection with a Receivables Facility. (n) Dispositions. The Borrower will not (and will not permit any of its Subsidiaries to) make any Disposition, except: (i) Dispositions of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the Ordinary Course of Business and 140
Dispositions of property no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries (including allowing any registrations or any applications for registration of any immaterial intellectual property to lapse or go abandoned); (ii) (A) Dispositions permitted by Section 5.03(m), (B) Investments permitted by Section 5.03(j), (C) Restricted Payments permitted by Section 5.03(h) and (D) Liens permitted by Section 5.03(a); (iii) Dispositions by the Borrower or any of its Subsidiaries of property pursuant to sale-leaseback transactions permitted by Section 5.03(f); (iv) Dispositions of inventory, cash and Cash Equivalents for fair market value in the Ordinary Course of Business; (v) licensing or sublicensing of any intellectual property rights in the Ordinary Course of Business on customary terms; (vi) Disposition of property (A) between Loan Parties, (B) between Subsidiaries of the Borrower (other than Loan Parties), (C) by Subsidiaries of the Borrower that are not Loan Parties to the Loan Parties or (D) by Loan Parties to any Subsidiary of the Borrower that is not a Loan Party; provided that (1) the portion (if any) of any such Disposition made for less than fair market value and (2) any noncash consideration received in exchange for any such Disposition, shall in each case constitute an Investment in such Subsidiary; (vii) leases, subleases, licenses or sublicenses of property in the Ordinary Course of Business and which do not materially interfere with the business of the Borrower and its Subsidiaries; (viii) transfers of equipment, fixed assets or real property (including any improvements thereon) subject to any event that gives rise to the receipt by the Borrower or any of its Subsidiaries of any casualty insurance proceeds or condemnation awards in respect thereof to replace, restore or repair, or compensate for the loss of, such equipment, fixed assets or real property, upon receipt of the Net Cash Proceeds of such casualty insurance proceeds or condemnation awards; (ix) the Disposition of other assets for fair market value; provided that (i) at least 75% of the total consideration for any such Disposition received by the Borrower and its Subsidiaries is in the form of cash or Cash Equivalents and (ii) the requirements of Section 2.10(b), to the extent applicable, are complied with in connection therewith; (x) any Disposition or discounts of accounts receivable, or participations therein, and related assets in connection with any Receivables 141
officers) in connection with any Loan Document shall prove to have been incorrect in any material respect when made or deemed made; or (c) (i) Any Loan Party shall fail to perform or observe any term, covenant or agreement contained in Sections 5.01(d) (with respect to the Borrower only), 5.01(i), 5.03 or 5.05 or (ii) any Loan Party shall fail to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Loan Document on its part to be performed or observed if such failure shall remain unremedied for 30 days after written notice thereof shall have been given to the Borrower by the Agent or any Lender; provided that no breach or default by the Borrower under Section 5.05 (a βFinancial Covenant Event of Defaultβ) shall constitute an Event of Default with respect to the Tranche B Facility or, Tranche B2 Facility or Tranche B3 Facility, unless and until the Required RC/TLA Lenders have accelerated the Revolving Credit Advances, the Term Advances and/or have terminated the Revolving Credit Commitments in their entirety (and upon any such acceleration and/or termination, an Event of Default with respect to the Tranche B Facility and, the Tranche B2 Facility and the Tranche B3 Facility shall occur without any further action by any party); or (d) A member of the Consolidated Group shall fail to pay any principal of or premium or interest on any Indebtedness that is outstanding in a principal or notional amount of at least $50,000,000 (which shall automatically be increased to $100,000,000 on the Engility Closing Date without any action by any party hereto) in the aggregate (but excluding Indebtedness outstanding hereunder and any Receivables Facility) of a member of the Consolidated Group, when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Indebtedness; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Indebtedness and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or to permit the acceleration of, the maturity of such Indebtedness; or any such Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption, or, with respect to any secured Indebtedness, resulting from a disposition, condemnation, insured loss or similar event relating to the property securing such Indebtedness), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in each case prior to the stated maturity thereof; or (e) A member of the Consolidated Group shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against a member of the Consolidated Group seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property 143
and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or a member of the Consolidated Group shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or (f) Judgments or orders for the payment of money in excess of $50,000,000 (which shall automatically be increased to $100,000,000 on the Engility Closing Date without any action by any party hereto) in the aggregate shall be rendered against a member of the Consolidated Group and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; provided, however, that any such judgment or order shall not be an Event of Default under this Section 6.01(f) if and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least βA-β by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order; or (g) Any Person or two or more Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act), directly or indirectly, of Voting Stock of the Borrower (or other securities convertible into or exchangeable for such Voting Stock) representing 35% or more of the combined voting power of all Voting Stock of the Borrower (on a fully diluted basis); or (h) The Borrower or any of its ERISA Affiliates shall incur, or shall be reasonably likely to incur liability in excess of $50,000,000 (which shall automatically be increased to $100,000,000 on the Engility Closing Date without any action by any party hereto) in the aggregate as a result of the occurrence of any ERISA Event; or (i) Any Loan Party contests in writing the validity or enforceability of any provision of any Loan Document, or any Loan Party denies in writing that it has any liability or obligation under any Loan Document, or purports in writing to revoke or rescind any Loan Document; or (j) Any guarantee provided by a Guarantor under any applicable Security and Guarantee Document for any reason shall cease to be in full force and effect (other than in accordance with its terms), or any Guarantor shall deny in writing that it has any further liability under such Security and Guarantee Document (other than as a result of the discharge of such Guarantor in accordance with the terms of the Loan Documents); or (k) Any security interest over any material asset or property purported to be created by and required to be covered by any Security and Guarantee Document 144
of a Lender (any such Lender or other recipient, a βPayment Recipientβ) that the Administrative Agent has determined in its sole discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly or mistakenly received by, such Payment Recipient (whether or not known to such Lender or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an βErroneous Paymentβ) and demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 8.12 and held in trust for the benefit of the Agent, and such Lender shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by the Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. (b) Without limiting immediately preceding clause (a), each Lender, or any Person who has received funds on behalf of a Lender, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Lender, or other such recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part, then) in each such case: (i) (A) it acknowledges and agrees that in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in 154
each case, with respect to such payment, prepayment or repayment; and (ii) such Lender shall (and shall use commercially reasonable efforts to cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 8.12(b). For the avoidance of doubt, the failure to deliver a notice to the Administrative Agent pursuant to this Section 8.12(b) shall not have any effect on a Payment Recipientβs obligations pursuant to Section 8.12(a) or on whether or not an Erroneous Payment has been made. (c) Each Lender hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender hereunder, or otherwise payable or distributable by the Administrative Agent to such Lender under any Loan Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding clause (a). (d) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand thereof in accordance with immediately preceding clause (a), from any Lender that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an βErroneous Payment Return Deficiencyβ), upon the Administrative Agentβs notice to such Lender at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (i) such Lender shall be deemed to have assigned its Advances (but not its Commitments) with respect to which such Erroneous Payment was made (the βErroneous Payment Impacted Classβ) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Advances (but not of the Erroneous Payment Impacted Class), the βErroneous Payment Deficiency Assignmentβ) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Borrower) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to the Platform) with respect to such Erroneous Payment Deficiency Assignment, and such Lender shall deliver any Notes evidencing such Advances to the Borrower or the Administrative Agent (but 155
the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (ii) the Administrative Agent as the assignee Lender shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (iii) upon such deemed acquisition, the Administrative Agent as the assignee Lender shall become a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Lender shall cease to be a Lender, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding, for the avoidance of doubt, its obligations under the indemnification provisions of this Agreement and its applicable Commitments which shall survive as to such assigning Lender and (iv) the Administrative Agent and the Borrower shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment and (v) the Administrative Agent will reflect in the Register its ownership interest in the Advances subject to the Erroneous Payment Deficiency Assignment. For the avoidance of doubt, no Erroneous Payment Deficiency Assignment will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement. The Administrative Agent may, in its discretion, sell any Advances acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Advance (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Advances acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Advances are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Lender from time to time. (e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender, to the rights and interests of such Lender, as the case may be) under the Loan Documents with respect to such amount (the βErroneous Payment Subrogation Rightsβ) (provided that the Loan Partiesβ Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Advances that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party; provided that this Section 8.12 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) 156
any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Advances of one Class differently from the rights of Lenders holding Advances of any other Class without, in addition to the Lenders required above to take such action, the prior written consent of Lenders holding a majority in interest of the outstanding Advances and unused Commitments of each Class so adversely affected; and provided, further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights or duties of the Agent under this Agreement or any other Loan Document and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Issuing Banks in addition to the Lenders required above to take such action, adversely affect the rights or obligations of the Issuing Banks in their capacities as such under this Agreement. (b) Notwithstanding anything to the contrary contained in this Section 9.01, the Borrower, the Agent and each Lender agreeing pursuant to the terms thereof to make any Incremental Advances in accordance with the provisions of Section 2.23(b), may enter into an Incremental Assumption Agreement without the consent of any other Person; provided that after execution and delivery thereof (and except as expressly provided otherwise therein), such Incremental Assumption Agreement may thereafter only be modified in accordance with the requirements of Section 9.01(a). (c) [Reserved]. (d) Notwithstanding anything to the contrary contained in this Section 9.01, (x) the Security and Guarantee Documents and related documents executed in connection with this Agreement may be in a form reasonably determined by the Agent and may be amended, modified, supplemented and waived with the consent of the Agent and the Borrower without the need to obtain the consent of any other Person if such amendment, modification, supplement or waiver is delivered in order (i) to comply with local law (including any foreign law or regulatory requirement) or advice of local counsel, (ii) to cure any ambiguity, inconsistency, obvious error or mistake or any error, mistake or omission of a technical or immaterial nature jointly identified by the Agent and the Borrower or (iii) to cause such Security and Guarantee Document or other document to be consistent with this Agreement and the other Loan Documents and (y) if the Agent and the Borrower shall have jointly identified an ambiguity, inconsistency, obvious error or mistake or any error, mistake or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents (other than the Security and Guarantee Documents), then the Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other Person if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof. (e) Notwithstanding anything to the contrary contained in this Section 9.01, amendments, modifications or waivers of the Financial Covenant in Section 5.05(c), or waivers or consents to any Default or Event of Default resulting from a breach thereof, shall solely require the consent of the Required RC/TLA Lenders. 158
(f) Notwithstanding anything to the contrary contained in this Section 9.01, any amendment, modification or waiver of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Advances or Commitments of a particular Class (but not the Lenders holding Advances or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section 9.01 if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding anything to the contrary in this Section 9.01 and without limiting the generality of the immediately preceding sentence, the addition of one or more term loan and/or revolving credit facilities under this Agreement or any other refinancing to refinance all or any portion of the Term Facility and/or the Revolving Credit Facility, as applicable, shall not require the consent of any Tranche B Lender or, Tranche B2 Lender or Tranche B3 Lender; provided that the loans and/or commitments, as applicable, established pursuant to such refinancing: (i) rank pari passu in right of payment with the other Advances and Commitments; (ii) are not guaranteed by any Person that is not a Guarantor; (iii) are unsecured or secured by the Collateral on an equal and ratable basis with the Obligations (or on a second-lien basis pursuant to intercreditor arrangements reasonably satisfactory to the Agent); (iv) have such pricing and optional prepayment terms as may be agreed by the Borrower and the applicable lenders thereof; (v) have a maturity date or termination date that is not prior to the scheduled Term Loan Maturity Date (in the case of a refinancing of the Term Facility) or the scheduled Termination Date (in the case of a refinancing of the Revolving Credit Facility), and shall have a Weighted Average Life to Maturity that is not shorter than the Weighted Average Life to Maturity of the Term Advances, being refinanced (in the case of a refinancing of the Term Facility) or the Revolving Credit Advances being refinanced (in the case of a refinancing of the Revolving Credit Facility); (vi) subject to clauses (iv) and (v) above, shall have terms and conditions (other than pricing) that are substantially identical to, or less favorable to the lenders providing such refinancing than, the terms and conditions of the Term Advances being refinanced (in the case of a refinancing of the Term Facility) or the Revolving Credit Facility being refinanced (in the case of a refinancing of the Revolving Credit Facility) (unless such terms are acceptable to the Agent); and (vii) the Net Cash Proceeds of such refinancing shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term Advances, as applicable, being refinanced (in the case of a refinancing of the Term Facility, as applicable) or Revolving Credit Advances being refinanced (in the case of a refinancing of the Revolving Credit Facility); provided however, that such refinancing (x) may provide for any additional or different financial or other covenants or other provisions that are agreed among the Borrower and the lenders thereof and applicable only during periods after the latest maturity date of any of the Facilities (and Commitments) that remain outstanding after giving effect to such refinancing or the date on which all non-refinanced Obligations are paid in full and (y) shall not have a principal or commitment amount (or accreted value) greater than (i) principal amount of the Term Advances, as applicable, being refinanced (in the case of a refinancing of the Term Facility, as applicable) or (ii) the Revolving Credit Facility being refinanced (in the case of a refinancing of the Revolving Credit 159
Group, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, 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 (x) 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 or (y) result from a claim brought by the Borrower against an Indemnitee for breach in bad faith of such Indemniteeβs obligations hereunder or under any other Loan Document, if the Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This Section 9.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (b) Reimbursement by Xxxxxxx. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the Agent (or any sub-agent thereof), any Issuing Bank or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Agent (or any such sub-agent), such Issuing Bank or such Related Party, as the case may be, such Xxxxxxβs pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lenderβs share of the aggregate principal amount of the Advances and the Available Amount of all outstanding Letters of Credit at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that with respect to such unpaid amounts owed to any Issuing Bank solely in its capacity as such, only the Revolving Credit Lenders shall be required to pay such unpaid amounts, such payment to be made severally among them based on such Lendersβ Ratable Share of the Revolving Credit Facility (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought); provided, further, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent), such Issuing Bank in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) or such Issuing Bank in connection with such capacity. The obligations of the Lenders under this paragraph (c) are subject to the provisions of Section 2.02(e). (c) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Loan Party shall assert, and each 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, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Advance or Letter of Credit, or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in 163
specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Advances outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Advances 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 Agent or, if βTrade Dateβ is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $10,000,000, in the case of any assignment in respect of the Revolving Credit Facility, or $1,000,000, in the case of any assignment in respect of any other Facility, unless each of the Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed). (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Xxxxxxβs rights and obligations under this Agreement with respect to the Advance or the Commitment assigned, except that this clause (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro rata basis. (iii) Required Consents. No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition: (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund in respect of the Revolving Credit Facility, the Term Facility, the Tranche B Facility or, the Tranche B2 Facility or the Tranche B3 Facility; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within ten Business Days after having received notice thereof; (B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (i) the Revolving Credit Facility if such assignment is to a Person that is not a Lender with a Commitment in respect of such Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender, (ii) any Term Advances if such assignment is to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund in respect of the Revolving Credit Facility, the Term Facility, the Tranche B Facility or, 166
the Tranche B2 Facility or the Tranche B3 Facility, (iii) any Tranche B Loans if such assignment is to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund in respect of the Revolving Credit Facility, the Term Facility, the Tranche B Facility or, the Tranche B2 Facility or the Tranche B3 Facility, (iv) any Tranche B2 Loans if such assignment is to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund in respect of the Revolving Credit Facility, the Term Facility, the Tranche B Facility or, the Tranche B2 Facility; and or Tranche B3 Facility or (v) any Tranche B3 Loans if such assignment is to a Person who is not a Lender, an Affiliate of a Lender or an Approved Fund in respect of the Revolving Credit Facility, the Term Facility, the Tranche B Facility, the Tranche B2 Facility or Tranche B3 Facility; and; and (C) the consent of each Issuing Bank shall be required for any assignment in respect of the Revolving Credit Facility. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrowerβs Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B). (vi) No Assignment to Natural Persons. No such assignment shall be made to a natural Person. (vii) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Advances previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, each Issuing Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Advances and participations in Letters of Credit in 167
accordance with its Ratable Share. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder 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 Lenderβs 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 2.11 and 9.04 and remain liable under Section 9.04(e) with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxxβs having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 (d) of this Section. (c) Register. The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States 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 Commitments of, and principal amounts (and stated interest) of the Advances owing to, each Lender pursuant to the terms hereof from time to time (the βRegisterβ). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Agent 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. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower, any Issuing Bank or the Agent, sell participations to any Person (other than a natural Person or the Borrower or any of the Borrowerβs Affiliates or Subsidiaries) (each, a βParticipantβ) in all or a portion of such Lenderβs rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Advances owing to it); provided that (i) such Lenderβs obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) the Borrower, the Agent, the Issuing Banks and Lenders shall continue to deal solely and directly with 168
such Lender in connection with such Xxxxxxβs rights and obligations under this Agreement. 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 to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in 9.01(b) that affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 9.04(f) and 2.14 (subject to the requirements and limitations therein, including the requirements under Section 2.14(f) (it being understood that the documentation required under Section 2.14(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 2.11 or 2.14, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowerβs request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.18 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.05 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.15 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participantβs interest in the Advances or other obligations under the Loan Documents (the βParticipant Registerβ); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participantβs interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register. (e) 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 any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such 169
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. (b) As used in this Section 9.22, the following terms have the following meanings: βBHC Act Affiliateβ of a party means an βaffiliateβ (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. βCovered Entityβ means any of the following: (i) a βcovered entityβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 252.82(b); (ii) a βcovered bankβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 47.3(b); or (iii) a βcovered FSIβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 382.2(b). βDefault Rightβ 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. βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).β 177
EXHIBIT B SCHEDULE I-B Tranche B3 Commitments [Schedule on file with the Administrative Agent] AMERICAS/2024177444.5
EXHIBIT C SCHEDULE A-5 Form of Tranche B3 Note AMERICAS/2024177444.5
EXHIBIT A-5 - FORM OF TRANCHE B3 NOTE U.S.$ Dated: , 20[_] FOR VALUE RECEIVED, the undersigned, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (the βBorrowerβ), HEREBY PROMISES TO PAY to___________ (the βLenderβ) and its registered assigns for the account of its Applicable Lending Office on the Tranche B3 Maturity Date (each as defined in the Credit Agreement referred to below) the principal sum of U.S.$[amount of the Lenderβs Tranche B3 Commitment in figures] or, if less, the aggregate principal amount of the Tranche B3 Loans made by the Lender to the Borrower pursuant to the Third Amended and Restated Credit Agreement dated as of October 31, 2018, among the Borrower, the Lender and certain other lenders parties thereto, and Citibank, N.A., as Agent for the Lender and such other lenders (as amended or modified from time to time, the βCredit Agreementβ; the terms defined therein being used herein as therein defined) outstanding on the Tranche B3 Maturity Date. The Borrower promises to pay interest on the unpaid principal amount of each Tranche B3 Loan from the date of such Tranche B3 Loan until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Credit Agreement. Both principal and interest in respect of each Tranche B3 Loan are payable in lawful money of the United States of America to the Agent at its account maintained at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in same day funds. Each Tranche B3 Loan owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Note. This Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. The Credit Agreement, among other things, contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified. SCIENCE APPLICATIONS INTERNATIONAL CORPORATION By Name: Title:
ADVANCES AND PAYMENTS OF PRINCIPAL Amount of Date Amount of Tranche B3 Loan Principal Paid or Prepaid Unpaid Principal Balance Notation Made By