EXECUTION VERSION CHAR1\1534998v8 Published CUSIP Numbers: Deal: 69072EAC1 Revolver: 69072EAD9 Term: 69072EAE7 CREDIT AGREEMENT Dated as of July 27, 2017 among OWENS & MINOR DISTRIBUTION, INC., OWENS & MINOR MEDICAL, INC., BARISTA ACQUISITION I, LLC...
EXECUTION VERSION
CHAR1\1534998v8
Published CUSIP Numbers:
Deal: 00000XXX0
Revolver: 00000XXX0
Xxxx: 00000XXX0
CREDIT AGREEMENT
Dated as of July 27, 2017
among
XXXXX & MINOR DISTRIBUTION, INC.,
XXXXX & MINOR MEDICAL, INC.,
BARISTA ACQUISITION I, LLC
and
BARISTA ACQUISITION II, LLC,
as U.S. Borrowers,
CERTAIN OTHER BORROWERS AS MAY BECOME PARTIES HERETO FROM TIME TO TIME,
XXXXX & MINOR, INC.
and
CERTAIN OF ITS DOMESTIC SUBSIDIARIES AS MAY BECOME PARTIES HERETO
FROM TIME TO TIME,
as Guarantors,
BANK OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A.
and
SUNTRUST BANK,
as Co-Syndication Agents,
PNC BANK, NATIONAL ASSOCIATION,
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents,
THE OTHER BANKS FROM TIME TO TIME PARTY HERETO,
and
XXXXX FARGO BANK, N.A.,
as Administrative Agent
ARRANGED BY:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
XXXXX FARGO SECURITIES, LLC,
JPMORGAN CHASE BANK, N.A.
and
SUNTRUST XXXXXXXX XXXXXXXX, INC.,
as Joint Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS ...................................................................... 1
1.1 Definitions .......................................................................................................................... 1
1.2 Computation of Time Periods ........................................................................................... 36
1.3 Accounting Terms ............................................................................................................. 36
1.4 Letter of Credit Amounts .................................................................................................. 37
1.5 Exchange Rates; Currency Equivalents ............................................................................ 37
1.6 Additional Alternative Currencies .................................................................................... 38
1.7 Change of Currency .......................................................................................................... 38
1.8 Times of Day .................................................................................................................... 39
SECTION 2 CREDIT FACILITIES ........................................................................................................... 39
2.1 Commitments .................................................................................................................... 39
2.2 Method of Borrowing ....................................................................................................... 42
2.3 Interest .............................................................................................................................. 45
2.4 Repayment ........................................................................................................................ 46
2.5 Notes ................................................................................................................................. 47
2.6 Additional Provisions relating to Letters of Credit ........................................................... 47
2.7 Additional Provisions relating to Swingline Loans .......................................................... 52
2.8 Joint and Several Liability of the Borrowers .................................................................... 54
2.9 Appointment of the Parent as Legal Representative for Credit Parties ............................ 56
2.10 Incremental Facilities ........................................................................................................ 56
2.11 Extension of Revolving Termination Date ....................................................................... 59
2.12 Additional Borrowers ....................................................................................................... 61
2.13 Designated Banks ............................................................................................................. 62
SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITY ............................................ 62
3.1 Default Rate ...................................................................................................................... 62
3.2 Conversion ........................................................................................................................ 63
3.3 Termination of Commitments ........................................................................................... 63
3.4 Prepayments ...................................................................................................................... 64
3.5 Fees ................................................................................................................................... 65
3.6 Capital Adequacy .............................................................................................................. 66
3.7 Limitation on Eurocurrency Rate Loans ........................................................................... 66
3.8 Illegality ............................................................................................................................ 67
3.9 Requirements of Law ........................................................................................................ 68
3.10 Mitigation Obligations; Replacement of Banks ................................................................ 69
3.11 Taxes ................................................................................................................................. 70
3.12 Compensation ................................................................................................................... 74
3.13 Pro Rata Treatment ........................................................................................................... 75
3.14 Sharing of Payments ......................................................................................................... 76
3.15 Payments, Computations, Retroactive Adjustments of Applicable Percentage,
Etc ..................................................................................................................................... 77
3.16 Evidence of Debt .............................................................................................................. 79
3.17 Certain Limitations ........................................................................................................... 80
3.18 Defaulting Banks .............................................................................................................. 80
3.19 Cash Collateral .................................................................................................................. 82
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3.20 ERISA ............................................................................................................................... 83
SECTION 4 GUARANTY ......................................................................................................................... 83
4.1 The Guaranty .................................................................................................................... 83
4.2 Obligations Unconditional ................................................................................................ 84
4.3 Reinstatement .................................................................................................................... 85
4.4 Certain Additional Waivers .............................................................................................. 85
4.5 Remedies ........................................................................................................................... 85
4.6 Rights of Contribution ...................................................................................................... 85
4.7 Guarantee of Payment; Continuing Guarantee ................................................................. 86
4.8 Keepwell ........................................................................................................................... 86
SECTION 5 CONDITIONS PRECEDENT ............................................................................................... 87
5.1 Conditions to Closing ....................................................................................................... 87
5.2 Conditions to all Extensions of Credit .............................................................................. 88
5.3 Conditions to Term Facility Funding ................................................................................ 89
SECTION 6 REPRESENTATIONS AND WARRANTIES ...................................................................... 90
6.1 Organization and Good Standing ...................................................................................... 90
6.2 Due Authorization ............................................................................................................. 90
6.3 No Conflicts ...................................................................................................................... 90
6.4 Consents ............................................................................................................................ 91
6.5 Enforceable Obligations ................................................................................................... 91
6.6 Reserved............................................................................................................................ 91
6.7 Financial Condition ........................................................................................................... 91
6.8 No Material Adverse Changes or Restricted Payments .................................................... 91
6.9 No Default......................................................................................................................... 92
6.10 Liens ................................................................................................................................. 92
6.11 Indebtedness...................................................................................................................... 92
6.12 Litigation ........................................................................................................................... 92
6.13 Material Agreements ......................................................................................................... 92
6.14 Taxes ................................................................................................................................. 92
6.15 Compliance with Law ....................................................................................................... 92
6.16 ERISA ............................................................................................................................... 93
6.17 Subsidiaries ....................................................................................................................... 94
6.18 Use of Proceeds; Margin Stock ......................................................................................... 94
6.19 Government Regulation .................................................................................................... 94
6.20 Environmental Matters ..................................................................................................... 95
6.21 Intellectual Property, Franchises, etc ................................................................................ 95
6.22 Investments ....................................................................................................................... 96
6.23 No Material Misstatements ............................................................................................... 96
6.24 Labor Matters .................................................................................................................... 96
6.25 Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions ................................................. 96
6.26 EEA Financial Institutions ................................................................................................ 97
SECTION 7 AFFIRMATIVE COVENANTS ............................................................................................ 97
7.1 Information Covenants ..................................................................................................... 97
7.2 Preservation of Existence and Franchises ....................................................................... 100
7.3 Books, Records and Inspections ..................................................................................... 101
7.4 Compliance with Law ..................................................................................................... 101
7.5 Payment of Taxes and Other Indebtedness ..................................................................... 101
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7.6 Insurance ......................................................................................................................... 101
7.7 Maintenance of Property ................................................................................................. 102
7.8 Performance of Obligations ............................................................................................ 102
7.9 Use of Proceeds .............................................................................................................. 102
7.10 Financial Covenants ........................................................................................................ 102
7.11 Additional Credit Parties ................................................................................................ 102
7.12 Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions ............................................... 103
SECTION 8 NEGATIVE COVENANTS ................................................................................................ 103
8.1 Indebtedness.................................................................................................................... 104
8.2 Liens ............................................................................................................................... 105
8.3 Nature of Business .......................................................................................................... 105
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc ................................................. 105
8.5 Asset Dispositions ........................................................................................................... 106
8.6 Advances, Investments and Loans .................................................................................. 107
8.7 Amendments Relating to Other Debt .............................................................................. 107
8.8 Transactions with Affiliates ............................................................................................ 108
8.9 Ownership of Subsidiaries .............................................................................................. 108
8.10 Fiscal Year ...................................................................................................................... 108
8.11 Subsidiary Dividends ...................................................................................................... 108
8.12 Restricted Payments ........................................................................................................ 108
8.13 Use of Proceeds .............................................................................................................. 109
SECTION 9 EVENTS OF DEFAULT ..................................................................................................... 109
9.1 Events of Default ............................................................................................................ 109
9.2 Acceleration; Remedies .................................................................................................. 111
SECTION 10 ADMINISTRATIVE AGENT ........................................................................................... 112
10.1 Appointment and Authority ............................................................................................ 112
10.2 Rights as a Bank ............................................................................................................. 112
10.3 Exculpatory Provisions ................................................................................................... 113
10.4 Reliance by Administrative Agent .................................................................................. 114
10.5 Delegation of Duties ....................................................................................................... 114
10.6 Resignation of Administrative Agent ............................................................................. 114
10.7 Non-Reliance on Administrative Agent and Other Banks .............................................. 115
10.8 No Other Duties; Etc ....................................................................................................... 115
10.9 Administrative Agent May File Proofs of Claim ............................................................ 115
10.10 Guaranty Matters ............................................................................................................ 116
SECTION 11 MISCELLANEOUS .......................................................................................................... 116
11.1 Notices; Effectiveness; Electronic Communications ...................................................... 116
11.2 Right of Set-Off; Adjustments; Payments Set Aside ...................................................... 118
11.3 Successors and Assigns .................................................................................................. 119
11.4 No Waiver; Remedies Cumulative ................................................................................. 125
11.5 Expenses; Indemnification; Damage Waiver .................................................................. 125
11.6 Amendments, Waivers and Consents ............................................................................. 127
11.7 Counterparts .................................................................................................................... 129
11.8 Headings ......................................................................................................................... 130
11.9 Survival ........................................................................................................................... 130
11.10 Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of
Process; Waiver of Jury Trial ......................................................................................... 130
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11.11 Severability ..................................................................................................................... 131
11.12 Entirety............................................................................................................................ 131
11.13 Binding Effect; Termination ........................................................................................... 132
11.14 Confidentiality ................................................................................................................ 132
11.15 Source of Funds .............................................................................................................. 133
11.16 Conflict ........................................................................................................................... 134
11.17 USA PATRIOT Act Notice ............................................................................................ 134
11.18 Replacement of Banks .................................................................................................... 134
11.19 No Advisory or Fiduciary Responsibility ....................................................................... 135
11.20 Electronic Execution ....................................................................................................... 135
11.21 Judgment Currency ......................................................................................................... 136
11.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions ..................... 136
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SCHEDULES
Schedule 1.1 Existing Letters of Credit
Schedule 2.1 Commitments
Schedule 2.2(a)(i) Form of Notice of Loan Borrowing
Schedule 2.2(a)(ii) Form of Notice of Swingline Loan Borrowing
Schedule 2.5 Form of Note
Schedule 2.10 Form of Incremental Term Joinder Agreement
Schedule 3.2 Form of Notice of Extension/Conversion
Schedule 3.11 Forms of U.S. Tax Compliance Certificates
Schedule 5.1(d) Form of Officer’s Certificate
Schedule 6.17 Subsidiaries
Schedule 7.1(c) Form of Officer’s Compliance Certificate
Schedule 7.11 Form of Joinder Agreement
Schedule 8.1(b) Existing Indebtedness
Schedule 8.2 Existing Liens
Schedule 11.1 Notice Addresses
Schedule 11.3(b) Form of Assignment and Assumption
CHAR1\1534998v8
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of July 27, 2017 (this “Credit Agreement”) is by and
among XXXXX & MINOR DISTRIBUTION, INC., a Virginia corporation (“Distribution”), XXXXX &
MINOR MEDICAL, INC., a Virginia corporation (“Medical”), BARISTA ACQUISITION I, LLC, a
Virginia limited liability company (“Barista I”), BARISTA ACQUISITION II, LLC, a Virginia limited
liability company (“Barista II”), each other Borrower as may become party hereto from time to time
pursuant to Section 2.12, XXXXX & MINOR, INC., a Virginia corporation (the “Parent”), the other
Guarantors (as defined herein), the Banks (as defined herein), and XXXXX FARGO BANK, N.A., as
administrative agent for the Banks (in such capacity, the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, the Borrowers have requested that the Banks provide $850,000,000 in credit facilities
for the purposes set forth herein, and the Banks are willing to do so on the terms and conditions set forth
herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings herein specified unless the context
otherwise requires. Defined terms herein shall include in the singular number the plural and in the plural
the singular:
“Acquisition”, by any Person, means the purchase or acquisition by such Person of any Capital
Stock of another Person (other than a member of the Consolidated Group) or substantially all of the Property
(other than Capital Stock) of another Person (other than a member of the Consolidated Group), whether or
not involving a merger or consolidation with such other Person.
“Additional Commitment Bank” has the meaning specified in Section 2.11(d).
“Additional Credit Party” means each Domestic Subsidiary of the Parent that becomes a Guarantor
after the Closing Date by execution of a Joinder Agreement.
“Administrative Agent” has the meaning specified in the introductory paragraph hereto, together
with any permitted successors and assigns.
“Administrative Agent’s Office” means the Administrative Agent’s address as set forth on
Schedule 11.1, or such other address or account as the Administrative Agent may from time to time notify
in writing to the Borrower Representative, the Banks, the Issuing Banks and the Swingline Bank.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
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“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling
(including but not limited to all directors and executive officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be deemed to be controlled by another
Person if such other Person possesses, directly or indirectly, power (a) to vote 10% or more of the securities
having ordinary voting power for the election of directors, managing general partners or equivalent of such
Person or (b) to direct or cause direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or other agreement.
“Agent Parties” has the meaning specified in Section 11.1(c).
“Aggregate Commitments” means the Commitments of all of the Banks.
“Aggregate Revolving Committed Amount” has the meaning specified in Section 2.1(a).
“Alternative Currency” means each of Euro, Sterling, Yen, Canadian Dollars, Australian Dollars
and each other currency (other than Dollars) that is approved in accordance with Section 1.6.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the
Administrative Agent or the applicable Issuing Bank, as the case may be, at such time on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative
Currency with Dollars.
“Alternative Currency Sublimit” means, at any time, an amount equal to the lesser of (a)
$200,000,000, and (b) the Aggregate Revolving Committed Amount at such time. The Alternative
Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Committed Amount.
“Anti-Corruption Laws” means any law, rule or regulation of any jurisdiction applicable to the
Parent or any of its Subsidiaries from time to time concerning or relating to bribery or corruption, including,
without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder.
“Anti-Terrorism Law” means (a) the USA PATRIOT Act, (b) the Trading with the Enemy Act, (c)
any of the foreign assets control regulations of the U.S. Department of Treasury (31 CFR, Subtitle B,
Chapter V) or any enabling legislation or executive order relating thereto or (d) any other statute, regulation,
executive order, or other law pertaining to the prevention of future acts of terrorism, in each case as such
law may be amended from time to time.
“Applicable Lending Office” means, as to any Bank, the office or offices of such Bank described
as such in such Bank’s Administrative Questionnaire, or such other office or offices as such Bank may from
time to time notify in writing to the Borrower Representative and the Administrative Agent; which office
may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.
“Applicable Percentage” means the following rates per annum based on the Debt Ratings or the
Consolidated Total Leverage Ratio, in each case, as set forth in the most recent compliance certificate
received by the Administrative Agent pursuant to Section 7.1(c), it being understood that (a) the Applicable
Percentage shall be determined by either the Debt Ratings or the Consolidated Total Leverage Ratio,
whichever shall result in more favorable pricing to the Borrowers, and (b) the Applicable Percentage for (i)
Base Rate Loans shall be the percentage set forth under the column “Base Rate Margin”, (ii) Eurocurrency
Rate Loans shall be the percentage set forth under the column “Eurocurrency Margin”, (iii) Daily LIBOR
Swingline Loans shall be the percentage set forth under the column “Eurocurrency Margin”, (iv) the
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Standby Letter of Credit Fee shall be the percentage set forth under the column “Eurocurrency Margin”,
(v) the Unused Fee shall be the percentage set forth under the column “Unused Fee”, and (vi) the Term
Facility Unused Fee shall be the percentage set forth under the column “Unused Fee”:
Level Debt Ratings
Consolidated
Total Leverage
Ratio
Eurocurrency
Margin
Base Rate
Margin
Unused
Fee
I BB-/Ba3/BB- or lower > 2.75 to 1.0 2.000% 1.000% 0.250%
II BB/Ba2/BB
< 2.75 to 1.0 but
> 2.25 to 1.0 1.750% 0.750% 0.225%
III BB+/Ba1/BB+
< 2.25 to 1.0 but
> 1.75 to 1.0 1.500% 0.500% 0.200%
IV BBB-/Baa3/BBB-
< 1.75 to 1.0 but
> 1.25 to 1.0 1.375% 0.375% 0.175%
V BBB/Baa2/BBB
< 1.25 to 1.0 but
> 0.75 to 1.0 1.250% 0.250% 0.150%
VI BBB+/Baa1/BBB+ or better < 0.75 to 1.0 1.125% 0.125% 0.125%
Any increase or decrease in the Applicable Percentage shall become effective as of the first Business Day
immediately following the date a compliance certificate is delivered pursuant to Section 7.1(c); provided
that if a compliance certificate is not delivered when due in accordance with such Section, then, upon the
request of the Required Banks, Level I shall apply, in each case as of the first Business Day after the date
on which such compliance certificate was required to have been delivered and in each case shall remain in
effect until the first Business Day following the date on which such compliance certificate is delivered.
Notwithstanding the foregoing, (x) the Applicable Percentage in effect from the Closing Date through the
first Business Day immediately following the date a compliance certificate is required to be delivered
pursuant to Section 7.1(c) for the fiscal quarter ending September 30, 2017 shall be determined based upon
Level IV, and (y) the determination of the Applicable Percentage for any period shall be subject to the
provisions of Section 3.15(c).
At such times as the Applicable Percentage is determined by the Debt Ratings, the Applicable Percentage
shall be determined in accordance with the above pricing grid based on the Parent’s status as determined
from its then current Xxxxx’x Rating, S&P Rating and Fitch Rating as reflected in the compliance
certificate delivered pursuant to Section 7.1(c). If at any time (A) the Parent has only two Debt Ratings and
there is a split rating, the Applicable Percentage shall be based upon the Level indicated by the higher of
the two ratings unless there is a two or more level difference in the levels indicated by each of the two
available ratings, in which case the Level that is one level below the higher rating shall apply, or (B) the
Parent has three Debt Ratings and there is a split rating such that (1) all three ratings fall in different Levels,
the Applicable Percentage shall be based upon the Level indicated by the rating that is neither the highest
nor the lowest of the three ratings or (2) two of the three ratings fall in one Level (the “Majority Level”)
and the third rating falls in a different Level, the Applicable Percentage shall be based upon the Level
indicated by the Majority Level. Should the Parent not have any Debt Rating, the corporate credit or issuer
rating of the Parent will be used in lieu thereof, or if no such rating is available, then the Consolidated Total
Leverage Ratio shall be used to determine the Applicable Percentage.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative Currency as may be determined by
the Administrative Agent or the applicable Issuing Bank, as the case may be, to be necessary for timely
settlement on the relevant date in accordance with normal banking procedures in the place of borrowing or
payment.
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“Applicant Foreign Borrower” has the meaning specified in Section 2.12(a).
“Approved Fund” means any Fund that is administered or managed by (a) a Bank, (b) an Affiliate
of a Bank or (c) an entity or an Affiliate of an entity that administers or manages a Bank.
“Arrangers” means, collectively, MLPFS, Xxxxx Fargo Securities, LLC, JPMorgan Chase Bank,
N.A., and SunTrust Xxxxxxxx Xxxxxxxx, Inc., in their capacities as joint lead arrangers and joint
bookrunners.
“Asset Disposition” means the sale, lease or other disposition of any Property by any member of
the Consolidated Group (including the Capital Stock of a Subsidiary) other than (a) the sale or other
disposition of inventory in the ordinary course of business, (b) the sale, lease or other disposition of
machinery, equipment and other assets no longer used or useful in the conduct of such member’s business,
(c) the sale or financing of Receivables and Receivables Related Assets pursuant to the terms of a Qualified
Securitization Transaction permitted hereunder and (d) any Involuntary Disposition.
“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two
or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption” means an assignment and assumption entered into by a Bank and
an Eligible Assignee (with the consent of any party whose consent is required by Section 11.3(b)), and
accepted by the Administrative Agent, in substantially the form of Schedule 11.3(b) or any other form
approved by the Administrative Agent.
“Australian Dollars” means the lawful currency of Australia.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable
EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In
Legislation Schedule.
“Bank” means each Person identified as a “Bank” on the signature pages hereto, each other Person
that becomes a “Bank” in accordance with this Credit Agreement, and their respective successors and
assigns, and, unless the context otherwise requires, includes the Swingline Bank. The term “Bank” shall
include any Designated Bank.
“Bank of America” means Bank of America, N.A. and its successors.
“Bank of America Fee Letter” means the letter agreement dated June 19, 2017 among Bank of
America, MLPFS, Distribution, Medical, Barista I and Barista II, as amended, modified, supplemented or
replaced from time to time.
“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.
“Bankruptcy Event” means, with respect to any Person, the occurrence of any of the following with
respect to such Person: (a) a court or governmental agency having jurisdiction in the premises shall enter a
decree or order for relief in respect of such Person in an involuntary case under any applicable bankruptcy,
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insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property
or ordering the winding up or liquidation of its affairs; or (b) there shall be commenced against such Person
an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or any case, proceeding or other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property
or for the winding up or liquidation of its affairs, and such involuntary case or other case, proceeding or
other action shall remain undismissed, undischarged or unbonded for a period of sixty consecutive days; or
(c) such Person shall commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial part of its Property
or make any general assignment for the benefit of creditors; or (d) such Person shall be unable to, or shall
admit in writing its inability to, pay its debts generally as they become due.
“Barista I” has the meaning specified in the introductory paragraph hereto.
“Barista II” has the meaning specified in the introductory paragraph hereto.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal
Funds Rate plus 0.50%, (b) the rate of interest in effect for such day as publicly announced from time to
time by Xxxxx Fargo Bank as its “prime rate” and (c) the Eurocurrency Rate plus 1.0%, provided that the
Base Rate for any day shall be based on the Eurocurrency Rate at approximately 11:00 a.m. (London time)
on such day but shall otherwise be calculated in accordance with the definition of “Eurocurrency Rate”,
subject to the interest rate floor therein. The “prime rate” is a rate set by Xxxxx Fargo Bank based upon
various factors including Xxxxx Fargo Bank’s costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such “prime rate” announced by Xxxxx Fargo Bank shall take
effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Loan” means a Loan that bears interest at a rate based on the Base Rate. All Base Rate
Loans shall be available only to U.S. Borrowers and shall be denominated in Dollars.
“Borrower Materials” has the meaning specified in Section 7.1.
“Borrower Representative” has the meaning specified in Section 2.9.
“Borrowers” means (a) the U.S. Borrowers, and (b) the Foreign Borrowers.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same type and, in the
case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Banks pursuant to
Section 2.2.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative
Agent’s Office with respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Credit Agreement in respect of any such Eurocurrency Rate Loan, means any such
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day on which dealings in deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of
any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this
Credit Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on which dealings in
deposits in the relevant currency are conducted by and between banks in the London or other
applicable offshore interbank market for such currency; and
(d) if such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a
currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or
Euro to be carried out pursuant to this Credit Agreement in respect of any such Eurocurrency Rate
Loan (other than any interest rate settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of such currency.
“Businesses” has the meaning specified in Section 6.20.
“Xxxxx” means Xxxxx Healthcare Centers, Inc., a New Jersey corporation.
“Canadian Dollars” means the lawful currency of Canada.
“Capital Lease” means any lease the payments and obligations with respect to which would be
required to be capitalized in accordance with GAAP.
“Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association
or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or
limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person.
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for
the benefit of the Administrative Agent, the applicable Issuing Bank or the Swingline Bank (as applicable)
and the Banks, as collateral for LOC Obligations, Obligations in respect of Swingline Loans, or obligations
of Banks to fund participations in respect of either thereof (as the context may require), cash or deposit
account balances or, if the applicable Issuing Bank or the Swingline Bank benefitting from such collateral
shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and
substance satisfactory to (a) the Administrative Agent and (b) the applicable Issuing Bank or the Swingline
Bank (as applicable). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include
the proceeds of such cash collateral and other credit support.
“Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the
United States or any agency or instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve months from the date of
acquisition, (b) Dollar denominated (or foreign currency fully hedged) time deposits, certificates of deposit,
Euro time deposits and Euro certificates of deposit of (i) any domestic commercial bank of recognized
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CHAR1\1534998v8
standing having capital and surplus in excess of $500,000,000 or (ii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof, from Xxxxx’x is at least P-1 or the
equivalent thereof or from Fitch is at least F1 or the equivalent thereof (any such bank being an “Approved
Bank”), in each case with maturities of not more than 270 days from the date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the parent company thereof) or
any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent
thereof) or better by S&P, P-1 (or the equivalent thereof) or better by Moody’s or F1 (or the equivalent
thereof) or better by Fitch and maturing within six months of the date of acquisition and (d) repurchase
agreements with a bank or trust company (including a Bank) or a recognized securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which the Borrowers shall have a perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations. Notwithstanding anything above, it is understood and agreed that auction rate
securities shall not constitute Cash Equivalents.
“Change in Law” means the occurrence, after the Closing 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, (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests,
rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules,
guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on
Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.
“Change of Control” means the occurrence of any of the following events: (a) any Person or two
or more Persons acting in concert shall have acquired beneficial ownership, directly or indirectly, of Voting
Stock of the Parent (or other securities convertible into such Voting Stock) representing 35% or more of
the combined voting power of all Voting Stock of the Parent, or (b) during any period of up to 12
consecutive months, commencing after the Closing Date, individuals who at the beginning of such 12 month
period were directors of the Parent, together with any directors whose election or nomination for election
to the board of directors of the Parent (whether by the board of directors of the Parent or any shareholder
of the Parent) was approved by a majority of the directors who either were directors of the Parent at the
beginning of such 12 month period or whose election or nomination for election was so approved, cease to
constitute a majority of the board of directors of the Parent, or (c) any Person or two or more Persons acting
in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement
that, upon consummation, will result in its or their acquisition of, control over Voting Stock of the Parent
(or other securities convertible into such securities) representing 35% or more of the combined voting power
of all Voting Stock of the Parent, or (d) the Parent shall fail to own (directly or indirectly) 100% of the
Capital Stock of each Borrower. As used herein, “beneficial ownership” shall have the meaning provided
in Rule 13d-3 of the Securities and Exchange Commission under the Securities and Exchange Act of 1934.
“Closing Date” means July 27, 2017.
“Closing Date Acquisition” means the Acquisition by Barista I and Barista II of all of the
outstanding partnership interests of Mediq USA Holdings pursuant to the Closing Date Acquisition
Agreement.
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“Closing Date Acquisition Agreement” means that certain Interest Purchase Agreement, dated as
of May 2, 2017, by and among Mediq B.V. and Mediq International B.V., as sellers, Mediq USA Holdings,
Barista I and Barista II, as buyers, and the Parent (including all schedules and exhibits thereto).
“Commitment Period” means, (a) in respect of the Aggregate Revolving Committed Amount, the
period from and including the Closing Date to but not including the earlier of (i) the Revolving Termination
Date, and (ii) the date on which the Revolving Commitments shall terminate in accordance with the
provisions of this Credit Agreement, and (b) in respect of the Term Facility, the period from and including
the Closing Date to but not including the earlier of (i) November 1, 2017, and (ii) the date on which the
Term Commitments shall terminate in accordance with the provisions of this Credit Agreement.
“Commitments” means the Revolving Commitments, the Swingline Commitment, the Term
Commitments and the Incremental Term Commitments.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as
amended from time to time, and any successor statute.
“Competitor” means any competitor of the Parent or any Subsidiary that is in the same or a similar
line of business as the Parent or any Subsidiary and designated in writing from time to time by the Borrower
Representative to the Administrative Agent.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by
net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated EBITDA” means, for any period, in each case for the members of the Consolidated
Group on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the
following, without duplication, to the extent deducted in calculating such Consolidated Net Income (other
than amounts specifically excluded from Consolidated Net Income under clauses (a) through (c) of the
definition of Consolidated Net Income): (i) Consolidated Interest Expense for such period, (ii) taxes paid
for such period, (iii) depreciation and amortization for such period, (iv) all extraordinary or other non-
recurring expenses and charges for such period which do not represent a cash item in such period (including
but not limited to items defined under GAAP such as losses on asset disposals, impairment losses on long-
lived assets, exit and restructuring costs and goodwill impairment losses), (v) expenses incurred in such
period in connection with the issuance of stock options as compensation to employees and/or management
of any member of the Consolidated Group, (vi) any costs and expenses incurred in such period in connection
with any Investment permitted pursuant to this Credit Agreement, any Acquisition permitted pursuant to
this Credit Agreement, any Asset Disposition permitted pursuant to this Credit Agreement, any equity
issuance permitted pursuant to this Credit Agreement or any incurrence, payment, prepayment, refinancing
or redemption of Indebtedness permitted pursuant to this Credit Agreement (including fees and expenses
related to the Loans and LOC Obligations, and any amendments, supplements and modifications thereof),
including the amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses,
in each case, whether or not consummated, and (vii) implementation costs incurred in such period that are
associated with Software as a Service (SaaS) as part of the adoption of ASU 2015-05, minus (b) the
following, without duplication, to the extent included in calculating such Consolidated Net Income, (i) all
extraordinary or other non-recurring, non-cash items increasing such Consolidated Net Income for such
period and (ii) any cash payments made during such period in respect of items described in clause (a)(iv)
above subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were incurred.
Notwithstanding the above, the adjustments in clauses (a)(iv) and (b) shall be limited to those amounts that
are separately disclosed by the Parent in its Forms 10-K or 10-Q filed with the Securities and Exchange
Commission.
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“Consolidated Group” means the Parent and its Subsidiaries.
“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to
such date of determination, to (b) Consolidated Interest Expense for the period of four consecutive fiscal
quarters most recently ended on or prior to such date of determination.
“Consolidated Interest Expense” means, for any period, all interest expense, including the
amortization of debt discount and premium, the interest component under Capital Leases and the implied
interest component under Securitization Transactions (including, without limitation, the discount in
connection with the sale of Receivables and Receivables Related Assets in connection with a Qualified
Securitization Transaction), in each case for the members of the Consolidated Group on a consolidated
basis determined in accordance with GAAP.
“Consolidated Net Income” means, for any period, the net income (or loss) of the members of the
Consolidated Group on a consolidated basis determined in accordance with GAAP, but excluding:
(a) any extraordinary gains or losses and any taxes on such excluded gains and any
tax deductions or credits on account of any such excluded losses;
(b) net earnings of any Person (other than a Subsidiary) in which any member of the
Consolidated Group has an ownership interest unless such net earnings shall have actually been
received by such member of the Consolidated Group in the form of cash distributions; and
(c) any portion of the net earnings of any Subsidiary which for any reason is
unavailable for payment of dividends to the members of the Consolidated Group.
“Consolidated Total Assets” means, as of any date, the sum of (a) all items which would be
classified as assets of the members of the Consolidated Group on a consolidated basis determined in
accordance with GAAP plus (b) to the extent not included in the foregoing clause (a), the aggregate net
book value of all Receivables transferred to a Securitization Subsidiary or other Person in connection with
a Qualified Securitization Transaction.
“Consolidated Total Debt” means, as of any date, all Funded Debt of the members of the
Consolidated Group on a consolidated basis determined in accordance with GAAP; provided that
Consolidated Total Debt as of any date shall only include Indebtedness incurred by Securitization
Subsidiaries in connection with Qualified Securitization Transactions to the extent the aggregate amount of
such Indebtedness is in excess of $300,000,000 as of such date (it being understood, for the avoidance of
doubt, that only the portion of such Indebtedness that is in excess of $300,000,000 as of such date shall be
included in “Consolidated Total Debt”).
“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Total Debt on such date, to (b) Consolidated EBITDA for the period of four consecutive fiscal
quarters most recently ended on or prior to such date of determination.
“Credit Agreement” has the meaning specified in the introductory paragraph hereto.
“Credit Documents” means this Credit Agreement, each Note, each Joinder Agreement, each Fee
Letter, each Foreign Borrower Joinder Agreement, each LOC Document, any joinder documentation
executed and delivered pursuant to Section 2.12(b), any agreement creating or perfecting rights in Cash
Collateral pursuant to the provisions of Section 3.19, and all other related agreements and documents issued
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CHAR1\1534998v8
or delivered hereunder or thereunder or pursuant hereto or thereto and specified as a Credit Document (in
each case as the same may be amended, modified, restated, supplemented, extended, renewed or replaced
from time to time).
“Credit Party” means any Borrower or any Guarantor.
“Daily LIBOR Rate” means, for each day with respect to any Swingline Loan issued pursuant to
Section 2.2(a)(ii), the rate per annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
appearing on Reuters Screen LIBOR01 Page (or any successor page) as the London interbank offered rate
for deposits in Dollars at approximately 11:00 a.m. (London time) on such day and having an advance date
of such day and a maturity date of one month; provided, however, if more than one rate is specified on
Reuters Screen LIBOR01 Page, the applicable rate shall be the arithmetic mean of all such rates. If, for any
reason, such rate is not available, the term “Daily LIBOR Rate” shall mean, for each day with respect to
any Daily LIBOR Swingline Loan, the rate per annum at which, as determined by the Administrative Agent
in accordance with its customary practices, Dollars in an amount comparable to the Loans then requested
are being offered to leading banks at approximately 11:00 a.m. (London time) on such day and having an
advance date of such day and a maturity date of one month for settlement in immediately available funds
by leading banks in the London interbank market. Notwithstanding anything to the contrary herein, in no
event shall the Daily LIBOR Rate be less than 0%.
“Daily LIBOR Swingline Loan” means a Swingline Loan that bears interest at a rate based on the
Daily LIBOR Rate.
“Debt Issuance” means the issuance by any member of the Consolidated Group of any Indebtedness
other than Indebtedness permitted under Section 8.1.
“Debt Rating” means, with respect to the Parent, the S&P Rating, the Xxxxx’x Rating and/or the
Fitch Rating.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time
to time in effect and affecting the rights of creditors generally.
“Default” means any event, act or condition which with notice or lapse of time, or both, would
constitute an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Standby Letter of Credit
Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Percentage, if any, applicable to
Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate
Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable
Percentage) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to
Standby Letter of Credit Fees, a rate equal to the Applicable Percentage plus 2% per annum.
“Defaulting Bank” means, subject to Section 3.18, any Bank that, as determined by the
Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in
respect of its Loans or participations in respect of Letters of Credit or Swingline Loans, within three
Business Days of the date required to be funded by it hereunder unless such Bank notifies the
Administrative Agent and the Borrower Representative in writing that such failure is the result of such
Bank’s determination that one or more conditions precedent to funding (each of which conditions precedent,
together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
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CHAR1\1534998v8
(b) has notified the Borrower Representative or the Administrative Agent that it does not intend to comply
with its funding obligations or has made a public statement to that effect with respect to its funding
obligations hereunder, (c) has notified the Borrower Representative or the Administrative Agent that it does
not intend to comply with its funding obligations or has made a public statement to that effect with respect
to its funding obligations under agreements (other than this Credit Agreement) in which it commits to
extend credit, unless such failure is the subject of a good faith dispute, (d) has failed, within three Business
Days after written request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (e) 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 a
receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or
appointment or (iv) become the subject of a Bail-In Action; provided that a Bank shall not be a Defaulting
Bank solely by virtue of the ownership or acquisition of any equity interest in that Bank or any direct or
indirect parent company thereof by a Governmental Authority.
“Designated Bank” has the meaning specified in Section 2.13.
“Disqualified Institutions” means (a) those Competitors identified by legal name in writing by the
Borrower Representative to the Administrative Agent prior to the Closing Date (as supplemented from time
to time by the Borrower Representative pursuant to clause (b) below, the “DQ List”), (b) any other
Competitor identified by legal name in writing by the Borrower Representative to the Administrative Agent
after the Closing Date (it being understood that the Borrower Representative shall be required to provide a
fully updated DQ List to the Administrative Agent in order to supplement such DQ List after the Closing
Date), which designation shall become effective one day after the date that such written designation to the
Administrative Agent is made available to the Banks on IntraLinks/IntraAgency, Syndtrak or another
similar electronic system, but which shall not apply retroactively to disqualify any persons that have
previously acquired an assignment in the Loans and/or Commitments, and (c) as of any date of
determination, any Person that is obviously (based solely on the similarity of the legal name of such Person
to the name of a Competitor set forth on the DQ List) an Affiliate of any Competitor set forth on the DQ
List as of such date.
“Distribution” has the meaning specified in the introductory paragraph hereto.
“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars,
such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent
amount thereof in Dollars as determined by the Administrative Agent or the applicable Issuing Bank, as the
case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of Dollars with such Alternative Currency.
“Dollars” and “$” means dollars in lawful currency of the United States.
“Domestic Credit Party” means any Credit Party that is incorporated or organized under the laws
of any State of the United States or the District of Columbia.
“Domestic Subsidiary” means any Subsidiary that is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
“DQ List” has the meaning specified in the definition of “Disqualified Institutions”.
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“EEA Financial Institution” means (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with
its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted
with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections
11.3(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.3(b)(iii)) and, if
such Person is a Disqualified Institution, subject to the terms of Section 11.3(h).
“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as
amended by the Single Xxxxxxxx Xxx 0000, the Maastricht Treaty of 1992 and the Amsterdam Treaty of
1998.
“EMU Legislation” means the legislative measures of the European Council for the introduction
of, changeover to or operation of a single or unified European currency.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees or other governmental restrictions relating to
pollution and the protection of the environment or the release of any materials into the environment,
including those related to hazardous substances or wastes, air emissions and discharges to waste or public
systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of any member of the
Consolidated Group directly or indirectly resulting from or based upon (a) violation of any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in
effect from time to time. References to sections of ERISA shall be construed also to refer to any successor
sections.
“ERISA Affiliate” means an entity which is under common control with the Parent within the
meaning of Section 4001(a)(14) of ERISA, or is a member of a group which includes the Parent and which
is treated as a single employer under Sections 414(b) or (c) of the Internal Revenue Code.
“ERISA Event” means (a) Reportable Event with respect to a Plan; (b) a withdrawal by the Parent
or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it or such
ERISA Affiliate was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
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operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Parent or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; or (f) the imposition of any material liability under Title
IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon
the Parent or any ERISA Affiliate. Notwithstanding the foregoing, the termination of the Parent’s Plan,
which was approved by the Parent in December 2009 and has been publicly disclosed, shall not be an
ERISA Event.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor person), as in effect from time to time.
“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
“Eurocurrency Rate” means, for any Interest Period with respect to a Eurocurrency Rate Loan, (a)
denominated in Dollars, Euro, Sterling or Yen, the rate of interest per annum determined on the basis of the
rate for deposits in Dollars, Euro, Sterling or Yen, as applicable, for a period equal to the applicable Interest
Period which appears on Reuters Screen LIBOR01 Page (or any applicable successor page) at
approximately 11:00 a.m. (London time) two London Banking Days prior to the first day of the applicable
Interest Period (it being understood that if, for any reason, any such rate does not appear on Reuters Screen
LIBOR01 Page (or any applicable successor page), then the “Eurocurrency Rate” shall be determined by
the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars,
Euros, Sterling or Yen, as applicable, would be offered by first class banks in the London interbank market
to the Administrative Agent at approximately 11:00 a.m. (London time) two London Banking Days prior
to the first day of the applicable Interest Period for a period equal to such Interest Period), (b) denominated
in Canadian Dollars, the rate of interest per annum equal to the Canadian Dollar Offered Rate, or a
comparable or successor rate which rate is approved by the Administrative Agent, as published on the
applicable Reuters screen page (or such other commercially available source providing such quotations as
may be designated by the Administrative Agent from time to time) at or about 10:00a.m. (Toronto, Ontario
time) on the first day of such Interest Period (or such other day as is generally treated as the rate fixing day
by market practice in such interbank market, as determined by the Administrative Agent) (or if such day is
not a Business Day, then on the immediately preceding Business Day) with a term equivalent to such
Interest Period, and (c) denominated in Australian Dollars, the rate per annum equal to the Bank Xxxx Swap
Reference Bid Rate, or a comparable or successor rate which rate is approved by the Administrative Agent,
as published on the applicable Reuters screen page (or such other commercially available source providing
such quotations as may be designated by the Administrative Agent from time to time) at or about 10:30
a.m. (Melbourne, Australia time) on the date that is two (2) Business Days prior to the commencement of
such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in
such interbank market, as determined by the Administrative Agent) (or if such day is not a Business Day,
then on the immediately preceding Business Day) with a term equivalent to such Interest Period.
Notwithstanding anything to the contrary herein, in no event shall the Eurocurrency Rate be less than 0%.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on the Eurocurrency
Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Loans
denominated in an Alternative Currency must be Eurocurrency Rate Loans.
“Event of Default” has the meaning specified in Section 9.1.
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“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and
to the extent that, all or a portion of the guarantee of such Credit Party of, or the grant by such Credit Party
of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the
Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission
(or the application or official interpretation of any thereof) by virtue of such Credit Party’s failure for any
reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act
(determined after giving effect to Section 4.8 and any other “keepwell, support or other agreement” for the
benefit of such Credit Party and any and all other guarantees of such Credit Party’s Swap Obligations by
other Credit Parties) and the regulations thereunder at the time the guarantee of such Credit Party, or the
grant by such Credit Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap
Obligation arises under a Master Agreement governing more than one swap, such exclusion shall apply
only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security
interest is or becomes illegal.
“Excluded Taxes” 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 its 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 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 Bank (other than an assignee pursuant to a request by the Borrower
Representative under Section 11.18), any United States federal withholding Tax that is imposed on
amounts payable to such Bank pursuant to the Laws in force at the time such Bank becomes a party
hereto or designates a new Applicable Lending Office, except to the extent that such Bank (or its
assignor, if any) was entitled, at the time of assignment or designation of a new Applicable Lending
Office to receive additional amounts from the Borrowers with respect to such withholding Tax
pursuant to Section 3.11(a) or Section 3.11 (c)(i),
(c) Taxes attributable to such Recipient’s failure or inability to comply with any
provisions of Section 3.11(e), or
(d) any United States federal withholding Taxes imposed under FATCA.
“Existing Credit Agreement” means that certain Credit Agreement dated as of June 5, 2012, among
Distribution and Medical, as borrowers, the Parent, the other guarantors party thereto, the lenders party
thereto and Bank of America, as administrative agent, as amended, modified or supplemented from time to
time prior to the Closing Date.
“Existing Letters of Credit” means those certain letters of credit listed on Schedule 1.1.
“Existing Revolving Termination Date” has the meaning specified in Section 2.11(a).
“Extension Date” has the meaning specified in Section 2.11(a).
“Extension of Credit” means, as to any Bank (including the Swingline Bank) or any Issuing Bank,
the making of, or participation in, a Loan by such Bank or the issuance, amendment, increase or extension
of, or participation in, a Letter of Credit by such Issuing Bank.
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“Facility Office” means the office designated by the applicable Bank through which such Bank will
perform its obligations under this Credit Agreement.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the Closing Date
(or any amended or successor version that is substantively comparable and not materially more onerous to
comply with), any current or future regulations or official interpretations thereof, any agreement entered
into pursuant to Section 1471(b)(1) of the Internal Revenue Code and any applicable intergovernmental
agreements implementing the foregoing.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal Reserve System, as published
by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged
to Xxxxx Fargo Bank on such day on such transactions as determined by the Administrative Agent.
“Fee Letters” mean (a) the Bank of America Fee Letter, and (b) the Xxxxx Fargo Bank Fee Letter.
“Fees” means all fees payable pursuant to Section 3.5.
“Financial Officer” means the chief financial officer, principal accounting officer, controller,
treasurer or any assistant treasurer or an equivalent officer of any of the foregoing.
“Fitch” means Fitch Rating, part of the Fitch Group, a subsidiary of Fimalac, S.A., or any successor
or assignee of the business of such company in the business of rating securities.
“Fitch Rating” means, at any time for the Parent, the rating issued by Fitch and then in effect with
respect to the Parent’s senior unsecured long term debt securities without third party credit enhancement.
“Foreign Bank” means any Bank that is not a U.S. Person.
“Foreign Borrower” means each Foreign Subsidiary that is, or may from time to time become party
to this Credit Agreement pursuant to Section 2.12(a).
“Foreign Borrower Joinder Agreement” means a joinder agreement, in a form reasonably
satisfactory to the Administrative Agent, executed and delivered by an Applicant Foreign Borrower, the
then-existing Borrowers, the Parent, the Guarantors (if any) and the Administrative Agent.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” means, at any time there is a Defaulting Bank that is a Revolving Bank, (a)
with respect to any Issuing Bank, such Defaulting Bank’s Revolving Commitment Percentage of the
outstanding LOC Obligations relating to the Letters of Credit issued by such Issuing Bank other than such
LOC Obligations as to which such Defaulting Bank’s participation obligation has been reallocated to other
Banks or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline
Bank, such Defaulting Bank’s Revolving Commitment Percentage of Swingline Loans other than
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Swingline Loans as to which such Defaulting Bank’s participation obligation has been reallocated to other
Banks or Cash Collateralized in accordance with the terms hereof.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
“Funded Debt” means, with respect to any Person, without duplication, (a) the principal amount of
all obligations of such Person for borrowed money; (b) the principal amount of all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are
customarily made; (c) the principal amount of all Support Obligations of such Person with respect to Funded
Debt of another Person; (d) the maximum stated amount of all standby letters of credit issued or bankers’
acceptances facilities created for the account of such Person and, without duplication, all drafts drawn
thereunder to the extent unreimbursed (other than letters of credit (i) supporting other Indebtedness of such
Person or (ii) offset by a like amount of cash or government securities pledged or held in escrow to secure
such letter of credit and draws thereunder); (e) the principal amount of all purchase money Indebtedness
(including for purposes hereof, indebtedness and obligations in respect of conditional sale or title retention
arrangements described in clause (j) of the definition of “Indebtedness” and obligations in respect of the
deferred purchase price of property or services described in clause (c) of the definition of “Indebtedness”)
of such Person, including without limitation the principal portion of all obligations of such Person under
Capital Leases; (f) the principal amount of all Funded Debt of another Person secured by a Lien on any
Property of such Person, whether or not such Funded Debt has been assumed; provided that for purposes
hereof the amount of such Funded Debt shall be limited to the amount of such Funded Debt as to which
there is recourse to such Person or the fair market value of the property which is subject to the Lien, if less;
(g) the aggregate net amount of Indebtedness or obligations relating to the sale, contribution or other
conveyance of accounts receivable (or similar transaction) (exclusive of intercompany obligations owing
between the Securitization Subsidiary and a Credit Party pursuant to a Qualified Securitization Transaction
permitted hereunder) regardless of whether such transaction is effected without recourse or in a manner
which would not be reflected on a balance sheet in accordance with GAAP; (h) the principal balance
outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-
balance sheet financing product where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease under GAAP; and (i) the maximum amount of all contingent
obligations (including, without limitation, obligations to make earn-out payments) of such Person payable
in cash incurred in connection with Acquisitions permitted under Section 8.4 and Acquisitions
consummated prior to the Closing Date. The Funded Debt of any Person shall include the Funded Debt of
any partnership or joint venture in which such Person is a general partner or joint venturer, but only to the
extent to which there is recourse to such Person for the payment of such Funded Debt. For purposes hereof,
Funded Debt shall also include payments in respect of Funded Debt which constitute current liabilities of
the obligor under GAAP. For purposes of determining the amount of any earn-out payments to be included
as Funded Debt, the amount of earn-out payments shall be deemed to be the aggregate liability in respect
thereof, as determined in accordance with GAAP.
“GAAP” means generally accepted accounting principles in the United States applied on a
consistent basis and subject to the terms of Section 1.3.
“Governmental Authority” means any federal, state, local or foreign court or governmental agency,
authority, instrumentality or regulatory body.
“Guarantor” means (a) the Parent, (b) each Person identified as a “Guarantor” on the signature
pages hereto, (c) each Additional Credit Party, (d) with respect to Obligations under any Swap Contract
between any member of the Consolidated Group and any Bank or Affiliate of a Bank that is permitted to
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be incurred pursuant to Section 8.1(g), Obligations under any Treasury Management Agreement between
any member of the Consolidated Group and any Bank or Affiliate of a Bank and any Swap Obligation of a
Specified Credit Party (determined before giving effect to Sections 4.1 and 4.8), each U.S. Borrower, and
(e) the successors and permitted assigns of the foregoing.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous
or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Incremental Facility” has the meaning specified in Section 2.10.
“Incremental Term Bank” means each of the Persons identified as an “Incremental Term Bank” in
an Incremental Term Joinder Agreement (so long as such Persons are Banks at the time of execution of
such Incremental Term Joinder Agreement or other Persons selected at such time by the Borrower
Representative and acceptable to the Administrative Agent (so long as such Persons would be permitted at
such time by Section 11.3(b)(v) to become assignees hereunder)), together with their respective successors
and assigns.
“Incremental Term Commitment” means, as to each Incremental Term Bank providing an
Incremental Term Loan with respect to an Incremental Term Facility, the commitment of such Incremental
Term Bank to make an Incremental Term Loan with respect to such Incremental Term Facility in an
aggregate principal amount outstanding at any time up to such Incremental Term Bank’s Incremental Term
Committed Amount for such Incremental Term Facility.
“Incremental Term Commitment Percentage” means, with respect to each Incremental Term Bank
under an Incremental Term Facility, a fraction (expressed as a percentage) the numerator of which is the
Incremental Term Committed Amount of such Incremental Term Bank with respect to such Incremental
Term Facility at such time and the denominator of which is the aggregate amount of the Incremental Term
Commitments under such Incremental Term Facility at such time.
“Incremental Term Committed Amount” means, with respect to each Incremental Term Bank under
an Incremental Term Facility at any time, the amount of such Incremental Term Bank’s Incremental Term
Commitment under such Incremental Term Facility at such time, as such amount may from time to time be
reduced in accordance with the provisions hereof.
“Incremental Term Facility” means, at any time, with respect to any Incremental Term Joinder
Agreement, the aggregate principal amount of all Incremental Term Loans made by Incremental Term
Banks pursuant to such Incremental Term Joinder Agreement that are outstanding at such time.
“Incremental Term Facility Termination Date” with respect to any Incremental Term Facility, shall
be as set forth in the applicable Incremental Term Joinder Agreement for such Incremental Term Facility.
“Incremental Term Joinder Agreement” means a joinder agreement, substantially in the form of
Schedule 2.10, or such other form as shall be reasonably approved by the Administrative Agent, executed
and delivered in accordance with the provisions of Section 2.10(b).
“Incremental Term Loan” means an advance made by an Incremental Term Bank under an
Incremental Term Facility.
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“Indebtedness” means, with respect to any Person, without duplication, (a) all obligations of such
Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made; (c) all obligations of such
Person issued or assumed as the deferred purchase price of Property or services purchased by such Person
which would appear as liabilities on a balance sheet of such Person in accordance with GAAP; (d) all
Support Obligations of such Person with respect to Indebtedness of another Person; (e) the maximum stated
amount of all standby letters of credit issued or bankers’ acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder to the extent unreimbursed (other than
letters of credit (i) supporting other Indebtedness of such Person or (ii) offset by a like amount of cash or
government securities pledged or held in escrow to secure such letter of credit and draws thereunder); (f)
the principal portion of all obligations of such Person under Capital Leases; (g) all Indebtedness of another
Person secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, Property
owned or acquired by such Person, whether or not the obligations secured thereby have been assumed;
provided that for purposes hereof the amount of such Indebtedness shall be limited to the amount of such
Indebtedness as to which there is recourse to such Person or the fair market value of the Property which is
subject to the Lien, if less; (h) all obligations of such Person under take-or-pay or similar arrangements or
under commodities agreements; (i) the Swap Termination Value of any Swap Contract; (j) all obligations
of such Person under conditional sale or other title retention agreements relating to Property purchased by
such Person (other than customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business); (k) all preferred stock issued by such Person and which by
the terms thereof could be (at the request of the holders thereof or otherwise) subject to mandatory sinking
fund payments, redemption or other acceleration at any time prior to the Latest Termination Date; (l) the
aggregate net amount of Indebtedness or obligations relating to the sale, contribution or other conveyance
of accounts receivable (or similar transaction) (exclusive of intercompany obligations owing between the
Securitization Subsidiary and a Credit Party pursuant to a Qualified Securitization Transaction permitted
hereunder) regardless of whether such transaction is effected without recourse or in a manner which would
not be reflected on a balance sheet in accordance with GAAP; (m) the principal portion of all obligations
of such Person under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction is considered borrowed money indebtedness for
tax purposes but is classified as an operating lease under GAAP; (n) the Indebtedness of any partnership or
unincorporated joint venture in which such Person is a general partner or a joint venturer, but only to the
extent to which there is recourse to such Person for the payment of such Indebtedness; and (o) the maximum
amount of all contingent obligations (including, without limitation, obligations to make earn-out payments)
of such Person incurred in connection with Acquisitions permitted under Section 8.4 and Acquisitions
consummated prior to the Closing Date. For purposes hereof, Indebtedness shall also include payments in
respect of Indebtedness which constitute current liabilities of the obligor under GAAP. The Indebtedness
of any Person shall not include (x) trade debt incurred in the ordinary course of business and due within
twelve months of the incurrence thereof, (y) accrued expenses and (z) accrued pension and retirement plan
liabilities to the extent such liabilities would not appear as debt on a balance sheet of such Person in
accordance with GAAP.
“Indemnified Taxes” means (a) Taxes other than Excluded Taxes imposed on or with respect to
any payment made by or on account of any obligation of any Credit Party under any Credit Document and
(b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” has the meaning specified in Section 11.5(b).
“Information” has the meaning specified in Section 11.14.
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“Interest Payment Date” means (a) as to any Eurocurrency Rate Loan, the last day of each Interest
Period applicable to such Loan and the applicable Termination Date; provided, however, that if any Interest
Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months
after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate
Loan (including any Swingline Loan bearing interest at the Base Rate) or Daily LIBOR Swingline Loan,
the last Business Day of each March, June, September and December and the applicable Termination Date
(with Swingline Loans being deemed made under the Aggregate Revolving Committed Amount for
purposes of this definition).
“Interest Period” means, with respect to Eurocurrency Rate Loans, a period of 7 days’, one, two,
three or six months’ duration (provided that no more than one such 7-day Interest Period may be outstanding
at any time), as the Borrower Representative may elect, commencing in each case on the date of the
borrowing (including conversions, extensions and renewals); provided, however, that (a) if any Interest
Period would end on a day which is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (b) no Interest Period shall extend beyond the
applicable Termination Date and (c) where an Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last day of such calendar month.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, and any successor
statute thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from
time to time. References to sections of the Internal Revenue Code shall be construed also to refer to any
successor sections.
“Investment” in any Person means (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of Capital Stock, bonds, notes, debentures, partnership,
joint ventures or other ownership interests or other securities of such other Person, (b) any advance, loan or
other extension of credit to, such Person or (c) any other capital contribution to or investment in such Person,
including, without limitation, any Support Obligations (including any support for a letter of credit issued
on behalf of such Person) incurred for the benefit of such Person, but excluding any Restricted Payment to
such Person. For purposes hereof, Investment shall not include any funding by any Credit Party of qualified
or nonqualified retirement or other benefit plans for directors, officers or employees pursuant to the terms
thereof.
“Investment Grade” means a senior unsecured long term debt rating of at least two of the following:
Baa3 from Xxxxx’x, BBB- from S&P and BBB- from Fitch.
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation or
other taking for public use of, any Property of any member of the Consolidated Group.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998”
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).
“Issuing Bank” means (a) Xxxxx Fargo Bank, in its capacity as issuer of the Existing Letters of
Credit, (b) Bank of America, in its capacity as issuer of Letters of Credit hereunder, or any successor issuer
of such Letters of Credit hereunder, (c) JPMorgan Chase Bank, N.A., in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of such Letters of Credit hereunder, or (d) any other Revolving
Bank selected by the Borrower Representative pursuant to Section 2.6(k) from time to time to issue Letters
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of Credit (provided that no Revolving Bank shall be required to become an Issuing Bank pursuant to this
clause (d) without such Revolving Bank’s consent), or any successor issuer thereof.
“Joinder Agreement” means a Joinder Agreement substantially in the form of Schedule 7.11
executed and delivered by an Additional Credit Party in accordance with the provisions of Section 7.11.
“Latest Termination Date” means, at any date of determination, the latest of the Revolving
Termination Date, the Term Facility Termination Date, and the latest Incremental Term Loan Termination
Date, in each case as extended in accordance with the terms of this Credit Agreement from time to time.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties,
rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
“Letter of Credit” means any standby letter of credit issued by an Issuing Bank for the account of
any member of the Consolidated Group in accordance with the terms of Section 2.1(c) and shall include the
Existing Letters of Credit. Letters of Credit may be issued in Dollars or an Alternative Currency.
“Letter of Credit Application” means an application and agreement for the issuance or amendment
of a Letter of Credit in the form from time to time in use by an Issuing Bank.
“Letter of Credit Expiration Date” means the day that is five Business Days prior to the Revolving
Termination Date (or, if such day is not a Business Day, the next proceeding Business Day).
“Letter of Credit Sublimit” means an amount equal to the lesser of (a) the Aggregate Revolving
Committed Amount and (b) the LOC Committed Amount. The Letter of Credit Sublimit is part of, and not
in addition to, the Aggregate Revolving Committed Amount.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, encumbrance, lien (statutory or otherwise), preference or priority or charge of any kind (including
any agreement to give any of the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the Uniform Commercial Code as adopted and in effect
in the relevant jurisdiction or other similar recording or notice statute, and any lease in the nature thereof)
securing or purporting to secure any Indebtedness.
“Limited Originator Recourse” means a letter of credit, cash collateral account or other credit
enhancement issued or provided for a similar purpose in connection with the incurrence of Indebtedness by
a Securitization Subsidiary under a Qualified Securitization Transaction.
“Loans” means the Revolving Loans, the Swingline Loans, the Term Loans, any Incremental Term
Loans, and the Base Rate Loans, Eurocurrency Rate Loans and Daily LIBOR Swingline Loans comprising
such Loans.
“LOC Advance” means, with respect to each Bank, such Bank’s funding of its participation in any
LOC Borrowing in accordance with its Revolving Commitment Percentage. All LOC Advances shall be
denominated in Dollars.
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“LOC Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit
which has not been reimbursed on the date when made or refinanced as a borrowing of Revolving Loans.
All LOC Borrowings shall be denominated in Dollars.
“LOC Commitment” means, as to each Issuing Bank, its obligation to issue Letters of Credit
pursuant to this Credit Agreement in an aggregate principal amount at any one time outstanding not to
exceed (a) $20,000,000, in the case of Bank of America (or such greater amount as Bank of America shall
otherwise agree in its sole discretion), as such amount may be adjusted from time to time in accordance
with this Credit Agreement, and (b) $20,000,000, in the case of JPMorgan Chase Bank, N.A. (or such
greater amount as JPMorgan Chase Bank, N.A. shall otherwise agree in its sole discretion), as such amount
may be adjusted from time to time in accordance with this Credit Agreement.
“LOC Committed Amount” has the meaning specified in Section 2.1(c).
“LOC Documents” means, with respect to any Letter of Credit, such Letter of Credit, any
amendments thereto, any documents delivered in connection therewith, any application therefor, and any
agreements, instruments, guarantees or other documents (whether general in application or applicable only
to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned
or at risk or (b) any collateral security for such obligations.
“LOC Obligations” means, at any time, the sum of (a) the maximum amount which is, or at any
time thereafter may become, available to be drawn under Letters of Credit then outstanding, assuming
compliance with all requirements for drawings referred to in such Letters of Credit plus (b) the aggregate
amount of all Unreimbursed Amounts, including all LOC Borrowings. For purposes of computing the
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.4. For all purposes of this Credit 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 “outstanding”
in the amount so remaining available to be drawn.
“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and
between banks in the London interbank eurodollar market.
“Mandatory Cost” means any amount incurred periodically by any Bank during the term of this
Credit Agreement which constitutes fees, costs or charges imposed on lenders generally in the jurisdiction
in which such Bank is domiciled, subject to regulation, or has its Facility Office by any Governmental
Authority.
“Master Agreement” has the meaning specified in “Swap Contract”.
“Material Acquisition” means one or more Acquisitions during any twelve month period that
involve the payment of aggregate consideration by the Borrowers and their Subsidiaries in excess of
$100,000,000.
“Material Acquisition Pro Forma Calculation” means, to the extent made in connection with
determining the permissibility of (a) the incurrence of an Incremental Facility in connection with a Material
Acquisition, the calculation on a Pro Forma Basis required by Section 2.10(a)(vii) or Section 2.10(b)(vii),
as applicable, (b) the incurrence of unsecured Funded Debt by a member of the Consolidated Group in
connection with a Material Acquisition, the calculation on a Pro Forma Basis required by Section 8.1(h)(ii),
(c) any Acquisition hereunder that is a Material Acquisition, the calculation on a Pro Forma Basis required
by Section 8.4(b)(ii)(IV), (d) an Asset Disposition in connection with a Material Acquisition, the calculation
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on a Pro Forma Basis required by Section 8.5(c)(iv), and (e) a Restricted Payment in connection with a
Material Acquisition, the calculation on a Pro Forma Basis required by Section 8.12(b) (it being understood
and agreed that in any event, and notwithstanding the foregoing, any such Restricted Payment shall be
subject to the proviso set forth in Section 8.12(b)).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, assets, or financial condition of the Parent and its Subsidiaries taken as a
whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Bank under
any Credit Document, or of the ability of the Credit Parties (taken as a whole) to perform their payment
obligations under the Credit Documents; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability against any Credit Party of any Credit Document to which it is a party.
“Material Guarantor” means (a) the Parent and (b) any Guarantor that, together with its
Subsidiaries, (i) accounts for more than ten percent (10%) of the gross revenues of the members of the
Consolidated Group (other than Securitization Subsidiaries) on a consolidated basis determined in
accordance with GAAP, (ii) accounts for more than ten percent (10%) of net income of the members of the
Consolidated Group (other than Securitization Subsidiaries) on a consolidated basis determined in
accordance with GAAP, or (iii) holds more than ten percent (10%) of Consolidated Total Assets.
“Medical” has the meaning specified in the introductory paragraph hereto.
“Mediq USA Holdings” means Mediq USA Holdings, a Delaware general partnership.
“MLPFS” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or any other registered
broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of
America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or
related businesses may be transferred following the Closing Date), in its capacity as a joint lead arranger
and joint bookrunner.
“Moody’s” means Xxxxx’x Investors Service, Inc., or any successor or assignee of the business of
such company in the business of rating securities.
“Xxxxx’x Rating” means, at any time for the Parent, the rating issued by Moody’s and then in
effect with respect to the Parent’s senior unsecured long term debt securities without third party credit
enhancement.
“Multiemployer Plan” means a Plan which is a “multiemployer plan” as defined in Section 3(37)
or 4001(a)(3) of ERISA.
“Multiple Employer Plan” means a Plan (other than a Multiemployer Plan) which the Parent or any
ERISA Affiliate and at least one employer other than the Parent or any ERISA Affiliate are contributing
sponsors.
“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by any
member of the Consolidated Group in respect of (a) any Asset Disposition, net of (i) selling expenses
(including, without limitation, brokers’ fees or commissions, legal, accounting and other professional and
transactional fees, transfer and similar taxes and the Borrower Representative’s good faith estimate of
income taxes actually paid or payable in connection with such sale), (ii) amounts provided as a reserve, in
accordance with GAAP, against (A) any liabilities under any indemnification obligations associated with
such Asset Disposition or (B) any other liabilities retained by any member of the Consolidated Group
associated with the Property sold in such Asset Disposition (provided that to the extent and at the time any
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such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds), (iii) the
Borrower Representative’s good faith estimate of payments required to be made with respect to unassumed
liabilities relating to the Property sold within one hundred eighty (180) days of such Asset Disposition
(provided that to the extent such cash proceeds are not used to make payments in respect of such unassumed
liabilities within one hundred eighty (180) days of such Asset Disposition, such cash proceeds shall then
constitute Net Cash Proceeds), and (iv) the principal amount, premium or penalty, if any, interest and other
amounts on any Indebtedness for borrowed money which is secured by a Lien on the Property sold in such
Asset Disposition (so long as such Lien was permitted to encumber such Property under the Credit
Documents at the time of such sale) and which is repaid with such proceeds (other than any such
Indebtedness assumed by the purchaser of such Property), (b) any Debt Issuance, net of taxes, and
reasonable fees, commissions, costs and other expenses incurred in connection therewith, and (c) any
Involuntary Disposition (other than proceeds of business interruption insurance, to the extent such proceeds
constitute compensation for lost earnings), net of (i) all costs and expenses incurred in connection with the
collection of such proceeds, awards or other compensation in respect of such Involuntary Disposition,
including, without limitation, legal, accounting and other professional fees and expenses, and (ii) the
principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness which is
secured by a Lien on the Property subject to such Involuntary Disposition (so long as such Lien was
permitted to encumber such Property under the Credit Documents at the time of such Involuntary
Disposition) and which is repaid with such cash proceeds, awards or other compensation.
“Non-Consenting Bank” has the meaning specified in Section 11.18.
“Non-Extending Bank” has the meaning specified in Section 2.11(b).
“Non-Guarantor Subsidiaries” means Domestic Subsidiaries which are not Guarantors (other than
any Securitization Subsidiary).
“Note” or “Notes” means the promissory notes of the Borrowers in favor of each of the Banks
evidencing the Loans in substantially the form attached as Schedule 2.5, individually or collectively, as
appropriate, as such promissory notes may be amended, modified, supplemented, extended, renewed or
replaced from time to time.
“Notice Date” has the meaning specified in Section 2.11(b).
“Notice of Extension/Conversion” has the meaning specified in Section 3.2.
“Notice of Loan Borrowing” has the meaning specified in Section 2.2(a)(i).
“Notice of Swingline Loan Borrowing” means a notice of a Borrowing of Swingline Loans
pursuant to Section 2.2(a)(ii), which, if in writing, shall be substantially in the form of Schedule 2.2(a)(ii).
“O&M Funding” means O&M Funding Corp., a Virginia corporation.
“Obligations” means, without duplication, all of the obligations of the Credit Parties to the Banks
(including the Issuing Banks and the Swingline Bank) and the Administrative Agent, whenever arising,
under this Credit Agreement, the Notes or any of the other Credit Documents (including, but not limited to,
any interest accruing after the occurrence of a Bankruptcy Event with respect to any Credit Party, regardless
of whether such interest is an allowed claim under the Bankruptcy Code). The foregoing shall also include
(a) all obligations under any Swap Contract between any Credit Party or any Subsidiary and any Bank or
Affiliate of a Bank that is permitted to be incurred pursuant to Section 8.1(g) and (b) all obligations under
any Treasury Management Agreement between any Credit Party or any Subsidiary and any Bank or
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CHAR1\1534998v8
Affiliate of a Bank; provided that the Obligations of a Credit Party shall exclude any Excluded Swap
Obligations with respect to such Credit Party.
“OFAC” means Office of Foreign Assets Control of the United States Department of the Treasury.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a
present or former connection between such Recipient and the jurisdiction imposing such Tax (other than
connections arising from such Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security interest under, engaged in any
other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan
or Credit Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing
or similar Taxes that arise from any payment made under, from the execution, delivery, performance,
enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
respect to, this Credit Agreement or any other Credit Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment.
“Outstanding Amount” means (a) with respect to Revolving Loans, the Term Loans or any
Incremental Term Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or repayments of such Loans
occurring on such date; (b) with respect to Swingline Loans on any date, the aggregate outstanding principal
amount thereof after giving effect to any borrowings and prepayments or repayments of such Swingline
Loans occurring on such date; and (iii) with respect to any LOC Obligations on any date, the Dollar
Equivalent amount of the aggregate outstanding amount of such LOC Obligations on such date after giving
effect to the issuance, amendment or extension of any Letter of Credit occurring on such date and any other
changes in the aggregate amount of the LOC Obligations as of such date, including as a result of any
reimbursements by any Borrower of Unreimbursed Amounts.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the
greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the
applicable Issuing Bank, or the Swingline Bank, as the case may be, in accordance with banking industry
rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative
Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative 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 Xxxxx Fargo in the applicable offshore interbank market
for such currency to major banks in such interbank market.
“Parent” has the meaning specified in the introductory paragraph hereto.
“Participant” has the meaning specified in Section 11.3(d).
“Participant Register” has the meaning specified in Section 11.3(d).
“Participating Member State” means each state so described in any EMU Legislation.
“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of
Title IV of ERISA and any successor thereof.
“Permitted Asset Swap” means any transfer of Property by any member of the Consolidated Group
in which at least 90% of the consideration received by the transferor consists of assets (other than current
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CHAR1\1534998v8
assets (to the extent that the Property so transferred does not consist of current assets)) that are used or
useful in the business of the members of the Consolidated Group; provided that the aggregate fair market
value (as determined in good faith by the board of directors or equivalent governing body of the relevant
member of the Consolidated Group) of the Property transferred in such exchange is not greater than that of
the Property received.
“Permitted Investments” means Investments which are (a) cash and Cash Equivalents; (b)
receivables owing to any member of the Consolidated Group created, acquired or made in the ordinary
course of business and payable or dischargeable in accordance with customary trade terms; (c) Investments
by members of the Consolidated Group in and to Domestic Credit Parties; (d) Acquisitions permitted under
Section 8.4(b)(ii); (e) loans and advances in the ordinary course of business to officers, directors and
employees for expenses (including moving expenses related to a transfer) incidental to carrying on the
business of the members of the Consolidated Group in an aggregate amount not to exceed $3,000,000 at
any time outstanding; (f) Investments (including debt obligations) received in settlement of accounts
receivable (created in the ordinary course of business) from bankrupt obligors and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course
of business; (g) investments in a Securitization Subsidiary relating to a Qualified Securitization Transaction;
(h) Investments by the members of the Consolidated Group in their respective Subsidiaries outstanding on
the Closing Date; and (i) Investments of a nature not contemplated in the foregoing subsections; provided,
however, that to the extent that the Consolidated Total Leverage Ratio on a Pro Forma Basis after giving
effect to any such Investment under this clause (i) is greater than 3.00:1.00, the aggregate amount of such
Investments made in reliance on this clause (i) shall not exceed the greater of (i) the aggregate amount of
all Investments permitted under this clause (i) and made prior to the date that the Consolidated Total
Leverage Ratio referred to in this clause (i) exceeded 3.00:1.00 and (ii) $100,000,000 in the aggregate at
any time outstanding.
“Permitted Liens” means:
(a) Liens created by or arising under the Credit Documents in favor of the
Administrative Agent on behalf of the Banks and the other holders of the Obligations;
(b) Liens (other than Liens created or imposed under ERISA) for taxes, assessments
or governmental charges or levies not yet due or Liens for taxes being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance with GAAP have
been established (and as to which the Property subject to any such Lien is not yet subject to
foreclosure, sale or loss on account thereof);
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics,
materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations
or retentions of title arising in the ordinary course of business; provided that such Liens secure only
amounts not yet due and payable or, if due and payable, are unfiled and no other action has been
taken to enforce the same or are being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been established (and as to which
the Property subject to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(d) Liens (other than Liens created or imposed under ERISA) incurred or deposits
made by any member of the Consolidated Group in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other types of social security, or to
secure the performance of tenders, statutory obligations, bids, leases, government contracts,
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CHAR1\1534998v8
performance and return-of-money bonds and other similar obligations (exclusive of obligations for
the payment of borrowed money);
(e) Liens in connection with attachments or judgments (including judgment or appeal
bonds); provided that the judgments secured shall, within 30 days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall have been discharged within 30
days after the expiration of any such stay;
(f) easements, rights-of-way, restrictions (including zoning restrictions), minor
defects or irregularities in title and other similar charges or encumbrances not, in any material
respect, impairing the use of the encumbered real Property for its intended purposes;
(g) Liens on Property of any Person securing Indebtedness (including Capital Leases
and synthetic leases) of a Credit Party to the extent permitted under Section 8.1(c);
(h) leases or subleases granted to others not interfering in any material respect with
the business of any member of the Consolidated Group;
(i) any interest or title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to,
leases permitted by this Credit Agreement;
(j) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(k) Liens deemed to exist in connection with Investments in repurchase agreements
which constitute Permitted Investments;
(l) normal and customary rights of setoff upon deposits of cash in favor of banks or
other depository institutions;
(m) Liens created or deemed to exist in connection with a Qualified Securitization
Transaction permitted under this Credit Agreement (including any related filings of any financing
statements), but only to the extent that any such Lien relates to the applicable Receivables Related
Assets actually sold, contributed, financed or otherwise conveyed or pledged pursuant to such
transaction;
(n) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;
(o) Liens existing as of the Closing Date and set forth on Schedule 8.2; provided that
no such Lien shall at any time (i) be extended to or cover any Property other than the Property
subject thereto on the Closing Date and (ii) secure any Indebtedness other than the Indebtedness
secured thereby on the Closing Date;
(p) Liens securing Indebtedness of any member of the Consolidated Group to the
extent permitted under Section 8.1(j);
(q) Liens on Property of any Person securing Indebtedness of any member of the
Consolidated Group to the extent permitted under Section 8.1(k); and
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(r) Liens on cash deposits not to exceed $25,000,000 in the aggregate at any time
outstanding for the purpose of collateralizing certain financial obligations under any workers’
compensation, unemployment insurance and other types of social security in the ordinary course.
“Person” means any individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust or other enterprise (whether or not incorporated) or any Governmental
Authority.
“Plan” means any employee pension benefit plan (as defined in Section 3(2) of ERISA) which is
subject to Title IV of ERISA and with respect to which the Parent or any ERISA Affiliate is (or, if such
plan were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer”
within the meaning of Section 3(5) of ERISA.
“Platform” has the meaning specified in Section 7.1.
“Pro Forma Basis” means, for purposes of calculating (utilizing the principles set forth in Section
1.3) the applicable Level under the definition of “Applicable Percentage” and determining compliance with
each of the financial covenants set forth in Section 7.10, that any transaction shall be deemed to have
occurred as of the first day of the four fiscal-quarter period ending as of the most recent fiscal quarter end
preceding the date of such transaction with respect to which the Administrative Agent has received the
annual or quarterly compliance certificate and related financial statements required by Section 7.1(a) or (b),
as appropriate. As used herein, “transaction” shall mean (a) any merger or consolidation as referred to in
Section 8.4, (b) any Asset Disposition as referred to in Section 8.5 or any Involuntary Disposition, (c) any
Acquisition as referred to in Section 8.4, (d) any Investment permitted by clause (i) of the definition of
Permitted Investments, (e) any Restricted Payment referenced in Section 8.12, and (f) any other event that
by the terms of the Credit Documents requires pro forma compliance with a test or covenant, calculation as
to pro forma effect with respect to a test or covenant or requires such test or covenant to be calculated on a
Pro Forma Basis. In furtherance of the foregoing, in connection with any calculation of the financial
covenants set forth in Section 7.10 upon giving effect to a transaction on a Pro Forma Basis:
(i) for purposes of any such calculation in respect of any Asset Disposition referred
to in Section 8.5 or any Involuntary Disposition, (A) income statement items (whether positive or
negative) attributable to the Property disposed of in such Asset Disposition or Involuntary
Disposition shall be excluded and (B) any Indebtedness which is retired in connection with such
Asset Disposition or Involuntary Disposition shall be excluded and deemed to have been retired as
of the first day of the applicable period; and
(ii) for purposes of any such calculation in respect of any merger or consolidation
referred to in Section 8.4(a) or any Acquisition referred to in Section 8.4(b), (A) any Indebtedness
incurred by any member of the Consolidated Group in connection with such transaction (x) shall
be deemed to have been incurred as of the first day of the applicable period and (y) if such
Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable
period for purposes of this definition determined by utilizing the rate which is or would be in effect
with respect to such Indebtedness as at the relevant date of determination, and (2) income statement
items (whether positive or negative) attributable to the Property acquired in such transaction or to
the Acquisition comprising such transaction, as applicable, shall be included beginning as of the
first day of the applicable period; provided that such income statement items are factually
supportable by financial statements and information reasonably acceptable to the Administrative
Agent.
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In connection with any Material Acquisition Pro Forma Calculation, the maximum Consolidated Total
Leverage Ratio permitted pursuant to Section 7.10(a) shall be deemed to be 4.00:1.00 solely for purposes
of such Material Acquisition Pro Forma Calculation.
“Pro Forma Compliance Certificate” means a certificate of a Financial Officer of the Parent
delivered to the Administrative Agent in connection with (a) any merger or consolidation referred to in
Section 8.4, (b) any Asset Disposition referred to in Section 8.5, (c) any Acquisition referred to in Section
8.4, (d) any Investment permitted by clause (i) of the definition of Permitted Investments and (e) any
Restricted Payment referenced in Section 8.12, and (f) any other event that by the terms of the Credit
Documents requires pro forma compliance with a test or covenant, calculation as to pro forma effect with
respect to a test or covenant or requires such test or covenant to be calculated on a Pro Forma Basis, as
applicable, and containing reasonably detailed calculations, upon giving effect to the applicable transaction
on a Pro Forma Basis, of the Consolidated Interest Coverage Ratio and the Consolidated Total Leverage
Ratio each as of the most recent fiscal quarter end preceding the date of the applicable transaction with
respect to which the Administrative Agent shall have received the annual or quarterly compliance certificate
and related financial statements required by Section 7.1(a) or (b), as appropriate.
“Property” means any interest in any kind of property or assets, whether real, personal or mixed,
or tangible or intangible.
“Public Bank” has the meaning specified in Section 7.1.
“Qualified ECP Guarantor” means, at any time, each Credit Party with total assets exceeding
$10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity
Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time
under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Qualified Securitization Transaction” means any Securitization Transaction; provided that (a) no
portion of the Indebtedness or any other obligations (contingent or otherwise) under such Securitization
Transaction shall be (i) recourse to any member of the Consolidated Group (other than any Securitization
Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse, (ii)
supported by Support Obligations of any member of the Consolidated Group (other than any Securitization
Subsidiary) other than pursuant to Standard Securitization Obligations or Limited Originator Recourse or
(iii) secured (directly or indirectly, contingently or otherwise) by any Lien on any Property of any member
of the Consolidated Group (other than any Securitization Subsidiary) other than pursuant to Standard
Securitization Obligations or Limited Originator Recourse, (b) such Securitization Transaction (including
financing terms, covenants, termination events and other provisions) is in the aggregate economically fair
and reasonable to the Consolidated Group and any applicable Securitization Subsidiary, (c) all sales,
conveyances or other transfers of Securitization Receivables and related assets to any Securitization
Subsidiary are made at fair market value and (d) the financing terms, covenants, termination events and
other provisions thereof, including any Standard Securitization Obligations, shall be market terms, in each
case as determined by the Parent in good faith.
“Receivables” means, as of any date of determination, the aggregate net book value of all accounts,
accounts receivable, receivables, and obligations for payment created or arising from the sale of inventory
or the rendering of services in the ordinary course of business, whether evidenced by chattel paper,
instruments or otherwise, owned by or owing to the Parent and its Domestic Subsidiaries on a consolidated
basis after deducting allowances or reserves relating thereto, as shown on the books and records of the
Parent and its Domestic Subsidiaries (but excluding, in any event, without duplication, the aggregate net
book value of all Receivables transferred to a Securitization Subsidiary or other Person in connection with
a Qualified Securitization Transaction).
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“Receivables Related Assets” means (a) any rights arising under the documentation governing or
relating to any Securitization Receivables (including rights in respect of Liens securing such Securitization
Receivables and other credit support in respect of such Securitization Receivables), (b) any proceeds of
such Securitization Receivables and any lockboxes or accounts in which such proceeds are deposited, (c)
spread accounts and other similar accounts (and any amounts on deposit therein) established in connection
with a Qualified Securitization Transaction, (d) any warranty, indemnity, dilution and other intercompany
claim arising out of the documentation evidencing any Qualified Securitization Transaction, and (e) other
assets that are customarily transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable.
“Recipient” means (a) the Administrative Agent, (b) any Bank, (c) any Issuing Bank, or (d) or any
other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder,
as applicable.
“Register” has the meaning specified in Section 11.3(c).
“Regulation T, U, or X” means Regulation T, U, or X, respectively, of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to all or a portion thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners,
directors, officers, employees, agents, trustees and advisors of such Person and of such Person’s Affiliates.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those
events as to which the notice requirement has been waived by regulation.
“Required Banks” means, at any time, Banks having Total Credit Exposures representing more
than fifty percent (50%) of the Total Credit Exposures of all Banks at such time. The Total Credit Exposure
of any Defaulting Bank shall be disregarded in determining Required Banks at any time; provided that the
amount of any participation in any Swingline Loan and Unreimbursed Amounts that such Defaulting Bank
has failed to fund that have not been reallocated to and funded by another Bank shall be deemed to be held
by the Bank that is the Swingline Bank or the applicable Issuing Bank, as the case may be, in making such
determination.
“Required Revolving Banks” means, at any time, Revolving Banks having Total Revolving Credit
Exposures representing more than fifty percent (50%) of the Total Revolving Credit Exposures of all
Revolving Banks. The Total Revolving Credit Exposure of any Defaulting Bank shall be disregarded in
determining Required Revolving Banks at any time; provided that the amount of any participation in any
Swingline Loan and Unreimbursed Amounts that such Defaulting Bank has failed to fund that have not
been reallocated to and funded by another Bank shall be deemed to be held by the Bank that is the Swingline
Bank or applicable Issuing Bank, as the case may be, in making such determination.
“Requirement of Law” means, with respect to any Person, the common law and all federal, state,
provincial, local and foreign laws, rules and regulations, orders, judgments, decrees or other determinations
of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject; provided that the foregoing shall not
apply to non-binding recommendations or guidance from any Governmental Authority.
“Responsible Officer” means, with respect to the subject matter of any representation, warranty,
covenant, agreement, obligation or certificate of any Credit Party contained in or delivered pursuant to any
of the Credit Documents, the chief executive officer, president, chief financial officer, chief operating
officer, controller, general counsel or treasurer of such Credit Party.
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CHAR1\1534998v8
“Restricted Payment” by any Person means (a) any dividend or other payment or distribution, direct
or indirect, on account of any shares of any class of Capital Stock of such Person, now or hereafter
outstanding (including without limitation any payment in connection with any dissolution, merger,
consolidation or disposition involving such Person), or to the holders, in their capacity as such, of any shares
of any class of Capital Stock of such Person, now or hereafter outstanding (other than dividends or
distributions to the extent payable in Capital Stock of such Person or dividends or distributions payable to
any Credit Party (directly or indirectly through Subsidiaries)), (b) any redemption, retirement, sinking fund
or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of
Capital Stock of such Person, now or hereafter outstanding, and (c) any payment made to retire, or to obtain
the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Capital
Stock of such Person, now or hereafter outstanding.
“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a
Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a
continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency, (iii) the last day of any
month and (iv) such additional dates as the Administrative Agent shall determine or the Required Banks
shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance
of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such
Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased
amount), (iii) each date of any payment by the applicable Issuing Bank under any Letter of Credit
denominated in an Alternative Currency, (iv) the last day of any month, (v) in the case of all Existing Letters
of Credit denominated in Alternative Currencies, the Closing Date and (vi) such additional dates as the
Administrative Agent or the applicable Issuing Bank shall determine or the Required Banks shall require.
“Revolving Bank” means, at any time, (a) so long as any Revolving Commitment is in effect, any
Bank that has a Revolving Commitment at such time or (b) if the Revolving Commitments have terminated
or expired, any Bank that has a Revolving Loan or a participation in LOC Obligations or Swingline Loans
at such time.
“Revolving Commitment” means, with respect to each Bank, the commitment of such Bank to
make Revolving Loans in an aggregate principal amount outstanding at any time up to such Bank’s
Revolving Committed Amount.
“Revolving Commitment Percentage” means, with respect to each Bank, a fraction (expressed as a
percentage) the numerator of which is the Revolving Committed Amount of such Bank at such time and
the denominator of which is the Aggregate Revolving Committed Amount at such time. The initial
Revolving Commitment Percentage of each Bank is set forth on Schedule 2.1.
“Revolving Committed Amount” means, with respect to each Bank, the amount of such Bank’s
Revolving Commitment, as such amount may from time to time be reduced in accordance with the
provisions hereof. The initial Revolving Committed Amount of each Bank on the Closing Date is set forth
on Schedule 2.1.
“Revolving Exposure” means, as to any Bank at any time, the aggregate principal amount at such
time of its outstanding Revolving Loans and such Bank’s participation in LOC Obligations and Swingline
Loans at such time.
“Revolving Loans” has the meaning assigned to such term in Section 2.1(a).
“Revolving Obligations” means the aggregate Outstanding Amount of all Revolving Loans,
Swingline Loans and LOC Obligations.
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“Revolving Termination Date” means, with respect to each Bank, the earlier of (a) July 27, 2022,
as such date may be extended from time to time with respect to such Bank pursuant to Section 2.11;
provided that if such date is not a Business Day, the Revolving Termination Date shall be the next preceding
Business Day; and (b) the date on which the Aggregate Revolving Committed Amount terminates in
accordance with the provisions of this Credit Agreement.
“Sanctioned Country” means at any time, a country or territory which is itself the subject or target
of any Sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of
designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security
Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person
operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such
Person or Persons described in clauses (a) and (b).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or
enforced from time to time by (a) the U.S. government, including those administered by OFAC, the U.S.
Department of State or the U.S. Department of Treasury, (b) the United Nations Security Council, the
European Union or Her Majesty’s Treasury, or (c) any other relevant sanctions authority.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., or any successor or assignee of
the business of such company in the business of rating securities.
“S&P Rating” means, at any time for the Parent, the rating issued by S&P and then in effect with
respect to the Parent’s senior unsecured long term debt securities without third party credit enhancement.
“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately
available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day
or other funds as may be determined by the Administrative Agent or the applicable Issuing Bank, as the
case may be, to be customary in the place of disbursement or payment for the settlement of international
banking transactions in the relevant Alternative Currency.
“Securitization Receivables” has the meaning specified in the definition of “Securitization
Transaction”.
“Securitization Subsidiary” means (a) O&M Funding and (b) any other wholly-owned Special
Purpose Vehicle (other than, for the avoidance of doubt, any Credit Party) which engages in no activities
other than those reasonably related to or in connection with the entering into of Securitization Transactions
and which is designated by the board of directors of the Parent (as provided below) as a Securitization
Subsidiary; provided that no member of the Consolidated Group shall (i) provide credit support to such
Securitization Subsidiary other than Limited Originator Recourse, (ii) have any contract, agreement,
arrangement or understanding with such Securitization Subsidiary other than on terms that are fair and
reasonable and that are no less favorable to such member of the Consolidated Group than could be obtained
from an unrelated Person (other than representations, warranties and covenants (including those relating to
servicing) entered into in the ordinary course of business in connection with a Qualified Securitization
Transaction and intercompany notes relating to the sale of Securitization Receivables to such Securitization
Subsidiary and Limited Originator Recourse) or (iii) have any obligation to maintain or preserve such
Securitization Subsidiary’s financial condition or to cause such Securitization Subsidiary to achieve certain
levels of operating results other than Limited Originator Recourse. Any such designation by the board of
directors of the Parent (other than with respect to O&M Funding) shall be evidenced to the Administrative
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CHAR1\1534998v8
Agent and each Bank by filing with the Administrative Agent and each Bank a certified copy of the
resolutions of the board of directors of the Parent giving effect to such designation.
“Securitization Transaction” means any financing transaction or series of financing transactions
that have been or may be entered into by a member of the Consolidated Group pursuant to which such
member of the Consolidated Group may sell, convey or otherwise transfer to any Person (including, without
limitation, a Securitization Subsidiary) or may grant a security interest in any accounts receivable, notes
receivable, rights to future lease payments or residuals or other similar rights to payment (the
“Securitization Receivables”) (whether such Securitization Receivables are then existing or arising in the
future) of such member of the Consolidated Group, and any assets related thereto, including without
limitation, all security interests in merchandise or services financed thereby, the proceeds of such
Securitization Receivables, and other assets which are customarily sold or in respect of which security
interests are customarily granted in connection with securitization transactions involving such assets.
“Senior Notes” means, collectively, (a) the $275,000,000 aggregate principal amount of 3.875%
Senior Notes due 2021 issued by the Parent on September 16, 2014, and (b) the $275,000,000 aggregate
principal amount of 4.375% Senior Notes due 2024 issued by the Parent on September 16, 2014.
“Single Employer Plan” means any Plan which is not a Multiemployer Plan or a Multiple Employer
Plan.
“Solvent” means, with respect to any Person on any date of determination, that on such date (a) the
sum of the liabilities (including contingent liabilities) of such Person, on a consolidated basis, does not
exceed the present fair saleable value of the assets of such Person, taken as a whole; (b) such Person, on a
consolidated basis, has not incurred and does not intend to incur liabilities (including contingent liabilities)
beyond its ability to pay such liabilities as they become absolute and matured; (c) the capital of such Person,
on a consolidated basis, is not unreasonably small in relation to the business of such Person, on a
consolidated basis, contemplated as of such date; and (d) such Person, on a consolidated basis, does not
intend to incur, or believe that it will incur, debts or liabilities (including current obligations) beyond its
ability to pay such debts and liabilities as they mature in the ordinary course of business. For the purposes
hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of
all of the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet
the criteria for accrual under Statement of Financial Accounting Standard No. 5).
“Special Notice Currency” means at any time an Alternative Currency, other than the currency of
a country that is a member of the Organization for Economic Cooperation and Development at such time
located in North America or Europe.
“Special Purpose Vehicle” means a trust, partnership, or other entity established by any member of
the Consolidated Group to implement a Qualified Securitization Transaction.
“Specified Credit Party” means any Credit Party that is not then an “eligible contract participant”
under the Commodity Exchange Act (determined prior to giving effect to Section 4.8).
“Spot Rate” for a currency means the rate determined by the Administrative Agent or the applicable
Issuing Bank, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through its principal foreign exchange
trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided that the Administrative Agent or such Issuing Bank may
obtain such spot rate from another financial institution designated by the Administrative Agent or such
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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; 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 an Alternative Currency.
“Standard Securitization Obligations” means representations, warranties, covenants, indemnities
and other obligations entered into by any member of the Consolidated Group (other than any Securitization
Subsidiary) which are reasonably customary in Securitization Transactions.
“Standby Letter of Credit Fee” has the meaning assigned to such term in Section 2.6(f).
“Sterling” and “£” mean the lawful currency of the United Kingdom.
“Subject Properties” has the meaning specified in Section 6.20.
“Subordinated Debt” means any Indebtedness which by its terms is specifically subordinated in
right of payment to the prior payment of the Obligations on terms and conditions which are, and evidenced
by documentation which is, satisfactory to the Required Banks.
“Subsidiary” means, as to any Person, (a) any corporation more than 50% of whose stock of any
class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any partnership, association, joint venture
or other entity in which such Person directly or indirectly through Subsidiaries has more than 50% equity
interest at any time. Except as otherwise expressly provided, all references herein to “Subsidiary” shall
mean a Subsidiary of the Parent.
“Support Obligations” means, with respect to any Person, without duplication, any obligations of
such Person (other than (x) endorsements in the ordinary course of business of negotiable instruments for
deposit or collection and (y) Standard Securitization Obligations and Limited Originator Recourse relating
to Qualified Securitization Transactions) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to purchase any such Indebtedness or any Property constituting security
therefor, (b) to advance or provide funds or other support for the payment or purchase of any such
Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease
or purchase Property, securities or services primarily for the purpose of assuring the holder of such
Indebtedness against loss in respect thereof or (d) to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of any Support Obligation hereunder shall (subject
to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount
(or maximum principal amount, if larger) of the Indebtedness in respect of which such Support Obligation
is made.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or
forward bond or forward bond price or forward bond index transactions, interest rate options, forward
foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar
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transactions or any combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.
“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under
any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of
the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into
account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any
date on or after the date such Swap Contracts have been closed out and termination value(s) determined in
accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause
(a), the amount(s) determined as the xxxx-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by any recognized dealer in
such Swap Contracts (which may include a Bank or any Affiliate of a Bank).
“Swingline Bank” means Xxxxx Fargo Bank and its successors in such capacity.
“Swingline Commitment” means, with respect to the Swingline Bank, the commitment of the
Swingline Bank to make Swingline Loans in an aggregate principal amount at any time outstanding up to
the Swingline Committed Amount and, with respect to the Banks, the commitment of each Bank to purchase
participation interests in the Swingline Loans up to its Revolving Commitment Percentage of the Swingline
Committed Amount as provided in Section 2.7.
“Swingline Committed Amount” means an amount equal to the lesser of (a) $75,000,000 and (b)
the Aggregate Revolving Committed Amount. The Swingline Committed Amount is part of, and not in
addition to, the Aggregate Revolving Committed Amount.
“Swingline Loans” has the meaning given to such term in Section 2.1(b).
“TARGET Day” means any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a suitable
replacement) is open for the settlement of payments in Euro.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” means the Revolving Termination Date, the Term Facility Termination Date
or an Incremental Term Facility Termination Date, as the context may require.
“Term Bank” means, at any time, (a) so long as any Term Commitment is in effect, any Bank that
has a Term Commitment at such time or (b) if the Term Commitments have terminated or expired, any
Bank that has a Term Loan at such time.
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“Term Commitment” means, as to each Bank, the commitment of such Bank to make a Term Loan
in an aggregate principal amount outstanding at any time up to such Bank’s Term Committed Amount. The
aggregate amount of the Term Commitments of all of the Banks on the Closing Date shall be $250,000,000.
“Term Commitment Percentage” means, with respect to each Bank, a fraction (expressed as a
percentage) the numerator of which is the Term Committed Amount of such Bank at such time and the
denominator of which is the aggregate amount of the Term Facility at such time. The initial Term
Commitment Percentage of each Bank on the Closing Date is set forth on Schedule 2.1.
“Term Committed Amount” means, with respect to each Bank, the amount of such Bank’s Term
Commitment, as such amount may from time to time be reduced in accordance with the provisions hereof.
The initial Term Committed Amount of each Bank is set forth on Schedule 2.1.
“Term Facility” means (a) at any time during the Commitment Period in respect of such facility,
the sum of (i) the aggregate amount of the Term Commitments at such time, and (ii) the aggregate principal
amount of the Term Loans advanced pursuant to Section 2.1(d) of all Banks outstanding at such time, and
(b) at any time thereafter, the aggregate principal amount of the Term Loans advanced pursuant to Section
2.1(d) of all Banks outstanding at such time.
“Term Facility Funding Date” means the date on which the Borrowing under the Term Facility is
funded by the Banks upon satisfaction of the conditions precedent set forth in Section 5.3.
“Term Facility Termination Date” means July 27, 2022; provided that if such date is not a Business
Day, the Term Facility Termination Date shall be the next preceding Business Day.
“Term Facility Unused Fee” has the meaning specified in Section 3.5(c).
“Term Loan” means an advance made by any Bank under the Term Facility.
“Threshold Requirement” has the meaning specified in Section 7.11(a).
“Total Credit Exposure” means, as to any Bank at any time, the unused Commitments, Revolving
Exposure, Outstanding Amount of the Term Loan, and Outstanding Amount of all Incremental Term Loans,
in each case, of such Bank at such time.
“Total Revolving Credit Exposure” means, as to any Bank at any time, the unused Revolving
Commitments and Revolving Exposure of such Revolving Bank at such time.
“Treasury Management Agreement” means any agreement governing the provision of treasury or
cash management services, including deposit accounts, overnight draft, credit or debit cards, purchase
cards, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other
cash management services.
“Unreimbursed Amount” has the meaning specified in Section 2.6(a)(i).
“Unused Fee” has the meaning specified in Section 3.5(a).
“United States” and “U.S.” mean the United States of America.
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“U.S. Borrowers” means (a) Distribution, (b) Medical, (c) Barista I, (d) Barista II, (e) Mediq USA
Holdings, to the extent that it becomes a U.S. Borrower hereunder pursuant to Section 2.12(b), and (f)
Xxxxx, to the extent that it becomes a U.S. Borrower hereunder pursuant to Section 2.12(b).
“U.S. Person” means any Person that is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 3.11(e)(ii)(B)(III).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended from time to time.
“Voting Stock” means, with respect to any Person, the voting stock or other securities of any class
or classes, 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 though the right so to
vote has been suspended by the happening of such a contingency.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date of
determination, the number of years 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 of determination and the making of such
payment by (b) the then outstanding principal amount of such Indebtedness as of such date of determination.
“Xxxxx Fargo Bank” means Xxxxx Fargo Bank, N.A. and its successors and assigns.
“Xxxxx Fargo Bank Fee Letter” means that certain letter agreement dated July 10, 2017 among
Xxxxx Fargo Bank, Xxxxx Fargo Securities, LLC, Distribution, Medical, Barista I and Barista II, as amended,
modified, supplemented or replaced from time to time.
“Withholding Agent” means any Credit Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, 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.
“Yen” and “¥” mean the lawful currency of Japan.
1.2 Computation of Time Periods.
For purposes of computation of periods of time hereunder, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.”
1.3 Accounting Terms.
(a) Generally. Except as otherwise specifically prescribed herein, all accounting terms
not specifically or completely defined herein shall be construed in conformity with, and all financial
data (including financial ratios and other financial calculations) required to be submitted pursuant
to this Credit Agreement shall be prepared in conformity with, GAAP applied on a consistent basis,
as in effect from time to time, applied in a manner consistent with that used in preparing the
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financial statements delivered pursuant to Section 7.1 (or, prior to the delivery of the first financial
statements pursuant to Section 7.1, consistent with the annual financial statements referenced in
Section 6.7(a)). Notwithstanding the foregoing, for purposes of determining compliance with any
covenant (including the computation of any financial covenant) contained herein, Indebtedness of
the Credit Parties and their Subsidiaries shall be deemed to be carried at 100% of the outstanding
principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be
disregarded.
(b) Changes in GAAP. If at any time any change in GAAP would affect the
computation of any financial ratio, basket, covenant or requirement set forth in any Credit
Document, and either the Borrower Representative or the Required Banks shall so request, the
Administrative Agent, the Banks and the Borrower Representative shall negotiate in good faith to
amend such financial ratio, basket, covenant or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Banks); provided that
until so amended, (i) such financial ratio, basket, covenant or requirement shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the Borrowers shall
provide to the Administrative Agent and the Banks financial statements and other documents
required under this Credit Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such financial ratio, basket, covenant or requirement made
before and after giving effect to such change in GAAP. Without limiting the foregoing, leases shall
continue to be classified and accounted for on a basis consistent with that reflected in the annual
financial statements referenced in Section 6.7(a) for all purposes of this Credit Agreement,
notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a
mutually acceptable amendment addressing such changes, as provided for above.
(c) Calculations. Notwithstanding the above, the parties hereto acknowledge and
agree that all calculations of the financial covenants in Section 7.10 (including, without limitation,
for purposes of determining the “Applicable Percentage” and for purposes of Section 8.4, Section
8.5 and Section 8.12) shall be made on a Pro Forma Basis.
1.4 Letter of Credit Amounts.
Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to
be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any LOC Document
related thereto, 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 Dollar Equivalent of the maximum stated amount of such
Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in
effect at such time.
1.5 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent or the applicable Issuing Bank, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Extensions of Credit and Outstanding Amounts denominated in Alternative Currencies.
Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates
employed in converting any amounts between the applicable currencies until the next Revaluation
Date to occur. Except for purposes of financial statements delivered by the Credit Parties hereunder
or calculating financial covenants hereunder or except as otherwise provided herein, the applicable
amount of any currency (other than Dollars) for purposes of the Credit Documents shall be such
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Dollar Equivalent amount as so determined by the Administrative Agent or the applicable Issuing
Bank, as applicable.
(b) Wherever in this Credit Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension
of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in
Dollars, but such Borrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent of such
Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being
rounded upward), as determined by the Administrative Agent or the applicable Issuing Bank, as
the case may be.
1.6 Additional Alternative Currencies.
(a) The Borrowers may from time to time request that Eurocurrency Rate Loans be
made and/or Letters of Credit be issued in a currency other than those specifically listed in the
definition of “Alternative Currency”; provided that such requested currency is a lawful currency
(other than Dollars) that is readily available and freely transferable and convertible into Dollars. In
the case of any such request with respect to the making of Eurocurrency Rate Loans, such request
shall be subject to the approval of the Administrative Agent and the Banks; and in the case of any
such request with respect to the issuance of Letters of Credit, such request shall be subject to the
approval of the Administrative Agent and each Issuing Bank.
(b) Any such request shall be made to the Administrative Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired Extension of Credit (or such other time or
date as may be agreed by the Administrative Agent and, in the case of any such request pertaining
to Letters of Credit, each Issuing Bank, in its sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Bank
thereof; and in the case of any such request pertaining to Letters of Credit, the Administrative Agent
shall promptly notify each Issuing Bank thereof. Each Bank (in the case of any such request
pertaining to Eurocurrency Rate Loans) or each Issuing Bank (in the case of a request pertaining to
Letters of Credit) shall notify the Administrative Agent, not later than 11:00 a.m., 10 Business Days
after receipt of such request whether it consents, in its sole discretion, to the making of
Eurocurrency Rate Loans or the issuance of Letters of Credit, as the case may be, in such requested
currency.
(c) Any failure by a Bank or an Issuing Bank, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be deemed to be a refusal
by such Bank or such Issuing Bank, as the case may be, to permit Eurocurrency Rate Loans to be
made or Letters of Credit to be issued in such requested currency. If the Administrative Agent and
all the Banks consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Borrowers and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of
Eurocurrency Rate Loans; and if the Administrative Agent and each Issuing Bank consent to the
issuance of Letters of Credit in such requested currency, the Administrative Agent shall so notify
the Borrowers and such currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Letter of Credit issuances. If the Administrative Agent
shall fail to obtain consent to any request for an additional currency under this Section 1.6, the
Administrative Agent shall promptly so notify the Borrowers.
1.7 Change of Currency.
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(a) Each obligation of the Borrowers to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as its lawful currency
after the Closing Date shall be redenominated into Euro at the time of such adoption (in accordance
with the EMU Legislation). If, in relation to the currency of any such member state, the basis of
accrual of interest expressed in this Credit Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for the basis of accrual
of interest in respect of the Euro, such expressed basis shall be replaced by such convention or
practice with effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with respect to such Borrowing,
at the end of the then current Interest Period. Each provision of this Credit Agreement shall be
subject to such reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the Euro.
(b) Each provision of this Credit Agreement also shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any relevant market
conventions or practices relating to the change in currency.
1.8 Times of Day.
Unless otherwise specified, all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).
SECTION 2
CREDIT FACILITIES
2.1 Commitments.
(a) Revolving Commitments. On any Business Day during the Commitment Period
for the Aggregate Revolving Committed Amount, subject to the terms and conditions hereof, each
Revolving Bank severally agrees to make revolving credit loans (the “Revolving Loans”) in Dollars
or in one or more Alternative Currencies to the Borrowers for the purposes hereinafter set forth;
provided, however, that (i) with regard to the Revolving Banks collectively, the aggregate principal
amount of Revolving Obligations outstanding shall not at any time exceed SIX HUNDRED
MILLION DOLLARS ($600,000,000) (as such aggregate maximum amount may be increased or
reduced from time to time as hereinafter provided, the “Aggregate Revolving Committed
Amount”), (ii) with regard to each Revolving Bank individually, each Revolving Bank’s Revolving
Exposure shall not at any time exceed such Revolving Bank’s Revolving Committed Amount and
(iii) the aggregate Outstanding Amount of all Revolving Loans denominated in Alternative
Currencies shall not exceed the Alternative Currency Sublimit. Revolving Loans may consist of
Base Rate Loans or Eurocurrency Rate Loans (or a combination thereof), as the Borrower
Representative may request, and may be repaid and reborrowed in accordance with the provisions
hereof.
(b) Swingline Commitment. Subject to the terms and conditions set forth herein, the
Swingline Bank, in reliance upon the agreements of the other Revolving Banks set forth in this
section and in Section 2.7, shall make loans (each such loan, a “Swingline Loan”) to the U.S.
Borrowers in Dollars from time to time on any Business Day during the Commitment Period for
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the Aggregate Revolving Committed Amount in an aggregate amount not to exceed at any time
outstanding the amount of the Swingline Committed Amount, notwithstanding the fact that such
Swingline Loans, when aggregated with the Revolving Commitment Percentage of the Outstanding
Amount of Revolving Loans and LOC Obligations of the Bank acting as Swingline Bank, may
exceed the amount of such Bank’s Revolving Committed Amount; provided, however, that after
giving effect to any Swingline Loan, (i) the total Outstanding Amount of Revolving Obligations
shall not exceed the Aggregate Revolving Committed Amount, and (ii) the Revolving Exposure of
any Revolving Bank shall not exceed such Revolving Bank’s Revolving Committed Amount;
provided, further, that the U.S. Borrowers shall not use the proceeds of any Swingline Loan to
refinance any outstanding Swingline Loan. Within the foregoing limits, and subject to the other
terms and conditions hereof, the U.S. Borrowers may borrow under this Section 2.1(b), prepay
under Section 3.4, and reborrow under this Section 2.1(b). Immediately upon the making of a
Swingline Loan, each Revolving Bank shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swingline Bank a risk participation in such Swingline
Loan in an amount equal to the product of such Revolving Bank’s Revolving Commitment
Percentage times the amount of such Swingline Loan. The U.S. Borrowers must repay each
Swingline Loan in full no later than thirty (30) days after such loan is made, which repayment may
be made with a borrowing of Revolving Loans to the extent the conditions set forth in Section 5.2
have been satisfied. Swingline Loans hereunder may consist of Base Rate Loans or Daily LIBOR
Swingline Loans (or a combination thereof), as the Borrower Representative may request, and may
be repaid and reborrowed in accordance with the provisions hereof.
(c) Letter of Credit Commitment.
(i) During the Commitment Period for the Aggregate Revolving Committed
Amount, in reliance on the agreements of the Revolving Banks set forth in this section and
in Section 2.6 and subject to the terms and conditions hereof and of the LOC Documents,
if any, and such other terms and conditions which the applicable Issuing Bank may
reasonably require, the Issuing Banks shall issue, and the Revolving Banks shall participate
severally in, Letters of Credit for the account of any member of the Consolidated Group in
Dollars or an Alternative Currency on a sight basis as the Borrower Representative may
request, in form acceptable to the applicable Issuing Bank, for the purposes hereinafter set
forth; provided that (i) the aggregate amount of LOC Obligations shall not at any time
exceed FORTY MILLION DOLLARS ($40,000,000) (the “LOC Committed Amount”),
(ii) with regard to the Revolving Banks collectively, the aggregate principal amount of
Revolving Obligations outstanding shall not at any time exceed the Aggregate Revolving
Committed Amount, (iii) with regard to each Revolving Bank individually, each Revolving
Bank’s Revolving Exposure shall not at any time exceed such Revolving Bank’s Revolving
Committed Amount, and (iv) the aggregate amount of LOC Obligations with respect to
Letters of Credit issued by any Issuing Bank shall not exceed such Issuing Bank’s LOC
Commitment. Letters of Credit issued hereunder shall have an expiry date not more than
one year from the date of issuance or extension, and may not extend beyond the date five
(5) Business Days prior to the Revolving Termination Date.
(ii) No Issuing Bank shall issue, extend or increase any Letter of Credit if:
(A) subject to Section 2.2(a)(iii)(C), the expiry date of such requested
Letter of Credit would occur more than twelve months after the date of issuance or
last extension, unless the Required Revolving Banks (other than Revolving Banks
that are Defaulting Banks) have approved such expiry date; or
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(B) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Revolving Banks have
approved such expiry date; or
(C) the conditions set forth in Section 5.2 are not satisfied.
(iii) No Issuing Bank shall be under any obligation to issue, extend or increase
any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or
arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from
issuing such Letter of Credit, or any Law applicable to such Issuing Bank or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over such Issuing Bank shall prohibit,
or request that such Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon such Issuing
Bank with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon such Issuing
Bank any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such Issuing Bank in good xxxxx xxxxx material to it;
(B) the issuance of such Letter of Credit would violate one or more
policies of such Issuing Bank applicable to borrowers generally;
(C) such Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency; or
(D) any Revolving Bank is at that time a Defaulting Bank, unless such
Issuing Bank has entered into arrangements, including the delivery of Cash
Collateral, satisfactory to such Issuing Bank (in its sole discretion) with the
Borrowers or such Revolving Bank to eliminate such Issuing Bank’s actual or
potential Fronting Exposure (after giving effect to Section 3.18(a)(iv)) with respect
to the Defaulting Bank arising from either the Letter of Credit then proposed to be
issued or that Letter of Credit and all other LOC Obligations as to which such
Issuing Bank has actual or potential Fronting Exposure, as it may elect in its sole
discretion.
(iv) No Issuing Bank shall amend any Letter of Credit if such Issuing Bank
would not be permitted at such time to issue the Letter of Credit in its amended form under
the terms hereof.
(v) No Issuing Bank shall be under any obligation to amend any Letter of
Credit if (A) such Issuing Bank would not have an obligation at such time to issue the
Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the
Letter of Credit does not accept the proposed amendment to the Letter of Credit.
(vi) Each Issuing Bank shall act on behalf of the Banks with respect to any
Letters of Credit issued by it and the documents associated therewith, and each Issuing
Bank shall have all of the benefits and immunities (A) provided to the Administrative
Agent in Section 10 with respect to any acts taken or omissions suffered by such Issuing
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Bank in connection with Letters of Credit issued by it or proposed to be issued by it and
LOC Documents pertaining to such Letters of Credit as fully as if the term “Administrative
Agent” as used in Section 10 included such Issuing Bank with respect to such acts or
omissions, and (B) as additionally provided herein with respect to such Issuing Bank.
(d) Term Commitments. On any Business Day during the Commitment Period for the
Term Facility, subject to the terms and conditions hereof, each Term Bank severally agrees to make
a Term Loan to Barista I and Barista II in Dollars in one (1) advance in an aggregate amount not to
exceed such Term Bank’s Term Committed Amount. Each Borrowing of Term Loans shall consist
of Term Loans made simultaneously by the Term Banks in accordance with their respective Term
Committed Amounts. Borrowings of Term Loans repaid or prepaid may not be reborrowed. Term
Loans may consist of Base Rate Loans or Eurocurrency Rate Loans (or a combination thereof), as
the Borrower Representative may request.
(e) Incremental Term Commitments. Subject to Section 2.10(b), on the effective date
of any Incremental Term Joinder Agreement, each Incremental Term Bank party to such
Incremental Term Joinder Agreement severally agrees to make an Incremental Term Loan to the
applicable Borrower in the amount of its respective Incremental Term Commitment with respect to
such Incremental Term Facility as set forth in such Incremental Term Joinder Agreement; provided
that after giving effect to such advances, the Outstanding Amount of such Incremental Term Loans
shall not exceed the aggregate amount of the Incremental Term Commitments set forth in the
applicable Incremental Term Joinder Agreement of the applicable Incremental Term Banks. Each
Borrowing of Incremental Term Loans shall consist of Incremental Term Loans made
simultaneously by the Incremental Term Banks in accordance with their respective Incremental
Term Committed Amounts. Borrowings of Incremental Term Loans repaid or prepaid may not be
reborrowed. Incremental Term Loans may consist of Base Rate Loans or Eurocurrency Rate Loans
(or a combination thereof), as the Borrower Representative may request.
2.2 Method of Borrowing.
(a) Notice of Request for Extensions of Credit. The Borrower Representative, on
behalf of any Borrower, shall request an Extension of Credit as follows:
(i) Revolving Loans; Term Loans; Incremental Term Loans. In the case of
Revolving Loans, Term Loans and/or Incremental Term Loans, the Borrower
Representative, on behalf of any Borrower, shall give written notice (or telephone notice
promptly confirmed in writing) substantially in the form of Schedule 2.2(a)(i) (each a
“Notice of Loan Borrowing”) to the Administrative Agent not later than 12:00 Noon (x)
on the Business Day of the requested advance in the case of Base Rate Loans, (y) on the
third Business Day prior to the date of the requested advance in the case of Eurocurrency
Rate Loans denominated in Dollars and (z) on the fourth Business Day (or fifth Business
Day, in the case of a Special Notice Currency) prior to the date of the requested advance
in the case of Eurocurrency Rate Loans denominated in Alternative Currencies. Each such
Notice of Loan Borrowing shall be irrevocable and shall specify (i) that Revolving Loans,
Term Loans and/or Incremental Term Loans are requested, (ii) the date of the requested
advance (which shall be a Business Day), (iii) the aggregate principal amount of Loans
requested, (iv) whether the Loans requested shall consist of Base Rate Loans, Eurocurrency
Rate Loans or a combination thereof, (v) if Eurocurrency Rate Loans are requested, the
Interest Periods with respect thereto, (vi) if Revolving Loans are requested, the currency
of the Revolving Loans to be borrowed, and (vii) the applicable Borrower. The
Administrative Agent shall as promptly as practicable give each Bank notice of each
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requested Loan advance, of such Bank’s pro rata share thereof and of the other matters
covered in the Notice of Loan Borrowing. Each Bank shall make the amount of its Loan
available to the Administrative Agent in Same Day Funds at the Administrative Agent’s
Office for the applicable currency not later than 2:00 p.m., in the case of any Loan
denominated in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Revolving Loan denominated in an Alternative
Currency, in each case on the Business Day specified in the applicable Notice of Loan
Borrowing. Upon satisfaction of the applicable conditions set forth in Section 5, the
Administrative Agent shall, not later than 2:30 p.m. on such Business Day specified in the
applicable Notice of Loan Borrowing in the case of a Loan denominated in Dollars and on
the same Business Day specified in the applicable Notice of Loan Borrowing in the case
of a Revolving Loan denominated in an Alternative Currency, make all funds so received
available to the applicable Borrower in like funds as received by the Administrative Agent
either by (A) crediting the account of such Borrower on the books of Xxxxx Fargo with the
amount of such funds or (B) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative Agent by the
Borrower Representative.
(ii) Swingline Loans. Each Borrowing of Swingline Loans shall be made
upon the Borrower Representative’s irrevocable notice to the Swingline Bank and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swingline Bank and the Administrative Agent not later than 12:00 Noon
on the requested borrowing date, and shall specify (i) the amount to be borrowed, which
shall be a minimum principal amount of $250,000 and integral multiples of $100,000 in
excess thereof, (ii) whether the Swingline Loans requested shall consist of Base Rate
Loans, Daily LIBOR Swingline Loans or a combination thereof, (iii) the requested
borrowing date, which shall be a Business Day, and (iv) the applicable U.S. Borrower.
Each such telephonic notice must be confirmed promptly by delivery to the Swingline Bank
and the Administrative Agent of a written Notice of Swingline Loan Borrowing,
appropriately completed and signed by a Responsible Officer of the Borrower
Representative. Promptly after receipt by the Swingline Bank of any telephonic Notice of
Swingline Loan Borrowing, the Swingline Bank will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also received such
Notice of Swingline Loan Borrowing and, if not, the Swingline Bank will notify the
Administrative Agent (by telephone or in writing) of the contents thereof. Unless the
Swingline Bank has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Revolving Bank) prior to 1:00 p.m. on the date of
the proposed Borrowing of Swingline Loans (A) directing the Swingline Bank not to make
such Swingline Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.1(b), or (B) that one or more of the applicable conditions specified
in Section 5 is not then satisfied, then, subject to the terms and conditions hereof, the
Swingline Bank will, not later than 1:30 p.m. on the borrowing date specified in such
Notice of Swingline Loan Borrowing, make the amount of its Swingline Loan available to
the U.S. Borrowers.
(iii) Procedures for Issuance and Amendment of Letters of Credit; Auto-
Extension Letters of Credit.
(A) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower Representative delivered to an Issuing Bank
(with a copy to the Administrative Agent) in the form of a Letter of Credit
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Application, appropriately completed and signed by a Responsible Officer of the
Borrower Representative. Such Letter of Credit Application must be received by
the applicable Issuing Bank and the Administrative Agent not later than 11:00 a.m.
at least three Business Days (or such later date and time as the Administrative
Agent and such Issuing Bank may agree in a particular instance in their sole
discretion) prior to the proposed issuance date or date of amendment, as the case
may be. In the case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the
applicable Issuing Bank: (1) the proposed issuance date of the requested Letter of
Credit (which shall be a Business Day); (2) the amount thereof; (3) the expiry date
thereof; (4) the name and address of the beneficiary thereof; (5) the documents to
be presented by such beneficiary in case of any drawing thereunder; (6) the full
text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; (7) the purpose and nature of the requested Letter of Credit; (8) the
currency requested (and in the absence of specification of currency shall be
deemed a request for a Letter of Credit denominated in Dollars); and (9) such other
matters as such Issuing Bank may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the applicable Issuing Bank: (I) the
Letter of Credit to be amended; (II) the proposed date of amendment thereof
(which shall be a Business Day); (III) the nature of the proposed amendment; and
(IV) such other matters as such Issuing Bank may require. Additionally, the
Borrower Representative shall furnish to the applicable Issuing Bank and the
Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any LOC Documents,
as such Issuing Bank or the Administrative Agent may require. The Borrowers’
Obligations in respect of each Existing Letter of Credit, and each Revolving
Bank’s participation obligations in connection therewith, shall be governed by the
terms of this Credit Agreement. The Existing Letters of Credit shall, as of the
Closing Date, be deemed to have been issued as Letters of Credit hereunder and
subject to and governed by the terms of this Credit Agreement.
(B) Promptly after receipt of any Letter of Credit Application in
connection with a Letter of Credit to be issued or amended, as the case may be, by
an Issuing Bank, such Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received a copy of
such Letter of Credit Application from the Borrower Representative and, if not,
such Issuing Bank will provide the Administrative Agent with a copy thereof.
Immediately upon the issuance of each Letter of Credit, each Revolving Bank shall
be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the applicable Issuing Bank a risk participation in such Letter of Credit in an
amount equal to the product of such Revolving Bank’s Revolving Commitment
Percentage times the amount of such Letter of Credit.
(C) If the Borrower Representative so requests in any applicable
Letter of Credit Application, an Issuing Bank may, in its sole discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an “Auto-
Extension Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit such Issuing Bank to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a day (the
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“Non-Extension Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by the
applicable Issuing Bank, the Borrower Representative shall not be required to
make a specific request to such Issuing Bank for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Revolving Banks shall be
deemed to have authorized (but may not require) the applicable Issuing Bank to
permit the extension of such Letter of Credit at any time to an expiry date not later
than the Letter of Credit Expiration Date; provided, however, that such Issuing
Bank shall not permit any such extension if (1) such Issuing Bank has determined
that it would not be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause (ii) or (iii) of Section 2.1(c) or otherwise), or (2)
it has received notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Extension Notice Date (I) from
the Administrative Agent that the Required Revolving Banks have elected not to
permit such extension or (II) from the Administrative Agent, any Revolving Bank
or the Borrower Representative that one or more of the applicable conditions
specified in Section 5.2 is not then satisfied, and in each case directing such Issuing
Bank not to permit such extension.
(D) Promptly after its delivery of any Letter of Credit issued by an
Issuing Bank or any amendment to a Letter of Credit issued by an Issuing Bank to
an advising bank with respect thereto or to the beneficiary thereof, such Issuing
Bank will also deliver to the Borrower Representative and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment.
(b) Minimum Amounts. Each Eurocurrency Rate Loan shall be in a minimum
aggregate principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof.
Each Base Rate Loan (other than a Base Rate Loan comprising a Swingline Loan) shall be in a
minimum aggregate principal amount of $5,000,000 (or, if less, the remaining amount of the
Aggregate Revolving Committed Amount) and in integral multiples of $1,000,000 in excess
thereof.
(c) Information Not Provided. If in connection with any request for a Loan, the
Borrower Representative shall fail to specify (i) an applicable Interest Period in the case of a
Eurocurrency Rate Loan, the Borrower Representative shall be deemed to have requested an
Interest Period of one month, (ii) the currency of the Loans to be borrowed, then the Loans so
requested shall be denominated in Dollars, or (iii) the type of loan requested, the Borrower
Representative shall be deemed to have requested a Base Rate Loan. If in connection with any
request for a Swingline Loan, the Borrower Representative shall fail to specify the type of
Swingline Loan requested, then such notice shall be deemed to be a request for a Base Rate Loan.
(d) Maximum Number of Eurocurrency Rate Loans. The Revolving Loans may be
comprised of no more than seven (7) Eurocurrency Rate Loans outstanding at any time. The Term
Loans may be comprised of no more than seven (7) Eurocurrency Rate Loans outstanding at any
time. The Incremental Term Loans under any Incremental Term Facility may be comprised of no
more than seven (7) Eurocurrency Rate Loans outstanding at any time. For purposes hereof,
Eurocurrency Rate Loans with separate or different Interest Periods will be considered as separate
Eurocurrency Rate Loans even if their Interest Periods expire on the same date.
2.3 Interest.
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Subject to Section 3.1, the Loans shall bear interest at a per annum rate, payable in arrears on each
applicable Interest Payment Date (or at such other times as may be specified herein), as follows:
(a) Revolving Loans; Term Loans; Incremental Term Loans.
(i) Base Rate Loans. During such periods as Revolving Loans, Term Loans
and/or Incremental Term Loans shall consist of Base Rate Loans, the sum of the Base Rate
plus the Applicable Percentage for Base Rate Loans; and
(ii) Eurocurrency Rate Loans. During such periods as Revolving Loans, Term
Loans and/or Incremental Term Loans shall consist of Eurocurrency Rate Loans, the sum
of the Eurocurrency Rate plus the Applicable Percentage for Eurocurrency Rate Loans.
(b) Swingline Loans.
(i) Base Rate Loans. During such periods as Swingline Loans shall consist
of Base Rate Loans, the sum of the Base Rate plus the Applicable Percentage for Base Rate
Loans; and
(ii) Daily LIBOR Swingline Loans. During such periods as Swingline Loans
shall consist of Daily LIBOR Swingline Loans, the sum of the Daily LIBOR Rate plus the
Applicable Percentage for Daily LIBOR Swingline Loans.
2.4 Repayment.
(a) Revolving Loans. The outstanding principal amount of all Revolving Loans shall
be due and payable in full on the Revolving Termination Date.
(b) Term Loans. The outstanding principal amount of the Term Loans shall be due
and payable in installments on the last Business Day of each March, June, September and December
and on the Term Facility Termination Date, in each case, in the respective amounts set forth in the
table below (which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 3.4), unless accelerated sooner pursuant
to Section 9.2:
Payment Dates Principal Amortization Payment
(% of Aggregate Original Principal
Amount of Term Loans Advanced)
December, 2017 1.250%
March, 2018 1.250%
June, 2018 1.250%
September, 2018 1.250%
December, 2018 1.250%
March, 2019 1.250%
June, 2019 1.250%
September, 2019 1.250%
December, 2019 1.250%
March, 2020 1.250%
June, 2020 1.250%
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September, 2020 1.250%
December, 2020 1.875%
March, 2021 1.875%
June, 2021 1.875%
September, 2021 1.875%
December, 2021 2.500%
March, 2022 2.500%
June, 2022 2.500%
Term Facility Termination Date Outstanding Principal Balance
of Term Loans
provided, however, that, the final principal repayment installment of the Term Loans shall be repaid
on the Term Facility Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of all Term Loans outstanding on such date.
(c) Incremental Term Loans. The outstanding principal amount of all Incremental
Term Loans shall be due and payable in the installments, on the dates and in the amounts set forth
in the applicable Incremental Term Joinder Agreement for such Incremental Term Loans (as such
installments may hereafter be adjusted as a result of the application of prepayments in accordance
with the order of priority set forth in Section 3.4), unless accelerated sooner pursuant to Section
9.2.
(d) Swingline Loans. The outstanding principal amount of each Swingline Loan shall
be due and payable on the earlier to occur of (i) the date required pursuant to Section 2.1(b) and (ii)
the Revolving Termination Date.
2.5 Notes.
The Loans shall, at the request of a Bank, be evidenced by a Note.
2.6 Additional Provisions relating to Letters of Credit.
(a) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
drawing under such Letter of Credit, the applicable Issuing Bank shall notify the Borrower
Representative and the Administrative Agent thereof. In the case of a Letter of Credit
denominated in an Alternative Currency, the Borrowers shall reimburse the applicable
Issuing Bank in such Alternative 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 Borrowers shall
have notified such Issuing Bank promptly following receipt of the notice of drawing that
the Borrowers 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 an
Alternative Currency, the applicable Issuing Bank shall notify the Borrower Representative
of the Dollar Equivalent of the amount of the drawing promptly following the
determination thereof. Not later than 11:00 a.m. on the date of any payment by the
applicable Issuing Bank under a Letter of Credit to be reimbursed in Dollars, or the
Applicable Time on the date of any payment by such Issuing Bank under a Letter of Credit
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to be reimbursed in an Alternative Currency (each such date, an “Honor Date”), the
Borrowers shall reimburse such Issuing Bank through the Administrative Agent in an
amount equal to the amount of such drawing and in the applicable currency. If the
Borrowers fail to so reimburse the applicable Issuing Bank by such time, the
Administrative Agent shall promptly notify each Revolving Bank of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an Alternative Currency)
(the “Unreimbursed Amount”), and the amount of such Revolving Bank’s Revolving
Commitment Percentage thereof. In such event, the applicable Borrower shall be deemed
to have requested a Borrowing of Revolving Loans that are Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.2(b) for the principal amount
of Base Rate Loans, but subject to the conditions set forth in Section 5.2 (other than the
delivery of a Notice of Loan Borrowing). Any notice given by an Issuing Bank or the
Administrative Agent pursuant to this Section 2.6(a)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Revolving Bank shall upon any notice pursuant to Section 2.6(a)(i)
make funds available (and the Administrative Agent may apply Cash Collateral provided
for this purpose) for the account of the applicable Issuing Bank, in Dollars, at the
Administrative Agent’s Office for Dollar-denominated payments in an amount equal to its
Revolving Commitment Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative Agent which date will
not be earlier than the Business Day following the Honor Date, whereupon, subject to the
provisions of Section 2.1(c)(ii), each Revolving Bank that so makes funds available shall
be deemed to have made a Base Rate Loan to the applicable Borrower in such amount.
The Administrative Agent shall remit the funds so received to the applicable Issuing Bank
in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by
a Borrowing of Revolving Loans because the conditions set forth in Section 5.2 cannot be
satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred
from the applicable Issuing Bank an LOC Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which LOC Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default Rate. In such event,
each Revolving Bank’s payment to the Administrative Agent for the account of the
applicable Issuing Bank pursuant to Section 2.6(a)(ii) shall be deemed payment in respect
of its participation in such LOC Borrowing and shall constitute an LOC Advance from
such Revolving Bank in satisfaction of its participation obligation under this Section 2.6.
(iv) Until each Revolving Bank funds its Revolving Loan or LOC Advance
pursuant to this Section 2.6(a) to reimburse an Issuing Bank for any amount drawn under
any Letter of Credit, interest in respect of such Revolving Bank’s Revolving Commitment
Percentage of such amount shall be solely for the account of the applicable Issuing Bank.
(v) Each Revolving Bank’s obligation to make Revolving Loans or LOC
Advances to reimburse an Issuing Bank for amounts drawn under Letters of Credit, as
contemplated by this Section 2.6(a), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Revolving Bank may have against such Issuing Bank, the
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Borrowers or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each Revolving Bank’s obligation
to make Revolving Loans pursuant to this Section 2.6(a) is subject to the conditions set
forth in Section 5.2 (other than delivery by the Borrower Representative of a Notice of
Loan Borrowing). No such making of an LOC Advance shall relieve or otherwise impair
the obligation of the Borrowers to reimburse the applicable Issuing Bank for the amount
of any payment made by such Issuing Bank under any Letter of Credit, together with
interest as provided herein.
(vi) If any Revolving Bank fails to make available to the Administrative Agent
for the account of any Issuing Bank any amount required to be paid by such Revolving
Bank pursuant to the foregoing provisions of this Section 2.6(a) by the time specified in
Section 2.6(a)(ii), then, without limiting the other provisions of this Credit Agreement,
such Issuing Bank shall be entitled to recover from such Revolving Bank (acting through
the Administrative Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such payment is immediately
available to such Issuing Bank at a rate per annum equal to the applicable Overnight Rate
from time to time in effect, plus any administrative, processing or similar fees customarily
charged by such Issuing Bank in connection with the foregoing. If such Revolving Bank
pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute
such Revolving Bank’s Revolving Loan included in the relevant Borrowing or LOC
Advance in respect of the relevant LOC Borrowing, as the case may be. A certificate of
an Issuing Bank submitted to any Revolving Bank (through the Administrative Agent) with
respect to any amounts owing under this clause (vi) shall be conclusive absent manifest
error.
(b) Repayment of Participations.
(i) At any time after any Issuing Bank has made a payment under any Letter
of Credit and has received from any Revolving Bank such Revolving Bank’s LOC Advance
in respect of such payment in accordance with Section 2.6(a), if the Administrative Agent
receives for the account of such Issuing Bank any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrowers or
otherwise, including proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Revolving Bank its Revolving
Commitment Percentage thereof in Dollars and in the same funds as those received by the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of
an Issuing Bank pursuant to Section 2.6(a)(i) is required to be returned under any of the
circumstances described in Section 11.2(b) (including pursuant to any settlement entered
into by such Issuing Bank in its discretion), each Revolving Bank shall pay to the
Administrative Agent for the account of such Issuing Bank its Revolving Commitment
Percentage thereof on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Revolving Bank, at a rate
per annum equal to the applicable Overnight Rate from time to time in effect. The
obligations of the Revolving Banks under this clause shall survive the termination of the
Aggregate Commitments, the payment in full of the Obligations and the termination of this
Credit Agreement.
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(c) Obligations Absolute. The obligation of the Borrowers to reimburse each Issuing
Bank for each drawing under each Letter of Credit and to repay each LOC Borrowing shall be
absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of
this Credit Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Credit
Agreement or any other Credit Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that
any Credit Party or any Subsidiary may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any Person for whom any such beneficiary or any
such transferee may be acting), such Issuing Bank or any other Person, whether in
connection with this Credit Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by such Issuing Bank under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by such Issuing Bank under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law;
(v) any adverse change in the relevant exchange rates or in the availability of
the relevant Alternative Currency to any member of the Consolidated Group or in the
relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Credit Party or any Subsidiary.
The Borrowers shall promptly examine a copy of each Letter of Credit and each amendment thereto
that is delivered to it and, in the event of any claim of noncompliance with the Borrower
Representative’s instructions or other irregularity, the Borrowers will immediately notify the
applicable Issuing Bank. The Borrowers shall be conclusively deemed to have waived any such
claim against the applicable Issuing Bank and its correspondents unless such notice is given as
aforesaid.
(d) Role of Issuing Bank. Each Revolving Bank and the Borrowers agree that, in
paying any drawing under a Letter of Credit, an Issuing Bank shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document. None of any Issuing
Bank, the Administrative Agent, any of their respective Related Parties nor any correspondent,
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participant or assignee of any Issuing Bank shall be liable to any Revolving Bank for (i) any action
taken or omitted in connection herewith at the request or with the approval of the Revolving Banks
or the Required Revolving Banks, as applicable; (ii) any action taken or omitted in the absence of
gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or LOC Document.
The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as they may
have against the beneficiary or transferee at law or under any other agreement. None of the Issuing
Banks, the Administrative Agent, the Revolving Banks, any of their respective Related Parties nor
any correspondent, participant or assignee of the Issuing Banks shall be liable or responsible for
any of the matters described in clauses (i) through (vi) of Section 2.6(c); provided, however, that
anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against
an Issuing Bank, and such Issuing Bank may be liable to the Borrowers, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Borrowers which the Borrowers prove were caused by such Issuing Bank’s willful misconduct or
gross negligence or such Issuing Bank’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the
Issuing Banks may accept documents that appear on their face to be in order, without responsibility
for further investigation, regardless of any notice or information to the contrary, and the Issuing
Banks shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder
or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
(e) Applicability of ISP. Unless otherwise expressly agreed by the applicable Issuing
Bank and the Borrowers when a Letter of Credit is issued (including any such agreement applicable
to an Existing Letter of Credit), the rules of the ISP shall apply to each Letter of Credit.
(f) Standby Letter of Credit Fees. The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Bank in accordance with its Revolving Commitment
Percentage a Letter of Credit fee (the “Standby Letter of Credit Fee”) in Dollars for each standby
Letter of Credit equal to the Applicable Percentage times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit; provided, however, any Standby Letter of Credit
Fees otherwise payable for the account of a Defaulting Bank with respect to any Letter of Credit as
to which such Defaulting Bank has not provided Cash Collateral satisfactory to the applicable
Issuing Bank pursuant to this Section 2.6 shall be payable, to the maximum extent permitted by
applicable Law, to the other Revolving Banks in accordance with the upward adjustments in their
respective Revolving Commitment Percentages allocable to such Letter of Credit pursuant to
Section 3.18(a)(iv), with the balance of such fee, if any, payable to such Issuing Bank for its own
account. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4.
Standby Letter of Credit Fees shall be (i) due and payable on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Percentage during
any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed
and multiplied by the Applicable Percentage separately for each period during such quarter that
such Applicable Percentage was in effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Revolving Banks, while any Event of Default exists, all
Standby Letter of Credit Fees shall accrue at the Default Rate.
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(g) Fronting Fee and Documentary and Processing Charges Payable to Issuing Bank.
The Borrowers shall pay directly to (i) Bank of America, in its capacity as an Issuing Bank, for its
own account, a fronting fee in Dollars with respect to each Letter of Credit issued by Bank of
America, at the rate per annum specified in the Bank of America Fee Letter, computed on the Dollar
Equivalent of the daily amount available to be drawn under such Letter of Credit and on a quarterly
basis in arrears, and (ii) each other Issuing Bank, a fronting fee with respect to each Letter of Credit
issued by such Issuing Bank at a rate separately agreed between such Issuing Bank and the
Borrower Representative. Such fronting fees shall be due and payable on the last Business Day of
each March, June, September and December in respect of the most recently-ended quarterly period
(or portion thereof, in the case of the first payment), commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the Dollar Equivalent of the daily amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.4, but without giving effect to automatic increases in the stated amount
not in effect at such time. In addition, the Borrowers shall pay directly to each Issuing Bank for its
own account, in Dollars, the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of each Issuing Bank relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.
(h) Conflict with LOC Documents. In the event of any conflict between the terms
hereof and the terms of any LOC Document, including the Existing Letters of Credit, the terms
hereof shall control.
(i) Letters of Credit Issued for the Parent or Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, the Parent or a Subsidiary, the Borrowers shall be obligated to reimburse the applicable
Issuing Bank hereunder for any and all drawings under such Letter of Credit. Each Borrower
hereby acknowledges that the issuance of Letters of Credit for the account of the Parent or such
Borrower’s Subsidiaries inures to the benefit of such Borrower, and that the Borrowers’ businesses
derive substantial benefits from the businesses of the Parent and the Borrowers’ respective
Subsidiaries.
(j) Reports. Each Issuing Bank will provide to the Administrative Agent at least
quarterly, and more frequently upon request, a detailed summary report on all Letters of Credit
issued by such Issuing Bank and the activity thereon, in form and substance acceptable to the
Administrative Agent. Each Issuing Bank will provide copies of the Letters of Credit issued by
such Issuing Bank to the Administrative Agent and the Revolving Banks promptly upon request.
(k) Additional Issuing Banks. Any Revolving Bank hereunder may become an Issuing
Bank upon receipt by the Administrative Agent of documentation reasonably satisfactory to the
Administrative Agent evidencing such Revolving Bank’s agreement with the Borrower
Representative to become an Issuing Bank hereunder.
2.7 Additional Provisions relating to Swingline Loans.
(a) Refinancing of Swingline Loans.
(i) The Swingline Bank at any time in its sole and absolute discretion may
request, on behalf of the U.S. Borrowers (which hereby irrevocably authorize the Swingline
Bank to so request on its behalf), that each Revolving Bank make a Revolving Loan that is
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a Base Rate Loan in an amount equal to such Revolving Bank’s Revolving Commitment
Percentage of the amount of Swingline Loans then outstanding. Such request shall be made
in writing (which written request shall be deemed to be a Notice of Loan Borrowing for
purposes hereof) and in accordance with the requirements of Section 2.2, without regard to
the minimum and multiples specified therein for the principal amount of Base Rate Loans,
but subject to the conditions set forth in Section 5.2 (other than the delivery of a Notice of
Loan Borrowing) and provided that, after giving effect to such Borrowing, the Outstanding
Amount of Revolving Obligations shall not exceed the Aggregate Revolving Committed
Amount. The Swingline Bank shall furnish the Borrower Representative with a copy of
the applicable Notice of Loan Borrowing promptly after delivering such notice to the
Administrative Agent. Each Revolving Bank shall make an amount equal to its Revolving
Commitment Percentage of the amount specified in such Notice of Loan Borrowing
available to the Administrative Agent in Same Day Funds (and the Administrative Agent
may apply Cash Collateral available with respect to the applicable Swingline Loan) for the
account of the Swingline Bank at the Administrative Agent’s Office for Dollar-
denominated payments not later than 1:00 p.m. on the day specified in such Notice of Loan
Borrowing, whereupon, subject to Section 2.7(a)(ii), each Revolving Bank that so makes
funds available shall be deemed to have made a Revolving Loan that is a Base Rate Loan
to the applicable U.S. Borrower in such amount. The Administrative Agent shall remit the
funds so received to the Swingline Bank.
(ii) If for any reason any Swingline Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.7(a)(i), the request for
Revolving Loans that are Base Rate Loans submitted by the Swingline Bank as set forth
herein shall be deemed to be a request by the Swingline Bank that each of the Revolving
Banks fund its risk participation in the relevant Swingline Loan and each Revolving Bank’s
payment to the Administrative Agent for the account of the Swingline Bank pursuant to
Section 2.7(a)(i) shall be deemed payment in respect of such participation.
(iii) If any Revolving Bank fails to make available to the Administrative Agent
for the account of the Swingline Bank any amount required to be paid by such Revolving
Bank pursuant to the foregoing provisions of this Section 2.7(a) by the time specified in
Section 2.7(a)(i), the Swingline Bank shall be entitled to recover from such Revolving
Bank (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swingline Bank at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative, processing
or similar fees customarily charged by the Swingline Bank in connection with the
foregoing. If such Revolving Bank pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Revolving Bank’s Revolving Loan included in the
relevant Borrowing or funded participation in the relevant Swingline Loan, as the case may
be. A certificate of the Swingline Bank submitted to any Revolving Bank (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.
(iv) Each Revolving Bank’s obligation to make Revolving Loans or to
purchase and fund risk participations in Swingline Loans pursuant to this Section 2.7(a)
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right that such
Revolving Bank may have against the Swingline Bank, the U.S. Borrowers or any other
Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C)
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any other occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Bank’s obligation to make Revolving Loans
pursuant to this Section 2.7(a) is subject to the conditions set forth in Section 5.2. No such
funding of risk participations shall relieve or otherwise impair the obligation of the U.S.
Borrowers to repay Swingline Loans, together with interest as provided herein.
(b) Repayment of Participations.
(i) At any time after any Revolving Bank has purchased and funded a risk
participation in a Swingline Loan, if the Swingline Bank receives any payment on account
of such Swingline Loan, the Swingline Bank will distribute to such Revolving Bank its
Revolving Commitment Percentage thereof in the same funds as those received by the
Swingline Bank.
(ii) If any payment received by the Swingline Bank in respect of principal or
interest on any Swingline Loan is required to be returned by the Swingline Bank under any
of the circumstances described in Section 11.2(b) (including pursuant to any settlement
entered into by the Swingline Bank in its discretion), each Revolving Bank shall pay to the
Swingline Bank its Revolving Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned, at a rate per annum equal to the applicable Overnight Rate. The
Administrative Agent will make such demand upon the request of the Swingline Bank.
The obligations of the Revolving Banks under this clause shall survive the termination of
the Aggregate Commitments, the payment in full of the Obligations and the termination of
this Credit Agreement.
(c) Interest for Account of Swingline Bank. The Swingline Bank shall be responsible
for invoicing the U.S. Borrowers for interest on the Swingline Loans. Until each Revolving Bank
funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section
2.7 to refinance such Revolving Bank’s Revolving Commitment Percentage of any Swingline
Loan, interest in respect of such Revolving Commitment Percentage shall be solely for the account
of the Swingline Bank.
(d) Payments Directly to Swingline Bank. The U.S. Borrowers shall make all
payments of principal and interest in respect of the Swingline Loans directly to the Swingline Bank.
2.8 Joint and Several Liability of the Borrowers.
(a) Each of the Borrowers is accepting joint and several liability hereunder in
consideration of the financial accommodation to be provided by the Banks under this Credit
Agreement, for the mutual benefit, directly and indirectly, of each of the Borrowers and in
consideration of the undertakings of each of the Borrowers to accept joint and several liability for
the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability
with the other Borrowers with respect to the payment and performance of all of the Obligations
arising under this Credit Agreement and the other Credit Documents, it being the intention of the
parties hereto that all the Obligations shall be the joint and several obligations of each of the
Borrowers without preferences or distinction among them.
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(c) If and to the extent that any Borrower shall fail to make any payment with respect
to any of the obligations hereunder as and when due or to perform any of such obligations in
accordance with the terms thereof, then in each such event, the other Borrowers will make such
payment with respect to, or perform, such obligation.
(d) The obligations of each Borrower under the provisions of this Section 2.8
constitute full recourse obligations of such Borrower, enforceable against it to the full extent of its
properties and assets, irrespective of the validity, regularity or enforceability of this Credit
Agreement or any other circumstances whatsoever.
(e) Except as otherwise expressly provided herein, each Borrower hereby waives
notice of acceptance of its joint and several liability, notice of occurrence of any Default or Event
of Default (except to the extent notice is expressly required to be given pursuant to the terms of this
Credit Agreement), or of any demand for any payment under this Credit Agreement (except to the
extent demand is expressly required to be given pursuant to the terms of this Credit Agreement),
notice of any action at any time taken or omitted by the Banks under or in respect of any of the
Obligations hereunder, any requirement of diligence and, generally, all demands, notices and other
formalities of every kind in connection with this Credit Agreement. Each Borrower hereby assents
to, and waives notice of, any extension or postponement of the time for the payment of any of the
Obligations hereunder, the acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Banks at any time or times in respect of any default by any Borrower
in the performance or satisfaction of any term, covenant, condition or provision of this Credit
Agreement, any and all other indulgences whatsoever by the Banks in respect of any of the
Obligations hereunder, and the taking, addition, substitution or release, in whole or in part, at any
time or times, of any security for any of such Obligations or the addition, substitution or release, in
whole or in part, of any Borrower. Without limiting the generality of the foregoing, each Borrower
assents to any other action or delay in acting or any failure to act on the part of the Bank, including,
without limitation, any failure strictly or diligently to assert any right or to pursue any remedy or
to comply fully with applicable laws or regulations thereunder which might, but for the provisions
of this Section 2.8, afford grounds for terminating, discharging or relieving such Borrower, in
whole or in part, from any of its obligations under this Section 2.8, it being the intention of each
Borrower that, so long as any of the Obligations hereunder remain unsatisfied, the obligations of
such Borrower under this Section 2.8 shall not be discharged except by performance and then only
to the extent of such performance. The obligations of each Borrower under this Section 2.8 shall
not be diminished or rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to any reconstruction or similar
proceeding with respect to any Borrower or any Bank. The joint and several liability of the
Borrowers hereunder shall continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership, constitution or place of
formation of any Borrower or any Bank.
(f) The provisions of this Section 2.8 are made for the benefit of the Administrative
Agent, the Issuing Banks, the Swingline Bank, the Banks and their respective successors and
assigns, and may be enforced by any such Person from time to time against any of the Borrowers
as often as occasion therefor may arise and without requirement on the part of any Bank first to
marshal any of its claims or to exercise any of its rights against any of the other Borrowers or to
exhaust any remedies available to it against any of the other Borrowers or to resort to any other
source or means of obtaining payment of any of the Obligations or to elect any other remedy. The
provisions of this Section 2.8 shall remain in effect until all the Obligations hereunder shall have
been paid in full or otherwise fully satisfied. If at any time, any payment, or any part thereof, made
in respect of any of the Obligations, is rescinded or must otherwise be restored or returned by the
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Banks upon the insolvency, bankruptcy or reorganization of any of the Borrowers, or otherwise,
the provisions of this Section 2.8 will forthwith be reinstated and in effect as though such payment
had not been made.
(g) Notwithstanding any provision to the contrary contained herein or in any other of
the Credit Documents, (i) the obligations of each Borrower under this Section 2.8 shall be limited
to an aggregate amount equal to the largest amount that would not render its obligations under this
Section 2.8 subject to avoidance under Section 548 of the Bankruptcy Code or any comparable
provisions of any applicable state law, (ii) no Foreign Borrower shall be obligated with respect to
any Obligations of any U.S. Borrower, (iii) the Obligations owed by the Foreign Borrowers shall
be several and not joint with the Obligations of the U.S. Borrowers and the Guarantors, and (iv) no
Foreign Borrower shall be liable for any Obligations of any U.S. Borrower or Guarantor, and all
amounts required to be paid by any Foreign Borrower under this Credit Agreement or any other
Credit Document shall be applied only to Obligations of Foreign Borrowers and shall not be applied
to any Obligations of any U.S. Borrower or Guarantor.
2.9 Appointment of the Parent as Legal Representative for Credit Parties.
Each of the Credit Parties hereby appoints the Parent to act as its exclusive legal representative for
all purposes under this Credit Agreement and the other Credit Documents (including, without limitation,
with respect to all matters related to Borrowings and the repayment of Loans and amounts drawn under
Letters of Credit as described in Section 2 and Section 3 hereof) (in such capacity, the “Borrower
Representative”). Each of the Credit Parties acknowledges and agrees that (a) the Borrower Representative
may execute such documents on behalf of all the Credit Parties (whether as Borrowers or Guarantors) as
the Borrower Representative deems appropriate in its reasonable discretion and each Credit Party shall be
bound by and obligated by all of the terms of any such document executed by the Borrower Representative
on its behalf, (b) any notice or other communication delivered by the Administrative Agent or any Bank
hereunder to the Borrower Representative shall be deemed to have been delivered to each of the Credit
Parties and (c) the Administrative Agent and each of the Banks shall accept (and shall be permitted to rely
on) any document or agreement executed by the Borrower Representative on behalf of the Credit Parties
(or any of them). The Borrowers must act through the Borrower Representative for all purposes under this
Credit Agreement and the other Credit Documents. Notwithstanding anything contained herein to the
contrary, to the extent any provision in this Credit Agreement requires any Credit Party to interact in any
manner with the Administrative Agent or the Banks, such Credit Party shall do so through the Borrower
Representative.
2.10 Incremental Facilities.
The Borrowers may at any time and from time to time prior to the Revolving Termination Date, up
to three (3) times following the Closing Date, upon prior written notice by the Borrower Representative to
the Administrative Agent, increase the Aggregate Revolving Committed Amount (but not the Alternative
Currency Sublimit, the Letter of Credit Sublimit or the Swingline Committed Amount) and/or establish one
or more Incremental Term Facilities (each such increase and/or establishment of an Incremental Term
Facility, an “Incremental Facility” and collectively, the “Incremental Facilities”), by a maximum aggregate
amount not to exceed $200,000,000 for all such Incremental Facilities, as follows:
(a) Increases in Aggregate Revolving Committed Amount. The U.S. Borrowers may,
at any time and from time to time, upon prior written notice by the Borrower Representative to the
Administrative Agent, increase the Aggregate Revolving Committed Amount (but not the
Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swingline Committed Amount)
with additional Revolving Commitments from any Revolving Bank or new Revolving
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Commitments from one or more other Persons selected by the Borrower Representative and
acceptable to the Administrative Agent, the Swingline Bank and each Issuing Bank (so long as such
Persons would be permitted at such time by Section 11.3(b)(v) to become assignees hereunder);
provided that:
(i) any such increase shall be in Dollars;
(ii) any such increase shall be in a minimum principal amount of $25,000,000
and in integral multiples of $1,000,000 in excess thereof;
(iii) no Default or Event of Default shall exist and be continuing at the time of
any such increase;
(iv) no existing Bank shall be under any obligation to increase its Revolving
Commitment and any such decision whether to increase its Revolving Commitment shall
be in such Bank’s sole and absolute discretion;
(v) (A) any new Bank shall join this Credit Agreement by executing such
joinder documents as are required by the Administrative Agent and/or (B) any existing
Bank electing to increase its Revolving Commitment shall have executed a commitment
agreement satisfactory to the Administrative Agent;
(vi) as a condition precedent to such increase, the Borrower Representative
shall have delivered to the Administrative Agent (A) a certificate of the Borrower
Representative dated as of the date of such increase and signed by a Responsible Officer
of the Borrower Representative certifying that, before and after giving effect to such
increase, (1) the representations and warranties made by the Credit Parties herein and in
the other Credit Documents and which are contained in any certificate furnished at any
time under or in connection herewith are true and correct in all material respects on and as
of the date of such increase as if made on and as of such date (except (x) for those which
expressly relate to an earlier date, in which case they shall be true and correct in all material
respects on and as of such earlier date, and (y) to the extent any such representation and
warranty is qualified by materiality or reference to Material Adverse Effect, in which case,
such representation and warranty shall be true and correct in all respects), and (2) no
Default or Event of Default exists, and (B) a certificate of each Credit Party dated as of the
date of such increase and signed by a Responsible Officer of each Credit Party certifying
and attaching the resolutions adopted by such Credit Party approving or consenting to such
increase;
(vii) a Financial Officer of the Parent shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to any
such increase on a Pro Forma Basis (and assuming for such calculation that such increase
is fully drawn), the Credit Parties would be in compliance with the financial covenants set
forth in Sections 7.10(a) and (b) as of the end of the most recent fiscal quarter for which
the Borrower Representative was required to deliver financial statements pursuant to
Section 7.1(a) or Section 7.1(b); and
(viii) Schedule 2.1 shall be deemed revised to include any increase in the
Aggregate Revolving Committed Amount pursuant to this Section 2.10(a) and to include
thereon any Person that becomes a Bank pursuant to this Section 2.10(a).
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The Borrower Representative shall prepay any Revolving Loans owing by any Borrower
and outstanding on the date of any such increase (and pay any additional amounts required pursuant
to Section 3.12) to the extent necessary to keep the outstanding Revolving Loans ratable with any
revised Revolving Commitments arising from any non-ratable increase in the Revolving
Commitments under this Section. As of the effective date of any such increase, the Credit
Agreement shall be amended to reflect the Incremental Facility and the joinder to the Credit
Agreement of any Eligible Assignees providing such Incremental Facility. Such amendment shall
be executed and delivered by the Administrative Agent, the Credit Parties and each Bank and
Eligible Assignee providing such Incremental Facility without the consent of any other party. Such
amendment shall be in form and substance reasonably satisfactory to the Administrative Agent.
This Section shall supersede any provisions in Section 3.14 or 11.6 to the contrary.
(b) Institution of Incremental Term Facilities. The U.S. Borrowers may, at any time
and from time to time, upon prior written notice by the Borrower Representative to the
Administrative Agent, institute an Incremental Term Facility from one or more Incremental Term
Banks; provided that:
(i) any such Incremental Term Facility shall be in Dollars and available only
to a U.S. Borrower;
(ii) any such Incremental Term Facility shall be in a minimum aggregate
principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof;
(iii) no Default or Event of Default shall exist and be continuing at the time of
any such increase;
(iv) no existing Bank shall be under any obligation to become an Incremental
Term Bank and any such decision whether to become an Incremental Term Bank shall be
in such Bank’s sole and absolute discretion;
(v) the Borrower Representative (in consultation and coordination with the
Administrative Agent) shall obtain commitments for the amount of such Incremental Term
Facility from existing Banks or other Persons that are Eligible Assignees and that are
acceptable to the Administrative Agent, which Persons shall join in this Credit Agreement
as Incremental Term Banks by executing an Incremental Term Joinder Agreement;
(vi) as a condition precedent to such Incremental Term Facility, the Borrower
Representative shall have delivered to the Administrative Agent (A) a certificate of the
Borrower Representative dated as of the date of such Incremental Term Facility and signed
by a Responsible Officer of the Borrower Representative certifying that, before and after
giving effect to such Incremental Term Facility, (1) the representations and warranties
made by the Credit Parties herein and in the other Credit Documents and which are
contained in any certificate furnished at any time under or in connection herewith are true
and correct in all material respects on and as of the date of the incurrence of such
Incremental Term Facility as if made on and as of such date (except (x) for those which
expressly relate to an earlier date, in which case they shall be true and correct in all material
respects on and as of such earlier date, and (y) to the extent any such representation and
warranty is qualified by materiality or reference to Material Adverse Effect, in which case,
such representation and warranty shall be true and correct in all respects), and (2) no
Default or Event of Default exists, and (B) a certificate of each Credit Party dated as of the
date of the incurrence of such Incremental Term Facility and signed by a Responsible
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Officer of each Credit Party certifying and attaching the resolutions adopted by such Credit
Party approving or consenting to such Incremental Term Facility;
(vii) a Financial Officer of the Parent shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to any
such Incremental Term Facility on a Pro Forma Basis, the Credit Parties would be in
compliance with the financial covenants set forth in Sections 7.10(a) and (b) as of the end
of the most recent fiscal quarter for which the Borrower Representative was required to
deliver financial statements pursuant to Section 7.1(a) or Section 7.1(b);
(viii) Schedule 2.1 shall be deemed revised to include such Incremental Term
Facility pursuant to this Section 2.10(b) and to include thereon any Person that becomes an
Incremental Term Bank pursuant to this Section 2.10(b);
(ix) the Incremental Term Facility Termination Date for such Incremental
Term Facility shall be as set forth in the Incremental Term Joinder Agreement relating to
such Incremental Term Facility; provided that such date shall not be earlier than the Latest
Termination Date;
(x) the scheduled principal amortization payments under such Incremental
Term Facility shall be as set forth in the Incremental Term Joinder Agreement relating to
such Incremental Term Facility; provided that the Weighted Average Life to Maturity of
the Incremental Term Loans made under such Incremental Term Facility shall not be
shorter than the then-remaining Weighted Average Life to Maturity of the Term Loans or
any then-existing Incremental Term Loans; and
(xi) all other terms and documentation with respect to such Incremental Term
Facility shall be reasonably satisfactory to the Administrative Agent (it being agreed that
the following shall be reasonably satisfactory to the Administrative Agent: (A) covenants
or other provisions (1) applicable only to periods after the Latest Termination Date, or (2)
that are added for the benefit of the Administrative Agent and the Banks under the Term
Facility and any then-existing Incremental Term Facility, and (B) customary “MFN”
protection, call protection, and an excess cash flow prepayment, in each case, which may
be applicable solely with respect to such Incremental Term Facility (provided that to the
extent an excess cash flow prepayment is required in connection with the establishment of
such Incremental Term Facility, such excess cash flow mandatory prepayment shall be
applied ratably to the Term Facility and all then-existing Incremental Term Facilities) to
the extent required by the lenders providing such Incremental Term Facility);
As of the effective date of any such Incremental Term Facility, the Credit Agreement shall be
amended to reflect the Incremental Term Facility and the joinder to the Credit Agreement of any
Eligible Assignees providing such Incremental Term Facility. Such amendment shall be executed
and delivered by the Administrative Agent, the Credit Parties and each Bank and Eligible Assignee
providing such Incremental Term Facility without the consent of any other party. Such amendment
shall be in form and substance reasonably satisfactory to the Administrative Agent. This Section
shall supersede any provisions in Section 3.14 or 11.6 to the contrary.
2.11 Extension of Revolving Termination Date.
(a) Requests for Extension. The Borrowers may, by notice from the Borrower
Representative to the Administrative Agent (who shall promptly notify the Revolving Banks), not
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later than 120 days prior to the Revolving Termination Date then in effect hereunder (the
“Extension Date”), request that each Revolving Bank extend such Revolving Bank’s Revolving
Termination Date for an additional year from the Revolving Termination Date then in effect
hereunder (the “Existing Revolving Termination Date”); provided that no more than two extensions
under this Section 2.11 may be permitted.
(b) Revolving Bank Elections to Extend. Each Revolving Bank, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent given not later than the date (the
“Notice Date”) that is 15 Business Days from the date which such Revolving Bank received notice
from the Administrative Agent of the Borrowers’ request for an extension of the Existing Revolving
Termination Date, advise the Administrative Agent whether or not such Revolving Bank agrees to
such extension. Each Revolving Bank that determines not to so extend its Revolving Termination
Date (a “Non-Extending Bank”) shall notify the Administrative Agent of such fact promptly after
such determination (but in any event no later than the Notice Date), and any Revolving Bank that
does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a
Non-Extending Bank. The election of any Revolving Bank to agree to such extension shall not
obligate any other Revolving Bank to so agree.
(c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower Representative of each Revolving Bank’s determination under this Section 2.11 no later
than the date 15 days prior to the applicable Extension Date (or, if such date is not a Business Day,
on the next preceding Business Day).
(d) Additional Commitment Banks. The Borrower Representative shall have the right
on or before the Extension Date (effective as of the Extension Date) to replace the Revolving
Commitments of any Non-Extending Banks with, and at its option add as “Revolving Banks” under
this Credit Agreement, one or more Eligible Assignees (each, an “Additional Commitment Bank”)
as provided in Section 11.18, each of which Additional Commitment Banks shall have entered into
an Assignment and Assumption pursuant to which such Additional Commitment Bank shall,
effective as of the applicable Extension Date, undertake a Revolving Commitment (and, if any such
Additional Commitment Bank is already a Revolving Bank, such newly undertaken Revolving
Commitment shall be in addition to such Revolving Bank’s existing Revolving Commitment
hereunder on such date).
(e) Effect of Extension. Effective as of the Extension Date, the Revolving
Termination Date of each of the Revolving Banks that have agreed to extend their Revolving
Termination Date and of each Additional Commitment Bank shall be extended to the date falling
one year after the Existing Revolving Termination Date (except that, if such date is not a Business
Day, such Revolving Termination Date as so extended shall be the next preceding Business Day)
and each Additional Commitment Bank shall thereupon become a “Revolving Bank” for all
purposes of this Credit Agreement; provided that there shall be no change in the Revolving
Termination Date of any Non-Extending Bank and on such Revolving Termination Date of any
Non-Extending Bank, such Non-Extending Bank’s outstanding Revolving Loans shall be paid in
full together with accrued and unpaid interest thereon and accrued and unpaid fees due it hereunder
and such Non-Extending Bank’s obligations in respect of outstanding Letters of Credit and
Swingline Loans shall terminate.
(f) Conditions to Effectiveness of Extensions. Notwithstanding the foregoing, the
extension of the Revolving Termination Date pursuant to this Section shall not be effective with
respect to any Revolving Bank unless:
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(i) no Default or Event of Default exists on the date of such extension and
after giving effect thereto;
(ii) the representations and warranties made by the Credit Parties herein and
in the other Credit Documents and which are contained in any certificate furnished at any
time under or in connection herewith are true and correct in all material respects on and as
of the Extension Date as if made on and as of such date (except (x) for those which
expressly relate to an earlier date, in which case they shall be true and correct in all material
respects on and as of such earlier date, and (y) to the extent any such representation and
warranty is qualified by materiality or reference to Material Adverse Effect, in which case,
such representation and warranty shall be true and correct in all respects); and
(iii) to the extent the Revolving Commitments of any Non-Extending Bank
shall not be replaced with Revolving Commitments from one or more Additional
Commitment Banks on the applicable Extension Date as provided for in Section 2.11(d),
and thus there shall be no change in the applicable Revolving Termination Date for such
Non-Extending Bank, it is understood and agreed that (x) the Borrowers shall repay
Revolving Loans outstanding on the applicable Revolving Termination Date of any such
Non-Extending Bank (and pay any additional amounts required pursuant to Section 3.12)
to the extent necessary to repay, nonratably, the Revolving Loans of all Non-Extending
Banks and the pro rata shares of the remaining Revolving Banks shall be revised effective
as of such date, (y) on such applicable Revolving Termination Date, the Revolving
Commitments (and, if applicable, any LOC Commitment) of the Non-Extending Banks
will be permanently terminated and the Aggregate Revolving Committed Amount on and
after such date will be equal to the Revolving Commitments of the remaining Revolving
Banks (and, if applicable, the LOC Committed Amount on and after such date will be equal
to the LOC Commitments of the remaining Revolving Banks that are Issuing Banks) and
(z) to the extent that the outstanding Revolving Obligations as of such date (after giving
effect to the repayment in full of each such Non-Extending Bank) exceed the Aggregate
Revolving Committed Amount then in effect (after giving effect to the termination of the
Revolving Commitments of all Non-Extending Banks), the Borrowers shall immediately
prepay Revolving Loans and/or Cash Collateralize the LOC Obligations in an aggregate
amount equal to such excess.
(g) Conflicting Provisions. This Section shall supersede any provisions in Section
3.14 and Section 11.6 to the contrary.
2.12 Additional Borrowers.
(a) Additional Foreign Borrowers. The Borrower Representative may request that any
of its Foreign Subsidiaries (each, an “Applicant Foreign Borrower”) be designated a Foreign
Borrower under the Aggregate Revolving Committed Amount by delivery of a written request to
the Administrative Agent therefor. The Administrative Agent will promptly notify the Revolving
Banks of any such request. Designation of any Applicant Foreign Borrower as a Foreign Borrower
under the Aggregate Revolving Committed Amount is subject to (i) delivery of an executed Note
by such Applicant Foreign Borrower as may be requested by any Revolving Bank in connection
therewith, (ii) delivery of supporting resolutions, articles of incorporation and bylaws (or their
equivalents), incumbency certificates, opinions of counsel and such other items as the
Administrative Agent or the Revolving Banks, as applicable, may request (including all
documentation and other information requested in order to comply with applicable law, including
without limitation “know your customer” due diligence), (iii) delivery of an executed Foreign
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Borrower Joinder Agreement, (iv) consent from each Revolving Bank and (v) execution of an
amendment to this Credit Agreement to incorporate country specific and other items reasonably
necessary to include such Applicant Foreign Borrower, such amendment to be reasonably
acceptable to the Administrative Agent, the Revolving Banks and the Borrowers. Each Revolving
Bank shall, by notice to the Administrative Agent given not later than the date that is fifteen (15)
Business Days from the date which such Revolving Bank received notice from the Administrative
Agent of the Borrower Representative’s request to designate an Applicant Foreign Borrower as a
Foreign Borrower, advise the Administrative Agent whether or not such Revolving Bank consents
to such designation pursuant to Section 2.12(a)(iv). Any Revolving Bank that determines not to
consent to the designation of such Applicant Foreign Borrower as a Foreign Borrower shall notify
the Administrative Agent of such fact promptly after such determination and any Revolving Bank
not responding within such fifteen (15)-Business Day period shall be deemed to have determined
not to so consent.
(b) Additional U.S. Borrowers. Following the Term Facility Funding Date, the
Borrower Representative may, from time to time, request that Mediq USA Holdings and/or Xxxxx
be designated a U.S. Borrower by delivery of a written request to the Administrative Agent therefor.
The Administrative Agent will promptly notify the Banks of any such request. Designation of
Mediq USA Holdings and/or Xxxxx as a U.S. Borrower shall be subject to (i) delivery of an
executed Note (or joinder to any existing Note) by Mediq USA Holdings and/or Xxxxx as may be
requested by any Revolving Bank in connection therewith, (ii) delivery of supporting resolutions,
articles of incorporation and bylaws (or their equivalents), incumbency certificates, opinions of
counsel and such other items as the Administrative Agent or any Revolving Bank, as applicable,
may request (including all documentation and other information requested in order to comply with
applicable law, including without limitation “know your customer” due diligence), and (iii)
delivery of such joinder documentation as the Administrative Agent may reasonably request.
2.13 Designated Banks.
Each of the Administrative Agent, each Issuing Bank, the Swingline Bank and each Bank at its
option may make any Extension of Credit or otherwise perform its obligations hereunder through any
Applicable Lending Office (each, a “Designated Bank”); provided that (a) any exercise of such option shall
not affect the obligation of any Borrower to repay any Extension of Credit in accordance with the terms of
this Credit Agreement. Any Designated Bank shall be considered a Bank; provided that in the case of an
Affiliate or branch of a Bank, all provisions applicable to a Bank shall apply to such Affiliate or branch of
such Bank to the same extent as such Bank; provided, further, that for the purposes only of voting in
connection with any Credit Document, any participation by any Designated Bank in any outstanding
Extension of Credit shall be deemed a participation of such Bank.
SECTION 3
OTHER PROVISIONS RELATING TO CREDIT FACILITY
3.1 Default Rate.
(a) If any amount of principal of any Loan is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.
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(b) If any amount (other than principal of any Loan) payable under any Credit
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Banks, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.
(c) Upon the request of the Required Banks, while any Event of Default exists, the
Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(d) Accrued and unpaid interest on past due amounts (including interest on past due
interest) shall be due and payable upon demand.
3.2 Conversion.
The Borrower Representative shall have the option, on any Business Day, to extend existing
Eurocurrency Rate Loans into a subsequent Interest Period or to convert Revolving Loans, Term Loans or
Incremental Term Loans of one type into Revolving Loans, Term Loans or Incremental Term Loans of
another type; provided, however, that (i) except as provided in Section 3.7, Eurocurrency Rate Loans may
be converted into Base Rate Loans only on the last day of an Interest Period applicable thereto, (ii)
Eurocurrency Rate Loans may be extended, and Base Rate Loans may be converted into Eurocurrency Rate
Loans, only if no Default or Event of Default is in existence on the date of extension or conversion, (iii)
Revolving Loans, Term Loans or Incremental Term Loans extended as, or converted into, Eurocurrency
Rate Loans shall be in such minimum amounts as provided in Section 2.2(b), and (iv) any request for
extension of or conversion to a Eurocurrency Rate Loan which shall fail to specify an Interest Period shall
be deemed to be a request for an Interest Period of one month. Each such extension or conversion shall be
effected by the Borrower Representative by giving written notice (or telephone notice promptly confirmed
in writing) to the Administrative Agent in the form of Schedule 3.2 (a “Notice of Extension/Conversion”)
prior to 10:00 a.m. on (x) the same Business Day of, in the case of Base Rate Loans, (y) on the third Business
Day prior to, in the case of Eurocurrency Rate Loans denominated in Dollars or (z) four Business Days (or
five Business Days in the case of a Special Notice Currency) in the case of Eurocurrency Rate Loans
denominated in Alternative Currencies prior to, the date of the proposed extension or conversion, specifying
the date of the proposed extension or conversion, the Revolving Loans, Term Loans and/or Incremental
Term Loans to be so extended or converted, the types of Revolving Loans, Term Loans and/or Incremental
Term Loans into which such Revolving Loans, Term Loans and/or Incremental Term Loans are to be
converted and, if appropriate, the currency and the applicable Interest Periods with respect thereto. Each
request for extension or conversion to any Eurocurrency Rate Loan shall be deemed to be a reaffirmation
by the Borrower Representative that no Default or Event of Default then exists. In the event the Borrower
Representative fails to request extension of or conversion to any Eurocurrency Rate Loan in accordance
with this Section, or any such conversion or extension is not permitted or required by this Section, then
such Revolving Loans, Term Loans and/or Incremental Term Loans shall be automatically converted into
Base Rate Loans at the end of their Interest Period; provided that in the case of a failure to timely request a
continuation of Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of one month. The
Administrative Agent shall give each Bank notice as promptly as practicable of any such proposed
conversion affecting any Revolving Loans, Term Loans and/or Incremental Term Loans. No Loan may be
converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in
the original currency of such Revolving Loan and reborrowed in the other currency.
3.3 Termination of Commitments.
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(a) The Borrower Representative may from time to time permanently reduce the
Aggregate Revolving Committed Amount in whole or in part (in minimum principal amounts of
$10,000,000 and in integral multiples of $1,000,000 in excess thereof) upon three (3) Business
Days’ prior written notice to the Administrative Agent; provided that after giving effect to any
voluntary reduction, the aggregate amount of Revolving Obligations shall not exceed the Aggregate
Revolving Committed Amount, as reduced. The Revolving Commitment of each Revolving Bank
shall be reduced by such Bank’s Revolving Commitment Percentage of such reduction amount.
All fees in respect of the Aggregate Revolving Committed Amount accrued until the effective date
of any reduction or termination of the Aggregate Revolving Committed Amount shall be paid on
the effective date of such reduction or termination.
(b) The Borrower Representative may from time to time permanently reduce the
unused Term Commitments in whole or in part (in minimum principal amounts of $10,000,000 and
in integral multiples of $1,000,000 in excess thereof) upon three (3) Business Days’ prior written
notice to the Administrative Agent. The Term Commitment of each Term Bank shall be reduced
by such Bank’s Term Commitment Percentage of such reduction amount. All fees in respect of the
Term Facility accrued until the effective date of any reduction or termination of the Term
Commitments shall be paid on the effective date of such reduction or termination.
(c) The aggregate Term Commitments shall be automatically and permanently
reduced (i) by the amount of any Borrowing of Term Loans pursuant to Section 2.1(d), and (ii) to
zero on the last day of the Commitment Period for the Term Facility.
3.4 Prepayments.
(a) Voluntary Prepayments. The Borrowers shall have the right to prepay Loans in
whole or in part from time to time without premium or penalty; provided that (i) Eurocurrency Rate
Loans may only be prepaid (A) on the last day of the Interest Period applicable thereto or (B) on a
day that is not the last day of an Interest Period applicable thereto if the Borrowers pay to the
applicable Banks any amounts due under Section 3.12, (ii) each such partial prepayment shall be
in a minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in excess
thereof (or the amount then outstanding, if less), and (iii) the Borrower Representative will provide
notice to the Administrative Agent of any voluntary prepayment by 10:00 a.m. on the date of
prepayment. Amounts prepaid on the Loans may be reborrowed in accordance with the provisions
hereof. Each voluntary prepayment of Term Loans and Incremental Term Loans shall be applied
to the Term Loans and any Incremental Term Loans on a pro rata basis, and shall be applied to the
principal repayment installments thereof on a pro rata basis. Unless otherwise specified by the
Borrower Representative, prepayments on the Revolving Obligations shall be applied first to Daily
LIBOR Swingline Loans, then to Base Rate Loans and then to Eurocurrency Rate Loans in direct
order of Interest Periods.
(b) Mandatory Prepayments.
(i) Revolving Obligations. If at any time (A) the aggregate principal amount
of Revolving Obligations shall exceed the Aggregate Revolving Committed Amount, (B)
the aggregate principal amount of Swingline Loans shall exceed the Swingline Committed
Amount, (C) the aggregate principal amount of LOC Obligations shall exceed the Letter of
Credit Sublimit or (D) the Administrative Agent notifies the Borrower Representative that
the Outstanding Amount of all Loans denominated in Alternative Currencies at such time
exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then
in any such instance, the Borrowers shall immediately make payment on the Revolving
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Loans and/or to a cash collateral account in respect of LOC Obligations in an amount
sufficient to eliminate the difference; provided that the Borrowers may, with respect to
clauses (B) and (C) above, utilize a borrowing of Revolving Loans to the extent the
conditions of Section 5.2 are satisfied for such payment or cash collateral if the incurrence
of such Revolving Loans would not cause the aggregate principal amount of Revolving
Obligations to exceed the Aggregate Revolving Committed Amount.
(ii) Asset Dispositions and Involuntary Dispositions. Promptly upon receipt
by any Credit Party or any Subsidiary of the Net Cash Proceeds of any Asset Disposition
(other than any Permitted Asset Swap or any Asset Disposition consummated in reliance
on Section 8.5(a) or Section 8.5(b)) or any Involuntary Disposition, the Borrowers shall
prepay the Term Loans and any then-existing Incremental Term Loans as hereinafter
provided in an aggregate amount equal to one hundred percent (100%) of such Net Cash
Proceeds; provided that such Net Cash Proceeds shall not be required to be so applied if,
at the election of the Borrower Representative (as notified by the Borrower Representative
to the Administrative Agent), such Net Cash Proceeds are reinvested in assets (other than
current assets) that are used or useful in the business of the members of the Consolidated
Group within ninety (90) days after the date of receipt of such Net Cash Proceeds from
such Asset Sale or Involuntary Disposition, or are contractually committed to be applied
to purchase such assets within such ninety (90) day period and are so applied within one
hundred eighty (180) days after the end of such ninety (90) day period; provided, further,
if such Net Cash Proceeds shall have not been so reinvested by the end of such period, such
Net Cash Proceeds shall be immediately applied to prepay the Term Loans and any then-
existing Incremental Term Loans. Any prepayment pursuant to this clause (ii) shall be
applied as set forth in clause (iv) below.
(iii) Debt Issuance. Promptly upon the receipt by any Credit Party or any
Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrowers shall prepay the
Term Loans and any then-existing Incremental Term Loans as hereinafter provided in an
aggregate amount equal to one hundred percent (100%) of such Net Cash Proceeds. Any
prepayment pursuant to this clause (iii) shall be applied as set forth in clause (iv) below.
(iv) Application. Each prepayment pursuant to the foregoing provisions of
Sections 3.4(b)(ii) and (iii) shall be applied to the Term Loans and any then-existing
Incremental Term Loans on a pro rata basis and to the principal repayment installments
thereof on a pro rata basis. Such prepayments shall be paid to the Banks in accordance
with their respective Term Commitment Percentages and/or Incremental Term
Commitment Percentages.
3.5 Fees.
(a) Unused Fee. In consideration of the Revolving Commitments, the Borrowers
agree to pay to the Administrative Agent for the ratable benefit of the Revolving Banks a fee (the
“Unused Fee”), in Dollars, for the period from the Closing Date to the Revolving Termination Date
equal to the Applicable Percentage per annum on the Dollar Equivalent of the actual daily unused
amount of the Aggregate Revolving Committed Amount for the applicable period. The Unused
Fee shall be payable quarterly in arrears on the last Business Day of each March, June, September
and December for the immediately preceding quarter (or a portion thereof) beginning with the first
such date to occur after the Closing Date and on the Revolving Termination Date. For purposes of
computation of the Unused Fee, (i) LOC Obligations shall be counted toward and considered usage
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of the Aggregate Revolving Committed Amount and (ii) Swingline Loans shall not be counted
toward nor considered usage of the Aggregate Revolving Committed Amount.
(b) Administrative Agent’s Fee. The Borrowers agree to pay, in Dollars, to the
Administrative Agent, for its own account, the administrative and other fees referred to in the Xxxxx
Fargo Fee Letter.
(c) Term Facility Unused Fee. In consideration of the Term Commitments, the
Borrowers agree to pay to the Administrative Agent for the ratable benefit of the Term Banks a fee
(the “Term Facility Unused Fee”), in Dollars, for the period from the Closing Date to the last day
of the Commitment Period for the Term Facility equal to the Applicable Percentage per annum on
the actual daily unused amount of the Term Facility for the applicable period. The Term Facility
Unused Fee shall be payable quarterly in arrears on the last Business Day of each March, June,
September and December for the immediately preceding quarter (or a portion thereof) beginning
with the first such date to occur after the Closing Date and on the last day of the Commitment
Period for the Term Facility.
3.6 Capital Adequacy.
If any Bank or any Issuing Bank determines that any Change in Law affecting such Bank or such
Issuing Bank or any Applicable Lending Office of such Bank or such Bank’s or such Issuing Bank’s parent
company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the
rate of return on such Bank’s or such Issuing Bank’s (including, for purposes hereof, the parent company
of such Bank or such Issuing Bank) capital or assets as a consequence of this Credit Agreement, the
Commitments of such Bank or the Loans made by, or participations in Letters of Credit or Swingline Loans
held by, such Bank, or the Letters of Credit issued by the Issuing Bank, to a level below that which such
Bank or such Issuing Bank or such Bank’s or such Issuing Bank’s parent company could have achieved but
for such Change in Law (taking into consideration such Bank’s or such Issuing Bank’s policies with respect
to capital adequacy or liquidity and such Bank’s or such Issuing Bank’s parent company’s policies with
respect to capital adequacy or liquidity), then from time to time the U.S. Borrowers will pay to such Bank
or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Bank
or such Issuing Bank or such Bank’s or such Issuing Bank’s parent company for any such reduction
suffered.
A certificate of a Bank or an Issuing Bank setting forth the amount or amounts necessary to
compensate such Bank or such Issuing Bank or its parent company, as the case may be, as specified above
and delivered to the Borrower Representative shall be conclusive absent manifest error. The U.S.
Borrowers shall pay such Bank or such Issuing Bank, as the case may be, the amount shown as due on any
such certificate within ten (10) days after receipt thereof. Failure or delay on the part of any Bank or any
Issuing Bank to demand compensation pursuant to the foregoing provisions of this Section 3.6 shall not
constitute a waiver of such Bank’s or such Issuing Bank’s right to demand such compensation; provided
that the U.S. Borrowers shall not be required to compensate a Bank or an Issuing Bank pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more than one
hundred twenty (120) days prior to the date that such Bank or such Issuing Bank, as the case may be, notifies
the Borrower Representative of the Change in Law giving rise to such increased costs or reductions and of
such Bank’s or such Issuing Bank’s intention to claim compensation therefor (except that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then the one hundred twenty (120) day
period referred to above shall be extended to include the period of retroactive effect thereof).
3.7 Limitation on Eurocurrency Rate Loans.
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(a) If on or prior to the first day of any Interest Period for any Eurocurrency Rate Loan
(whether in Dollars or an Alternative Currency), (i) the Administrative Agent determines that (A)
deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in the
applicable offshore interbank market for such currency for the applicable amount and Interest
Period of such Eurocurrency Rate Loan, or (B) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed
Eurocurrency Rate Loan or in connection with an existing or proposed Base Rate Loan (in each
case with respect to clause (i), “Impacted Loans”), or (ii) the Administrative Agent or the Required
Banks determine that for any reason Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to
such Banks of funding such Loan, the Administrative Agent will promptly so notify the Borrower
Representative and each Bank. Thereafter, (x) the obligation of the Banks to make or maintain
Eurocurrency Rate Loans in the affected currency or currencies shall be suspended (to the extent
of the affected Eurocurrency Rate Loans or Interest Periods), and (y) in the event of a determination
described in the preceding sentence with respect to the Eurocurrency Rate component of the Base
Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be
suspended, in each case until the Administrative Agent (upon the instruction of the Required Banks)
revokes such notice. Upon receipt of such notice, any Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected
currency or currencies (to the extent of the affected Eurocurrency Rate Loans or Interest Periods)
or, failing that, will be deemed to have converted such request into a request for a Borrowing of
Base Rate Loans in Dollars in the amount specified therein.
(b) Notwithstanding the foregoing, if the Administrative Agent has made the
determination described in clause (a)(i) above, the Administrative Agent in consultation with the
Borrower Representative and the Required Banks, may establish an alternative interest rate for the
Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the
Impacted Loans until (i) the Administrative Agent revokes the notice delivered with respect to the
Impacted Loans under clause (a)(i) above, (ii) the Administrative Agent or the Required Banks
notify the Administrative Agent and the Borrower Representative that such alternative interest rate
does not adequately and fairly reflect the cost to the Banks of funding the Impacted Loans, or (iii)
any Bank determines that any Law has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for such Bank or its Applicable Lending Office to make, maintain or
fund Loans whose interest is determined by reference to such alternative rate of interest or to
determine or charge interest rates based upon such rate or any Governmental Authority has imposed
material restrictions on the authority of such Bank to do any of the foregoing and provides the
Administrative Agent and the Borrower Representative written notice thereof.
3.8 Illegality.
If any Bank determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Bank or its Applicable Lending Office to perform any of its
obligations hereunder or to make, maintain or fund or charge interest with respect to any Extension of Credit
or to determine or charge interest rates based upon the Eurocurrency Rate or the Daily LIBOR Rate, or any
Governmental Authority has imposed material restrictions on the authority of such Bank to purchase or
sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on
notice thereof by such Bank to the Borrower Representative through the Administrative Agent, (a) any
obligation of such Bank to issue, make, maintain, fund or charge interest with respect to any such Extension
of Credit or continue Eurocurrency Rate Loans or Daily LIBOR Swingline Loans in the affected currency
or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to
Eurocurrency Rate Loans shall be suspended, and (b) if such notice asserts the illegality of such Bank
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making or maintaining Base Rate Loans the interest rate on which is determined by reference to the
Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Bank
shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to
the Eurocurrency Rate component of the Base Rate, in each case until such Bank notifies the Administrative
Agent and the Borrower Representative that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, (i) each Borrower shall, upon demand from such Bank (with a copy to
the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all
Eurocurrency Rate Loans or Daily LIBOR Swingline Loans of such Bank to Base Rate Loans (the interest
rate on which Base Rate Loans of such Bank shall, if necessary to avoid such illegality, be determined by
the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either
on the last day of the Interest Period therefor, if such Bank may lawfully continue to maintain such
Eurocurrency Rate Loans or Daily LIBOR Swingline Loans to such day, or immediately, if such Bank may
not lawfully continue to maintain such Eurocurrency Rate Loans or Daily LIBOR Swingline Loans, and
(ii) if such notice asserts the illegality of such Bank determining or charging interest rates based upon the
Eurocurrency Rate the Administrative Agent shall during the period of such suspension compute the Base
Rate applicable to such Bank without reference to the Eurocurrency Rate component thereof until the
Administrative Agent is advised in writing by such Bank that it is no longer illegal for such Bank to
determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or
conversion, the U.S. Borrowers shall also pay accrued interest on the amount so prepaid or converted.
3.9 Requirements of Law.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify, or deem applicable any reserve, special deposit,
assessment, or similar requirement (other than Taxes) against assets of, deposits with or
for the account of, or credit extended or participated in by, any Bank or any Issuing Bank;
(ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C)
Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or
other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Bank or any Issuing Bank or the London interbank market
any other condition, cost or expense (other than Taxes) affecting this Credit Agreement or
Loans made by such Bank or any Letter of Credit or participation therein;
and the result of any of the foregoing is to increase the cost to such Bank, such Issuing Bank or
such other Recipient of making, converting into, continuing, or maintaining any Loan or of
maintaining its obligation to make any such Loan, or to increase the cost to such Bank, such Issuing
Bank or such other Recipient of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount
of any sum received or receivable by such Bank, Issuing Bank or other Recipient hereunder
(whether of principal, interest or any other amount) then, upon request of such Bank, Issuing Bank
or other Recipient, the U.S. Borrowers will pay to such Bank, Issuing Bank or other Recipient, as
the case may be, such additional amount or amounts as will compensate such Bank, Issuing Bank
or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Mandatory Costs. If any Bank or any Issuing Bank incurs any Mandatory Costs
attributable to the Obligations, then from time to time the U.S. Borrowers will pay to such Bank or
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such Issuing Bank, as the case may be, such Mandatory Costs. Such amount shall be expressed as
a percentage rate per annum and shall be payable on the full amount of the applicable Obligations.
(c) Certificates for Reimbursement. A certificate of a Bank or an Issuing Bank setting
forth the amount or amounts necessary to compensate such Bank or such Issuing Bank or its holding
company, as the case may be, as specified in clause (a) or (b) above and delivered to the Borrower
Representative shall be conclusive absent manifest error. The U.S. Borrowers shall pay such Bank
or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within
ten (10) days after receipt thereof.
(d) Reserves on Eurocurrency Rate Loans. The U.S. Borrowers shall pay to each
Bank, (i) as long as such Bank shall be required to maintain reserves with respect to liabilities or
assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurocurrency Rate Loan or
Daily LIBOR Swingline Loan equal to the actual costs of such reserves allocated to such Loan by
such Bank (as determined by such Bank in good faith, which determination shall be conclusive),
and (ii) as long as such Bank shall be required to comply with any reserve ratio requirement 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 Loans, such additional costs
(expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five
decimal places) equal to the actual costs allocated to such Commitment or Loan by such Bank (as
determined by such Bank in good faith, which determination shall be conclusive), which in each
case shall be due and payable on each date on which interest is payable on such Loan, provided the
Borrower Representative shall have received at least ten (10) days’ prior notice (with a copy to the
Administrative Agent) of such additional interest or costs from such Bank. If a Bank fails to give
notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be
due and payable ten (10) days from receipt of such notice.
(e) Delay in Requests. Failure or delay on the part of any Bank or any Issuing Bank
to demand compensation pursuant to the foregoing provisions of this Section 3.9 shall not constitute
a waiver of such Bank’s or such Issuing Bank’s right to demand such compensation; provided that
the U.S. Borrowers shall not be required to compensate a Bank or an Issuing Bank pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than one hundred twenty (120) days prior to the date that such Bank or such Issuing Bank, as the
case may be, notifies the Borrower Representative of the Change in Law giving rise to such
increased costs or reductions and of such Bank’s or such Issuing Bank’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the one hundred twenty (120) day period referred to above shall be
extended to include the period of retroactive effect thereof).
3.10 Mitigation Obligations; Replacement of Banks.
(a) Designation of a Different Applicable Lending Office. If any Bank requests
compensation under Section 3.6 or Section 3.9, or requires the Borrowers to pay any Indemnified
Taxes or additional amounts to any Bank, any Issuing Bank, or any Governmental Authority for
the account of any Bank or any Issuing Bank pursuant to Section 3.11, or if any Bank gives a notice
pursuant to Section 3.8, then at the request of the Borrower Representative, such Bank or such
Issuing Bank shall, as applicable, use reasonable efforts to designate a different Applicable Lending
Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Bank or such Issuing
Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
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Section 3.6, Section 3.9 or Section 3.11, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section 3.8, as applicable, and (ii) in each case, would not subject such Bank
or such Issuing Bank, as the case may be, to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Bank or such Issuing Bank, as the case may be. The U.S.
Borrowers hereby agrees to pay all reasonable costs and expenses incurred by any Bank or any
Issuing Bank in connection with any such designation or assignment.
(b) Replacement of Banks. If any Bank requests compensation under Section 3.6 or
Section 3.9, or if the Borrowers are required to pay any Indemnified Taxes or additional amounts
to any Bank or any Governmental Authority for the account of any Bank pursuant to Section 3.11
and, in each case, such Bank has declined or is unable to designate a different lending office in
accordance with Section 3.10(a), the Borrower Representative may replace such Bank in
accordance with Section 11.18.
(c) Survival. All of the Borrowers’ obligations under Sections 3.6, 3.7, 3.8, 3.9, 3.11
and 3.12 shall survive termination of the Aggregate Commitments, repayment in full in cash of all
other Obligations hereunder, and resignation of the Administrative Agent.
3.11 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
Any and all payments by or on account of any obligation of the Credit Parties hereunder or under
any other Credit Document shall be made free and clear of and without reduction or withholding
for any Taxes, except as required by applicable Laws. If any applicable Law (as determined in the
good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of
any Taxes, including both United States Federal backup withholding and withholding Taxes, from
any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled
to make such deduction or withholding and shall timely pay the full amount deducted or withheld
to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an
Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as
necessary so that after such deduction or withholding has been made (including deductions or
withholdings applicable to additional sums payable under this Section 3.11) the applicable
Recipient receives an amount equal to the sum it would have received had no such withholding or
deduction been made.
(b) Payment of Other Taxes by the Credit Parties. The Credit Parties shall timely pay
to the relevant Governmental Authority in accordance with applicable Laws any Other Taxes.
(c) Tax Indemnification.
(i) Without limiting the provisions of subsection (a) or (b) above or
duplicating the payments to be made thereunder, the Credit Parties shall indemnify each
Recipient for the full amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under this subsection (c))
withheld or deducted from a payment to, or paid by, 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.
Payments under the preceding sentence shall be made within ten (10) days after the date
the party entitled to indemnification makes a demand therefor. The Credit Parties shall
also, and do hereby, indemnify the Administrative Agent, and shall make payment in
respect thereof within ten days after demand therefor, for any amount which a Bank or an
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Issuing Bank for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection. A certificate as to the amount of any such
payment or liability delivered to the Borrower Representative by a Bank or an Issuing Bank
(with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Bank or an Issuing Bank, shall be conclusive absent manifest error.
(ii) Without limiting the provisions of subsection (a) or (b) above, each Bank
and each Issuing Bank shall indemnify the Administrative Agent for (A) any Indemnified
Taxes attributable to such Bank or such Issuing Bank (but only to the extent that any Credit
Party has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Credit Parties to do so), (B) any Taxes attributable
to such Bank’s failure to comply with the provisions of Section 11.3(d) relating to the
maintenance of a Participant Register and (C) any Excluded Taxes attributable to such
Bank or such Issuing Bank, in each case, that are payable or paid by the Administrative
Agent in connection with any Credit 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. Payments under the
preceding sentence shall be made within ten (10) days after the date the party entitled to
indemnification makes a demand therefor (which demand shall include a written statement
setting forth in reasonable detail the basis for and such party’s calculation of the claim).
Each Bank and each Issuing Bank hereby authorizes the Administrative Agent to set off
and apply any and all amounts at any time owing to such Bank or such Issuing Bank, as
the case may be, under this Credit Agreement or any other Credit Document against any
amount due to the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Bank or an Issuing Bank, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge
of all other Obligations.
(d) Evidence of Payments. Upon request by any Credit Party or the Administrative
Agent, as the case may be, after any payment of Taxes by such Credit Party or by the Administrative
Agent to a Governmental Authority as provided in this Section 3.11, such Credit Party shall deliver
to the Administrative Agent or the Administrative Agent shall deliver to such Credit Party, as the
case may be, the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of any return required by Law to report such payment or other
evidence of such payment reasonably satisfactory to such Credit Party or the Administrative Agent,
as the case may be.
(e) Status of Banks; Tax Documentation.
(i) Each Bank that is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Credit Document shall deliver
to the Borrower Representative and the Administrative Agent, at the time or times
reasonably requested by the Borrower Representative or the Administrative Agent, such
properly completed and executed documentation reasonably requested by the Borrower
Representative or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Bank, if
reasonably requested by the Borrower Representative or the Administrative Agent, shall
deliver such other documentation prescribed by applicable Law or reasonably requested by
the Borrower Representative or the Administrative Agent as will enable the Borrower
Representative or the Administrative Agent to determine whether or not such Bank is
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subject to backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in Section
3.11(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Bank’s reasonable
judgment such completion, execution or submission would subject such Bank to any
material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Bank.
(ii) Without limiting the generality of the foregoing,
(A) any Bank that is a U.S. Person shall deliver to the Borrower
Representative and the Administrative Agent, on or prior to the date on which such
Bank becomes a Bank under this Credit Agreement (and from time to time
thereafter upon the request of the Borrower Representative or the Administrative
Agent), executed originals of Internal Revenue Service Form W-9 certifying that
such Bank is exempt from U.S. federal backup withholding tax; and
(B) each Foreign Bank shall, to the extent it is legally entitled to do
so, deliver to the Borrower Representative and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Bank becomes a Bank under this Credit Agreement (and from
time to time thereafter upon the request of the Borrower Representative or the
Administrative Agent, whichever of the following is applicable:
(I) in the case of a Foreign Bank 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 Credit Document, executed originals of
Internal Revenue Service Form W-8BEN or W-8BEN-E establishing an
exemption from, or reduction of, U.S. federal withholding Tax pursuant to
the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Credit Document, Internal Revenue
Service Form W-8BEN or W-8BEN-E establishing an exemption from, or
reduction of, U.S. federal withholding Tax pursuant to the “business
profits” or “other income” article of such tax treaty,
(II) executed originals of Internal Revenue Service Form W-
8ECI,
(III) in the case of a Foreign Bank claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Internal
Revenue Code, (x) a certificate substantially in the form of Schedule 3.11-
1 to the effect that such Foreign Bank is not (A) a “bank” within the
meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a “10
percent shareholder” of any Borrower within the meaning of section
871(h)(3)(B) or section 881(c)(3)(B) of the Internal Revenue Code, or (C)
a “controlled foreign corporation” described in section 881(c)(3)(C) of the
Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y)
executed originals of Internal Revenue Service Form W-8BEN or W-
8BEN-E, or
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(IV) to the extent a Foreign Bank is not the beneficial owner,
executed originals of Internal Revenue Service Form W-8IMY,
accompanied by Internal Revenue Service Form W-8BEN, Internal
Revenue Service Form W-8BEN-E, a U.S. Tax Compliance Certificate
substantially in the form of Schedule 3.11-2 or Schedule 3.11-3, Internal
Revenue Service Form W-9 and/or other supporting documentation from
each beneficial owner, as applicable (including, without limitation, if the
Foreign Bank is treated as a partnership for U.S. federal income Tax
purposes, required supporting documentation with respect to such Foreign
Bank’s direct and indirect partners that are claiming the portfolio interest
exemption); provided that if the Foreign Bank is a partnership and one or
more direct or indirect partners of such Foreign Bank are claiming the
portfolio interest exemption, such Foreign Bank may provide a U.S. Tax
Compliance Certificate substantially in the form of Schedule 3.11-4 on
behalf of each such direct and indirect partner,
(C) each Foreign Bank shall, to the extent it is legally entitled to do
so, deliver to the Borrower Representative and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on
which such Foreign Bank becomes a Bank under this Credit Agreement (and from
time to time thereafter upon the reasonable request of the Borrower Representative
or the Administrative Agent), executed originals of any other form prescribed by
applicable Laws as a basis for claiming exemption from or a reduction in United
States Federal withholding Tax duly completed together with such supplementary
documentation as may be prescribed by applicable Laws or otherwise reasonably
requested by the Borrower Representative or the Administrative Agent to permit
the Borrower Representative or the Administrative Agent to determine the
withholding or deduction required to be made, and
(D) if a payment made to a Bank under any Credit Document would
be subject to U.S. federal withholding Tax imposed by FATCA if such Bank were
to fail to comply with the applicable reporting requirements of FATCA (including
those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as
applicable), such Bank shall deliver to the Borrower Representative and the
Administrative Agent at the time or times prescribed by Law and at such time or
times reasonably requested by the Borrower Representative or the Administrative
Agent such documentation prescribed by applicable Law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional
documentation reasonably requested by the Borrower Representative or the
Administrative Agent as may be necessary for the Borrowers and the
Administrative Agent to comply with their obligations under FATCA and to
determine that such Bank has complied with such Bank’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment.
Solely for purposes of this clause (D), “FATCA” shall include any amendments
made to FATCA after the Closing Date.
(iii) Each Bank agrees that if any form or certification it previously delivered
expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower Representative and the Administrative Agent
in writing of its legal inability to do so.
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Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent or
any Bank, as the Administrative Agent or such Bank shall reasonably request, on or prior to the
Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant
taxing authorities under the Laws of any jurisdiction, duly executed and completed by such
Borrower, as are required to be furnished by such Bank or the Administrative Agent under such
Laws in connection with any payment by the Administrative Agent or any Bank of Taxes, or
otherwise in connection with the Credit Documents, with respect to such jurisdiction.
(f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time
shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a
Bank or any Issuing Bank, or have any obligation to pay to any Bank or any Issuing Bank, any
refund of Taxes withheld or deducted from funds paid for the account of such Bank or such Issuing
Bank, as the case may be. If the Administrative Agent, any Bank or any Issuing Bank determines,
in its sole discretion exercised in good faith, that it has received a refund of any Taxes (whether
received in cash or as an overpayment applied by the Administrative Agent, such Bank or such
Issuing Bank to offset an amount of Tax otherwise due and payable) as to which it has been
indemnified by any Credit Party or with respect to which any Credit Party has paid additional
amounts pursuant to this Section 3.11, it shall pay to such Credit Party an amount equal to such
refund (but only to the extent of indemnity payments made, or additional amounts paid, by such
Credit Party under this Section 3.11 with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) incurred by the Administrative Agent, such Bank or such
Issuing Bank, as the case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that each Credit Party, upon the
request of the Administrative Agent, such Bank or such Issuing Bank, agrees to repay the amount
paid over to such Credit Party (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Bank or such Issuing Bank in the event
the Administrative Agent, such Bank or such Issuing Bank is required to repay such refund to such
Governmental Authority. Notwithstanding anything to the contrary in this paragraph (f), in no
event will a Recipient be required to pay any amount to a Credit Party pursuant to this paragraph
(f) the payment of which would place the Recipient in a less favorable net after-Tax position than
the Recipient would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the indemnification payments or
additional amounts with respect to such Tax had never been paid. This subsection shall not be
construed to require the Administrative Agent, any Bank or any Issuing Bank to make available its
tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower
Representative or any other Person.
(g) Survival. Each party’s obligations under this Section 3.11 shall survive the
resignation or replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Bank, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Credit Document.
(h) Definitions. For purposes of this Section 3.11, the term “applicable Laws”
includes FATCA and the term “Bank” shall include each Issuing Bank.
3.12 Compensation.
Upon demand of any Bank (with a copy to the Administrative Agent) from time to time, the
Borrowers shall promptly compensate such Bank for and hold such Bank harmless from any loss, cost or
expense incurred by it as a result of:
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(a) any continuation, conversion, payment or prepayment of any Loan other than a
Base Rate Loan or Daily LIBOR Swingline Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise); or
(b) any failure by the Borrowers (for a reason other than the failure of such Bank to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan or
Daily LIBOR Swingline Loan on the date or in the amount notified by the Borrower Representative;
or
(c) any failure by any Borrower to make payment of any Loan or drawing under any
Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled
due date or any payment thereof in a different currency; or
(d) the assignment of any Eurocurrency Rate Loan other than on the last day of the
Interest Period applicable thereto as a result of a request by the Borrowers pursuant to Section
11.18;
including any loss or expense arising from the liquidation or reemployment of funds obtained by it to
maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or
from the performance of any foreign exchange contract (but excluding any loss of anticipated profits). The
Borrowers shall also pay any customary administrative fees charged by such Bank in connection with the
foregoing. For purposes of calculating amounts payable by the Borrowers to the Banks under this Section
3.12, each Bank shall be deemed to have funded each Eurocurrency Rate Loan made by it at the
Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the applicable offshore Dollar
interbank market for a comparable amount and for a comparable period, whether or not such Eurocurrency
Rate Loan was in fact so funded.
3.13 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans and Letters of Credit. Each Revolving Loan, Term Loan or Incremental
Term Loan advance, each payment or prepayment of principal of any Revolving Loan, any Term
Loan or any Incremental Term Loan or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Revolving Loans, the Term Loans and the
Incremental Term Loans or reimbursement obligations arising from drawings under Letters of
Credit, each payment of Unused Fees or Term Facility Unused Fees, each payment of the Standby
Letter of Credit Fee, each reduction of the Aggregate Revolving Committed Amount, each
reduction of the Term Commitments, and each conversion or extension of any Revolving Loan,
any Term Loan or any Incremental Term Loan, shall be allocated pro rata among the Banks in
accordance with the respective Revolving Commitment Percentages, Term Commitment
Percentages and/or Incremental Term Commitment Percentages, as applicable.
(b) Advances.
(i) No Bank shall be responsible for the failure or delay by any other Bank in
its obligation to make its ratable share of a borrowing hereunder, except for adjustments
provided in Section 3.18(a)(iv) to the Revolving Commitment Percentage of each Bank
that is not a Defaulting Bank; provided, however, that the failure of any Bank to fulfill its
obligations hereunder shall not relieve any other Bank of its obligations hereunder.
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(ii) Unless any Borrower or any Bank has notified the Administrative Agent
prior to the date any payment is required to be made by it to the Administrative Agent
hereunder, that such Borrower or such Bank, as the case may be, will not make such
payment, the Administrative Agent may assume that such Borrower or such Bank, as the
case may be, has timely made such payment and may (but shall not be so required to), in
reliance thereon, make available a corresponding amount to the Person entitled thereto. If
and to the extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(A) if the Borrowers failed to make such payment, each Bank shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Bank in immediately available
funds, together with interest thereon in respect of each day from and including the
date such amount was made available by the Administrative Agent to such Bank
to the date such amount is repaid to the Administrative Agent in Same Day Funds,
at the Overnight Rate from time to time in effect; and
(B) if any Bank failed to make such payment, such Bank shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period from the
date such amount was made available by the Administrative Agent to the
Borrowers to the date such amount is recovered by the Administrative Agent (the
“Compensation Period”) at a rate per annum equal to the Overnight Rate from time
to time in effect. If such Bank does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower Representative, and the Borrowers shall pay
such amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable to
the applicable Borrowing.
Nothing herein shall be deemed to relieve any Bank from its obligation to fulfill its
Commitments or to prejudice any rights that the Administrative Agent or the Borrowers may have
against any Bank as a result of any default by such Bank hereunder. A notice of the Administrative
Agent to any Bank with respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
3.14 Sharing of Payments.
The Banks agree among themselves that, in the event that any Bank shall obtain payment in respect
of any Loan, LOC Obligations or any other obligation owing to such Bank under this Credit Agreement
through the exercise of a right of setoff, banker’s lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Bank under any applicable bankruptcy, insolvency or other similar
law or otherwise, or by any other means, in excess of its pro rata share of such payment as provided for in
this Credit Agreement, such Bank shall promptly purchase from the other Banks a participation interest in
such Loans, LOC Obligations and other obligations in such amounts, and make such other adjustments
from time to time, as shall be equitable to the end that all Banks share such payment in accordance with
their respective ratable shares as provided for in this Credit Agreement. The Banks further agree among
themselves that if payment to a Bank obtained by such Bank through the exercise of a right of setoff,
banker’s lien, counterclaim or other event as aforesaid shall be rescinded or must otherwise be restored,
each Bank which shall have shared the benefit of such payment shall, by repurchase of a participation
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interest theretofore sold, return its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Bank whose payment shall have been rescinded or otherwise restored.
The Borrowers agree that any Bank so purchasing such a participation interest may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker’s lien or counterclaim, with
respect to such participation interest as fully as if such Bank were a holder of such Loans, LOC Obligations
or other obligation in the amount of such participation interest. Except as otherwise expressly provided in
this Credit Agreement, if any Bank or the Administrative Agent shall fail to remit to the Administrative
Agent or any other Bank an amount payable by such Bank or the Administrative Agent to the
Administrative Agent or such other Bank pursuant to this Credit Agreement on the date when such amount
is due, such payments shall be made together with interest thereon for each date from the date such amount
is due until the date such amount is paid to the Administrative Agent or such other Bank at a rate per annum
equal to the Overnight Rate. If under any applicable bankruptcy, insolvency or other similar law, any Bank
receives a secured claim in lieu of a setoff to which this Section 3.14 applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the
Banks under this Section 3.14 to share in the benefits of any recovery on such secured claim.
3.15 Payments, Computations, Retroactive Adjustments of Applicable Percentage, Etc.
(a) Generally. All payments hereunder and under any other Credit Document shall be
made by the Borrowers without condition or deduction for any counterclaim, defense, recoupment
or setoff of any kind. Except as otherwise specifically provided herein and except with respect to
principal and interest on Loans denominated in an Alternative Currency, all payments made by a
Credit Party hereunder shall be made to the Administrative Agent, for the account of the respective
Banks to which such payment is owed, in Dollars in Same Day Funds, at the Administrative Agent’s
office specified in Section 11.1. Except as otherwise expressly provided herein, all payments by
the Borrowers hereunder with respect to principal and interest on Loans denominated in an
Alternative Currency shall be made to the Administrative Agent, for the account of the respective
Banks to which such payment is owed, at the applicable Administrative Agent’s Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the
Administrative Agent on the dates specified herein. Without limiting the generality of the
foregoing, the Administrative Agent may require that any payments due under this Credit
Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any
Law from making any required payment hereunder in an Alternative Currency, such Borrower shall
make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment
amount. All payments shall be received by the Administrative Agent not later than (i) 2:00 p.m.
on the date when due in the case of payments in Dollars and (ii) the Applicable Time specified by
the Administrative Agent on the date when due in the case of payments in Alternative Currencies.
Payments received after such time shall be deemed to have been received on the next succeeding
Business Day. The Administrative Agent may (but shall not be obligated to) debit the amount of
any such payment which is not made by such time to any ordinary deposit account of the Borrowers
or any other Credit Party maintained with the Administrative Agent (with notice to the Borrower
Representative or such other Credit Party). The Borrowers shall, at the time it makes any payment
under this Credit Agreement, specify to the Administrative Agent the Loans, LOC Obligations,
fees, interest or other amounts payable by the Borrowers hereunder to which such payment is to be
applied (and in the event that it fails so to specify, or if such application would be inconsistent with
the terms hereof, the Administrative Agent shall distribute such payment to the Banks in such
manner as the Administrative Agent may determine to be appropriate in respect of obligations
owing by the Borrowers hereunder, subject to the terms of Section 3.13(a)). The Administrative
Agent will distribute such payments to such Banks, if any such payment is received prior to 2:00
p.m. on a Business Day in like funds as received prior to the end of such Business Day and
otherwise the Administrative Agent will distribute such payment to such Banks on the next
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succeeding Business Day. Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next succeeding Business
Day (subject to accrual of interest and fees for the period of such extension), except that in the case
of Eurocurrency Rate Loans, if the extension would cause the payment to be made in the next
following calendar month, then such payment shall instead be made on the next preceding Business
Day. Except as expressly provided otherwise herein, all computations of interest for Base Rate
Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year and actual days
elapsed (which results in more fees or interest, as applicable, being paid than if computed on the
basis of a 365 day year), or, in the case of interest in respect of Loans denominated in Alternative
Currencies as to which market practice differs from the foregoing, in accordance with such market
practice.
(b) Allocation of Payments After Event of Default. Notwithstanding any other
provisions of this Credit Agreement to the contrary, after the occurrence and during the continuance
of an Event of Default and upon the exercise of remedies in accordance with Section 9.2, all
amounts collected or received on or in respect of the Obligations (or other amounts owing under
the Credit Documents or other documentation in respect of the Obligations in connection therewith)
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Administrative Agent in connection with
enforcing the rights and remedies of the Banks under the Credit Documents made with respect
thereto;
SECOND, to payment of any fees owed to the Administrative Agent in its capacity as such
under the Credit Documents;
THIRD, to the payment of all reasonable out-of-pocket costs and expenses (including
without limitation, reasonable attorneys’ fees) of each of the Banks hereunder in connection with
enforcing its rights under the Credit Documents or otherwise with respect to the Obligations owing
to such Bank;
FOURTH, to the payment of all accrued interest and fees on or in respect of the
Obligations;
FIFTH, to the payment of the outstanding principal amount of the Obligations hereunder
(including the payment or cash collateralization of the outstanding LOC Obligations), all
Obligations under any Swap Contract between any Credit Party or any Subsidiary and any Bank or
Affiliate of a Bank that is permitted to be incurred pursuant to Section 8.1(g), and all Obligations
under any Treasury Management Agreement between any Credit Party or any Subsidiary and any
Bank or Affiliate of a Bank, in each case ratably among the respective parties in proportion to the
respective amounts described in this clause “FIFTH” held by them;
SIXTH, to all other Obligations hereunder and other obligations which shall have become
due and payable under the Credit Documents otherwise and not repaid pursuant to clauses “FIRST”
through “FIFTH” above; and
SEVENTH, to the payment of the surplus, if any, to the Borrower Representative.
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In carrying out the foregoing, (i) amounts received shall be applied in the numerical order provided
until exhausted prior to application to the next succeeding category; and (ii) except as otherwise
provided, the Banks (and Affiliates thereof) shall receive amounts ratably in accordance with their
respective pro rata share (based on the proportion that the then outstanding Obligations held by
such Banks (and Affiliates thereof) bears to the aggregate amount of the Obligations then
outstanding) of amounts available to be applied pursuant to clauses “THIRD”, “FOURTH”,
“FIFTH” and “SIXTH” above; and (iii) to the extent that any amounts available for distribution
pursuant to clause “FIFTH” above are attributable to the issued but undrawn amount of outstanding
Letters of Credit, such amounts shall be held by the Administrative Agent in a cash collateral
account and applied (A) first, to reimburse the applicable Issuing Bank for any drawings under such
Letters of Credit and (B) then, following the expiration of all Letters of Credit, to all other
obligations of the types described in clauses “FOURTH”, “FIFTH” and “SIXTH” above in the
manner provided in this Section 3.15(b). Excluded Swap Obligations with respect to any Credit
Party shall not be paid with amounts received from such Credit Party or its assets, but appropriate
adjustments shall be made with respect to payments from other Credit Parties to preserve the
allocation to Obligations otherwise set forth above in this Section.
(c) Retroactive Adjustments of Applicable Percentage. If, as a result of any
restatement of or other adjustment to the financial statements of the Parent or for any other reason,
the Borrower Representative or the Banks determine that (i) the Consolidated Total Leverage Ratio
as calculated by the Parent as of any applicable date was inaccurate at the time so calculated and
(ii) a proper calculation of the Consolidated Total Leverage Ratio would have resulted in higher
pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to
the Administrative Agent for the account of the applicable Banks or the applicable Issuing Banks,
as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of
an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy
Code, automatically and without further action by the Administrative Agent, any Bank or any
Issuing Bank), an amount equal to the excess of the amount of interest and fees that should have
been paid for such period over the amount of interest and fees actually paid for such period. This
paragraph shall not limit the rights of the Administrative Agent, any Bank or any Issuing Bank, as
the case may be, under Section 2.6(a)(iii), 2.6(f) or 3.1 or under Section 9. The Borrowers’
obligations under this paragraph shall survive the termination of the Aggregate Commitments and
the repayment of all other Obligations hereunder.
3.16 Evidence of Debt.
(a) Each Bank shall maintain an account or accounts evidencing each Loan made by
such Bank to the Borrowers from time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time under this Credit Agreement. Each Bank will
make reasonable efforts to maintain the accuracy of its account or accounts and to promptly update
its account or accounts from time to time, as necessary.
(b) The Administrative Agent shall maintain the Register pursuant to Section 11.3(c),
and a subaccount for each Bank, in which Register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each such Loan hereunder, (ii) the amount of
any principal or interest due and payable or to become due and payable to each Bank hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder from or for the
account of any Credit Party and each Bank’s share thereof. The Administrative Agent will make
reasonable efforts to maintain the accuracy of the subaccounts referred to in the preceding sentence
and to promptly update such subaccounts from time to time, as necessary.
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(c) The entries made in the accounts, Register and subaccounts maintained pursuant
to subsection (b) of this Section 3.16 (and, if consistent with the entries of the Administrative Agent,
subsection (a)) shall be prima facie evidence of the existence and amounts of the obligations of the
Credit Parties therein recorded; provided, however, that the failure of any Bank or the
Administrative Agent to maintain any such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation of the Credit Parties
to repay the Obligations and other amounts owing to such Bank.
3.17 Certain Limitations.
If any Bank requests compensation or indemnification from the Borrowers under Section 3.6, 3.9
or 3.11, then such Bank will agree to use reasonable efforts to change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue if
such change, in the reasonable judgment of such Bank, is not otherwise disadvantageous to such Bank.
3.18 Defaulting Banks.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Credit
Agreement, if any Bank becomes a Defaulting Bank, then, until such time as that Bank is no longer
a Defaulting Bank, to the extent permitted by applicable Law:
(i) Waivers and Amendments. That Defaulting Bank’s right to approve or
disapprove any amendment, waiver or consent with respect to this Credit Agreement shall
be restricted as set forth in Section 11.6.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting
Bank (whether voluntary or mandatory, at maturity, pursuant to Section 9 or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Bank pursuant to Section 11.2), shall be applied at such time or times as may be determined
by the Administrative Agent as follows: first, to the payment of any amounts owing by that
Defaulting Bank to the Administrative Agent hereunder; second, to the payment on a pro
rata basis of any amounts owing by that Defaulting Bank to any Issuing Bank or the
Swingline Bank hereunder; third, if so determined by the Administrative Agent or
requested by any Issuing Bank or the Swingline Bank, to be held as Cash Collateral for
future funding obligations of that Defaulting Bank of any participation in any Swingline
Loan or Letter of Credit; fourth, as the Borrower Representative may request (so long as
no Default exists), to the funding of any Loan in respect of which that Defaulting Bank has
failed to fund its portion thereof as required by this Credit Agreement, as determined by
the Administrative Agent; fifth, if so determined by the Administrative Agent and the
Borrower Representative, to be held in a non-interest bearing deposit account and released
in order to satisfy obligations of that Defaulting Bank to fund Loans under this Credit
Agreement; sixth, to the payment of any amounts owing to the Banks, the Issuing Banks
or the Swingline Bank as a result of any judgment of a court of competent jurisdiction
obtained by any Bank, any Issuing Bank or the Swingline Bank against that Defaulting
Bank as a result of that Defaulting Bank’s breach of its obligations under this Credit
Agreement; seventh, so long as no Default exists, to the payment of any amounts owing to
the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by
the Borrowers against that Defaulting Bank as a result of that Defaulting Bank’s breach of
its obligations under this Credit Agreement; and eighth, to that Defaulting Bank or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment
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is a payment of the principal amount of any Loans or LOC Borrowings in respect of which
that Defaulting Bank has not fully funded its appropriate share and (y) such Loans or LOC
Borrowings were made at a time when the conditions set forth in Section 5.2 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and LOC Borrowings
owed to, all non-Defaulting Banks on a pro rata basis prior to being applied to the payment
of any Loans of, or LOC Borrowings owed to, that Defaulting Bank. Any payments,
prepayments or other amounts paid or payable to a Defaulting Bank that are applied (or
held) to pay amounts owed by a Defaulting Bank or to post Cash Collateral pursuant to this
Section 3.18(a)(ii) shall be deemed paid to and redirected by that Defaulting Bank, and
each Bank irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Bank (x) shall not be entitled to receive any
unused fee pursuant to Section 3.5(a) or Section 3.5(c) for any period during which that
Bank is a Defaulting Bank (and the Borrowers shall not be required to pay any such fee
that otherwise would have been required to have been paid to that Defaulting Bank) and
(y) shall be limited in its right to receive Standby Letter of Credit Fees as provided in
Section 2.6(f).
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Bank, for purposes of computing the
amount of the obligation of each non-Defaulting Bank to acquire, refinance or fund
participations in Letters of Credit or Swingline Loans pursuant to Sections 2.1, 2.4, 2.6 or
2.7, the “Revolving Commitment Percentage” of each non-Defaulting Bank shall be
computed without giving effect to the Revolving Commitment of that Defaulting Bank;
provided that (i) each such reallocation shall be given effect only if, at the date the
applicable Bank becomes a Defaulting Bank, no Default exists; and (ii) the aggregate
obligation of each non-Defaulting Bank to acquire, refinance or fund participations in
Letters of Credit and Swingline Loans shall not exceed the positive difference, if any, of
(1) the Revolving Commitment of that non-Defaulting Bank minus (2) the aggregate
Outstanding Amount of the Revolving Loans of that Bank. Subject to Section 11.22, no
reallocation hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Bank arising from that Bank having become a Defaulting
Bank, including any claim of a non-Defaulting Bank as a result of such non-Defaulting
Bank’s increased exposure following such reallocation.
(b) Defaulting Bank Cure. If the Borrower Representative, the Administrative Agent,
the Swingline Bank and each Issuing Bank agree in writing in their sole discretion that a Defaulting
Bank should no longer be deemed to be a Defaulting Bank, the Administrative Agent will so notify
the parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Bank will, to the extent applicable, purchase that portion of outstanding Loans of the other
Banks or take such other actions as the Administrative Agent may determine to be necessary to
cause the Loans and funded and unfunded participations in Letters of Credit and Swingline Loans
to be held on a pro rata basis by the Banks in accordance with their Revolving Commitment
Percentages (without giving effect to Section 3.18(a)(iv)), whereupon that Bank will cease to be a
Defaulting Bank; provided that no adjustments will be made retroactively with respect to fees
accrued or payments made by or on behalf of the Borrowers while that Bank was a Defaulting
Bank; and provided, further, that except to the extent otherwise expressly agreed by the affected
parties and subject to Section 11.22, no change hereunder from Defaulting Bank to Bank will
constitute a waiver or release of any claim of any party hereunder arising from that Bank’s having
been a Defaulting Bank.
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3.19 Cash Collateral.
(a) Certain Credit Support Events.
(i) Upon the request of the Administrative Agent or an Issuing Bank (A) if
such Issuing Bank has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an LOC Borrowing, or (B) if, as of the Letter of
Credit Expiration Date, any LOC Obligation for any reason remains outstanding, the
Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding
Amount of all LOC Obligations.
(ii) At any time that there shall exist a Defaulting Bank, immediately upon the
request of the Administrative Agent, any Issuing Bank or the Swingline Bank, the
Borrowers shall deliver to the Administrative Agent Cash Collateral in an amount
sufficient to cover all Fronting Exposure (after giving effect to Section 3.18(a)(iv) and any
Cash Collateral provided by the Defaulting Bank).
(iii) If the Administrative Agent notifies the Borrower Representative at any
time that the Outstanding Amount of all LOC Obligations at such time exceeds 105% of
the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of
such notice, the Borrowers shall Cash Collateralize the LOC Obligations in an amount
equal to the amount by which the Outstanding Amount of all LOC Obligations exceeds the
Letter of Credit Sublimit.
(iv) The Administrative Agent may, at any time and from time to time after the
initial deposit of Cash Collateral, request that additional Cash Collateral be provided in
order to protect against the results of exchange rate fluctuations.
(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Xxxxx Fargo Bank. The Borrowers, and to the extent provided by any Bank, such Bank,
hereby grant to (and subject to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Banks and the Banks (including the Swingline Bank), and agree
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the
foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant
to Section 3.19(c). If at any time the Administrative Agent determines that Cash Collateral is
subject to any right or claim of any Person other than the Administrative Agent as herein provided,
or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and
other obligations secured thereby, the Borrowers will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an
amount sufficient to eliminate such deficiency.
(c) Application. Notwithstanding anything to the contrary contained in this Credit
Agreement, Cash Collateral provided under any of this Section 3.19 or Sections 2.1, 2.4, 2.6, 2.7,
3.18 or 9.2 in respect of Letters of Credit or Swingline Loans shall be held and applied to the
satisfaction of the specific LOC Obligations, Swingline Loans, obligations to fund participations
therein (including, as to Cash Collateral provided by a Defaulting Bank, any interest accrued on
such obligation) and other obligations for which the Cash Collateral was so provided, prior to any
other application of such property as may be provided for herein.
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(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Bank status of the applicable Bank (or, as appropriate, its assignee
following compliance with Section 11.3(b)(vi))) or (ii) the Administrative Agent’s good faith
determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral
furnished by or on behalf of a Credit Party shall not be released during the continuance of a Default
or Event of Default (and following application as provided in this Section 3.19 may be otherwise
applied in accordance with Section 9.2), and (y) the Person providing Cash Collateral and the
applicable Issuing Bank or the Swingline Bank, as applicable, may agree that Cash Collateral shall
not be released but instead held to support future anticipated Fronting Exposure or other
obligations.
3.20 ERISA.
Each Bank represents and warrants to the Administrative Agent, each Arranger and their respective
Affiliates (and not, for the avoidance of doubt, for the benefit of any Credit Party) that, as of the Closing
Date, such Bank is not (a) an employee benefit plan subject to Title I of ERISA, (b) a plan or account
subject to Section 4975 of the Internal Revenue Code, (c) an entity deemed to hold “plan assets” of any
such plans or accounts for purposes of ERISA or the Internal Revenue Code, or (d) a “governmental plan”
within the meaning of ERISA.
SECTION 4
GUARANTY
4.1 The Guaranty.
Each of the Guarantors hereby jointly and severally guarantees to each Bank, each Issuing Bank,
each affiliate of a Bank that has entered into a Swap Contract or a Treasury Management Agreement with
any Credit Party or any Subsidiary, the Administrative Agent and each other holder of the Obligations, as
hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or otherwise), the Guarantors will,
jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid
in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such extension or renewal.
Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents, Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor
(other than the Parent) under this Credit Agreement and the other Credit Documents shall be limited to an
aggregate amount equal to the largest amount that would not render such obligations subject to avoidance
under Section 548 of the Bankruptcy Code or any comparable provisions of any applicable state law.
Notwithstanding any provision to the contrary contained herein or in any other of the Credit
Documents or Swap Contracts, Obligations of a Loan Party shall exclude any Excluded Swap Obligations
with respect to such Loan Party.
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4.2 Obligations Unconditional.
The obligations of the Guarantors under Section 4.1 are joint and several, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the
Credit Documents, Swap Contracts or Treasury Management Agreements, or any other agreement or
instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee
of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective
of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor, it being the intent of this Section 4.2 that the obligations of the Guarantors
hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that
such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the
Borrowers or any other Guarantor for amounts paid under this Section 4 until such time as the Banks (or
any affiliates of Banks entering into Swap Contracts or Treasury Management Agreements) have been paid
in full in respect of all Obligations, the Aggregate Commitments have been terminated and no Person or
Governmental Authority shall have any right to request any return or reimbursement of funds from the
Banks (or any affiliates of the Banks that have entered into Swap Contracts or Treasury Management
Agreements) in connection with monies received under the Credit Documents, Swap Contracts or Treasury
Management Agreements between any member of the Consolidated Group and any Bank (or any affiliates
of the Banks that have entered into Swap Contracts or Treasury Management Agreements). Without
limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor
hereunder which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Obligations shall be extended, or such performance
or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the Credit Documents,
Swap Contracts or Treasury Management Agreements between any member of the Consolidated
Group and any Bank (or any affiliates of the Banks that have entered into Swap Contracts or
Treasury Management Agreements), or any other agreement or instrument referred to in the Credit
Documents, Swap Contracts or Treasury Management Agreements shall be done or omitted;
(c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under any of
the Credit Documents, any Swap Contracts or Treasury Management Agreements between any
member of the Consolidated Group and any Bank (or any affiliates of the Banks that have entered
into Swap Contracts or Treasury Management Agreements), any other agreement or instrument
referred to in the Credit Documents or such Swap Contracts or Treasury Management Agreements
shall be waived or any other guarantee of any of the Obligations or any security therefor shall be
released, impaired or exchanged in whole or in part or otherwise dealt with;
(d) any of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including, without limitation, any creditor of any Guarantor);
(e) any change in the corporate existence or structure of any Borrower;
(f) any claims or set-off rights that the Guarantor may have against any Borrower or
any Bank (or any affiliates of the Banks that have entered into Swap Contracts or Treasury
Management Agreements); and
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(g) any law or regulation of any jurisdiction or any event affecting any term of a
guaranteed obligation.
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment,
demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent
or any other holder of the Obligations exhaust any right, power or remedy or proceed against any Person
under any of the Credit Documents or any other document relating to the Obligations, or against any other
Person under any other guarantee of, or security for, any of the Obligations.
4.3 Reinstatement.
The obligations of the Guarantors under this Section 4 shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is
rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify
each holder of the Obligations on demand for all reasonable costs and expenses (including, without
limitation, fees and expenses of counsel) incurred by such Person in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
4.4 Certain Additional Waivers.
Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the
Obligations, except through the exercise of rights of subrogation pursuant to Section 4.2 and through the
exercise of rights of contribution pursuant to Section 4.6.
4.5 Remedies.
The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the
one hand, and the holders of the Obligations, on the other hand, the Obligations may be declared to be
forthwith due and payable as provided in Section 9.2 (and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 9.2) for purposes of Section 4.1
notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the
Obligations from becoming automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become automatically due and payable),
the Obligations (whether or not due and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of Section 4.1.
4.6 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess
Payment (as defined below), such Guarantor shall have a right of contribution from each other Guarantor
in an amount equal to such other Guarantor’s Contribution Share (as defined below) of such Excess
Payment. The payment obligations of any Guarantor under this Section 4.6 shall be subordinate and subject
in right of payment to the prior payment in full to the holders of the Obligations of the Obligations, and
none of the Guarantors shall exercise any right or remedy under this Section 4.6 against any other Guarantor
until payment and satisfaction in full of all of Obligations and termination of the Aggregate Commitments.
For purposes of this Section 4.6, (a) “Guaranteed Obligations” shall mean any obligations arising under the
other provisions of this Section 4; (b) “Excess Payment” shall mean the amount paid by any Guarantor in
excess of its Pro Rata Share of any Guaranteed Obligations; (c) “Pro Rata Share” shall mean, for any
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Guarantor in respect of any payment of Guaranteed Obligations, the ratio (expressed as a percentage) as of
the date of such payment of Guaranteed Obligations of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all debts and liabilities of such
Guarantor (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder) to (ii) the amount by which the aggregate present fair salable
value of all assets and other properties of all of the Credit Parties exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Credit Parties hereunder) of the Credit Parties; provided, however, that, for purposes of
calculating the Pro Rata Shares of the Guarantors in respect of any payment of Guaranteed Obligations, any
Guarantor that became a Guarantor subsequent to the date of any such payment shall be deemed to have
been a Guarantor on the date of such payment and the financial information for such Guarantor as of the
date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such
payment; and (d) “Contribution Share” shall mean, for any Guarantor in respect of any Excess Payment
made by any other Guarantor, the ratio (expressed as a percentage) as of the date of such Excess Payment
of (i) the amount by which the aggregate present fair salable value of all of its assets and properties exceeds
the amount of all debts and liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount
by which the aggregate present fair salable value of all assets and other properties of the Credit Parties other
than the maker of such Excess Payment exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of the Credit
Parties) of the Credit Parties other than the maker of such Excess Payment; provided, however, that, for
purposes of calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed to
have been a Guarantor on the date of such Excess Payment and the financial information for such Guarantor
as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in connection with
such Excess Payment. This Section 4.6 shall not be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under applicable law against the Borrowers in
respect of any payment of Guaranteed Obligations. Notwithstanding the foregoing, all rights of
contribution against any Guarantor shall terminate from and after such time, if ever, that such Guarantor
shall be relieved of its obligations pursuant to Section 8.4.
4.7 Guarantee of Payment; Continuing Guarantee.
The guarantee in this Section 4 is a guaranty of payment and not of collection, is a continuing
guarantee, and shall apply to all Obligations whenever arising.
4.8 Keepwell.
Each Credit Party that is a Qualified ECP Guarantor at the time this Section 4 by any Specified
Credit Party becomes effective with respect to any Swap Obligation, hereby jointly and severally,
absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each
Specified Credit Party with respect to such Swap Obligation as may be needed by such Specified Credit
Party from time to time to honor all of its obligations under the Credit Documents in respect of such Swap
Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred
without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 4
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 4.8
shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full.
Each Credit Party intends this Section 4.8 to constitute, and this Section 4.8 shall be deemed to constitute,
a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each
Specified Credit Party for all purposes of the Commodity Exchange Act.
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SECTION 5
CONDITIONS PRECEDENT
5.1 Conditions to Closing.
The obligation of the Banks and the Issuing Banks to enter into this Credit Agreement and to make
the initial Extensions of Credit shall be subject to satisfaction of the following conditions (in form and
substance acceptable to the Administrative Agent and the Banks):
(a) Executed Credit Documents. Receipt by the Administrative Agent of (i) multiple
counterparts of this Credit Agreement and (ii) a Note for each Bank requesting one, in each case
executed by a duly authorized officer of each party thereto and in each case conforming to the
requirements of this Credit Agreement.
(b) Legal Opinions. Receipt by the Administrative Agent of multiple counterparts of
(i) opinions of in-house counsel for the Credit Parties and (ii) opinions of outside counsel for the
Credit Parties relating to the Credit Documents and the transactions contemplated therein.
(c) Financial Information. Receipt by the Administrative Agent of copies of
projections for the Consolidated Group for the fiscal years ending December 31, 2017, December
31, 2018 and December 31, 2019 and such other financial information regarding the members of
the Consolidated Group as may be requested by, and in each case in form and substance satisfactory
to, the Administrative Agent.
(d) Corporate Documents. Receipt by the Administrative Agent of the following (or
their equivalent) for each of the Credit Parties:
(i) Charter Documents. Copies of the articles or certificates of incorporation
or other charter documents of such Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the state or other jurisdiction of
its incorporation and certified by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws, operating agreement or equivalent of such
Credit Party certified by a secretary or assistant secretary of such Credit Party to be true
and correct and in full force and effect as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the board of directors (or an
authorized executive committee, if applicable) of such Credit Party approving and adopting
the Credit Documents to which it is a party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in full force and effect as of the Closing Date.
(iv) Good Standing. Certificates of good standing, existence or its equivalent
for each Credit Party certified as of a recent date by the appropriate governmental
authorities of the state of incorporation or formation, as applicable, of such Credit Party.
(v) Officer’s Certificate. An officer’s certificate for each of the Credit Parties
dated as of the Closing Date substantially in the form of Schedule 5.1(d) with appropriate
insertions and attachments (including specimen signatures).
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(e) Officer’s Closing Certificates. The Administrative Agent shall have received a
certificate or certificates executed by a Responsible Officer of the Borrower Representative as of
the Closing Date, in form and substance satisfactory to the Administrative Agent, certifying that,
(i) immediately after giving effect to the initial Loans made and any Letters of Credit issued on the
Closing Date and the repayment of Indebtedness under the Existing Credit Agreement, (A) no
Default or Event of Default exists, (B) the representations and warranties made by the Credit Parties
herein and in the other Credit Documents and which are contained in any certificate furnished at
any time under or in connection herewith are true and correct in all material respects on and as of
the Closing Date (except to the extent any such representation and warranty is qualified by
materiality or reference to Material Adverse Effect, in which case, such representation and warranty
shall be true and correct in all respects), (C) the Parent and its Subsidiaries, on a consolidated basis,
are Solvent, and (ii) all boards of directors, governmental, shareholder and material third party
consents and approvals necessary in connection with this Credit Agreement, the other Credit
Documents and the transactions contemplated thereby have been obtained and are in full force and
effect.
(f) “Know Your Customer” Due Diligence; USA PATRIOT Act. Receipt by the
Administrative Agent, the Issuing Banks and the Banks of all documentation and other information
requested in writing at least ten (10) Business Days prior to the Closing Date in order to comply
with applicable law, including, without limitation, “know your customer” due diligence and the
USA PATRIOT Act.
(g) Termination of Existing Indebtedness. Receipt by the Administrative Agent of
evidence that the Existing Credit Agreement will be simultaneously terminated upon execution of
this Credit Agreement and all loans or other amounts outstanding under the Existing Credit
Agreement shall be repaid in full.
(h) Fees and Expenses. Payment by the Credit Parties of all fees and expenses due
and payable to the Banks, the Issuing Banks, the Arrangers and the Administrative Agent,
including, without limitation, payment of the fees set forth in the Fee Letters.
(i) Attorney Costs. The Borrowers shall have paid all fees, charges and disbursements
of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date.
Without limiting the generality of the provisions of the penultimate paragraph of Section 10.3, for
purposes of determining compliance with the conditions specified in this Section 5.1, each Bank that has
signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Bank unless the Administrative Agent shall have received notice from such Bank prior
to the proposed Closing Date specifying its objection thereto.
5.2 Conditions to all Extensions of Credit.
The obligation of each Bank and each Issuing Bank to make any Extension of Credit (including the
initial Extension of Credit) is subject to the satisfaction of the following conditions precedent on the date
of making such Extension of Credit:
(a) Representations and Warranties. The representations and warranties made by the
Credit Parties herein and in the other Credit Documents and which are contained in any certificate
furnished at any time under or in connection herewith shall be true and correct in all material
respects on and as of the date of such Extension of Credit as if made on and as of such date (except
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(i) for those which expressly relate to an earlier date, in which case they shall be true and correct
as of such earlier date, and (ii) to the extent any such representation and warranty is qualified by
materiality or reference to Material Adverse Effect, in which case, such representation and warranty
shall be true and correct in all respects).
(b) No Default or Event of Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Extension of Credit to be made
on such date.
(c) Alternative Currencies. In the case of an Extension of Credit to be denominated
in an Alternative Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or exchange controls which
in the reasonable opinion of the Administrative Agent, the Required Banks (in the case of any
Revolving Loans to be denominated in an Alternative Currency) or the applicable Issuing Bank (in
the case of any Letter of Credit to be denominated in an Alternative Currency) would make it
impracticable for such Extension of Credit to be denominated in the relevant Alternative Currency.
(d) Request for Extension of Credit. The Administrative Agent and, if applicable, the
applicable Issuing Bank or the Swingline Bank, shall have received a Notice of Loan Borrowing,
a Notice of Swingline Loan Borrowing or a Letter of Credit Application, as applicable, in
accordance with the requirements hereof.
Each request for an Extension of Credit and each acceptance by a Borrower of an Extension of
Credit shall be deemed to constitute a representation and warranty by the Borrower Representative and the
Borrowers as of the date of such Extension of Credit that the applicable conditions in paragraphs (a) and
(b) of this Section 5.2 have been satisfied.
5.3 Conditions to Term Facility Funding.
The obligation of the Term Banks to fund the Borrowing under the Term Facility shall be subject
to satisfaction of the following conditions (in form and substance acceptable to the Administrative Agent
and the Banks):
(a) Closing Date Acquisition; Closing Date Acquisition Agreement. The Closing
Date Acquisition shall have been consummated prior to, or substantially concurrently with, the
Borrowing under the Term Facility in compliance with applicable law and regulatory approvals
and in accordance with the terms of the Closing Date Acquisition Agreement without giving effect
to any amendments or supplements thereto, consents thereunder or modifications or waivers to the
provisions thereof that, in any such case, are materially adverse to the interests of the Banks without
the prior written consent of the Banks. For purposes of this Section 5.3, it is understood and agreed
that the Borrowers may elect to fund the acquisition consideration required to consummate the
Closing Date Acquisition with the proceeds of Revolving Loans and then subsequently request a
Borrowing under the Term Facility in compliance with the terms of this Credit Agreement, the
proceeds of which Borrowing under the Term Facility will be used to repay the Revolving Loans
which were used to consummate the Closing Date Acquisition.
(b) Officer’s Closing Certificates. The Administrative Agent shall have received a
certificate executed by a Responsible Officer of the Borrower Representative, in form and
substance satisfactory to the Administrative Agent, certifying that, (i) immediately after giving
effect to the funding of the Term Facility on the Term Facility Funding Date and the consummation
of the Closing Date Acquisition, (A) no Default or Event of Default exists, (B) the representations
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and warranties made by the Credit Parties herein and in the other Credit Documents and which are
contained in any certificate furnished at any time under or in connection herewith are true and
correct in all material respects on and as of the Term Facility Funding Date (except (x) for those
which expressly relate to an earlier date, in which case they shall be true and correct as of such
earlier date and (y) to the extent any such representation and warranty is qualified by materiality or
reference to Material Adverse Effect, in which case, such representation and warranty shall be true
and correct in all respects), and (C) the Parent and its Subsidiaries, on a consolidated basis, are
Solvent, and (ii) all boards of directors, governmental, shareholder and material third party consents
and approvals necessary in connection with the Closing Date Acquisition have been obtained and
are in full force and effect.
(c) Fees and Expenses. The Credit Parties shall have paid all fees and expenses due
and payable to the Banks, the Issuing Banks, the Arrangers and the Administrative Agent.
(d) Attorney Costs. The Borrowers shall have paid all fees, charges and disbursements
of counsel to the Administrative Agent to the extent invoiced prior to or on the Term Facility
Funding Date.
SECTION 6
REPRESENTATIONS AND WARRANTIES
Each Credit Party hereby represents and warrants to the Administrative Agent and each Bank that:
6.1 Organization and Good Standing.
Each Credit Party is an organization duly formed, validly existing and in good standing under the
laws of the state of its organization, is duly qualified and in good standing and authorized to do business in
every foreign jurisdiction where the failure to so qualify could reasonably be expected to have a Material
Adverse Effect, and has the requisite corporate or company power and authority to own its Property and to
carry on its business as now conducted and as proposed to be conducted.
6.2 Due Authorization.
Each Credit Party (a) has the requisite corporate or company power and authority to execute, deliver
and perform this Credit Agreement and the other Credit Documents to which it is a party and to incur the
obligations herein and therein provided for, and (b) is duly authorized to, and has been authorized by all
necessary corporate action, to execute, deliver and perform this Credit Agreement and the other Credit
Documents to which it is a party.
6.3 No Conflicts.
Neither the execution and delivery of the Credit Documents, nor the consummation of the
transactions contemplated therein, nor the performance of and compliance with the terms and provisions
thereof by a Credit Party will (a) violate or conflict with any provision of its articles of incorporation or
bylaws or other charter documents, (b) violate, contravene or materially conflict with any law, regulation
(including without limitation Regulation U or Regulation X), order, writ, judgment, injunction, decree or
permit applicable to it, (c) violate, contravene or materially conflict with contractual provisions of, or cause
an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other
agreement or instrument to which it is a party or by which it may be bound, the violation of which could
reasonably be expected to have a Material Adverse Effect, or (d) result in or require the creation of any lien,
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security interest or other charge or encumbrance (other than those contemplated in or created in connection
with the Credit Documents) upon or with respect to its properties, the creation of which could reasonably
be expected to have a Material Adverse Effect.
6.4 Consents.
No consent, approval, authorization or order of, or filing, registration or qualification with, any
Governmental Authority or any other Person is required in connection with the execution, delivery or
performance of this Credit Agreement or any of the other Credit Documents by each Credit Party or, if
required, such consent, approval and authorization has been obtained.
6.5 Enforceable Obligations.
Each Credit Document has been duly executed and delivered and constitutes the legal, valid and
binding obligation of each Credit Party enforceable against each Credit Party in accordance with its terms,
except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights
generally or by general equitable principles.
6.6 Reserved.
6.7 Financial Condition.
(a) The consolidated balance sheets of the Parent and its Subsidiaries as of December
31, 2014, December 31, 2015 and December 31, 2016 and the related consolidated statements of
income, changes in shareholders’ equity and cash flows for each of the years in the three-year
period ended December 31, 2016 (copies of which have heretofore been provided to the
Administrative Agent and the Banks) have been prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the financial condition of the Parent and its
Subsidiaries as of December 31, 2014, December 31, 2015 and December 31, 2016 and the results
of their operations and cash flows for each of the years in the three-year period ended December
31, 2016.
(b) The consolidated balance sheets of the Parent and its Subsidiaries and the related
consolidated statements of income, changes in shareholders’ equity and cash flows delivered to the
Administrative Agent and the Banks in accordance with Section 7.1(a) and Section 7.1(b) have
been prepared in accordance with GAAP consistently applied, and present fairly in all material
respects the financial condition of the Parent and its Subsidiaries as of the date thereof and the
results of their operations and cash flows for the periods covered thereby.
6.8 No Material Adverse Changes or Restricted Payments.
Since December 31, 2016:
(a) for the period to the Closing Date, except as previously disclosed in writing to the
Administrative Agent and the Banks, there have been no material sales, transfers or other
dispositions of any material part of the business or Property of any member of the Consolidated
Group, nor have there been any material purchases or other acquisitions of any business or Property
(including the Capital Stock of any other Person) by any member of the Consolidated Group, in
each case which are not reflected in the annual audited financial statements referenced in Section
6.7(a); and
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(b) there have been no circumstances, developments or events relating to or affecting
any member of the Consolidated Group which could reasonably be expected to have a Material
Adverse Effect.
6.9 No Default.
No Default or Event of Default presently exists.
6.10 Liens.
Except for Permitted Liens, each member of the Consolidated Group has good and marketable title
to, or a valid leasehold interest in, all of its material real property, and good title to, or a valid leasehold
interest in, all of its other material Property, free and clear of all Liens.
6.11 Indebtedness.
No member of the Consolidated Group has any Indebtedness except for Indebtedness permitted by
Section 8.1.
6.12 Litigation.
No claim, litigation, investigation or proceeding of any kind is pending or, to the knowledge of any
Responsible Officer, threatened, against any member of the Consolidated Group or any of its Property or
revenues which (a) relate to the Credit Documents or any of the transactions contemplated hereby or thereby
or (b) could reasonably be expected to have a Material Adverse Effect.
6.13 Material Agreements.
No member of the Consolidated Group is in default in any respect (and, to the knowledge of any
Responsible Officer, no such default is asserted) under any contract, lease, loan agreement, indenture,
mortgage, security agreement or other agreement or obligation to which any member of the Consolidated
Group is a party or by which any of its Property is bound which default could reasonably be expected to
have a Material Adverse Effect.
6.14 Taxes.
Each member of the Consolidated Group has filed, or caused to be filed, all federal and state income
and other material tax returns required to be filed and paid (a) all amounts of taxes shown thereon to be due
(including interest and penalties) and (b) all federal and state income and other material taxes, fees,
assessments and other governmental charges (including mortgage recording taxes, documentary stamp
taxes and intangibles taxes) owing (or necessary to preserve any Liens in favor of the Administrative Agent
or the Banks) by it, except for such taxes (i) which are not yet delinquent or (ii) as are being contested in
good faith by proper proceedings for which adequate reserves are being maintained in accordance with
GAAP.
6.15 Compliance with Law.
Each member of the Consolidated Group is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
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6.16 ERISA.
(a) Except as could not reasonably be expected to have a Material Adverse Effect:
(i) Each Plan is in compliance with the applicable provisions of ERISA, the
Internal Revenue Code and other federal or state Laws. Each Plan that is intended to
qualify under Section 401(a) of the Internal Revenue Code has received a favorable
determination letter (or an opinion letter upon which the Credit Parties are entitled to rely)
from the IRS or an application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Credit Parties, nothing has occurred which
would prevent, or cause the loss of, such qualification. The Credit Parties and each ERISA
Affiliate have made all required contributions to each Plan subject to Section 412 of the
Internal Revenue Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412, Section 430 or Section 431 of the Internal
Revenue Code has been made with respect to any Plan.
(ii) There are no pending or, to the best knowledge of the Credit Parties,
threatened claims, actions or lawsuits, or action by any Governmental Authority, with
respect to any Plan. There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan.
(iii) (A) No ERISA Event currently exists and, to the knowledge of any
Responsible Officer, no event or condition has occurred or exists as a result of which any
ERISA Event is reasonably expected to occur with respect to any Plan; (B) the minimum
required contribution (as defined in Section 430(a) of the Internal Revenue Code) has been
made for each Plan; (C) neither the Credit Parties nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability under Title IV of ERISA with respect to
any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (D)
neither the Credit Parties nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any material liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such material liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (E) neither the Credit Parties
nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.
(iv) The actuarial present value of all “benefit liabilities” (as defined in Section
4001(a)(16) of ERISA), whether or not vested, under each Single Employer Plan, as of the
last annual valuation date prior to the date on which this representation is made or deemed
made (determined, in each case, in accordance with Financial Accounting Standards Board
Statement 87, utilizing the actuarial assumptions used in such Plan’s most recent actuarial
valuation report), did not exceed as of such valuation date the fair market value of the assets
of such Plan by more than a material amount.
(v) No member of the Consolidated Group nor any ERISA Affiliate has any
material liability with respect to “expected post-retirement benefit obligations” within the
meaning of the Financial Accounting Standards Board Statement 106. Each Plan which is
“an employee welfare benefit plan” (as defined in Section 3(1) of ERISA) maintained by
the Parent or any ERISA Affiliate to which Sections 601-609 of ERISA and Section 4980B
of the Internal Revenue Code apply has been administered in compliance in all material
respects of such sections.
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To the extent any of the foregoing representations include Multiemployer Plans or Multiple
Employer Plans, each such representation shall be based on the knowledge of any Responsible
Officer.
(b) The Parent represents and warrants, as of the Closing Date, that neither the Parent
nor any ERISA Affiliate is (i) an employee benefit plan subject to Title I of ERISA, (ii) a plan or
account subject to Section 4975 of the Internal Revenue Code, (iii) an entity deemed to hold “plan
assets” of any such plans or accounts for purposes of ERISA or the Internal Revenue Code, or (iv)
a “governmental plan” within the meaning of ERISA.
6.17 Subsidiaries.
(a) Set forth on Schedule 6.17 is each Subsidiary of the Parent, including the
jurisdiction of organization, ownership and ownership percentages thereof. The outstanding shares
of Capital Stock of each Subsidiary have been validly issued, fully paid and are non-assessable and
owned free of Liens other than Permitted Liens. The outstanding shares of Capital Stock of each
Subsidiary are owned by the Person(s) identified on Schedule 6.17, directly or indirectly.
(b) The Non-Guarantor Subsidiaries, as a group, do not exceed the Threshold
Requirement.
6.18 Use of Proceeds; Margin Stock.
(a) The proceeds of the Revolving Loans and other Extensions of Credit shall be used
on the Closing Date solely (i) to refinance all Indebtedness outstanding under the Existing Credit
Agreement, and (ii) to pay fees and expenses in connection with the closing of the transactions
contemplated by this Credit Agreement. Thereafter, the proceeds of the Revolving Loans and other
Extensions of Credit (other than the Term Loans) shall be used from time to time solely to finance
working capital, capital expenditures and other general corporate purposes (including, without
limitation, Acquisitions (including, without limitation, the Closing Date Acquisition) permitted
hereunder) of the Parent and its Subsidiaries (to the extent not inconsistent with the Credit Parties’
covenants and obligations under this Credit Agreement and the other Credit Documents). The
proceeds of the Term Loans shall be used on the Term Facility Funding Date solely (i) to finance,
in part, the Closing Date Acquisition (or, to the extent the Borrowers have elected to fund the
acquisition consideration required to consummate the Closing Date Acquisition with the proceeds
of Revolving Loans, to repay the Revolving Loans which were used to consummate the Closing
Date Acquisition), and (ii) to pay fees and expenses in connection with the consummation of the
Closing Date Acquisition and the funding of the Term Facility as contemplated by this Credit
Agreement.
(b) None of the transactions contemplated by this Credit Agreement (including,
without limitation, the direct or indirect use of the proceeds of the Loans and other Extensions of
Credit) will violate or result in a violation of the Securities Act of 1933, as amended, or the
regulations issued pursuant thereto, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation T, U or X. “Margin Stock” within the meanings
of Regulation U does not constitute more than 25% of the value of the consolidated assets of the
Parent and its Subsidiaries.
6.19 Government Regulation.
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No Credit Party is subject to regulation under the Federal Power Act, the Investment Company Act
of 1940 or the Interstate Commerce Act, each as amended. In addition, no Credit Party is an “investment
company” registered or required to be registered under the Investment Company Act of 1940, as amended,
or is controlled by such a company.
6.20 Environmental Matters.
Except as could not reasonably be expected to have a Material Adverse Effect:
(a) Each of the facilities and properties owned, leased or operated by the members of
the Consolidated Group (the “Subject Properties”) and all operations at the Subject Properties are
in compliance with all applicable Environmental Laws, and there is no violation of any
Environmental Law with respect to the Subject Properties or the businesses operated by the
members of the Consolidated Group (the “Businesses”), and, to the knowledge of any Responsible
Officer, there are no conditions relating to the Businesses or Subject Properties that could give rise
to liability under any applicable Environmental Laws.
(b) None of the Subject Properties contains, or, to the knowledge of any Responsible
Officer, has previously contained, any Hazardous Materials at, on or under the Subject Properties
in amounts or concentrations that constitute or constituted a violation of, or could give rise to
liability under, Environmental Laws.
(c) None of the members of the Consolidated Group has received any written notice
of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-
compliance, liability or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Subject Properties or the Businesses, nor does any
Responsible Officer of any member of the Consolidated Group have knowledge or reason to believe
that any such notice will be received or is being threatened.
(d) Hazardous Materials have not been transported or disposed of from the Subject
Properties, or generated, treated, stored or disposed of at, on or under any of the Subject Properties
or any other location, in each case by or on behalf of any members of the Consolidated Group in
violation of, or in a manner that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is pending or, to
the knowledge of any Responsible Officer, threatened, under any Environmental Law to which any
member of the Consolidated Group is or will be named as a party, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect to any member of the
Consolidated Group, the Subject Properties or the Businesses.
(f) There has been no release, or threat of release, of Hazardous Materials at or from
the Subject Properties, or arising from or related to the operations (including, without limitation,
disposal) of any member of the Consolidated Group in connection with the Subject Properties or
otherwise in connection with the Businesses, in violation of or in amounts or in a manner that could
give rise to liability under Environmental Laws.
6.21 Intellectual Property, Franchises, etc.
Except as could not reasonably be expected to have a Material Adverse Effect:
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(a) Each member of the Consolidated Group owns, or has the legal right to use, all
trademarks, tradenames, copyrights, patents, technology, know-how and processes, if any, that are
necessary for the operation of its business as presently conducted and as proposed to be conducted
(the “Intellectual Property”). No claim is pending by any Person challenging or questioning the
use of any Intellectual Property or the validity or effectiveness of any Intellectual Property, and, to
the knowledge of any Responsible Officer, no such claim has been asserted. The use of Intellectual
Property by the members of the Consolidated Group does not infringe on the rights of any Person.
(b) Each member of the Consolidated Group has obtained all material licenses,
permits, franchises or other certifications, consents, approvals and authorizations, governmental or
private, necessary to the ownership of its Property and to the conduct of its business.
6.22 Investments.
No member of the Consolidated Group has any Investments except for Permitted Investments.
6.23 No Material Misstatements.
None of the information, reports, financial statements, exhibits or schedules, taken as a whole,
furnished by or on behalf of any member of the Consolidated Group to the Administrative Agent or any
Bank in connection with the negotiation of the Credit Documents or included therein or delivered pursuant
thereto contained any material misstatement of fact or omitted to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not materially misleading
(as modified or supplemented by other information so furnished); provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each Credit Party represents only that it acted in good faith and utilized assumptions believed
to be reasonable at the time and due care in the preparation of such information, report, financial statement,
exhibit or schedule; it being understood that such forecasts or projections, as to future events, are not to be
viewed as facts, that actual results during the period or periods covered by any such forecasts or projections
may differ significantly from the projected results and that such differences may be material and that such
forecasts or projections are not a guarantee of financial performance; provided, further, that no
representation is made with respect to information of a general economic or general industry nature.
6.24 Labor Matters.
Except as could not reasonably be expected to have a Material Adverse Effect, (a) there are no
strikes or lockouts against any member of the Consolidated Group pending or, to the knowledge of any
Responsible Officer, threatened; (b) the hours worked by and payments made to employees of each member
of the Consolidated Group 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; (c) all payments due from each member of the
Consolidated Group, or for which any claim may be made against any member of the Consolidated Group,
on account of wages and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the respective member of the Consolidated Group; and (d) no member
of the Consolidated Group is party to a collective bargaining agreement.
6.25 Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions.
(a) None of the Parent, any Subsidiary or, to the knowledge of the Parent or any
Subsidiary, any of their Related Parties, is (i) an “enemy” or an “ally of the enemy” within the
meaning of Section 2 of the Trading with the Enemy Act of the United States (50 U.S.C. App. §§
1 et seq.), or (ii) in violation of any Anti-Terrorism Law.
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(b) None of the Parent, any Subsidiary, or, to the knowledge of the Parent or any
Subsidiary, any of their Related Parties, (i) is a Sanctioned Person or currently the subject or target
of any Sanctions, or (ii) has taken any action, directly or indirectly, that would result in a violation
by such Persons of any Anti-Corruption Laws.
6.26 EEA Financial Institutions.
No Credit Party is an EEA Financial Institution.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as any Credit Document is in effect or
any amounts payable under any of the Credit Documents are outstanding or any Letter of Credit is
outstanding, and until the Aggregate Commitments shall have terminated:
7.1 Information Covenants.
(a) Annual Financial Statements. The Parent will furnish, or cause to be furnished, to
the Administrative Agent for further distribution to each Bank, as soon as available and in any
event within 95 days (or within five days of such other time period required by the Securities and
Exchange Commission) after the close of each fiscal year of the Parent, a consolidated balance
sheet of the Parent and its Subsidiaries as at the end of such fiscal year, together with related
consolidated statements of income and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year, all in reasonable detail and
examined by KPMG LLP, or other independent certified public accountants of recognized national
standing reasonably acceptable to the Administrative Agent and whose opinion shall be to the effect
that such consolidated financial statements have been prepared in accordance with GAAP applied
on a consistent basis (except for changes with which such accountants concur) and reported on
without a “going concern” or like qualification or exception, or qualification indicating that the
scope of the audit was inadequate to permit such independent certified public accountants to certify
such financial statements without such qualification.
(b) Quarterly Financial Statements. The Parent will furnish, or cause to be furnished,
to the Administrative Agent for further distribution to each Bank, as soon as available and in any
event within 50 days (or within five days of such other time period required by the Securities and
Exchange Commission) after the end of each of the first three fiscal quarters of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries as at the end of such fiscal quarter,
together with related consolidated statements of income for such fiscal quarter and for the portion
of the fiscal year ending with such period, and a consolidated statement of cash flows for the portion
of the fiscal year ending with such period, and in each case setting forth in comparative form
consolidated figures for the corresponding period of the preceding fiscal year (except that the
consolidated balance sheets shall be compared to the prior year end), and all in reasonable form
and detail acceptable to the Required Banks, and accompanied by a certificate of a Financial Officer
of the Parent, to the effect that, to the best of his or her knowledge and belief, all such financial
statements present fairly in all material respects the financial condition of the Parent and its
Subsidiaries and have been prepared in accordance with GAAP applied on a consistent basis,
subject to changes resulting from normal year-end audit adjustments.
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(c) Officer’s Certificate. The Parent will furnish, or cause to be furnished, to the
Administrative Agent for further distribution to each Bank, at the time of delivery of the financial
statements provided for in Sections 7.1(a) and (b), a certificate of a Financial Officer of the Parent
substantially in the form of Schedule 7.1(c) to the effect that no Default or Event of Default exists,
or if any Default or Event of Default does exist specifying the nature and extent thereof and what
action the Borrowers or the Parent proposes to take with respect thereto. In addition, the officer’s
certificate shall demonstrate compliance with the financial covenants contained in Section 7.10 by
calculation thereof as of the end of each such fiscal period.
(d) Accountant’s Certificate. The Parent will furnish, or cause to be furnished, to the
Administrative Agent for further distribution to each Bank, within the period for delivery of the
annual financial statements provided in Section 7.1(a), a certificate of the accountants conducting
the annual audit stating that they have reviewed this Credit Agreement and stating further whether,
in the course of their audit, they have become aware of any Default or Event of Default arising as
a result of a violation of the financial covenants contained in Section 7.10 and, if any such Default
or Event of Default exists, specifying the nature and extent thereof.
(e) SEC and Other Material Reports. Promptly upon transmission or receipt thereof,
the Credit Parties will furnish, or cause to be furnished, to the Administrative Agent for further
distribution to each Bank, (i) copies of all registration statements (excluding the exhibits thereto
and any registration statements on Form S-8 or its equivalent), reports on Forms 10-K, 10-Q and
8-K (or their equivalents) and all other periodic reports which any member of the Consolidated
Group shall file with the Securities and Exchange Commission, or any successor agency and (ii)
copies of all material reports and written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local agency responsible for
health and safety matters, or any successor agencies or authorities concerning environmental, health
or safety matters.
Documents required to be delivered pursuant to clauses (a), (b) and (e) of this Section 7.1
(to the extent any such documents are included in materials otherwise filed with the Securities and
Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Parent posts such documents, or provides a link
thereto on the Parent’s website on the Internet at xxxx://xxxxx-xxxxx.xxx or any other website
address provided to the Administrative Agent by the Parent; or (ii) on which such documents are
posted on the Parent’s behalf on an Internet or intranet website, if any, to which each Bank and the
Administrative Agent have access (whether a commercial, third-party website or sponsored by the
Administrative Agent); provided that, upon the Administrative Agent’s request, the Parent shall
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. The Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Parent with any such request for delivery, and each Bank shall be
solely responsible for maintaining its copies of such documents.
The Credit Parties hereby acknowledge that (A) the Administrative Agent and/or the
Arrangers will make available to the Banks, including the Swingline Bank and each Issuing Bank,
materials and/or information provided by or on behalf of the Credit Parties hereunder (collectively,
“Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar
electronic system (the “Platform”) and (B) certain of the Banks may be “public-side” Banks (i.e.,
Banks that do not wish to receive material non-public information with respect to the Credit Parties
or their securities) (each, a “Public Bank”). The Credit Parties hereby agree that they will use
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commercially reasonable efforts to identify that portion of the Borrower Materials that may be
distributed to the Public Banks and that (1) all such Borrower Materials shall be clearly and
conspicuously marked “PUBLIC,” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (2) by marking Borrower Materials “PUBLIC,” the
Credit Parties shall be deemed to have authorized the Administrative Agent, the Arrangers, the
Swingline Bank, the Issuing Banks and the Banks to treat such Borrower Materials as not
containing any material non-public information (although it may be sensitive and proprietary) with
respect to the Credit Parties or their securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.14); (3) all Borrower Materials marked
“PUBLIC” are permitted to be made available through a portion of the Platform designated for
Public Banks; and (4) the Administrative Agent and the Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Bank.”
(f) Notice of Default or Litigation. Upon any Responsible Officer obtaining
knowledge thereof, the Borrower Representative will give written notice to the Administrative
Agent (i) immediately, but in any event within three (3) Business Days, of the occurrence of an
event or condition consisting of a Default or Event of Default, specifying the nature and existence
thereof and what action the Borrowers or the Parent proposes to take with respect thereto, and (ii)
promptly, but in any event within five (5) Business Days, of the occurrence of any of the following
with respect to any member of the Consolidated Group: (A) the pendency or commencement of
any litigation, arbitration or governmental proceeding against any member of the Consolidated
Group which if adversely determined could reasonably be expected to have a Material Adverse
Effect, (B) the occurrence of an event or condition which shall constitute a default or event of
default under any Indebtedness of any member of the Consolidated Group which, if accelerated as
a result of such event of default could reasonably be expected to have a Material Adverse Effect,
or (C) any development in its business or affairs which has resulted in, or which any Credit Party
reasonably believes may result in, a Material Adverse Effect.
(g) ERISA. Upon any Responsible Officer obtaining knowledge thereof, the
Borrower Representative will give written notice to the Administrative Agent promptly (and in any
event within ten (10) Business Days) of: (i) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or might reasonably lead to, an ERISA Event; (ii) with
respect to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or otherwise of
any withdrawal liability assessed against the Credit Parties or any ERISA Affiliate, or of a
determination that any Multiemployer Plan is insolvent (within the meaning of Title IV of ERISA)
which, in either case, could result in a liability of at least $15,000,000; (iii) the failure to make full
payment on or before the due date (including extensions) thereof of all amounts which any member
of the Consolidated Group or any ERISA Affiliate is required to contribute to each Plan pursuant
to its terms and as required to meet the minimum funding standard set forth in ERISA and the
Internal Revenue Code with respect thereto which could result in a liability of at least $15,000,000;
or (iv) any change in the funding status of any Plan that could reasonably be expected to have a
Material Adverse Effect, together with a description of any such event or condition or a copy of
any such notice and a statement by a Responsible Officer of the Parent briefly setting forth the
details regarding such event, condition, or notice, and the action, if any, which has been or is being
taken or is proposed to be taken by the Credit Parties with respect thereto. Promptly upon request,
the Credit Parties shall furnish the Administrative Agent and the Banks with such additional
information concerning any Plan as may be reasonably requested, including, but not limited to,
copies of each annual report/return (Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor and/or the Internal Revenue Service
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pursuant to ERISA and the Internal Revenue Code, respectively, for each “plan year” (within the
meaning of Section 3(39) of ERISA).
(h) Environmental.
(i) Upon the reasonable written request of the Administrative Agent
following the occurrence of any event or the discovery of any condition which the
Administrative Agent or the Required Banks reasonably believe has caused (or could
reasonably be expected to cause) the representations and warranties set forth in Section
6.20 to be untrue in any material respect, the Credit Parties will furnish or cause to be
furnished to the Administrative Agent, at the Credit Parties’ expense, a report of an
environmental assessment of reasonable scope, form and depth (including, where
appropriate, invasive soil or groundwater sampling) by a consultant reasonably acceptable
to the Administrative Agent as to the nature and extent of the presence of any Hazardous
Materials on any Subject Properties and as to the compliance by any member of the
Consolidated Group with Environmental Laws at such Subject Properties. If the Credit
Parties fail to deliver such an environmental report within seventy-five (75) days after
receipt of such written request then the Administrative Agent may arrange for the same,
and the members of the Consolidated Group hereby grant to the Administrative Agent and
its representatives access to the Subject Properties to reasonably undertake such an
assessment (including, where appropriate, invasive soil or groundwater sampling). The
reasonable cost of any assessment arranged for by the Administrative Agent pursuant to
this provision will be payable by the Credit Parties on demand.
(ii) The members of the Consolidated Group will conduct and complete all
investigations, studies, sampling, and testing and all remedial, removal, and other actions
necessary to address all Hazardous Materials on, from or affecting any of the Subject
Properties to the extent necessary to be in compliance with all Environmental Laws and
with the validly issued orders and directives of all Governmental Authorities with
jurisdiction over such Subject Properties to the extent any failure could reasonably be
expected to have a Material Adverse Effect.
(i) Other Information. With reasonable promptness upon any such request, the
Borrower Representative will furnish, or cause to be furnished, to the Administrative Agent for
further distribution to the Banks, (i) such other information regarding the business, properties or
financial condition of the Parent and its Subsidiaries as the Administrative Agent or any Bank may
reasonably request and (ii) such other information with documentation required by bank regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations (including, without limitation, the USA PATRIOT Act), as from time to time may be
reasonably requested by the Administrative Agent or such Bank.
7.2 Preservation of Existence and Franchises.
(a) Except as otherwise permitted under Section 8.4 or Section 8.5, each Credit Party
will do all things necessary to preserve and keep in full force and effect its existence.
(b) Except as otherwise permitted under Section 8.4 or Section 8.5 and except as could
not reasonably be expected to have a Material Adverse Effect, each Credit Party will cause each
Subsidiary do all things necessary to preserve and keep in full force and effect its existence.
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(c) Except as otherwise permitted under Section 8.4 or Section 8.5 and except as could
not reasonably be expected to have a Material Adverse Effect, each Credit Party will, and will cause
each of its Subsidiaries to, do all things necessary to preserve and keep in full force and effect its
rights, franchises and authority for the normal conduct of its business.
7.3 Books, Records and Inspections.
(a) Each Credit Party will, and will cause each of its Subsidiaries to, keep complete
and accurate books and records of its transactions in accordance with good accounting practices on
the basis of GAAP applied on a consistent basis (including the establishment and maintenance of
appropriate reserves).
(b) Each Credit Party will, and will cause each of its Subsidiaries to, permit, upon
reasonable notice and during normal business hours, officers or designated representatives of the
Administrative Agent or any Bank (including, without limitation, independent accountants, agents,
attorneys and appraisers) to visit and inspect its Property, including its books of account and
records, its accounts receivable and inventory, its facilities and other business assets, and to discuss
the affairs, finances and accounts of such Person with, and be advised as to the same by, the officers,
directors and independent accountants of such Person, provided that, excluding any such visits and
inspections during the continuation of an Event of Default, only the Administrative Agent on behalf
of the Banks may exercise rights under this Section 7.3(b) and the Administrative Agent shall not
exercise such rights more often than two (2) times during any calendar year absent the existence of
an Event of Default and only one (1) such time shall be at the Borrowers’ expense.
7.4 Compliance with Law.
Each Credit Party will, and will cause each of its Subsidiaries to, comply with all Requirements of
Law to the extent that noncompliance could reasonably be expected to have a Material Adverse Effect.
7.5 Payment of Taxes and Other Indebtedness.
Each Credit Party will, and will cause each of its Subsidiaries to, pay and discharge (a) all taxes,
assessments and governmental charges or levies imposed upon it, or upon its income or profits, or upon any
of its Property, before they shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien or charge upon any of its properties, and
(c) except as prohibited hereunder, all of its other Indebtedness as it shall become due; provided, however,
that no member of the Consolidated Group shall be required to pay any such tax, assessment, charge, levy,
claim or Indebtedness which is being contested in good faith by appropriate proceedings for which adequate
reserves therefor have been established in accordance with GAAP, unless the failure to make any such
payment (i) shall give rise to an immediate right to foreclosure on a Lien securing such amounts or (ii)
otherwise could reasonably be expected to have a Material Adverse Effect.
7.6 Insurance.
Each Credit Party will, and will cause each of its Subsidiaries to, at all times maintain in full force
and effect insurance (including worker’s compensation insurance, liability insurance, casualty insurance
and business interruption insurance) with financially sound and reputable insurance companies in such
amounts, covering such risks and liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice. Each Credit Party will, and will cause each of its Subsidiaries
to, furnish to the Administrative Agent and the Banks, upon written request, full information as to insurance
carried.
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7.7 Maintenance of Property.
Each Credit Party will, and will cause each of its Subsidiaries to, maintain and preserve its Property
used or useful in any material portion of its business in good repair, working order and condition, normal
wear and tear, obsolescence and replacement excepted, and will make, or cause to be made, from time to
time all repairs, renewals, replacements, extensions, additions, betterments and improvements to its
Property as may be needed or proper, to the extent and in the manner customary for companies in similar
businesses, provided, that nothing in this Section 7.7 shall prevent any Credit Party from discontinuing the
operations, maintenance or preservation of its Property or any of those of its Subsidiaries if such
discontinuation is, in the reasonable commercial judgment of such Credit Party, desirable in the conduct of
its business and does not in the aggregate have a Material Adverse Effect.
7.8 Performance of Obligations.
Each Credit Party will, and will cause each of its Subsidiaries to, perform all of its obligations
(including, except as may be otherwise prohibited or contemplated hereunder, payment of Indebtedness in
accordance with its terms) under the terms of all agreements, indentures, mortgages, security agreements
or other debt instruments to which it is a party or by which it is bound if the failure to do so could reasonably
be expected to have a Material Adverse Effect.
7.9 Use of Proceeds.
Each Credit Party will, and will cause each of its Subsidiaries to, use the proceeds of the Extensions
of Credit solely for the purposes set forth in Section 6.18(a).
7.10 Financial Covenants.
(a) Consolidated Total Leverage Ratio. As of the end of each fiscal quarter of the
Parent, the Credit Parties shall cause the Consolidated Total Leverage Ratio to be less than or equal
to 3.50:1.00; provided, however, that the Parent may request, up to two times during the term of
this Credit Agreement and following a Material Acquisition, an increase in the ratio level set forth
above to 4.00:1.00 (the “Ratio Increase”); provided, further, that any such request for a Ratio
Increase must be made no later than the date by which the Borrowers are required to provide the
quarterly or annual compliance certificate and related financial statements in accordance with the
provisions of Sections 7.1(a) and (b), as appropriate, for the quarter in which the Material
Acquisition was consummated (or, if applicable, for the last quarter in which any Acquisition
included in the Material Acquisition was consummated); provided, further, that the Ratio Increase
shall only be in effect for four consecutive quarters following the consummation of such Material
Acquisition (or, if applicable, following the consummation of the final Acquisition included in the
Material Acquisition) after which the ratio level initially set forth above will revert back to
3.50:1.00.
(b) Consolidated Interest Coverage Ratio. As of the end of each fiscal quarter of the
Parent, the Credit Parties shall cause the Consolidated Interest Coverage Ratio to be greater than
or equal to 3.00:1.00.
7.11 Additional Credit Parties.
(a) Additional Subsidiaries. If upon the delivery of the financial statements pursuant
to Section 7.1(a) or (b), the Non-Guarantor Subsidiaries (other than Xxxxx & Minor Healthcare
Supply Inc. and Access Diabetic Supply, LLC) shall, as a group, (i) account for more than ten
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percent (10%) of the gross revenues of the members of the Consolidated Group (other than
Securitization Subsidiaries) on a consolidated basis determined in accordance with GAAP, (ii)
account for more than ten percent (10%) of net income of the members of the Consolidated Group
(other than Securitization Subsidiaries) on a consolidated basis determined in accordance with
GAAP, or (iii) hold more than ten percent (10%) of Consolidated Total Assets (each a “Threshold
Requirement”), then the Borrower Representative will (A) promptly notify the Administrative
Agent thereof, (B) within 45 days (or such later date as the Administrative Agent may agree in its
sole discretion) thereafter, cause one or more of the Non-Guarantor Subsidiaries to become a
“Guarantor” hereunder by way of execution of a Joinder Agreement such that immediately
thereafter the remaining Non-Guarantor Subsidiaries shall not, as a group, exceed any Threshold
Requirement and (C) deliver such other documentation as the Administrative Agent may
reasonably request in connection with the foregoing, including, without limitation, certified
resolutions and other organizational and authorizing documents of such Person, good standing
certificates and favorable opinions of counsel to such Person, all in form, content and scope
reasonably satisfactory to the Administrative Agent. The Borrower Representative may at any
time, at its option, cause a Non-Guarantor Subsidiary to execute and deliver to the Administrative
Agent a Joinder Agreement and, in connection therewith, such Person shall be required to deliver
such other documentation as the Administrative Agent may reasonably request, including, without
limitation, certified resolutions and other organizational and authorizing documents of such Person,
good standing certificates and favorable opinions of counsel to such Person, all in form, content
and scope reasonably satisfactory to the Administrative Agent.
(b) Guaranties Relating to Other Debt. If any Non-Guarantor Subsidiary shall give a
guaranty or become obligated under Support Obligations relating to any Indebtedness, the
Borrower Representative will (i) promptly notify the Administrative Agent thereof and (ii) within
45 days (or such later date as the Administrative Agent may agree in its sole discretion) thereafter,
cause such Non-Guarantor Subsidiaries to become a “Guarantor” hereunder by way of execution
of a Joinder Agreement and, in connection therewith, deliver such other documentation as the
Administrative Agent may reasonably request, including, without limitation, certified resolutions
and other organizational and authorizing documents of such Person, good standing certificates and
favorable opinions of counsel to such Person, all in form, content and scope reasonably satisfactory
to the Administrative Agent.
7.12 Anti-Terrorism Laws; Anti-Corruption Laws; Sanctions.
Each Credit Party will, and will cause each of its Subsidiaries to, (a) conduct its business in
compliance with any Anti-Terrorism Laws, any Anti-Corruption Laws and Sanctions, and (b) maintain
policies and procedures designed to promote and achieve compliance with such Anti-Terrorism Laws, such
Anti-Corruption Laws and applicable Sanctions.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as any Credit Document is in effect or
any amounts payable under any of the Credit Documents are outstanding or any Letter of Credit is
outstanding, and until the Aggregate Commitments shall have terminated:
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8.1 Indebtedness.
The Credit Parties will not permit any member of the Consolidated Group to contract, create, incur,
assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the other Credit Documents;
(b) Indebtedness existing as of the Closing Date and set forth on Schedule 8.1(b) (and
renewals, refinancings or extensions thereof on terms and conditions no less favorable to the
members of the Consolidated Group than such existing Indebtedness (taking into account
reasonable market conditions existing at such time) and in a principal amount not in excess of that
outstanding as of the date of such renewal, refinancing or extension);
(c) Indebtedness (including purchase money Indebtedness and obligations under
Capital Leases) incurred to finance the purchase or lease of fixed assets; provided that (i) the total
of all such Indebtedness shall not exceed an aggregate principal amount of $75,000,000 at any one
time outstanding; (ii) such Indebtedness when incurred shall not exceed the purchase price of the
asset financed; and (iii) no such Indebtedness shall be refinanced for a principal amount in excess
of the principal balance outstanding thereon at the time of such refinancing;
(d) Indebtedness (other than for borrowed money) subject to Permitted Liens;
(e) unsecured intercompany Indebtedness owing by a Credit Party to another Credit
Party (subject to the limitations set forth in Section 8.6 in the case of the Credit Party extending the
Indebtedness);
(f) Indebtedness of Securitization Subsidiaries under Qualified Securitization
Transactions in an aggregate principal amount not to exceed $500,000,000 at any time outstanding;
(g) obligations (contingent or otherwise) existing or arising under any Swap Contract;
provided that (i) such obligations are (or were) entered into by such Person in the ordinary course
of business for the purpose of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person, and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the defaulting party;
(h) (i) unsecured Funded Debt under the Senior Notes, and (ii) other unsecured Funded
Debt of the members of the Consolidated Group; provided that the Borrowers shall be in
compliance with the financial covenants in Section 7.10 on a Pro Forma Basis after giving effect
to the incurrence of such other unsecured Funded Debt;
(i) except as expressly provided otherwise herein, Support Obligations of any member
of the Consolidated Group with respect to any Indebtedness of any member of the Consolidated
Group permitted under this Section 8.1;
(j) 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;
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(k) other secured Indebtedness of any member of the Consolidated Group which does
not exceed in the aggregate at any time outstanding the greater of (i) $50,000,000 and (ii) as of the
time of incurrence, 2.5% of Consolidated Total Assets; and
(l) secured indebtedness consisting of obligations secured by cash deposits not to
exceed $25,000,000 in the aggregate at any time outstanding for the purpose of collateralizing
certain financial obligations under workers’ compensation, unemployment insurance and other
types of social security in the ordinary course.
8.2 Liens.
The Credit Parties will not permit any member of the Consolidated Group to contract, create, incur,
assume or permit to exist any Lien with respect to any of its Property, whether now owned or after acquired,
except for Permitted Liens.
8.3 Nature of Business.
The Credit Parties will not permit any member of the Consolidated Group to substantively alter the
character of its business in any material respect from that conducted as of the Closing Date.
8.4 Consolidation, Merger, Sale or Purchase of Assets, etc.
(a) The Credit Parties will not permit any member of the Consolidated Group to enter
into any transaction of merger or consolidation, except that:
(i) a member of the Consolidated Group may be party to a transaction of
merger or consolidation with another member of the Consolidated Group; provided that
(A) if the Parent is a party to such transaction, no Borrower shall be a party to such
transaction and the Parent shall be the surviving entity, (B) if any U.S. Borrower is a party
to such transaction, the Parent shall not be a party to such transaction, a U.S. Borrower
shall be the surviving entity, and the surviving U.S. Borrower shall expressly assume the
obligations of any Borrower ceasing to exist as a result of such transaction pursuant to
documents reasonably acceptable to the Administrative Agent, (C) if any Foreign Borrower
is a party to such transaction (other than any transaction contemplated by the foregoing
clause (B)), none of the Parent, any U.S. Borrower or any Guarantor shall be a party to
such transaction, a Foreign Borrower shall be the surviving entity, and the surviving
Foreign Borrower shall expressly assume the obligations of any Foreign Borrower ceasing
to exist as a result of such transaction pursuant to documents reasonably acceptable to the
Administrative Agent, (D) if a Guarantor is a party to such transaction and no Borrower is
a party to such transaction, a Guarantor shall be the surviving entity, and (E) in all other
cases, if a Domestic Subsidiary is a party to such transaction, a Domestic Subsidiary shall
be the surviving entity and such Domestic Subsidiary shall take such actions as may be
necessary for compliance with the provisions of Section 7.11;
(ii) a Subsidiary may be a party to a transaction of merger or consolidation
with a Person other than a member of the Consolidated Group; provided that (A) the
surviving entity shall be a Subsidiary and shall take such actions as may be necessary for
compliance with the provisions of Section 7.11, (B) no Default or Event of Default shall
exist immediately after giving effect thereto, and (C) the transaction shall otherwise be
permitted under Section 8.4(b) and shall be effectuated in accordance with Section 8.4(a)(i)
(to the extent applicable); and
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(iii) a Subsidiary may enter into a transaction of merger or consolidation in
connection with an Asset Disposition permitted under Section 8.5 so long as such merger
or consolidation would otherwise be permitted pursuant to this Section 8.4(a).
(b) No member of the Consolidated Group shall make any Acquisition (other than the
Closing Date Acquisition), unless:
(i) if the Acquisition is of Capital Stock of another Person and after giving
effect to the Acquisition the Person that is the subject of the Acquisition will not be a
Subsidiary, the Acquisition is permitted under Section 8.6 (other than by reference to this
Section 8.4 (or any clause hereof)); and
(ii) if (A) the Acquisition is of Capital Stock of another Person and after giving
effect to the Acquisition the Person that is the subject of the Acquisition will be a
Subsidiary or (B) the Acquisition is of all or substantially all of the Property of another
Person, in each case, the Acquisition meets the following conditions:
(I) the Person or Property which is the subject of such
Acquisition shall be in the same or similar line of business (or related
thereto) as the members of the Consolidated Group which are parties
thereto;
(II) in the case of a merger or consolidation, and in other cases
where appropriate, the board of directors or other governing body of the
other Person which is the subject of the transaction of merger or
consolidation shall have approved such Acquisition;
(III) no Default or Event of Default shall exist immediately
after giving effect to such Acquisition;
(IV) a Financial Officer of the Parent shall have delivered to
the Administrative Agent a Pro Forma Compliance Certificate
demonstrating that, upon giving effect to such Acquisition on a Pro Forma
Basis, the Credit Parties shall be in compliance with all of the covenants
set forth in Section 7.10;
(V) if the Acquisition involves an interest in a partnership and
a requirement that a member of the Consolidated Group be a general
partner, the general partner shall be a newly formed special purpose
Subsidiary; and
(VI) the Credit Parties shall, and shall cause the party which is
the subject of the Acquisition to, take such actions as may be necessary for
compliance with the provisions of Section 7.11.
8.5 Asset Dispositions.
The Credit Parties will not permit any member of the Consolidated Group to make any Asset
Disposition, except:
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(a) the sale, lease or other disposition to another Credit Party or a Domestic Subsidiary
(other than any Securitization Subsidiary);
(b) the sale, lease or disposition of machinery and equipment if the proceeds of such
sale, lease or other disposition are reinvested within one hundred eighty (180) days in the same or
similar Property or otherwise in assets (other than current assets) that are used or useful in the
Consolidated Group’s business;
(c) in all other cases,
(i) other than in connection with a Permitted Asset Swap, at least seventy-
five percent (75%) of the consideration paid therefor shall consist of a combination of (A)
cash or Cash Equivalents, (B) the assumption by the purchaser of liabilities of the Credit
Parties (other than liabilities that are by their terms subordinated to the prior payment of
the Obligations) as a result of which the Credit Parties are no longer obligated with respect
to such liabilities, or (C) any securities, notes, obligations or other assets received by the
Credit Parties that are converted by the Credit Parties into cash (to the extent of the cash
received) within 90 days after receipt,
(ii) to the extent that the Parent (A) is not rated at least Investment Grade, the
aggregate net market value of all Asset Dispositions (including, without limitation,
pursuant to a Permitted Asset Swap) during any fiscal year shall not exceed the greater of
(I) 15% of Consolidated Total Assets and (II) the aggregate amount of Asset Dispositions
completed during such fiscal year prior to the loss of Investment Grade status (or agreed to
be completed pursuant to documentation entered into when the Parent is rated at least
Investment Grade), or (B) is rated at least Investment Grade, Asset Dispositions to the
extent that the Parent determines in good faith that such Asset Dispositions are in the best
interests of the Parent and the Borrowers and are not materially disadvantageous to the
Banks,
(iii) no Default or Event of Default shall exist immediately after giving effect
thereto, and
(iv) the Borrowers shall be in compliance with the financial covenants set forth
in Section 7.10 hereunder on a Pro Forma Basis after giving effect thereto; and
(d) any sales, leases or other dispositions of property in an amount not to exceed
$50,000,000 in the aggregate during the term of this Credit Agreement.
8.6 Advances, Investments and Loans.
The Credit Parties will not permit any member of the Consolidated Group to make any Investment
in or to any Person except for Permitted Investments.
8.7 Amendments Relating to Other Debt.
Without the prior written consent of the Required Banks, the Credit Parties will not permit any
member of the Consolidated Group to, after the issuance thereof, amend or modify, or permit any
amendment to or modification of, any of the terms of any Funded Debt (including any Subordinated Debt)
in a manner materially adverse to the interests of the Banks.
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8.8 Transactions with Affiliates.
The Credit Parties will not permit any member of the Consolidated Group to enter into any
transaction or series of transactions, whether or not in the ordinary course of business, with any officer,
director, shareholder, Subsidiary or Affiliate of such Person other than (a) transactions among the Credit
Parties, (b) reasonable and customary officer, director and employee compensation (including bonuses) and
other benefits (including retirement, health and other benefit plans, and the funding thereof) and the
reimbursement of expenses of officers, directors and employees, (c) transactions relating to a Qualified
Securitization Transaction and (d) except as otherwise specifically limited in this Credit Agreement, other
transactions which are on terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other than an officer, director,
shareholder, Subsidiary or Affiliate and are either entered into in the ordinary course of such Person’s
business or approved by a majority of the Parent’s directors who are disinterested in the transaction.
8.9 Ownership of Subsidiaries.
Except as permitted by Sections 8.4 and 8.5, the Credit Parties will not permit any member of the
Consolidated Group to sell, transfer or otherwise dispose of, any shares of Capital Stock of any Subsidiaries
or permit any Subsidiaries to issue, sell or otherwise dispose of, any shares of Capital Stock of any
Subsidiary to any Person other than the Parent, the Borrowers or a Subsidiary. The Parent and the
Borrowers will not create, form or acquire, nor will it permit any of its Subsidiaries to create, form or
acquire, any Subsidiary, unless the Parent, the Borrowers or such Subsidiary complies with the requirements
of Section 7.11(a).
8.10 Fiscal Year.
The Credit Parties will not permit any member of the Consolidated Group to change its fiscal year
without the prior written consent of the Required Banks or to amend, modify or change its articles of
incorporation (or corporate charter or other similar organizational document) or bylaws (or other similar
document) in a manner materially adverse to the interests of the Banks as determined in good faith by the
Parent.
8.11 Subsidiary Dividends.
The Credit Parties will not permit any member of the Consolidated Group to enter into, assume or
otherwise become subject to, or permit any of their respective Subsidiaries (other than a Securitization
Subsidiary pursuant to a Qualified Securitization Transaction permitted hereunder) to enter into, assume or
otherwise become subject to, any agreement prohibiting or otherwise restricting the payment of dividends
by any of the Parent’s Subsidiaries (other than a Securitization Subsidiary pursuant to a Qualified
Securitization Transaction permitted hereunder).
8.12 Restricted Payments.
The Credit Parties will not make, or permit any member of the Consolidated Group to make, any
Restricted Payment, except:
(a) any member of the Consolidated Group may make Restricted Payments to the
Parent, any other member of the Consolidated Group and any other Person that owns Capital Stock
in such member of the Consolidated Group, ratably according to their respective ownership
interests of the type of Capital Stock in respect of which such Restricted Payment is being made;
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(b) any member of the Consolidated Group may declare and make dividend payments
or other distributions payable solely in the common stock or other common Capital Stock of such
Person;
(c) the Parent shall be permitted to make ordinary cash dividends; provided that no
Default or Event of Default shall exist immediately prior thereto and immediately after giving effect
thereto; and
(d) the Parent shall be permitted to make any other Restricted Payment; provided that
(i) no Default or Event of Default shall exist immediately prior thereto and immediately after giving
effect thereto; and (ii) a Financial Officer of the Parent shall have delivered to the Administrative
Agent a Pro Forma Compliance Certificate (including reaffirmation of the representations and
warranties hereunder as of such date before and after giving effect to such Restricted Payment)
demonstrating that, upon giving effect to such Restricted Payment on a Pro Forma Basis, the Credit
Parties shall be in compliance with all of the covenants set forth in Section 7.10; provided, further,
that if the Consolidated Total Leverage Ratio for the most recently tested fiscal quarter period is
greater than 3.00:1.00, the aggregate amount expended to redeem, repurchase, retire or otherwise
acquire the Parent’s common Capital Stock during the Parent’s then current fiscal year shall not
exceed the greater of (A) $100,000,000 and (B) the aggregate amount of redemptions, repurchases,
retirements or other acquisitions during such fiscal year prior to the Consolidated Total Leverage
Ratio being greater than 3.00:1.00.
This Section 8.12 shall in no way prohibit the Parent from making any Restricted Payment within
sixty (60) days after the date of declaration thereof, if, as of the date of declaration thereof, the Parent would
have been permitted to make such Restricted Payment on such date of declaration pursuant to this Section
8.12.
8.13 Use of Proceeds.
No Credit Party shall use, nor shall it permit any of its Subsidiaries to use, or, to the knowledge of
any Credit Party or any of its Subsidiaries, any Related Party to use, directly or indirectly, any Extension
of Credit or the proceeds thereof (a) in furtherance of an offer, payment, promise to pay, or authorization
of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-
Corruption Laws, except to the extent that no material liability to the Credit Parties or, to their knowledge,
the Administrative Agent or any Bank, would result therefrom, (b) for the purpose of funding, financing or
facilitating any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned
Country or (c) in any manner that would result in the violation of any Sanctions by any Credit Party or, to
the knowledge of the Credit Parties, any other party hereto.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence of any of the following specified events (each
an “Event of Default”):
(a) Payment. Any Credit Party shall:
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(i) default in the payment when due and in the currency required hereunder
of any principal of any of the Loans or of any reimbursement obligations arising from
drawings under Letters of Credit, or
(ii) default, and such default shall continue for three (3) or more Business
Days, in the payment when due and in the currency required hereunder of any interest on
the Loans or on any reimbursement obligations arising from drawings under Letters of
Credit, or of any Fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement made or deemed to be
made by any Credit Party herein, in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any
material respect on the date as of which it was made or deemed to have been made; or
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of any term, covenant or
agreement contained in Sections 7.1(f)(i), 7.2(a), 7.9, or 8.1 through 8.13, inclusive, or
(ii) default in the due performance or observance of any of the financial
covenants contained in Section 7.10 and the continuance thereof for a period of 15 days
after knowledge thereof by a Responsible Officer of the Borrower Representative (but in
no event later than 15 days after the date by which the Borrower Representative is required
to deliver annual or quarterly financial statements in accordance with Sections 7.1(a) and
(b), as appropriate) without the Borrower Representative having obtained an effective
waiver hereunder, or
(iii) default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement or any other Credit Document and such
default shall continue unremedied for a period of at least 30 days after the earlier of a
Responsible Officer becoming aware of such default or notice thereof by the
Administrative Agent; provided, however, that if such default cannot be cured within such
period (other than a default that by its nature cannot be cured), the Borrowers or other
Credit Party may have such additional period of time not to exceed 30 days after the
expiration of such original 30 day period, and such default shall not constitute an Event of
Default hereunder, so long as the applicable Credit Party shall commence within such
original 30 day period, and diligently pursue, appropriate curative efforts; or
(d) Other Credit Documents. Any Credit Document shall fail to be in full force and
effect or to give the Administrative Agent and/or the Banks the Liens, rights, powers and privileges
purported to be created thereby, or any Credit Party shall so state in writing, in any case other than
in accordance with the terms thereof; or
(e) Guaranties. The guaranty given by any Guarantor (including any Additional
Credit Party) hereunder or any material provision thereof shall cease to be in full force and effect,
in any case other than in accordance with the terms thereof, or any Guarantor (including any
Additional Credit Party) or any Person acting by or on behalf of such Guarantor shall deny or
disaffirm such Guarantor’s obligations under such guaranty; or
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(f) Bankruptcy Event. Any Bankruptcy Event shall occur with respect to any
Borrower or any Material Guarantor (including, for purposes of this clause (f), any Subsidiary that
meets the criteria specified for a Material Guarantor but that has not delivered a guaranty
hereunder); or
(g) Defaults under Other Agreements. With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) in excess of $25,000,000 in the aggregate
for the members of the Consolidated Group, taken as a whole, (i) any member of the Consolidated
Group shall (A) default in any payment (beyond the applicable grace period with respect thereto,
if any) with respect to any such Indebtedness, or (B) default in the observance or performance
relating to such Indebtedness or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event or condition shall occur or condition exist, the effect of which
default or other event or condition is to cause, or permit the holder or holders of such Indebtedness
(or trustee or agent on behalf of such holders) to cause, any such Indebtedness to become due prior
to its stated maturity; or (ii) any such Indebtedness shall be declared due and payable, or required
to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity
thereof; or
(h) Judgments. One or more judgments or decrees shall be entered against any
member of the Consolidated Group involving a liability of $25,000,000 or more in the aggregate
(to the extent not paid or fully covered by insurance provided by a carrier who has acknowledged
coverage) and any such judgments or decrees shall not have been vacated, discharged or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Plan which has resulted or
could reasonably be expected to result in liability of any Borrower or any ERISA Affiliate under
Title IV of ERISA in an aggregate amount in excess of $25,000,000, or (ii) any Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $25,000,000; or
(j) Ownership. There shall occur a Change of Control; or
(k) Default under Senior Notes. The occurrence and continuation of an event of
default under any of the Senior Notes; provided that the principal amount outstanding under any of
the Senior Notes at the time of the occurrence of such event of default is in excess of $25,000,000;
or
(l) Default under Securitization Transaction. The occurrence and continuation of an
event of default under any of the documents representing any Securitization Transaction that
includes remaining obligations or liabilities of the Credit Parties in excess of $25,000,000 at the
time of the occurrence of such event of default.
9.2 Acceleration; Remedies.
Upon the occurrence of an Event of Default, and at any time thereafter unless and until such Event
of Default has been waived by the requisite Banks (pursuant to the voting procedures in Section 11.6) or
cured to the satisfaction of the requisite Banks (pursuant to the voting procedures in Section 11.6), the
Administrative Agent may, and upon the request and direction of the Required Banks shall, by written
notice to the Borrower Representative take any of the following actions without prejudice to the rights of
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the Administrative Agent or any Bank to enforce its claims against the Credit Parties, except as otherwise
specifically provided for herein:
(a) Termination of Commitments. Declare the Commitments terminated and any
obligation of any Issuing Bank to issue Letters of Credit to be terminated, whereupon the
Commitments and such obligations shall be immediately terminated.
(b) Acceleration. Declare the unpaid principal of and any accrued interest in respect
of all Loans, any reimbursement obligations arising from drawings under Letters of Credit and any
and all other indebtedness or obligations of any and every kind owing by the Credit Parties to the
Administrative Agent, the Issuing Banks and/or any of the Banks hereunder to be due whereupon
the same shall be immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Credit Parties to pay (and the Credit Parties agree that
upon receipt of such notice, or upon the occurrence of an Event of Default under Section 9.1(f),
they will immediately pay) to the Administrative Agent additional cash, to be held by the
Administrative Agent, for the benefit of the Banks and the Issuing Banks, in a cash collateral
account as additional security for the LOC Obligations in respect of subsequent drawings under all
then outstanding Letters of Credit in an amount equal to the maximum aggregate amount which
may be drawn under all Letters of Credit then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Credit Documents including, without limitation, all rights and remedies against
a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified in Section 9.1(f) shall occur, then the
Commitments shall automatically terminate, the obligation of each Issuing Bank to issue Letters of Credit
shall automatically terminate, and all Loans, all accrued interest in respect thereof, all accrued and unpaid
Fees and other indebtedness or obligations owing to the Banks hereunder shall immediately become due
and payable without the giving of any notice or other action by the Administrative Agent or the Banks.
SECTION 10
ADMINISTRATIVE AGENT
10.1 Appointment and Authority.
Each of the Banks and each of the Issuing Banks hereby irrevocably appoints Xxxxx Fargo Bank to
act on its behalf as the Administrative Agent hereunder and under the other Credit Documents and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers
as are reasonably incidental thereto. The provisions of this Section are solely for the benefit of the
Administrative Agent, the Banks and the Issuing Banks, and no Credit Party shall have rights as a third
party beneficiary of any of such provisions.
10.2 Rights as a Bank.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Bank as any other Bank and may exercise the same as though it were not the
Administrative Agent and the term “Bank” or “Banks” shall, unless otherwise expressly indicated or unless
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the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in any kind of business with
any Credit Party or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the Banks.
10.3 Exculpatory Provisions.
The Administrative Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Credit Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by
the other Credit Documents that the Administrative Agent is required to exercise as directed in
writing by the Required Banks (or such other number or percentage of the Banks as shall be
expressly provided for herein or in the other Credit Documents); provided that the Administrative
Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any Credit Document or
applicable law; and
(c) shall not, except as expressly set forth herein and in the other Credit Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any information relating
to any Credit Party or any of its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Banks (or such other number or percentage of the Banks as shall
be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 11.6 and 9.2) or (ii) in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative Agent by the Borrower
Representative, a Bank or an Issuing Bank.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(A) any statement, warranty or representation made in or in connection with this Credit Agreement or any
other Credit Document, (B) the contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (C) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any
Default, (D) the validity, enforceability, effectiveness or genuineness of this Credit Agreement, any other
Credit Document or any other agreement, instrument or document or (E) the satisfaction of any condition
set forth in Section 5 or elsewhere herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall not be responsible or have any liability for, or have any duty to
ascertain, inquire into, monitor or enforce, compliance with the provisions of this Credit Agreement relating
to Disqualified Institutions. Without limiting the generality of the foregoing, the Administrative Agent
shall not (1) be obligated to ascertain, monitor or inquire as to whether any Bank or prospective Bank is a
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Disqualified Institution or (2) have any liability with respect to or arising out of any assignment of Loans,
or disclosure of confidential information, to any Disqualified Institution.
10.4 Reliance by Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including
any electronic message, Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance
with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Bank or an Issuing Bank, the Administrative Agent may presume
that such condition is satisfactory to such Bank or such Issuing Bank unless the Administrative Agent shall
have received notice to the contrary from such Bank or such Issuing Bank prior to the making of such Loan
or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who
may be counsel for the Credit Parties), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
10.5 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Credit Document by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory
provisions of this Section shall apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
10.6 Resignation of Administrative Agent.
The Administrative Agent may, and so long as no Default or Event of Default has occurred and is
continuing, shall, at the request of the Borrower Representative, at any time give notice of its resignation
to the Banks, the Issuing Banks and the Borrower Representative. Upon receipt of any such notice of
resignation, the Required Banks shall have the right, with the consent of the Borrowers (such consent not
to be unreasonably withheld), to appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States, and which shall be a U.S. Person.
If no such successor shall have been so appointed by the Required Banks and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Banks and the Issuing Banks, appoint a successor
Administrative Agent, with the consent of the Borrowers (such consent not to be unreasonably withheld),
meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the
Borrower Representative and the Banks that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (a) the retiring
Administrative Agent shall be discharged from its duties and obligations hereunder and under the other
Credit Documents (except that in the case of any collateral security held by the Administrative Agent on
behalf of the Banks or any Issuing Bank under any of the Credit Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to be made by, to or through
the Administrative Agent shall instead be made by or to each Bank and each Issuing Bank directly, until
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such time as the Required Banks appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from
all of its duties and obligations hereunder or under the other Credit Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrowers to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between
the Borrower Representative and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Credit Documents, the provisions of this Section and Section 11.5 shall
continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
Any resignation by Xxxxx Fargo Bank as Administrative Agent pursuant to this Section shall also
constitute its resignation as the Swingline Bank. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Swingline Bank, and (ii) the retiring Swingline Bank
shall be discharged from all of their respective duties and obligations hereunder or under the other Credit
Documents.
10.7 Non-Reliance on Administrative Agent and Other Banks.
Each Bank and each Issuing Bank acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Bank or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision to enter
into this Credit Agreement. Each Bank and each Issuing Bank also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Bank or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this Credit Agreement, any other Credit
Document or any related agreement or any document furnished hereunder or thereunder.
10.8 No Other Duties; Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication
agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Credit
Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the Administrative
Agent, a Bank or an Issuing Bank hereunder.
10.9 Administrative Agent May File Proofs of Claim.
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of
any Loan or LOC Obligation shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made any demand on the
Borrowers) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, LOC Obligations and all other Obligations arising under the
Credit Documents that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Banks, the Issuing Banks and the Administrative
Agent (including any claim for the reasonable compensation, expenses, disbursements and
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advances of the Banks, the Issuing Banks and the Administrative Agent and their respective agents
and counsel and all other amounts due the Banks, the Issuing Banks and the Administrative Agent
under Sections 2.6(f) and (g), 3.5 and 11.5) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Bank and each Issuing Bank to make such payments to
the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments
directly to the Banks and the Issuing Banks, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections 3.5 and 11.5.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Bank or any Issuing Bank any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Bank or any Issuing
Bank to authorize the Administrative Agent to vote in respect of the claim of any Bank or any Issuing Bank
in any such proceeding.
10.10 Guaranty Matters.
Each of the Banks (including in its capacity as party to any Swap Contract between any Credit
Party and any Subsidiary and such Bank (or its Affiliate) and as party to any Treasury Management
Agreement between any Credit Party or any Subsidiary and such Bank (or its Affiliates)) and each of the
Issuing Banks irrevocably authorize the Administrative Agent, at its option and in its discretion, to release
any Guarantor from its obligations under Section 4 if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder, or if the Borrower Representative requests the release of any Guarantor so
long as after giving effect to such release the Non-Guarantor Subsidiaries shall not, as a group, exceed any
Threshold Requirement. Upon request by the Administrative Agent at any time, the Required Banks will
confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under
Section 4, pursuant to this Section 10.10.
SECTION 11
MISCELLANEOUS
11.1 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to any Credit Party, the Administrative Agent, any Issuing Bank or the
Swingline Bank, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 11.1; and
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(ii) if to any other Bank, to the address, telecopier number, electronic mail
address or telephone number specified in its Administrative Questionnaire (including, as
appropriate, notices delivered solely to the Person designated by a Bank on its
Administrative Questionnaire then in effect for the delivery of notices that may contain
material non-public information relating to the Borrowers).
Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if
not given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below, shall
be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Banks and
the Issuing Banks hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices to any Bank or any Issuing Bank
pursuant to Section 2 if such Bank or such Issuing Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Section by electronic
communication. The Administrative Agent or the Borrower Representative may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic communications
pursuant to procedures approved by it; provided that approval of such procedures may be limited
to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt requested” function,
as available, return e-mail or other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next Business
Day for the recipient; and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is available
and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE”. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE
ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF
ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT
OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS,
IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrowers, any Bank,
any Issuing Bank or any other Person for losses, claims, damages, liabilities or expenses of any
kind (whether in tort, contract or otherwise) arising out of the Borrowers’ or the Administrative
Agent’s transmission of Borrower Materials through the Internet, except to the extent that such
losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction
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by a final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have
any liability to the Borrowers, any Bank, any Issuing Bank or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, each
Issuing Bank and the Swingline Bank may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties hereto. Each other Bank
may change its address, telecopier or telephone number for notices and other communications
hereunder by notice to the Borrower Representative, the Administrative Agent, each Issuing Bank
and the Swingline Bank. In addition, each Bank agrees to notify the Administrative Agent from
time to time to ensure that the Administrative Agent has on record (i) an effective address, contact
name, telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Bank. Furthermore, each
Public Bank agrees to cause at least one individual at or on behalf of such Public Bank to at all
times have selected the “Private Side Information” or similar designation on the content declaration
screen of the Platform in order to enable such Public Bank or its delegate, in accordance with such
Public Bank’s compliance procedures and applicable Law, including United States Federal and
state securities Laws, to make reference to Borrower Materials that are not made available through
the “Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrowers or their securities for purposes of United States Federal
or state securities laws.
(e) Reliance by Administrative Agent, Issuing Bank and Banks. The Administrative
Agent, the Issuing Banks and the Banks shall be entitled to rely and act upon any notices (including
telephonic Notice of Loan Borrowing and Notice of Swingline Loan Borrowing) purportedly given
by or on behalf of the Borrower Representative even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Credit Parties shall indemnify the Administrative Agent, each Issuing
Bank, each Bank and the Related Parties of each of them from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly given by or on
behalf of the Borrower Representative. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the Administrative Agent, and
each of the parties hereto hereby consents to such recording.
11.2 Right of Set-Off; Adjustments; Payments Set Aside.
(a) Upon the occurrence and during the continuance of any Event of Default, each
Bank, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by such Bank, such Issuing Bank, or any of their respective Affiliates to or for
the credit or the account of any Credit Party against any and all of the obligations of such Person
now or hereafter existing under this Credit Agreement, under the Notes, under any other Credit
Document or otherwise, irrespective of whether such Bank or such Issuing Bank shall have made
any demand hereunder or thereunder and although such obligations may be unmatured. Each Bank
and each Issuing Bank agrees promptly to notify any affected Credit Party after any such set-off
and application made by such Bank or such Issuing Bank; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application. The rights of each
Bank and each Issuing Bank under this Section 11.2 are in addition to other rights and remedies
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(including, without limitation, other rights of set-off) that such Bank or such Issuing Bank may
have.
(b) To the extent that any payment by or on behalf of any Credit Party is made to the
Administrative Agent, any Issuing Bank or any Bank, or the Administrative Agent, any Issuing
Bank or any Bank exercises its right of setoff, and such payment or the proceeds of such setoff or
any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, such
Issuing Bank or such 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, then (i) to the extent
of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (ii) each Bank and each Issuing Bank severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date
such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time
in effect. The obligations of the Banks and the Issuing Banks under clause (ii) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this Credit
Agreement.
11.3 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Credit Agreement and
the other Credit Documents shall be binding upon and inure to the benefit of the parties hereto and
thereto and their respective successors and assigns permitted hereby, except that the Borrowers
may not assign or otherwise transfer any of their rights or obligations hereunder or thereunder
without the prior written consent of the Administrative Agent and each Bank and no Bank may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any
other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this
Credit Agreement, expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Banks and the Banks) any legal
or equitable right, remedy or claim under or by reason of this Credit Agreement.
(b) Assignments by Banks. Any Bank may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Credit Agreement and the other Credit
Documents (including all or a portion of its Commitments and the Loans (including for purposes
of this subsection (b), participations in LOC Obligations and in Swingline Loans) at the time owing
to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) In the case of an assignment of the entire remaining amount of the
assigning Bank’s Commitment under any facility and/or the related Loans at the
time owing to it or in the case of an assignment to a Bank, an Affiliate of a Bank
or an Approved Fund, no minimum amount need be assigned.
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(B) In any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Bank subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall
not be less than $5,000,000 in the case of any assignment in respect of the
Aggregate Revolving Committed Amount, or $1,000,000 in the case of any
assignment in respect of the Term Facility or any Incremental Term Facility, in
each case unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower Representative otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee Group
and concurrent assignments from members of an Assignee Group to a single
assignee (or to an assignee and members of its Assignee Group) will be treated as
a single assignment for purposes of determining whether such minimum amount
has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Bank’s Loans and Commitments,
and rights and obligations with respect thereto, assigned, except that this clause (ii) shall
not (A) apply to the Swingline Bank’s rights and obligations in respect of Swingline Loans
or (B) prohibit any Bank from assigning all or a portion of its rights and obligations in
respect of its Commitments (and the related Loans thereunder) on a non-pro rata basis.
(iii) Required Consents. No consent shall be required for any assignment
except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the consent of the Borrower Representative (such consent not to
be unreasonably withheld or delayed) shall be required unless (1) an Event of
Default has occurred and is continuing at the time of such assignment or (2) such
assignment is to a Bank, an Affiliate of a Bank or an Approved Fund; provided
that the Borrower Representative shall be deemed to have consented to any such
assignment unless it shall object thereto by written notice to the Administrative
Agent within ten (10) Business Days after having received notice thereof;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any unfunded Term Commitment or any Revolving Commitment if such
assignment is to a Person that is not a Bank with a Commitment in respect of the
applicable facility, an Affiliate of such Bank or an Approved Fund with respect to
such Bank, or (2) any Term Loan or any Incremental Term Loan to a Person that
is not a Bank, an Affiliate of a Bank or an Approved Fund;
(C) the consent of each Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment that
increases the obligation of the assignee to participate in exposure under one or
more Letters of Credit (whether or not then outstanding); and
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(D) the consent of the Swingline Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in respect
of Revolving Loans and Revolving Commitments.
(iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing and
recordation fee in the case of any assignment. The assignee, if it shall not be a Bank, shall
deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Certain Persons. No such assignment shall be made to
(A) any Borrower, the Parent or any of the Parent’s Affiliates or Subsidiaries or (B) to any
Defaulting Bank or any of its Subsidiaries, or any Person who, upon becoming a Bank
hereunder, would constitute any of the foregoing Persons described in this clause (B), or
(C) to a natural person (or a holding company, investment vehicle or trust for, or owned
and operated for the primary benefit of a natural person).
(vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Bank hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to
the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower Representative
and the Administrative Agent, the applicable pro rata share of Loans previously requested
but not funded by the Defaulting Bank, 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 Bank to the Administrative Agent or any Bank hereunder
(and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata
share of all Loans and participations in Letters of Credit and Swingline Loans in
accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event
that any assignment of rights and obligations of any Defaulting Bank 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 Bank for
all purposes of this Credit Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (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 Credit
Agreement and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Bank under this Credit Agreement, and the assigning
Bank thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Credit Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Bank’s rights and
obligations under this Credit Agreement, such Bank shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 3.8, 3.11, 3.12, 11.5 and 11.9 with
respect to facts and circumstances occurring prior to the effective date of such assignment).
Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the
assignee Bank. Any assignment or transfer by a Bank of rights or obligations under this
Credit Agreement that does not comply with this subsection shall be treated for purposes
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of this Credit Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as a non-
fiduciary agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at
the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and
a register for the recordation of the names and addresses of the Banks, and the Commitments of,
and principal amounts (and stated interest) of the Loans and LOC Obligations owing to, each Bank
pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall
be conclusive, and the Borrowers, the Administrative Agent and the Banks shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Credit Agreement, notwithstanding notice to the contrary. In addition, the
Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Bank as a Defaulting Bank. The Register shall be available for
inspection by the Borrowers and any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Participations. Any Bank may at any time, without the consent of, or notice to, the
Borrower Representative or the Administrative Agent, sell participations to any Person (other than
a natural person (or a holding company, investment vehicle or trust for, or owned and operated for
the primary benefit of a natural person) or any Borrower, the Parent or any of the Parent’s Affiliates
or Subsidiaries) (each, a “Participant”) in all or a portion of such Bank’s rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitments and/or the Loans
(including such Bank’s participations in LOC Obligations and/or Swingline Loans) owing to it);
provided that (i) such Bank’s obligations under this Credit Agreement shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent, the other Banks and the Issuing
Banks shall continue to deal solely and directly with such Bank in connection with such Bank’s
rights and obligations under this Credit Agreement. Any agreement or instrument pursuant to
which a Bank sells such a participation shall provide that such Bank shall retain the sole right to
enforce this Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or instrument may provide that
such Bank will not, without the consent of the Participant, agree to any amendment, waiver or other
modification described in Section 11.6(a) that affects such Participant. Subject to subsection (e) of
this Section, the Borrowers agree that each Participant shall be entitled to the benefits of Sections
3.6, 3.9, 3.11 and 3.12 (subject to the requirements and limitations therein (it being understood that
the documentation required under Section 3.11(e) shall be delivered to the participating Bank)) to
the same extent as if it were a Bank and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by Law, each Participant also shall be
entitled to the benefits of Section 11.2 as though it were a Bank, provided such Participant agrees
to be subject to Section 3.14 as though it were a Bank. Each Bank that sells a participation shall,
acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on
which it enters the name and address of each Participant and the principal amounts (and stated
interest) of each Participant’s interest in the Loans or other obligations under the Credit Documents
(the “Participant Register”); provided that no Bank shall have any obligation to disclose all or any
portion of the Participant Register (including the identity of any Participant or any information
relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations
under any Credit 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 Bank shall treat each Person whose
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name is recorded in the Participant Register as the owner of such participation for all purposes of
this Credit Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for
maintaining a Participant Register.
(e) Limitation on Participant Rights. A Participant shall not be entitled to receive any
greater payment under Section 3.6, 3.9, 3.11 or 3.12 than the applicable Bank would have been
entitled to receive with respect to the participation sold to such Participant, 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.
(f) Certain Pledges. Any Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Credit Agreement (including under its Note, if any) to
secure obligations of such Bank, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment shall release such Bank from
any of its obligations hereunder or substitute any such pledgee or assignee for such Bank as a party
hereto.
(g) Resignation as Issuing Bank or Swingline Bank after Assignment.
(i) Notwithstanding anything to the contrary contained herein, if at any time
Xxxxx Fargo Bank assigns all of its Commitments and Loans pursuant to subsection (b)
above, Xxxxx Fargo Bank may, upon sixty (60) days’ notice to the Borrower
Representative, resign as the Swingline Bank. In the event of any such resignation as the
Swingline Bank, the Borrower Representative shall be entitled to appoint from among the
Banks a successor Swingline Bank hereunder; provided, however, that (x) no Bank shall
be required to become the Swingline Bank without such Bank’s consent, and (y) no failure
by the Borrower Representative to appoint any such successor shall affect the resignation
of Xxxxx Fargo Bank as the Swingline Bank. If Xxxxx Fargo Bank resigns as the Swingline
Bank, it shall retain all the rights of the Swingline Bank provided for hereunder with respect
to Swingline Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Revolving Banks to make Revolving Loans that are Base
Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section
2.7. Upon the appointment of a successor Swingline Bank, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring
Swingline Bank.
(ii) Notwithstanding anything to the contrary contained herein, if at any Bank
that is an Issuing Bank assigns all of its Commitments and Loans pursuant to subsection
(b) above, such Bank may, upon 30 days’ notice to the Borrower Representative and the
Banks, resign as an Issuing Bank. In the event of any such resignation as an Issuing Bank,
the Borrower Representative shall be entitled to appoint from among the Revolving Banks
a successor Issuing Bank or hereunder; provided, however, that (x) no Revolving Bank
shall be required to become an Issuing Bank without such Revolving Bank’s consent, and
(y) no failure by the Borrower Representative to appoint any such successor shall affect
the resignation of such Bank as an Issuing Bank. If a Bank resigns as an Issuing Bank, it
shall retain all the rights, powers, privileges and duties of an Issuing Bank hereunder with
respect to all Letters of Credit issued by it and outstanding as of the effective date of its
resignation as an Issuing Bank and all LOC Obligations with respect thereto (including the
right to require the Revolving Banks to make Revolving Loans that are Base Rate Loans
or fund risk participations in Unreimbursed Amounts pursuant to Section 2.6(a)). Upon the
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appointment of a successor Issuing Bank, (A) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank, and
(B) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to such Bank to effectively assume the obligations of such Bank with respect
to such Letters of Credit.
(h) Disqualified Institutions.
(i) No assignment shall be made to any Person that was a Disqualified
Institution as of the date (the “Trade Date”) on which the applicable Bank entered into a
binding agreement to sell and assign all or a portion of its rights and obligations under this
Credit Agreement to such Person (unless the Borrower Representative has consented to
such assignment as otherwise contemplated by this Section 11.3, in which case such Person
will not be considered a Disqualified Institution for the purpose of such assignment). For
the avoidance of doubt, with respect to any assignee that becomes a Disqualified Institution
after the applicable Trade Date (including as a result of the delivery of a notice pursuant
to, and/or the expiration of the notice period referred to in, the definition of “Disqualified
Institution”), such assignee shall not retroactively be considered a Disqualified Institution.
Any assignment in violation of this clause (h)(i) shall not be void, but the other provisions
of this clause (h) shall apply.
(ii) If any assignment is made to any Disqualified Institution without the
Borrower Representative’s prior consent in violation of clause (h)(i) above, the Borrower
Representative may, at its sole expense and effort, upon notice to the applicable
Disqualified Institution and the Administrative Agent, (A) terminate any Revolving
Commitment or unfunded Term Commitment of such Disqualified Institution and repay
all obligations of the Borrowers owing to such Disqualified Institution in connection with
such Revolving Commitment and/or such unfunded Term Commitment, (B) in the case of
outstanding Term Loans or Incremental Term Loans held by Disqualified Institutions,
prepay such Term Loans and/or Incremental Term Loans by paying the lesser of (x) the
principal amount thereof and (y) the amount that such Disqualified Institution paid to
acquire such Term Loans and/or such Incremental Term Loans, in each case plus accrued
interest, accrued fees and all other amounts (other than principal amounts) payable to it
hereunder and under the other Credit Documents and/or (C) require such Disqualified
Institution to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in this Section 11.3), all of its interest, rights and obligations under
this Credit Agreement and related Credit Documents to an Eligible Assignee that shall
assume such obligations at the lesser of (x) the principal amount thereof and (y) the amount
that such Disqualified Institution paid to acquire such interests, rights and obligations, in
each case plus accrued interest, accrued fees and all other amounts (other than principal
amounts) payable to it hereunder and other the other Credit Documents; provided that (1)
the Borrower Representative shall have paid to the Administrative Agent the assignment
fee (if any) specified in Section 11.3(b), (2) such assignment does not conflict with
applicable Laws and (3) in the case of clause (B) above, no Borrower shall use the proceeds
from any Loans to prepay Term Loans and/or Incremental Term Loans held by Disqualified
Institutions.
(iii) Notwithstanding anything to the contrary contained in this Credit
Agreement, Disqualified Institutions (A) will not (x) have the right to receive information,
reports or other materials provided to the Banks by the Credit Parties, the Administrative
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Agent or any other Bank, (y) attend or participate in meetings attended by the Banks and
the Administrative Agent, or (z) access any electronic site established for the Banks or
confidential communications from counsel to or financial advisors of the Administrative
Agent or the Banks and (B) (x) for purposes of any consent to any amendment, waiver or
modification of, or any action under, and for the purpose of any direction to the
Administrative Agent or any Bank to undertake any action (or refrain from taking any
action) under this Credit Agreement or any other Credit Document, each Disqualified
Institution will be deemed to have consented in the same proportion as the Banks that are
not Disqualified Institutions consented to such matter, and (y) for purposes of voting on
any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (“Plan
of Reorganization”), each Disqualified Institution party hereto hereby agrees (1) not to vote
on such Plan of Reorganization, (2) if such Disqualified Institution does vote on such Plan
of Reorganization notwithstanding the restriction in the foregoing clause (1), such vote will
be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of
the Bankruptcy Code (or any similar provision in any other Debtor Relief Laws), and such
vote shall not be counted in determining whether the applicable class has accepted or
rejected such Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy
Code (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any
request by any party for a determination by the bankruptcy court (or other applicable court
of competent jurisdiction) effectuating the foregoing clause (2).
(iv) The Administrative Agent shall have the right, and the Credit Parties
hereby expressly authorize the Administrative Agent, to (A) post the DQ List on the
Platform, including that portion of the Platform that is designated for “public side” Banks,
or (B) provide the DQ List to each Bank requesting the same.
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of the Administrative Agent or any Bank in exercising any right,
power or privilege hereunder or under any other Credit Document and no course of dealing between the
Administrative Agent or any Bank and any of the Credit Parties shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder
or thereunder. The rights and remedies provided herein are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Bank would otherwise have. No notice to or demand on
any Credit Party in any case shall entitle the Credit Parties to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the Administrative Agent or the Banks
to any other or further action in any circumstances without notice or demand.
11.5 Expenses; Indemnification; Damage Waiver.
(a) Costs and Expenses. The Credit Parties shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, MLPFS and their respective Affiliates, including
the reasonable fees, charges and disbursements of counsel for the Administrative Agent, MLPFS
and their respective Affiliates (including the reasonable documented fees, charges and legal
expenses incurred in connection with the execution, delivery and administration of the Credit
Agreement and the other Credit Documents, or any amendments, modifications or waivers of any
of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), any enforcement, investigation, litigation, proceeding, or preparation of a
defense in connection therewith by one external counsel to all such parties taken as a whole, and,
in the case of a conflict of interest, one additional external counsel to the affected parties taken as
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a whole (and, if necessary, of one local counsel representing all such parties in any jurisdiction)),
(ii) all reasonable out-of-pocket expenses incurred by each Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Bank or
any Issuing Bank (including the fees, charges and disbursements of any one counsel for the
Administrative Agent, any Bank and any Issuing Bank and, in the case of a conflict of interest, one
additional external counsel to the affected parties taken as a whole and, if necessary, of one local
counsel representing all such parties in any jurisdiction), and shall pay all fees and time charges for
attorneys who may be employees of the Administrative Agent, any Bank or any Issuing Bank, in
connection with the enforcement or protection of its rights (A) in connection with this Credit
Agreement and the other Credit Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-
pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit.
(b) Indemnification by the Credit Parties. The Credit Parties jointly and severally shall
indemnify the Administrative Agent (and any sub-agent thereof), each Bank and each Issuing Bank,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the allocated cost of internal counsel and
reasonable documented fees, charges and legal expenses incurred for any Indemnitee in connection
with the preparation, negotiation, execution, delivery and administration of the financing
documentation, any enforcement, investigation, litigation, proceeding, or preparation of a defense
in connection therewith by one external counsel to all such parties taken as a whole, and, in the
case of a conflict of interest, one additional external counsel to the affected parties taken as a whole
(and, if necessary, of one local counsel representing all such parties in any jurisdiction)), and shall
indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements
for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Credit Party arising out of, in connection with,
or as a result of (i) the execution or delivery of this Credit Agreement, any other Credit Document
or any agreement or instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Credit Agreement and the
other Credit Documents (including in respect of any matters addressed in Section 3.11), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal
by an Issuing Bank to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by a Credit Party or any of its Subsidiaries, or any Environmental
Liability related in any way to a Credit Party or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory, whether brought by a third party or by any Credit 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 any Credit Party against an Indemnitee for breach in bad faith
of such Indemnitee’s obligations hereunder or under any other Credit Document, if such Credit
Party has obtained a final and nonappealable judgment in its favor on such claim as determined by
a court of competent jurisdiction.
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(c) Reimbursement by Banks. To the extent that the Credit Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
them to the Administrative Agent (or any sub-agent thereof), any Issuing Bank or any Related Party
of any of the foregoing, each Bank severally agrees to pay to the Administrative Agent (or any such
sub-agent), such Issuing Bank or such Related Party, as the case may be, such Bank’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or such Issuing Bank in its capacity as
such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or
any such sub-agent) or such Issuing Bank in connection with such capacity. The obligations of the
Banks under this subsection (c) are subject to the provisions of Section 3.14.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Credit Party shall assert, and each Credit Party 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
Credit Agreement, any other Credit Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of
the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications,
electronic or other information transmission systems in connection with this Credit Agreement or
the other Credit Documents or the transactions contemplated hereby or thereby other than for direct
or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as
determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the resignation of any Issuing Bank and the resignation of the Swingline
Bank, the replacement of any Bank, the termination of the Aggregate Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document nor any of the terms hereof or thereof
may be amended, changed, waived, discharged or terminated unless such amendment, change, waiver,
discharge or termination is in writing entered into by, or approved in writing by, the Required Banks and
the Borrower Representative, provided, however, that:
(a) without the consent of each Bank affected thereby, neither this Credit Agreement
nor any other Credit Document may be amended to
(i) extend the final maturity of any Loan, or any portion thereof, or extend the
final maturity of any reimbursement obligation, or any portion thereof, arising from
drawings under Letters of Credit,
(ii) reduce the rate or extend the time of payment of interest (other than as a
result of waiving the applicability of any post-default increase in interest rates) thereon or
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Fees hereunder (provided that only the consent of the Required Banks shall be necessary
to amend any financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest or reduce any fee payable
hereunder),
(iii) reduce or waive the principal amount of any Loan, or any portion thereof,
or reduce or waive the principal amount of any reimbursement obligation, or any portion
thereof, arising from drawings under Letters of Credit,
(iv) increase any Commitment of a Bank over the amount thereof in effect or
reinstate any Commitment terminated pursuant to Section 9.2 (it being understood and
agreed that a waiver of any Default or Event of Default or mandatory reduction in
Commitments shall not constitute a change in the terms of any Commitment of any Bank),
(v) release any Borrower or, except as the result of or in connection with a
dissolution, merger or disposition of a member of the Consolidated Group permitted under
Section 8.4, release any Material Guarantor or all or substantially all of the other
Guarantors from its or their obligations under the Credit Documents,
(vi) amend, modify or waive any provision of Section 2.12, Section 3.13,
Section 3.14, Section 3.15(b) or this Section 11.6;
(vii) reduce any percentage specified in, or otherwise modify, the definition of
Required Banks or Required Revolving Banks,
(viii) consent to the assignment or transfer by any Borrower, any Material
Guarantor or all or substantially all of the other Guarantors of any of its or their rights and
obligations under (or in respect of) the Credit Documents except as permitted thereby,
(ix) subordinate any of the Obligations to any other Indebtedness of the Parent
or its Subsidiaries, or
(x) amend Section 1.6 or the definition of “Alternative Currency”;
(b) without the consent of the Administrative Agent, no provision of Section 10 may
be amended;
(c) without the consent of each Issuing Bank, no provision of Section 2.1(c), 2.2(a)(iii)
or 2.6 may be amended; and
(d) without the consent of the Swingline Bank, no provision of Section 2.1(b),
2.2(a)(ii) or 2.7 may be amended.
Notwithstanding the fact that the consent of all the Banks is required in certain circumstances as set forth
above, (x) each Bank is entitled to vote as such Bank sees fit on any bankruptcy reorganization plan that
affects the Loans, and each Bank acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the Required Banks may consent
to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency proceeding.
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Notwithstanding anything to the contrary herein, (A) no Defaulting Bank shall have any right to approve
or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which
by its terms requires the consent of all Banks or each affected Bank may be effected with the consent of the
applicable Banks other than Defaulting Banks), except that (1) any Commitment of any Defaulting Bank
may not be increased or extended without the consent of such Bank and (2) any waiver, amendment or
modification requiring the consent of all Banks or each affected Bank that by its terms affects any
Defaulting Bank more adversely than other affected Banks shall require the consent of such Defaulting
Bank; (B) no amendment, waiver or consent shall, unless in writing and signed by each Issuing Bank in
addition to the Banks required above, affect the rights or duties of any Issuing Bank under this Credit
Agreement or any LOC Document relating to any Letter of Credit issued or to be issued by it; (C) no
amendment, waiver or consent shall, unless in writing and signed by the Swingline Bank in addition to the
Banks required above, affect the rights or duties of the Swingline Bank under this Credit Agreement; (D)
no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above, affect the rights or duties of the Administrative Agent under this
Credit Agreement or any other Credit Document; (E) each Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the parties thereto; (F) this Credit Agreement
may be amended in accordance with and pursuant to the terms of Section 2.10, including, without limitation,
to permit the Banks providing any such Incremental Facility to participate in any required vote or action
required to be approved by the Required Banks, Required Revolving Banks or by any other number,
percentage or class of Banks hereunder; (G) this Credit Agreement may be amended without the consent
of any Bank (but with the consent of the Borrower Representative and the Administrative Agent) if, upon
giving effect to such amendment, such Bank shall no longer be a party to this Credit Agreement (as so
amended), the Commitments of such Bank shall have terminated, and such Bank shall have no other
commitment or other obligation hereunder and shall have been paid in full all principal, interest and other
amounts owing to it or accrued for its account under this Credit Agreement; (H) this Credit Agreement may
be amended with the written consent of the Administrative Agent, each Issuing Bank, the Borrower
Representative and the Banks affected thereby to amend the definition of “Alternative Currency” or
“Eurocurrency Rate” solely to add additional currency options and the applicable interest rate with respect
thereto, in each case solely to the extent permitted pursuant to Section 1.6; (I) in connection with the
addition of any Foreign Borrower approved by all of the Revolving Banks pursuant to Section 2.12(a), this
Credit Agreement may be amended with the written consent of the Administrative Agent, each Issuing
Bank and the Borrower Representative solely to include any provisions necessary to permit the addition of
such Foreign Borrower hereunder; (J) the definition of “LOC Commitment” may be amended by the
Borrower Representative, the Administrative Agent, and each Issuing Bank to reflect the LOC
Commitments of the Issuing Banks in effect from time to time; and (K) the Administrative Agent and the
Borrower Representative may amend or modify this Credit Agreement and any other Credit Document to
cure any ambiguity, omission, mistake, defect or inconsistency therein and such amendment shall become
effective without any further action or consent of any other party to any Credit Document if the same is not
objected to in writing by the Required Banks within five (5) Business Days following receipt of notice
thereof.
11.7 Counterparts.
This Credit Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the same instrument.
It shall not be necessary in making proof of this Credit Agreement to produce or account for more than one
such counterpart for each of the parties hereto. Delivery by facsimile by any of the parties hereto of an
executed counterpart of this Credit Agreement shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed counterpart hereof will be delivered.
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11.8 Headings.
The headings of the sections and subsections hereof are provided for convenience only and shall
not in any way affect the meaning or construction of any provision of this Credit Agreement.
11.9 Survival.
(a) All indemnities set forth herein, including, without limitation, in Section 2.6(d),
3.11, 3.12, 10.5 or 11.5 shall survive the execution and delivery of this Credit Agreement, the
making of the Loans, the issuance of the Letters of Credit, the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination of the Aggregate
Commitments and this Credit Agreement, and all representations and warranties made by the Credit
Parties herein shall survive delivery of the Notes and the making of the Loans hereunder.
(b) All representations and warranties made hereunder and in any other Credit
Document or other document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof. Such representations and
warranties have been or will be relied upon by the Administrative Agent and each Bank, regardless
of any investigation made by the Administrative Agent or any Bank or on their behalf and
notwithstanding that the Administrative Agent or any Bank may have had notice or knowledge of
any Default at the time of any Extension of Credit, and shall continue in full force and effect as
long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter
of Credit shall remain outstanding.
11.10 Governing Law; Submission to Jurisdiction; Waiver of Venue; Service of Process;
Waiver of Jury Trial.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS
(EXCEPT, AS TO ANY OTHER CREDIT DOCUMENT, AS EXPRESSLY SET FORTH
THEREIN) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION
(WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF
OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT
(EXCEPT, AS TO ANY OTHER CREDIT DOCUMENT, AS EXPRESSLY SET FORTH
THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
(b) EACH BORROWER AND EACH OTHER CREDIT PARTY IRREVOCABLY
AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION,
LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW
OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE
ADMINISTRATIVE AGENT, ANY BANK, ANY ISSUING BANK, OR ANY RELATED
PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS CREDIT AGREEMENT
OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS RELATING HERETO
OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT
COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT
FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
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COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
CREDIT AGREEMENT OR IN ANY OTHER CREDIT DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY BANK OR ANY ISSUING BANK
MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO
THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT AGAINST ANY
BORROWER OR ANY OTHER CREDIT PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY JURISDICTION.
(c) EACH BORROWER AND EACH OTHER CREDIT PARTY IRREVOCABLY
AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN
ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH BORROWER
AND EACH OTHER CREDIT PARTY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.1. NOTHING IN
THIS CREDIT AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY OTHER CREDIT
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT
AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.11 Severability.
If any provision of any of the Credit Documents is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining provisions shall remain in full
force and effect and shall be construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.12 Entirety.
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This Credit Agreement together with the other Credit Documents represent the entire agreement of
the parties hereto and thereto, and supersede all prior agreements and understandings, oral or written, if
any, including any commitment letters or correspondence relating to the Credit Documents or the
transactions contemplated herein and therein.
11.13 Binding Effect; Termination.
(a) This Credit Agreement shall become effective at such time on or after the Closing
Date when it shall have been executed by each Credit Party and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the signatures of each Bank, and thereafter this Credit Agreement shall be binding
upon and inure to the benefit of each Credit Party, the Administrative Agent and each Bank and
their respective successors and assigns.
(b) The term of this Credit Agreement shall be until no Loans, LOC Obligations or
any other amounts payable hereunder or under any of the other Credit Documents shall remain
outstanding, no Letters of Credit shall be outstanding, the Aggregate Commitments shall have
expired or been terminated and this Credit Agreement has been terminated.
11.14 Confidentiality.
Each of the Administrative Agent, the Banks and the Issuing Banks agrees to maintain the
confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees,
advisors and representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it
(including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c)
to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to
any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other
Credit Document or any action or proceeding relating to this Credit Agreement or any other Credit
Document or the enforcement of rights hereunder or thereunder, (f) subject to a written agreement
containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this Credit
Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to a Credit Party and its obligations, (g) with the consent of the Borrower Representative
or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this
Section or (y) becomes available to the Administrative Agent, any Bank, any Issuing Bank or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrowers.
For purposes of this Section, “Information” means all information received from a Credit Party or
any Subsidiary relating to the Credit Parties or any Subsidiary or any of their respective businesses, other
than any such information that is available to the Administrative Agent, any Bank or any Issuing Bank on
a nonconfidential basis prior to disclosure by such Credit Party or any Subsidiary, provided that, in the case
of information received from a Credit Party or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the confidentiality of such Information as
such Person would accord to its own confidential information.
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Each of the Administrative Agent, the Banks and the Issuing Banks acknowledges that (a) the
Information may include material non-public information concerning a Credit Party or a Subsidiary, as the
case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with applicable Law,
including United States Federal and state securities Laws.
11.15 Source of Funds.
Each of the Banks hereby represents and warrants to the Borrower Representative that at least one
of the following statements is an accurate representation as to the source of funds to be used by such Bank
in connection with the financing hereunder:
(a) no part of such funds constitutes assets allocated to any separate account
maintained by such Bank in which any employee benefit plan or any plan (or its related trust) has
any interest;
(b) to the extent that any part of such funds constitutes assets allocated to any bank
collective investment fund maintained by such Bank, such Bank has disclosed to the Borrower
Representative the name of each employee benefit plan or plan whose assets in such fund exceed
10% of the total assets of such fund as of the date of purchase and, with respect to any employee
benefit plan or plan whose interest in such fund does not exceed 10% of the total assets of such
fund as of the date of purchase, the requirements for the application of Prohibited Transaction Class
Exemption 91-38, 56 Fed. Reg. 31,966 and 56 Fed Reg. 59,299 (1991) or the requirements of
another exemption have been satisfied;
(c) to the extent that any part of such funds constitute assets allocated to any insurance
company general asset account maintained by such Bank, such Bank has disclosed to the Borrower
Representative the name of each employee benefit plan or plan whose assets in such account exceed
10% of the total assets of such account as of the date of purchase and, with respect to any employee
benefit plan or plan whose interest in such account does not exceed 10% of the total assets of such
account as of the date of purchase, the requirements for the application of Prohibited Transaction
Class Exemption 95-60, 60 Fed. Reg. 35,925 (1995), the requirements prescribed by the
regulations under Section 401(c)(1)(A) of ERISA or the requirements of another exemption have
been satisfied;
(d) to the extent that any part of such funds constitute assets allocated to any insurance
company pooled separate account maintained by such Bank, such Bank has disclosed to the
Borrower Representative the name of each employee benefit plan or plan whose assets in such
account exceed 10% of the total assets of such account as of the date of purchase and, with respect
to any employee benefit plan or plan whose interest in such account does not exceed 10% of the
total assets of such account as of the date of purchase, the requirements for the application of
Prohibited Transaction Class Exemption 90-1, Fed. Reg. 31,092 and 54 Fed. Reg. 32,024 (1989)
or the requirements of another exemption have been satisfied; or
(e) such funds constitute assets of one or more specific benefit plans, not held in a
bank collective investment fund, an insurance company general asset account, an insurance
company pooled separate account or other investment fund, which such Bank has identified in
writing to the Borrower Representative.
The determination of whether the interest of an employee benefit plan or plan in a fund or account exceeds
10% of the total value of such fund or account shall be determined in accordance with Prohibited
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Transaction Class Exemption 91-38, 95-60 and 90-1, as applicable, including (by way of example and not
of limitation), the requirement that all employee benefit plans or plans maintained by one or more
businesses or employee organizations that, under applicable law, are considered to be the same employer
or employee organization shall be deemed to be a single employee benefit plan or plan.
As used in this Section 11.15, the terms “employee benefit plan” and “separate account” shall have the
respective meanings assigned to such terms in Section 3 of ERISA and the term “plan” shall have the
respective meaning assigned to such term in Section 4975(e)(1) of the Internal Revenue Code.
11.16 Conflict.
To the extent that there is a conflict or inconsistency between any provision hereof, on the one
hand, and any provision of any Credit Document, on the other hand, this Credit Agreement shall control.
11.17 USA PATRIOT Act Notice.
Each Bank and the Administrative Agent (for itself and not on behalf of any Bank) hereby notifies
the Borrowers that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify
and record information that identifies each Credit Party, which information includes the name and address
of each such Credit Party and other information that will allow such Bank or the Administrative Agent, as
applicable, to identify the Credit Parties in accordance with the USA PATRIOT Act.
11.18 Replacement of Banks.
If (a) the Borrower Representative is entitled to replace a Bank pursuant to the provisions of Section
3.10, (b) a Bank (a “Non-Consenting Bank”) does not consent to a proposed change, waiver, discharge or
termination with respect to any Credit Document that has been approved by the Required Banks as provided
in Section 11.6 but requires unanimous consent of all Banks or all Banks directly affected thereby (as
applicable), (c) any Bank is a Non-Extending Bank, (d) any Bank is a Defaulting Bank (or would be a
Defaulting Bank but for the delivery by such Bank of the written notice described in clause (a) of the
definition of “Defaulting Bank” unless such notices have been delivered by the Required Banks), (e) any
Bank cannot provide an Alternative Currency or (f) any Bank does not consent to the designation of an
Applicant Foreign Borrower as a Foreign Borrower that otherwise has been approved by the Required
Banks, then the Borrowers may, at their sole expense and effort, upon notice to such Bank and the
Administrative Agent, require such Bank to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by, Section 11.3), all of its interests, rights
and obligations under this Credit Agreement and the related Credit Documents to an Eligible Assignee that
shall assume such obligations (which assignee may be another Bank, if a Bank accepts such assignment);
provided that:
(i) the Borrowers shall have paid to the Administrative Agent the assignment fee
specified in Section 11.3;
(ii) such Bank shall have received payment of an amount equal to the outstanding
principal of its Loans and LOC Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Credit Documents (including any amounts
under Section 3.12) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrowers (in the case of all other amounts);
135
CHAR1\1534998v8
(iii) in the case of any such assignment resulting from a claim for compensation under
Section 3.6 or Section 3.9 or payments required to be made pursuant to Section 3.11, such
assignment will result in a reduction in such compensation or payments thereafter;
(iv) such assignment does not conflict with applicable Laws; and
(v) in the case of any such assignment resulting from a Non-Consenting Bank’s failure
to consent to a proposed change, waiver, discharge or termination with respect to any Credit
Document, the applicable replacement bank, financial institution or fund consents to the proposed
change, waiver, discharge or termination; provided that the failure by such Non-Consenting Bank
to execute and deliver an Assignment and Assumption shall not impair the validity of the removal
of such Non-Consenting Bank and the mandatory assignment of such Non-Consenting Bank’s
Commitments and outstanding Loans and participations in LOC Obligations and Swingline Loans
pursuant to this Section 11.18 shall nevertheless be effective without the execution by such Non-
Consenting Bank of an Assignment and Assumption.
A Bank shall not be required to make any such assignment or delegation if, prior thereto, as a result
of a waiver by such Bank or otherwise, the circumstances entitling the Borrowers to require such assignment
and delegation cease to apply.
11.19 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby (including in connection
with any amendment, waiver or other modification hereof or of any other Credit Document), each of the
Credit Parties acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (a)(i) the
arranging and other services regarding this Credit Agreement provided by the Administrative Agent and
the Arrangers are arm’s-length commercial transactions between the Credit Parties and their respective
Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (ii) each of
the Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate, and (iii) each of the Credit Parties is capable of evaluating, and understands and
accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Credit
Documents; (b)(i) the Administrative Agent and the each of the Arrangers each is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Credit Parties or any of their respective Affiliates,
or any other Person and (ii) neither the Administrative Agent nor any Arranger has any obligation to the
Credit Parties or any of their respective Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Credit Documents; and (c) the
Administrative Agent and the Arrangers and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Credit Parties and their respective Affiliates,
and neither the Administrative Agent nor any Arranger has any obligation to disclose any of such interests
to the Credit Parties and their respective Affiliates. To the fullest extent permitted by Law, each of the
Credit Parties hereby waives and releases any claims that it may have against the Administrative Agent and
the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with
any aspect of any transaction contemplated hereby.
11.20 Electronic Execution.
The words “delivery,” “execute,” “execution,” “signed,” “signature,” and words of like import in
any Credit Document or any other document executed in connection herewith shall be deemed to include
electronic signatures, the electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of
136
CHAR1\1534998v8
which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical
delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable Law, including the Federal Electronic Signatures in Global and National
Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein
to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in
any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures
approved by it; provided, further, that without limiting the foregoing, upon the request of the Administrative
Agent, any electronic signature shall be promptly followed by such manually executed counterpart.
11.21 Judgment Currency.
If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or any other Credit Document in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day preceding that on which final
judgment is given. The obligation of each Borrower in respect of any such sum due from it to the
Administrative Agent or the Banks hereunder or under the other Credit Documents shall, notwithstanding
any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated
in accordance with the applicable provisions of this Credit Agreement (the “Agreement Currency”), be
discharged only to the extent that on the Business Day following receipt by the Administrative Agent of
any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance
with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the
amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative
Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater
than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees
to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto
under applicable law).
11.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions.
Solely to the extent any Bank or any Issuing Bank that is an EEA Financial Institution is a party to
this Credit Agreement and notwithstanding anything to the contrary in any Credit Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any
liability of any Bank or any Issuing Bank that is an EEA Financial Institution arising under any Credit
Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion
Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be
bound by (a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority
to any such liabilities arising hereunder which may be payable to it by any Bank or any Issuing Bank that
is an EEA Financial Institution, and (b) the effects of any Bail-In Action on any such liability, including, if
applicable, (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a
portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that
such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any
such liability under this Credit Agreement or any other Credit Document; or (iii) the variation of the terms
of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA
Resolution Authority.
[Signature Pages to Follow]
137
CHAR1\1534998v8
CHAR1\1534998v8
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: XXXXX & MINOR DISTRIBUTION, INC.,
a Virginia corporation
By:
Name:
Title:
XXXXX & MINOR MEDICAL, INC.,
a Virginia corporation
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
a Virginia limited liability company
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
a Virginia limited liability company
By:
Name:
Title:
GUARANTORS: XXXXX & MINOR, INC.,
a Virginia corporation
By:
Name:
Title:
CHAR1\1534998v8
ADMINISTRATIVE AGENT: XXXXX FARGO BANK, N.A.,
in its capacity as Administrative Agent
By:
Name:
Title:
CHAR1\1534998v8
BANKS: XXXXX FARGO BANK, N.A.,
in its capacity as a Bank, Issuing Bank and the
Swingline Bank
By:
Name:
Title:
CHAR1\1534998v8
BANK OF AMERICA, N.A.,
in its capacity as a Bank and an Issuing Bank
By:
Name:
Title:
CHAR1\1534998v8
JPMORGAN CHASE BANK, N.A.,
in its capacity as a Bank and an Issuing Bank
By:
Name:
Title:
CHAR1\1534998v8
SUNTRUST BANK,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
PNC BANK, NATIONAL ASSOCIATION,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
US BANK NATIONAL ASSOCIATION,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
BRANCH BANKING & TRUST COMPANY,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
CITIBANK, N.A.,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1534998v8
HSBC BANK USA, NATIONAL ASSOCIATION,
in its capacity as a Bank
By:
Name:
Title:
CHAR1\1520175v4
Schedule 1.1
Existing Letters of Credit
$5,057,160 Letter of Credit issued by Xxxxx Fargo Bank, National Association to Xxxxx & Minor, Inc. and
all of its Subsidiaries for the benefit of Ace American Insurance Company relating to workers compensation
insurance
CHAR1\1520175v4
Schedule 2.1
Commitments
Bank
Revolving
Committed
Amount
Revolving
Commitment
Percentage
Term
Committed
Amount
Term
Commitment
Percentage
Bank of America, N.A. $90,705,885.00 15.117647500% $37,794,115.00 15.117646000%
Xxxxx Fargo Bank, N.A. $74,470,588.00 12.411764667% $31,029,412.00 12.411764800%
JPMorgan Chase Bank,
N.A.
$74,470,588.00 12.411764667% $31,029,412.00 12.411764800%
SunTrust Bank $74,470,588.00 12.411764667% $31,029,412.00 12.411764800%
PNC Bank, National
Association
$52,941,176.00 8.823529333% $22,058,824.00 8.823529600%
US Bank National
Association
$52,941,176.00 8.823529333% $22,058,824.00 8.823529600%
The Bank of Tokyo-
Mitsubishi UFJ, Ltd.
$52,941,176.00 8.823529333% $22,058,824.00 8.823529600%
Branch Banking & Trust
Company
$42,352,941.00 7.058823500% $17,647,059.00 7.058823600%
Citibank, N.A. $42,352,941.00 7.058823500% $17,647,059.00 7.058823600%
HSBC Bank USA, National
Association
$42,352,941.00 7.058823500% $17,647,059.00 7.058823600%
Total $600,000,000.00 100.000000000% $250,000,000.00 100.000000000%
CHAR1\1520175v4
1. Schedule 2.2(a)(i)
2. Form of Notice of Loan Borrowing
Xxxxx Fargo Bank, National Association
0000 Xxxx X.X. Xxxxxx Xxxx.
XXXX0000-000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndication Agency Services
Re: Credit Agreement (as amended and modified from time to time, the “Credit Agreement”) dated as
of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia corporation, Xxxxx & Minor
Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia limited liability
company, Barista Acquisition II, LLC, a Virginia limited liability company, each other Borrower
as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent. Terms used herein
but not otherwise defined herein shall have the meanings provided to such terms in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 2.2(a)(i) of the Credit Agreement that it requests
a Borrowing of [Revolving Loans][Term Loans][Incremental Term Loans] under the Credit Agreement and
in connection therewith sets forth below the terms on which such Borrowing is requested to be made:
(A) Date of Borrowing (which is a Business Day)
(B) Principal amount of Borrowing
(C) Interest rate basis
(D) Interest Period and the last day thereof
(E) Currency
(F) Applicable Borrower
In accordance with the requirements of Section 5.2 [and Section 5.3] of the Credit Agreement, the Borrower
Representative hereby represents and warrants that the conditions precedent set forth in Section 5.2 [and
Section 5.3] of the Credit Agreement have been satisfied as of the date hereof.
XXXXX & MINOR, INC.,
as Borrower Representative
By:
Name:
Title:
CHAR1\1520175v4
3. Schedule 2.2(a)(ii)
Form of Notice of Swingline Loan Borrowing
Xxxxx Fargo Bank, National Association, as Swingline Bank
0000 Xxxx X.X. Xxxxxx Xxxx.
XXXX0000-000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndication Agency Services
Re: Credit Agreement (as amended and modified from time to time, the “Credit Agreement”) dated as
of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia corporation, Xxxxx & Minor
Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia limited liability
company, Barista Acquisition II, LLC, a Virginia limited liability company, each other Borrower
as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent. Terms used herein
but not otherwise defined herein shall have the meanings provided to such terms in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 2.2(a)(ii) of the Credit Agreement that it requests
a Borrowing of Swingline Loans under the Credit Agreement and in connection therewith sets forth below
the terms on which such Borrowing of Swingline Loans is requested to be made:
(A) Date of Borrowing (which is a Business Day)
(B) Principal amount of Borrowing
(C) Interest rate basis (Base Rate or Daily LIBOR Rate)
(D) Applicable Borrower
In accordance with the requirements of Section 5.2 of the Credit Agreement, the Borrower Representative
hereby represents and warrants that the conditions precedent set forth in Section 5.2 of the Credit Agreement
have been satisfied as of the date hereof.
XXXXX & MINOR, INC.,
as Borrower Representative
By:
Name:
Title:
CHAR1\1520175v4
4. Schedule 2.5
5. Form of Note
________________, 20__
FOR VALUE RECEIVED, the undersigned (together, the “Borrowers”), hereby promise to pay to
the order of ___________________, its successors and assigns (the “Bank”), on or before the applicable
Termination Date to the office of the Administrative Agent in immediately available funds as provided in
the Credit Agreement (as defined below),
(i) in the case of Revolving Loans, the Bank’s Revolving Committed Amount or, if less
or more, the aggregate unpaid principal amount of all Revolving Loans owing to the Bank;
(ii) in the case of Term Loans, the Bank’s Term Committed Amount or, if less or more,
the aggregate unpaid principal amount of all Term Loans owing to the Bank;
(iii) [in the case of Incremental Term Loans, the Bank’s Incremental Term Committed
Amount or, if less or more, the aggregate unpaid principal amount of all Incremental Term Loans
owing to the Bank;] and
(iv) in the case of Swingline Loans, if the Bank is the Swingline Bank, the Swingline
Committed Amount or, if less, the aggregate unpaid principal amount of all Swingline Loans
owing to the Swingline Bank;
together with interest thereon at the rates and as provided in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement (as amended, modified and
supplemented from time to time, the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor
Distribution, Inc., a Virginia corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista
Acquisition I, LLC, a Virginia limited liability company, and Barista Acquisition II, LLC, a Virginia limited
liability company, each other Borrower as may be party thereto from time to time, the Guarantors identified
therein, the Banks identified therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent.
Terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the
Credit Agreement.
The holder may endorse and attach a schedule to reflect borrowings evidenced by this Note and all
payments and prepayments thereon; provided that any failure to endorse such information shall not affect
the obligation of the Borrowers to pay amounts evidenced hereby.
Upon the occurrence of an Event of Default, all amounts evidenced by this Note may, or shall,
become immediately due and payable as provided in the Credit Agreement without presentment, demand,
protest or notice of any kind, all of which are waived by the Borrowers. In the event payment of amounts
evidenced by this Note is not made at any stated or accelerated maturity, the Borrowers agree to pay, in
addition to principal and interest, all costs of collection, including reasonable attorneys’ fees.
This Note and the Loans and amounts evidenced hereby may be transferred only as provided in the
Credit Agreement.
This Note shall be governed by, and construed in accordance with, the law of the State of New
York.
CHAR1\1520175v4
IN WITNESS WHEREOF, the Borrowers have caused this Note to be duly executed by its duly
authorized officer as of the day and year first above written.
[XXXXX & MINOR DISTRIBUTION, INC.,
a Virginia corporation
By:
Name:
Title:
XXXXX & MINOR MEDICAL, INC.,
a Virginia corporation
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
a Virginia limited liability company
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
a Virginia limited liability company
By:
Name:
Title:]
CHAR1\1520175v4
6. Schedule 2.10
7. Form of Incremental Term Joinder Agreement
THIS INCREMENTAL TERM JOINDER AGREEMENT dated as of __________, 20__ (this
“Agreement”) is by and among each of the Persons identified as “Incremental Term Banks” on the signature
pages hereto (each, an “Incremental Term Bank”), Xxxxx & Minor Distribution, Inc., a Virginia
corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia
limited liability company, Barista Acquisition II, LLC, a Virginia limited liability company, each other
Borrower as may be party thereto from time to time, the Guarantors party hereto, and Xxxxx Fargo Bank,
National Association, as Administrative Agent. Capitalized terms used but not otherwise defined herein
have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, pursuant to that certain Credit Agreement dated as of July 27, 2017 (as amended,
extended, restated, replaced, supplemented or otherwise modified in accordance with the terms thereof from
time to time, the “Credit Agreement”) among the Borrowers, the Guarantors identified therein, the Banks
identified therein and Xxxxx Fargo Bank, National Association, as Administrative Agent, the Banks have agreed
to provide the Borrowers with the credit facilities provided for therein;
WHEREAS, pursuant to Section 2.1(e) of the Credit Agreement, the Borrower Representative has
requested that each Incremental Term Bank provide an Incremental Term Facility under the Credit Agreement;
and
WHEREAS, each Incremental Term Bank has agreed to provide an Incremental Term Facility on the
terms and conditions set forth herein and to become an “Incremental Term Bank” under the Credit Agreement
in connection therewith.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Each Incremental Term Bank severally agrees to make an Incremental Term Loan in a
single advance to [insert applicable Borrower] on the date hereof in the amount of its respective Incremental
Term Commitment; provided, that, after giving effect to such advances, the Outstanding Amount of all
Incremental Term Loans under the Incremental Term Facility shall not exceed the aggregate amount of the
Incremental Term Commitments of the Incremental Term Banks with regard to such Incremental Term
Facility. The Incremental Term Commitments of each of the Incremental Term Banks and the Incremental
Term Commitment Percentage of the Incremental Term Facility for each of the Incremental Term Banks
shall be as set forth on Schedule 2.1 attached hereto. The existing Schedule 2.1 to the Credit Agreement
shall be deemed to be amended to include the information set forth on Schedule 2.1 attached hereto.
2. The Applicable Percentage with respect to the Incremental Term Facility shall be (a) [__]
percent ([__]%), with respect to Eurocurrency Rate Loans, and (b) [__] percent ([__]%), with respect to
Base Rate Loans.
3. The Incremental Term Facility Termination Date shall be [__].
CHAR1\1520175v4
4. [The Borrower shall repay to the Incremental Term Banks the principal amount of the
Incremental Term Loans under the Incremental Term Facility established pursuant hereto in quarterly
installments on the dates set forth below as follows:]1
Date
Principal
Amortization
Payment
Date
Principal
Amortization Payment
Incremental Term
Facility Termination
Date
Outstanding Amount
Total:
5. Each Incremental Term Bank (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and to become an Incremental Term Bank under the Credit Agreement,
(ii) it meets all requirements of an Eligible Assignee under the Credit Agreement (subject to receipt of such
consents as may be required under the Credit Agreement), (iii) from and after the date hereof, it shall be
bound by the provisions of the Credit Agreement as an Incremental Term Bank and a Bank thereunder and
shall have the obligations of an Incremental Term Bank and a Bank thereunder, (iv) it has received a copy
of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to
the terms thereof, as applicable, and such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Agreement on the basis of which it has made
such analysis and decision independently and without reliance on the Administrative Agent or any other
Incremental Term Bank, (v) if it is a Foreign Bank, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement and (vi) it has reviewed the DQ List and it is
not a Disqualified Institution; and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent or any other Bank, 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
Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Documents are required to be performed by it as an Incremental Term Bank and a
Bank. [Each Incremental Term Bank represents and warrants as of the date hereof to the Administrative
Agent and its Affiliates, and not, for the avoidance of doubt, for the benefit of the Borrowers or any other
Credit Party, that such Incremental Term Bank is not and will not be (1) an employee benefit plan subject
to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code; (3) an
entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Internal
Revenue Code; or (4) a “governmental plan” within the meaning of ERISA.]
6. Each of the Administrative Agent, each Borrower and each Guarantor agrees that, as of the
date hereof, each Incremental Term Bank shall (a) be a party to the Credit Agreement and the other Credit
Documents, (b) be an “Incremental Term Bank” and a “Bank” for all purposes of the Credit Agreement and
the other Credit Documents and (c) have the rights and obligations of an Incremental Term Bank and a
Bank under the Credit Agreement and the other Credit Documents.
1 Include to the extent the applicable Incremental Term Facility requires amortization payments.
CHAR1\1520175v4
7. The address of each Incremental Term Bank for purposes of all notices and other
communications is as set forth on the Administrative Questionnaire delivered by such Incremental Term
Bank to the Administrative Agent.
8. This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken together shall
constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by
fax transmission or e-mail transmission (e.g. “pdf” or “tif”) shall be effective as delivery of a manually
executed counterpart of this Agreement.
9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
CHAR1\1520175v4
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by
a duly authorized officer as of the date first above written.
INCREMENTAL TERM BANKS: [INSERT INCREMENTAL TERM BANK]
By:
Name:
Title:
CREDIT PARTIES: XXXXX & MINOR, INC.,
a Virginia corporation
By:
Name:
Title:
XXXXX & MINOR DISTRIBUTION, INC.,
a Virginia corporation
By:
Name:
Title:
XXXXX & MINOR MEDICAL, INC.,
a Virginia corporation
By:
Name:
Title:
BARISTA ACQUISITION I, LLC,
a Virginia limited liability company
By:
Name:
Title:
BARISTA ACQUISITION II, LLC,
a Virginia limited liability company
By:
Name:
Title:
[INSERT CREDIT PARTY]
By:
Name:
Title:
CHAR1\1520175v4
ADMINISTRATIVE AGENT: XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
CHAR1\1520175v4
8. Schedule 3.2
9. Form of Notice of Extension/Conversion
Xxxxx Fargo Bank, National Association, as Administrative Agent
0000 Xxxx X.X. Xxxxxx Xxxx.
XXXX0000-000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndication Agency Services
Re: Credit Agreement (as amended and modified from time to time, the “Credit Agreement”) dated as
of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia corporation, Xxxxx & Minor
Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia limited liability
company, Barista Acquisition II, LLC, a Virginia limited liability company, each other Borrower
as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent. Terms used herein
but not otherwise defined herein shall have the meanings provided to such terms in the Credit
Agreement.
Ladies and Gentlemen:
The undersigned hereby gives notice pursuant to Section 3.2 of the Credit Agreement that it
requests a continuation or conversion of [Revolving Loans][Term Loans][Incremental Term Loans]
outstanding under the Credit Agreement, and in connection therewith sets forth below the terms on which
such continuation or conversion is requested to be made:
(A) Loan Type (Base Rate Loan or Eurocurrency Rate Loan)
(B) Date of continuation or conversion
(which is the last day of the applicable Interest Period)
(C) Principal amount of continuation or conversion
(D) Interest rate basis
(E) Interest Period and the last day thereof
(F) Currency
In accordance with the requirements of Section 3.2 of the Credit Agreement, if this notice provides
for an extension of or conversion to any Eurocurrency Rate Loan, then the Borrower Representative hereby
affirms that no Default or Event of Default exists as of the date hereof.
XXXXX & MINOR, INC.,
as Borrower Representative
By:
Name:
Title:
CHAR1\1520175v4
10. Schedule 3.11-1
11. Form of U.S. Tax Compliance Certificate
(For Foreign Banks That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement (as amended and modified from time to time,
the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia
corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia
limited liability company, Barista Acquisition II, LLC, a Virginia limited liability company, each other
Borrower as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.11(e) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of any Borrower
within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (iv) it is not a controlled foreign
corporation related to any Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrowers with a certificate of its
non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned
shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: , 20___
CHAR1\1520175v4
12. Schedule 3.11-2
13. Form of U.S. Tax Compliance Certificate
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement (as amended and modified from time to time,
the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia
corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia
limited liability company, Barista Acquisition II, LLC, a Virginia limited liability company, each other
Borrower as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.11(e) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing
this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code,
(iii) it is not a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B) of the
Internal Revenue Code, and (iv) it is not a controlled foreign corporation related to any Borrower as described
in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Bank with a certificate of its non-U.S. Person status
on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned
agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform
such Bank in writing, and (2) the undersigned shall have at all times furnished such Bank with a properly
completed and currently effective certificate in either the calendar year in which each payment is to be made
to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: , 20___
14.
CHAR1\1520175v4
16. Schedule 3.11-3
17. Form of U.S. Tax Compliance Certificate
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement (as amended and modified from time to
time, the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a
Virginia corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a
Virginia limited liability company, Barista Acquisition II, LLC, a Virginia limited liability company, each
other Borrower as may be party thereto from time to time, the Guarantors identified therein, the Banks
identified therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.11(e) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate,
(ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect
to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank
extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within
the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of any Borrower within the meaning of Section 871(h)(3)(B)
of the Internal Revenue Code and (v) none of its direct or indirect partners/members is a controlled foreign
corporation related to any Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished its participating Bank with IRS Form W-8IMY accompanied by one
of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i)
an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable or (ii) an IRS Form W-8IMY accompanied
by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall
promptly so inform such Bank and (2) the undersigned shall have at all times furnished such Bank with a
properly completed and currently effective certificate in either the calendar year in which each payment is to
be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: , 20___
18.
CHAR1\1520175v4
20. Schedule 3.11-4
21. Form of U.S. Tax Compliance Certificate
(For Foreign Banks That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement (as amended and modified from time to time,
the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor Distribution, Inc., a Virginia
corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a Virginia
limited liability company, Barista Acquisition II, LLC, a Virginia limited liability company, each other
Borrower as may be party thereto from time to time, the Guarantors identified therein, the Banks identified
therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent.
Pursuant to the provisions of Section 3.11(e) of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in
respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial
owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension
of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of
its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in
the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of any Borrower within
the meaning of Section 871(h)(3)(B) of the Internal Revenue Code and (v) none of its direct or indirect
partners/members is a controlled foreign corporation related to any Borrower as described in Section
881(c)(3)(C) of the Internal Revenue Code.
The undersigned has furnished the Administrative Agent and the Borrowers with IRS Form W-8IMY
accompanied by one of the following forms from each of its partners/members that is claiming the portfolio
interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable or (ii) an IRS Form W-
8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable from each of such
partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform the Borrowers and the Administrative Agent, and (2) the undersigned
shall have at all times furnished the Borrowers and the Administrative Agent with a properly completed and
currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
[NAME OF BANK]
By:
Name:
Title:
Date: , 20___
22.
CHAR1\1520175v4
24. Schedule 5.1(d)
25. Form of Officer’s Certificate
July 27, 2017
Pursuant to Section 5.1(d) of the Credit Agreement (the “Credit Agreement”), dated as of July 27,
2017, among Xxxxx & Minor Distribution, Inc., a Virginia corporation, Xxxxx & Minor Medical, Inc., a
Virginia corporation, Barista Acquisition I, LLC, a Virginia limited liability company, Barista Acquisition
II, LLC, a Virginia limited liability company, each other Borrower as may be party thereto from time to
time, the Guarantors identified therein, the Banks identified therein, and Xxxxx Fargo Bank, National
Association as administrative agent (in such capacity, the “Administrative Agent”), the undersigned,
[_________________], Secretary of [_______________] (the “Company”), hereby certifies to the
Administrative Agent and the Banks as follows:
1. Attached hereto as Annex I is a true and complete copy
of resolutions duly adopted by the [board of directors][managers] of the
Company on [____________]. The attached resolutions have not been
rescinded or modified and remain in full force and effect. The attached
resolutions are the only [corporate][limited liability company]
proceedings of the Company now in force relating to or affecting the
matters referenced therein.
2. Attached hereto as Annex II is a true and complete copy
of the [bylaws][operating agreement] of the Company as in effect on the
date hereof.
3. Attached hereto as Annex III is a true and complete copy
of the articles of [incorporation][formation] of the Company and all
amendments thereto as in effect on the date hereof.
4. Each of the following persons is now a duly
[elected][appointed] and qualified officer of the Company, holding the
office(s) indicated, and the signature appearing opposite his/her name
below is his/her true and genuine signature.
Name Office Signature
IN WITNESS WHEREOF, the undersigned has hereunto set his/her name as of the date set forth
above.
Secretary
I,[__________________], of the Company, hereby certify that [_____________________], whose
genuine signature appears above, is a duly [elected][appointed], qualified and acting Secretary of the
Company.
CHAR1\1520175v4
[Title]
CHAR1\1520175v4
26. Schedule 6.17
Name of Subsidiary
Jurisdiction of
Incorporation Subsidiary of 1
Xxxxx & Minor Medical, Inc. Xxxxxxxx Xxxxx & Minor Distribution, Inc.
Xxxxx & Minor Distribution, Inc. Xxxxxxxx Xxxxx & Minor, Inc.
Barista Acquisition I, LLC Xxxxxxxx Xxxxx & Minor, Inc.
Barista Acquisition II, LLC Xxxxxxxx Xxxxx & Minor, Inc.
O&M Funding Corp. Xxxxxxxx Xxxxx & Minor Distribution, Inc.
OMSolutions International, Inc. Xxxxxxxx Xxxxx & Minor, Inc.
Xxxxx & Minor Canada, Inc. Virginia OMSolutions International, Inc.
Xxxxx & Minor Global Resources, LLC Xxxxxxxx Xxxxx & Minor Distribution, Inc.
Xxxxx & Minor Healthcare Supply, Inc. Xxxxxxxx Xxxxx & Minor, Inc.
Access Diabetic Supply, LLC Florida Xxxxx & Minor Healthcare Supply, Inc.
Access Respiratory Supply, Inc. Florida Access Diabetic Supply, LLC
Medical Supply Group, Inc. Xxxxxxxx Xxxxx & Minor Healthcare Supply, Inc.
Key Diabetes Supply Co. Michigan Xxxxx & Minor Healthcare Supply, Inc.
Xxxx XXXxxxxxx Holding Company Limited Hong Kong O&M-Movianto Nederland B.V.
Xxxx XXXxxxxxx (Shanghai) Co., LTD Shanghai Xxxx XXXxxxxxx Holding Company Limited
XXXX Xxxxxxxxx (Malaysia) SDN. BHD. Malaysia Xxxx XXXxxxxxx Holding Company Limited
Xxxxx & Minor International Logistics, Inc. Xxxxxxxx Xxxxx & Minor Distribution, Inc.
O&M Worldwide, LLC Xxxxxxxx Xxxxx & Minor Distribution, Inc.
GNB Associates, LLC Xxxxxxxx Xxxxx & Minor International Limited
Medical Action Industries, Inc. Delaware Xxxxx & Minor, Inc.
AVID Medical, Inc. Delaware Medical Action Industries, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxx LLC Delaware Medical Action Industries, Inc.
MAI Acquisition Corp. Delaware Medical Action Industries, Inc.
Medegen Newco, LLC Delaware MAI Acquisition Corp.
Xxxxxxxxxx Holdings C.V. Netherlands
99.99% owned by Xxxxx & Minor
International Logistics, Inc. and 0.01%
owned by O&M Worldwide, LLC
O&M-Movianto Nederland B.V. Netherlands Xxxxx & Minor Ireland Unlimited Company
O&M-Movianto UK Holdings Ltd.
United
Kingdom O&M-Movianto Nederland B.V.
O&M-Movianto France Holdings S.A.S. France O&M-Movianto Nederland B.V.
Movianto Belgium NV Belgium
99% owned by O&M-Movianto UK Holdings
Ltd. and 1% owned by O&M Xxxxxxxx
Xxxxxxxxx X.X.
Xxxxxxxx Xxxxx xxxxxxxxx xxx
Xxxxx
Xxxxxxxx
98% owned by O&M-Movianto UK Holdings
Ltd. and 2% owned by O&M Movianto
Nederland B.V.
Movianto Polska SP ZOO Poland Movianto Ceska republika sro
Movianto Nordic ApS Denmark O&M-Movianto UK Holdings Ltd.
Movianto France SAS France O&M-Movianto France Holdings S.A.S.
Movianto GmbH Germany O&M-Movianto Nederland B.V.
Movianto Deutschland GmbH Germany
90% owned by Movianto Schweiz GmbH
and 10% owned by O&M Movianto
Nederland B.V.
CHAR1\1520175v4
Movianto Portugal, Unipessoal LDA Portugal O&M-Movianto UK Holdings Ltd.
Movianto Slovensko sro
Slovak
Republic
85% owned by Movianto Ceska republika
sro and 15% owned by Movianto GmbH
AVS Health Espana SL Spain O&M-Movianto UK Holdings Ltd.
Movianto Espana SLU Spain AVS Health Espana SL
Movianto Schweiz GmbH Switzerland Movianto GmbH
Healthcare Services Group Limited
United
Kingdom O&M-Movianto UK Holdings Ltd.
Movianto UK Ltd.
United
Kingdom Healthcare Services Group Limited
Movianto Transport Solutions Ltd.
United
Kingdom Healthcare Services Group Limited
Healthcare Product Services Ltd.
United
Kingdom Healthcare Services Group Limited
Pharmacare Logistics Ltd.
United
Kingdom Movianto UK Ltd.
Xxxxx & Minor International Limited Ireland Xxxxxxxxxx Holdings X.X.
Xxxxx & Minor Ireland Unlimited Company Ireland
99% owned by Xxxxx & Minor Jersey
Holdings Limited and 1% held as Nominee
by Xxxxx & Minor Jersey Unlimited
Xxxxx & Minor Jersey Holdings Limited Jersey Xxxxx & Minor International Limited
Xxxxx & Minor Jersey Unlimited Jersey Xxxxx & Minor Jersey Holdings Limited
Nalvest Limited Jersey
99% owned by Xxxxx & Minor Ireland
Unlimited Company and 1% held as
Nominee by Xxxxx & Minor Jersey
Unlimited
ArcRoyal Holdings Unlimited Company Ireland
99% held Nalvest Limited and 1% held as
Nominee by Xxxxx & Minor Jersey
Unlimited
Xxxxx & Minor Global Services Unlimited
Company Ireland
99% held ArcRoyal Holdings Unlimited
Company and 1% held as Nominee by
Xxxxx & Minor Jersey Unlimited
ArcRoyal Unlimited Company Ireland
99% held ArcRoyal Holdings Unlimited
Company and 1% held as Nominee by
Xxxxx & Minor Jersey Unlimited
O&M Healthcare International Limited Ireland Xxxxx & Minor Ireland Unlimited Company
O&M Healthcare Italia S.R.L. Italy O&M Healthcare International Limited
27.
28.
29. 1 All subsidiaries are wholly-owned unless otherwise noted.
30.
CHAR1\1520175v4
31. Schedule 7.1(c)
32. Form of Officer’s Compliance Certificate
For the fiscal [quarter][year] ended ____________, 20__.
Pursuant to that Credit Agreement (as amended and modified from time to time, the “Credit
Agreement”; all capitalized terms used herein but not otherwise defined herein shall have the meanings
provided to such terms in the Credit Agreement) dated as of July 27, 2017 among Xxxxx & Minor
Distribution, Inc., a Virginia corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista
Acquisition I, LLC, a Virginia limited liability company, Barista Acquisition II, LLC, a Virginia limited
liability company, each other Borrower as may be party thereto from time to time, the Guarantors identified
therein, the Banks identified therein, and Xxxxx Fargo Bank, National Association, as Administrative Agent,
the undersigned, the _____________ of the Parent, hereby certifies to the Administrative Agent and the
Banks that, to the best of [his][her] knowledge and belief:
a. The company-prepared financial statements which accompany this certificate present fairly in
all material respects the financial condition of the Parent and its Subsidiaries and have been
prepared in accordance with GAAP applied on a consistent basis, subject to changes resulting
from normal year-end audit adjustments.1
b. No Default or Event of Default exists under the Credit Agreement.1
c. The Parent’s current Debt Ratings are ______ (Xxxxx’x Rating), ______ (S&P Rating) and
______ (Fitch Rating).
Delivered herewith are detailed calculations demonstrating compliance by the Credit Parties with
the financial covenants contained in Section 7.10 of the Credit Agreement as of the end of the fiscal period
referred to above.
This day of _________________, 20__.
XXXXX & MINOR, INC.,
as the Parent
By:
Name:
Title:
1 To be included in the certificate delivered in connection with Section 7.1(b).
1 If any Default or Event of Default does exist, then add the following statement before the period: “except as set forth
in a separate attachment to this Compliance Certificate, which specifies the nature and extent thereof and the action
the Borrowers or the Parent proposes to take with respect thereto”.
CHAR1\1520175v4
33. Attachment to Officer’s Certificate
34. Computation of Financial Covenants
CHAR1\1520175v4
35. Schedule 7.11
36. Form of Joinder Agreement
THIS JOINDER AGREEMENT (this “Agreement”), dated as of __________, 20__, is by and
between _____________, a _______________ (the “Applicant Subsidiary”), and Xxxxx Fargo Bank,
National Association, in its capacity as Administrative Agent under that certain Credit Agreement (as
amended and modified, the “Credit Agreement”) dated as of July 27, 2017 among Xxxxx & Minor
Distribution, Inc., a Virginia corporation, Xxxxx & Minor Medical, Inc., a Virginia corporation, Barista
Acquisition I, LLC, a Virginia limited liability company, Barista Acquisition II, LLC, a Virginia limited
liability company, each other Borrower as may be party thereto from time to time, the Guarantors identified
therein, the Banks identified therein and Xxxxx Fargo Bank, National Association, as Administrative Agent.
All of the defined terms in the Credit Agreement are incorporated herein by reference.
The Borrower Representative is required by Section 7.11 of the Credit Agreement to cause the
Applicant Subsidiary to become a “Guarantor”. Accordingly, the Applicant Subsidiary hereby agrees with
the Administrative Agent, for the benefit of the Banks, as follows:
1. The Applicant Subsidiary hereby acknowledges, agrees
and confirms that, by its execution of this Agreement, the Applicant
Subsidiary will be deemed to be a party to the Credit Agreement and a
“Guarantor” for all purposes of the Credit Agreement, and shall have all
of the obligations of a Guarantor thereunder as if it had executed the
Credit Agreement. The Applicant Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit
Agreement. Without limiting the generality of the foregoing terms of this
paragraph 1, the Applicant Subsidiary hereby (i) jointly and severally
together with the other Guarantors, guarantees to each Bank, each
Issuing Bank, each affiliate of a Bank that has entered into a Swap
Contract or a Treasury Management Agreement with any Credit Party or
any Subsidiary, the Administrative Agent and each other holder of the
Obligations, as provided in Section 4 of the Credit Agreement, the
prompt payment and performance of the Obligations in full when due
(whether at stated maturity, as a mandatory prepayment, by acceleration,
as a mandatory cash collateralization or otherwise) strictly in accordance
with the terms thereof.
2. The address of the Applicant Subsidiary for purposes of
all notices and other communications is the address set forth for the other
Credit Parties in on Schedule 11.1 of the Credit Agreement.
3. The Applicant Subsidiary hereby waives acceptance by
the Banks, the Issuing Banks, each affiliate of a Bank that has entered
into a Swap Contract or a Treasury Management Agreement with any
Credit Party or any Subsidiary, the Administrative Agent and each other
holder of the Obligations of the guaranty by the Applicant Subsidiary
under Section 4 of the Credit Agreement upon the execution of this
Agreement by the Applicant Subsidiary.
CHAR1\1520175v4
4. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which
when taken together shall constitute one contract.
5. This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
CHAR1\1520175v4
IN WITNESS WHEREOF, the Applicant Subsidiary has caused this Joinder Agreement to be duly
executed by its authorized officer, and the Administrative Agent, for the benefit of the Banks, has caused
the same to be accepted by its authorized officer, as of the day and year first above written.
[APPLICANT SUBSIDIARY]
By:
Name:
Title:
Acknowledged and accepted:
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
CHAR1\1520175v4
37. Schedule 8.1(b)
38. Existing Indebtedness
$275 million aggregate principal amount of 3.875% Senior Notes due 2021 issued on September 16, 2014
$275 million aggregate principal amount of 4.375% Senior Notes due 2024 issued on September 16, 2014
Capital leases for office and warehouse equipment with various parties. As of March 31, 2017, the amount
of capital leases was $22.3 million
39. €1,064,047.20 Letter of Credit issued by X.X. Xxxxxx Xxxxx Bank, N.A. to Xxxxx & Minor, Inc.
for the benefit of Commerzbank AG relating to certain facilities leased in Europe
CHAR1\1520175v4
40. Schedule 8.2
41. Existing Liens
Liens on office and warehouse equipment securing capital lease obligations described on Schedule 8.1(b)
CHAR1\1520175v4
42. Schedule 11.1
43. Notice Addresses
1. If to any Credit Party:
Xxxxx & Minor, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx & Minor, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and a copy to:
Xxxx X. Xxxxxx
Xxxxxx & Xxxxxxxx LLP
Riverfront Plaza - East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
e-mail: xxxxxxx@xxxxxx.xxx
2. If to the Administrative Agent:
Xxxxx Fargo Bank, National Association
0000 Xxxx X.X. Xxxxxx Xxxx.
XXXX0000-000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Syndication Agency Services
Fax: (000) 000-0000
Email: xxxxxxxxxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx
with a copy to:
Xxxxx Fargo Bank, National Association
0000 XX Xxxxxx Xxxx.
Mail Code: D1109-019
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Loan Servicing Specialist
Wholesale Loan Services
CHAR1\1520175v4
Telephone: 000-000-0000
Fax: 000-000-0000
Email: xxxxx.xxxxxxx@xxxxxxxxxx.xxx
CHAR1\1520175v4
44. Schedule 11.3(b)
45. Form of Assignment and Assumption
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective
Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and
[Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions
set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a
part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance
with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations as a Bank under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount[s] and percentage interest[s] identified below (including, without limitation, Letters
of Credit, guarantees and Swingline Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Bank) against any Person, whether known or unknown, arising under or in connection with
the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as,
the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor:
[Assignor [is][is not] a Defaulting Bank.]
2. Assignee:
[and is an Affiliate/Approved Fund of [identify Bank]]1
3. Borrowers: Xxxxx & Minor Distribution, Inc., a Virginia corporation, Xxxxx &
Minor Medical, Inc., a Virginia corporation, Barista Acquisition I, LLC, a
Virginia limited liability company, Barista Acquisition II, LLC, a Virginia
limited liability company and each other Borrower as may be party to the
Credit Agreement from time to time
4. Administrative
Agent: Xxxxx Fargo Bank, National Association and its successors and assigns
5. Credit Agreement: The Credit Agreement dated as of July 27, 2017 among the Borrowers,
Xxxxx & Minor, Inc. (the “Parent”), the other Guarantors party thereto,
the Banks party thereto and Xxxxx Fargo Bank, National Association, as
Administrative Agent
1 Select as applicable.
CHAR1\1520175v4
6. Assigned Interest:
Facility Assigned2
Aggregate
Amount of
Commitment/
Loans
for all
Banks*
Amount of
Commitment/
Loans
Assigned*
Percentage
Assigned of
Commitment/
Loans3
$ $ %
$ $ %
$ $ %
[7. Trade Date: ]4
Effective Date: ________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Name:
Title:
[Consented to and]5 Accepted:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
Name:
Title:
2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned
under this Assignment (e.g. “Revolving Commitment,” “Term Commitment,” “Incremental Term Commitment,” etc.)
* Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the
Trade Date and the Effective Date.
3 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Banks thereunder.
4 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined
as of the Trade Date.
5 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
CHAR1\1520175v4
[Consented to:]6
[XXXXX FARGO BANK, NATIONAL
ASSOCIATION, Swingline Bank]
By
Name:
Title:
[[_______________], as Issuing Bank]
By
Name:
Title:
[XXXXX & MINOR, INC.,
as Borrower Representative]
By
Name:
Title:
6 To be added only if the consent of each Issuing Bank, the Swingline Bank and/or the Borrower Representative is
required by the terms of the Credit Agreement.
CHAR1\1520175v4
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial
owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other
adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is
[not] a Defaulting Bank; and (b) assumes no responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any other Credit Document, (ii) the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Documents or
any collateral thereunder, (iii) the financial condition of the Parent, any of its Subsidiaries or Affiliates or
any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the
Parent, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under
any Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby and to become a Bank under the Credit Agreement, (ii) it meets the
requirements to be an assignee under Section 11.3(b)(iii) and (v) of the Credit Agreement (subject to such
consents, if any, as may be required under Section 11.3(b)(iii) of the Credit Agreement), (iii) from and after
the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Bank thereunder and,
to the extent of the Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it is sophisticated
with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or
the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in
acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant
to Section 7.1 thereof, as applicable, and such other documents and information as it deems appropriate to
make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase
the Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any
other Bank and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest,
(vii) if it is a Foreign Bank, attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee and (viii) it has reviewed
the DQ List and it is not a Disqualified Institution; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Bank, 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 Credit Documents, and (ii) it will perform in accordance with their terms all of
the obligations which by the terms of the Credit Documents are required to be performed by it as a Bank.
[The Assignee represents and warrants as of the Effective Date to the Administrative Agent, the Assignor
and the respective Affiliates of each, and not, for the avoidance of doubt, for the benefit of the Borrowers
or any other Credit Party, that the Assignee is not and will not be (1) an employee benefit plan subject to
Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code; (3) an entity
deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the Internal Revenue
Code; or (4) a “governmental plan” within the meaning of ERISA.]
CHAR1\1520175v4
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor
for amounts which have accrued to but excluding the Effective Date and
to the Assignee for amounts which have accrued from and after the
Effective Date. Notwithstanding the foregoing, the Administrative
Agent shall make all payments of interest, fees or other amounts paid or
payable in kind from and after the Effective Date to the Assignee.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute
one instrument. Delivery of an executed counterpart of a signature page
of this Assignment and Assumption by telecopy shall be effective as
delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.
