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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

____________________________

 

FORM 8-K

____________________________

 

CURRENT REPORT

 

Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): September 2, 2022 (September 1, 2022)

 

SEMTECH CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction of

incorporation)

 

001-06395   95-2119684
(Commission File Number)   (IRS Employer Identification No.)

 

200 Flynn Road    

Camarillo, California

  93012-8790
(Address of principal executive offices)   (Zip Code)

 

805-498-2111

(Registrant’s telephone number, including area code)

 

Not applicable

(Former name or former address, if changed since last report)

____________________________

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Exchange Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Common Stock, par value $0.01 per share   SMTC   The Nasdaq Global Select Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

Emerging growth company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 

 

Item 1.01Entry into a Material Definitive Agreement.

 

On September 1, 2022, Semtech Corporation (the “Registrant”), with certain of its domestic subsidiaries as guarantors, entered into a Second Amendment to Second Amended and Restated Credit Agreement (the “Second Amendment”) with the lenders referred to therein, and HSBC Bank USA, National Association, as administrative agent and as swing line lender and letter of credit issuer.

 

Pursuant to the Second Amendment, the Registrant’s existing revolving credit facility was amended to: (i) permit the consummation of, and certain transactions in connection with, the Registrant’s announced acquisition of Sierra Wireless, Inc., a Canadian corporation (the “Sierra Acquisition”), (ii) revise the financial maintenance covenant by increasing the maximum consolidated leverage ratio permitted for the six successive fiscal quarters following consummation of the Sierra Acquisition, (iii) permit the incurrence of up to $1.151 billion (plus the amount of fees and expenses related to the Sierra Acquisition) in additional secured debt in connection with the Sierra Acquisition, (iv) provide for limited conditions precedent in the event of a borrowing to finance the Sierra Acquisition and (v) make certain other changes as set forth in the Second Amendment, a copy of which is included as Exhibit 10.1 to this Current Report on Form 8-K.

 

The summary set forth above is not intended to be complete and is qualified in its entirety by reference to the full text of the Second Amendment attached hereto as Exhibit 10.1

 

Item 9.01Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit 10.1Second Amendment to Second Amended and Restated Credit Agreement, dated as of September 1, 2022, by and among Semtech Corporation, the subsidiary guarantors, HSBC Bank USA, National Association, as administrative agent, and certain lenders party thereto.

 

Exhibit 104The Cover Page from this Current Report on Form 8-K formatted in Inline XBRL (included as Exhibit 101)

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

      SEMTECH CORPORATION
         
Date: September 2, 2022   /s/ Emeka N. Chukwu
      Name: Emeka N. Chukwu
      Title: Chief Financial Officer

 

Exhibit 10.1

 

 

 

 

Execution Version

 

SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (“Second Amendment”) is entered into as of September 1, 2022, among SEMTECH CORPORATION, a Delaware corporation, as borrower (“Borrower”), the Guarantors (unless otherwise indicated, this and each other capitalized term used in this Preamble and the following recitals having the meaning given to it in Section 1) party hereto, certain Lenders party to the Credit Agreement (as defined below) as of the date hereof, and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association (“HSBC”), in its separate capacities as Administrative Agent, for the benefit of the Secured Parties, and as Swing Line Lender and L/C Issuer. Capitalized terms used but not defined in this Second Amendment shall have the meaning given to them in the Credit Agreement.

 

RECITALS

 

A.   Borrower, each of the Guarantors, the several financial institutions party thereto as Lenders and HSBC, in its separate capacities as Administrative Agent and as Swing Line Lender and L/C Issuer, have entered into that Second Amended and Restated Credit Agreement dated as of November 7, 2019, as amended by the First Amendment to Second Amended and Restated Credit Agreement, dated as of August 11, 2021 (the “Existing Credit Agreement”), pursuant to which the Lending Parties have extended and made available certain Credit Extensions to Borrower in accordance with the terms, and subject to the conditions, of the Existing Credit Agreement and the other Loan Documents.

 

B.   Borrower, each of the Guarantors and the Lenders party hereto (which, for the avoidance of doubt, constitute “Required Lenders” under the Existing Credit Agreement) are willing to amend the Existing Credit Agreement pursuant to Section 10.01 thereof on the terms and subject to the conditions set forth in this Second Amendment (the Existing Credit Agreement as so amended is referred to herein as the “Credit Agreement”). In connection therewith, the Lenders party hereto have agreed that the form of intercreditor agreement set forth as Exhibit B hereto is acceptable, as more particularly set forth in the definition of “Permitted Pari Passu Intercreditor Agreement” in the Credit Agreement, and that the conditions precedent set forth on Exhibit C hereto shall be the only conditions to a borrowing under the Credit Agreement in connection with consummation of the Sunrise Acquisition, as more particularly set forth in the Credit Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants herein set forth, and intending to be legally bound, the parties hereto agree as follows:

 

Section 1. DEFINITIONS. Capitalized terms used but not defined herein shall have the meanings specified in the Credit Agreement.

 

Section 2. Amendment. Subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, the Existing Credit Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Existing Credit Agreement attached as Exhibit A hereto.

 

Section 3. Effectiveness. This Second Amendment and the amendments contained herein shall become effective on the date (the “Second Amendment Effective Date”) when each of the following conditions precedent set forth in this Section 3 shall have been satisfied or waived by the Lenders party hereto:

 

 

 

3.1  Executed Second Amendment. The Administrative Agent shall have received counterparts of this Second Amendment, duly executed and delivered on behalf of the Borrower, the Guarantors, the Administrative Agent and Lenders constituting the Required Lenders.

 

3.2  Payment of Fees. Borrower shall have paid all fees due and payable to the Lenders party hereto in connection with their consent to this Second Amendment pursuant to that certain Committed Facilities Fee Letter dated as of August 2, 2022 by and between the Borrower and JPMorgan Chase Bank, N.A.

 

For the purpose of determining satisfaction of the conditions precedent specified in this Section 3, each Lender that has signed and delivered this Second Amendment shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 3 unless Administrative Agent and the Borrower shall have received written notice from such Lender prior to the Second Amendment Effective Date specifying its objection thereto. The Administrative Agent shall promptly confirm the occurrence of the Second Amendment Effective Date to the other parties hereto.

 

Section 4. Limitation of Amendment; Full Force and Effect. The amendments set forth in this Second Amendment shall be limited precisely as written and shall not be deemed (a) to be an amendment, consent or waiver of any other term or condition of the Existing Credit Agreement or the other Loan Documents, to prejudice any right or remedy which the Administrative Agent or any of the Lending Parties may now have or may have in the future under or in connection with the Credit Agreement or the other Loan Documents; or (b) to be a consent to any future waiver, amendment, consent or departure from the terms and conditions of the Credit Agreement or the other Loan Documents. This Second Amendment shall be construed in connection with and as part of the Loan Documents, and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein waived or amended, are hereby ratified and confirmed and shall remain in full force and effect.

 

Section 5. Representations and Warranties. In order to induce the Lenders and Administrative Agent to enter into this Second Amendment, each Loan Party jointly and severally represents and warrants to each Lender and Administrative Agent as follows:

 

5.1  Authorization; Enforceability. Each Loan Party has taken all corporate, limited liability company or other legal entity action, as applicable, required to execute, deliver and perform this Second Amendment and the Credit Agreement. This Second Amendment and the Credit Agreement constitute valid and binding obligations of each Loan Party, enforceable against such Loan Party in accordance with their terms, except as enforcement thereof may be limited by Debtor Relief Laws or other applicable Laws affecting the enforcement of creditors’ rights generally, and by general principles of equity.

 

5.2  No Conflict. Neither the execution and delivery of this Second Amendment nor the performance by any Loan Party of the Credit Agreement will:

 

(a)  contravene the Organizational Documents of any Loan Party;

 

(b)  violate any Law applicable to any Loan Party, except to the extent such violation would not reasonably be expected to have or result in a Material Adverse Effect; or

 

(c)  result in the creation of any Lien under any order, injunction, writ or decree of any Governmental Authority upon any of the assets of any Loan Party, except to the extent the creation of such Lien would not reasonably be expected to have or result in a Material Adverse Effect or such Lien is a Lien permitted under the Credit Agreement.

 

2 

 

5.3  Absence of Default. Immediately after giving effect to this Second Amendment, no event has occurred and is continuing or will result from the effectiveness of this Second Amendment would constitute a Default or an Event of Default.

 

5.4  Restatement of Representations and Warranties in Credit Agreement. Each Loan Party, with respect to the representations and warranties of such Loan Party set forth in the Credit Agreement, including Article V thereof, represents and warrants that each of such representations and warranties is true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) as of the Second Amendment Effective Date (except to the extent any such representation or warranty specifically refers to an earlier date, in which case such representation or warranty will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date).

 

Section 6. Reaffirmation by Borrower. Borrower hereby acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including its undertaking and obligation to timely pay the Obligations.

 

Section 7. Reaffirmation by Guarantors. Each Guarantor acknowledges that it has reviewed and approved this Second Amendment, consents to the execution and delivery of this Second Amendment, and to performance of this Second Amendment and the Credit Agreement by Borrower in all respects, and acknowledges and reaffirms its obligations under each Loan Document to which it is a party, including its joint and several, unconditional and irrevocable guarantee of the Guaranteed Obligations as set forth in Section 10.15 of the Credit Agreement.

 

Section 8. Miscellaneous.

 

8.1  Reference to and Effect on the Existing Credit Agreement and the other Loan Documents. On and after the Second Amendment Effective Date, each reference in the Credit Agreement or the other Loan Documents to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to such agreement after giving effect hereto. This Second Amendment shall be deemed to be one of the Loan Documents. The rules of construction set forth in Section 1.02 of the Credit Agreement shall apply to this Second Amendment the same as they apply to the Credit Agreement and the other Loan Documents.

 

8.2  Ratification of Reimbursement and Indemnification Obligations. Borrower ratifies and affirms each of its reimbursement and indemnification obligations under the Loan Documents, including Section 10.04 of the Credit Agreement, and including its obligation to pay all reasonable fees, charges and disbursements of counsel incurred by the Administrative Agent in connection with the negotiation, implementation, execution and enforcement of this Second Amendment, and any acts contemplated hereby and thereby. Nothing herein shall be construed to limit, affect, modify or alter Borrower’s reimbursement and indemnification obligations under the Credit Agreement or elsewhere under the Loan Documents.

 

8.3  Headings. Section and subsection headings in this Second Amendment are included herein for convenience of reference only and shall not constitute a part of this Second Amendment for any other purpose or be given any substantive effect,

 

8.4  Governing Law, Submission to Jurisdiction, Waiver of Venue, Service of Process and Jury Trial Waiver. Sections 10.16 and 10.17 of the Credit Agreement are incorporated herein, mutatis mutandis, and are deemed to apply to this Second Amendment as if set forth herein in full.

 

3 

 

8.5  Successors and Assigns. The provisions of this Second Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that Borrower and the Guarantors may not assign or transfer any of their rights or obligations under this Second Amendment except in accordance with the Credit Agreement.

 

8.6  Counterparts.

 

(a)  This Second Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Second Amendment by facsimile or email (including by “pdf”) shall be effective as delivery of a manually executed counterpart of this Second Amendment.

 

(b)  The words “execute,” “execution,” “signed,” “signature,” “delivery” and words of like import in or related to this Second Amendment or any certificate or other document to be signed or delivered in connection with this Second Amendment or the transactions contemplated hereby shall be deemed to include Electronic Signatures or execution in the form of an Electronic Record, and contract formations on electronic platforms approved by Administrative Agent, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature 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. Each party hereto agrees that any Electronic Signature or execution in the form of an Electronic Record shall be valid and binding on itself and each of the other parties hereto to the same extent as a manual, original signature. For the avoidance of doubt, the authorization under this Section 8.6(b) may include use or acceptance by the parties of a manually signed paper which has been converted into electronic form (such as scanned into PDF format), or an electronically signed paper converted into another format, for transmission, delivery and/or retention. Notwithstanding anything contained herein to the contrary, Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by Administrative Agent pursuant to procedures approved by it.

 

[remainder of page intentionally left blank]

 

4 

 

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Second Amended and Restated Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

  Borrower:  
     
  Semtech Corporation  
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: Executive Vice President and Chief Financial Officer  
         
         
  Guarantors:  
     
  Semtech San Diego Corporation  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Chief Financial Officer  
         
         
  Semtech New York Corporation  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Treasurer  
         
         
  Semtech Colorado, Inc.  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Chief Financial Officer  
         
         
  Sierra Monolithics, Inc.  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Chief Financial Officer  

5 

 

  Semtech EV, Inc.  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President, Chief Financial Officer and Treasurer  
         
         
  Triune Systems, L.L.C.  
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Chief Financial Officer  
         
  Triune IP, L.L.C.  
     
     
  By: /s/ Emeka N. Chukwu    
    Name: Emeka N. Chukwu  
    Title: President and Chief Financial Officer  

6 

 

Administrative Agent, Swing Line Lender and L/C Issuer:  
   
   
HSBC Bank USA, National Association,  
as Administrative Agent  
   
   
By: /s/ Ershad Sattar    
  Name: Ershad Sattar  
  Title: Vice President  
       
       
HSBC Bank USA, National Association,  
as Swing Line Lender and DC Issuer  
   
   
By: /s/ Kelly Schramm    
  Name: Kelly Schramm  
  Title: Senior Vice President  
       
       

7 

 

Lenders:  
   
Silicon Valley Bank  
   
   
By: /s/ Dylan Bishop    
  Name: Dylan Bishop  
  Title: Vice President  

8 

 

Lenders:  
   
U.S. Bank National Association  
   
   
By: /s/ Peyman Parhami    
  Name: Peyman Parhami  
  Title: Senior Vice President  

9 

 

Lenders:  
Bank of the West  
   
   
By: /s/ Thomas J. Mortensen    
  Name: Thomas J. Mortensen  
  Title: Senior Relationship Manager Vice President  

10 

 

Lenders:  
   
Wells Fargo Bank, N.A.  
   
   
By: /s/ Greg Cohn    
  Name: Greg Cohn  
  Title: Senior Vice President  

11 

 

Lenders:  
   
HSBC Bank USA, National Association  
   
   
By: /s/ Kelly Schramm    
  Name: Kelly Schramm  
  Title: Senior Vice President  

12 

 

Lenders:  
Comerica Bank  
   
   
By: /s/ Mark C. Skrzynski Jr.    
  Name: Mark C. Skrzynski Jr.  
  Title: Vice President  

13 

 

Lenders:  
Bank of China, Los Angeles Branch  
   
   
By: /s/ Liming Xiao    
  Name: Liming Xiao  
  Title: Senior Vice President  

14 

 

EXHIBIT A

 

Credit Agreement

 

[See attached.] 

 

 

 

 

Execution Version

 

[COMPILEDCONFORMED VERSION, INCLUDING THE FIRSTSECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF AUGUST 11SEPTEMBER 1, 20212022]

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of November 7, 2019

among

 

SEMTECH CORPORATION,

as Borrower,

The Subsidiaries of Borrower party hereto,
as Guarantors,

The institutional lenders party hereto and named as “Lenders” herein,

as Lenders,

 

HSBC BANK USA, NATIONAL ASSOCIATION,

 

as Administrative Agent, Swing Line Lender and L/C Issuer,

 

HSBC BANK USA, NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION,
BBVA USA, WELLS FARGO BANK, N.A. AND BANK OF THE WEST,

 

as Joint Lead Arrangers and Joint Bookrunners

 

U.S. BANK NATIONAL ASSOCIATION, BBVA USA, WELLS FARGO BANK, N.A.
AND BANK OF THE WEST,

as Co-Syndication Agents,

 

and

 

BANK OF CHINA, LOS ANGELES BRANCH,

as Documentation Agent

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

Page

 

Article 1
Certain Defined Terms; Certain Rules of Construction

 

Section 1.01.  Certain Defined Terms 2

 

Article 2
Credit Extensions

 

Section 2.01.  Transitional Matters; Revolving Credit Loans; Incremental Term Loans 55
Section 2.02.  Procedures for Borrowing 57
Section 2.03.  Letters of Credit 60
Section 2.04.  Swing Line Loans 69
Section 2.05.  Payments and Prepayments 72
Section 2.06.  Termination or Reduction of Aggregate Revolving Credit Commitments 74
Section 2.07.  Final Repayment of Revolving Credit Loans, Swing Loans and Incremental Term Loans 74
Section 2.08.  Interest; Applicable Margins 75
Section 2.09.  Fees 76
Section 2.10.  Computations of Interest and Fees 77
Section 2.11.  Evidence of Indebtedness 77
Section 2.12.  Payments Generally; Right of Administrative Agent to Make Deductions Automatically 78
Section 2.13.  Sharing of Payments 80
Section 2.14.  Increase in Aggregate Commitments 81
Section 2.15.  Cash Collateral 84
Section 2.16.  Designation of Restricted and Unrestricted Subsidiaries 85
Section 2.17.  Security for the Obligations 86

 

Article 3
Taxes, Yield Protection and Illegality

 

Section 3.01.  Taxes 86
Section 3.02.  Illegality 90
Section 3.03.  Alternate Rates of Interest 91
Section 3.04.  Increased Costs 95
Section 3.05.  Compensation for Losses 96
Section 3.06.  Mitigation Obligations 97
Section 3.07.  Defaulting Lenders 97
Section 3.08.  Replacement of Lenders 99
Section 3.09.  Survival 100

 

 

 

 

Article 4
Conditions Precedent

 

Section 4.01.  Conditions to the Effectiveness of this Agreement 101
Section 4.02.  Conditions to All Credit Extensions 104

 

Article 5
Representations and Warranties

 

Section 5.01.  Corporate Existence and Power 105
Section 5.02.  Corporate Authorization; No Contravention 106
Section 5.03.  Governmental Authorization; Compliance with Laws 106
Section 5.04.  Binding Effect 106
Section 5.05.  Litigation 107
Section 5.06.  ERISA Compliance 107
Section 5.07.  Use of Proceeds 108
Section 5.08.  Title to Properties 108
Section 5.09.  Taxes 108
Section 5.10.  Financial Condition; No Material Adverse Effect; No Event of Default 109
Section 5.11.  Margin Regulations 109
Section 5.12.  Intellectual Property 109
Section 5.13.  Capitalization and Subsidiaries 110
Section 5.14.  Liens on Collateral 110
Section 5.15.  Environmental Matters 110
Section 5.16.  Solvency 111
Section 5.17.  Sanctions and Anti-Corruption Laws 111
Section 5.18.  Investment Company Status 111
Section 5.19.  Insurance 111
Section 5.20.  Full Disclosure 112
Section 5.21.  Covered Entities 112
Section 5.22.  Beneficial Ownership Certification 112

 

Article 6
Affirmative Covenants

 

Section 6.01.  Financial Statements 112
Section 6.02.  Other Information 114
Section 6.03.  Notices 116
Section 6.04.  Preservation of Existence and Entitlements 117
Section 6.05.  Maintenance of Properties 117
Section 6.06.  Maintenance of Insurance 117
Section 6.07.  Compliance with Laws 118
Section 6.08.  Books and Records 118
Section 6.09.  Inspection Rights 118
Section 6.10.  Compliance with Environmental Laws 119
Section 6.11.  Covenant to Guarantee Obligations and Give Security 119

 

ii 

 

 

Section 6.12.  Payment of Taxes 121
Section 6.13.  Environmental Matters 121
Section 6.14.  Post-Closing Matters 122
Section 6.15.  Further Assurances 122

 

Article 7
Negative Covenants

 

Section 7.01.  Liens 122
Section 7.02.  Investments 125
Section 7.03.  Indebtedness 127
Section 7.04.  Fundamental Changes 130
Section 7.05.  [Reserved] 131
Section 7.06.  Restricted Payments 131
Section 7.07.  [Reserved] 133
Section 7.08.  Transactions with Affiliates 133
Section 7.09.  Burdensome Agreements 133
Section 7.10.  Use of Proceeds 134
Section 7.11.  Maintenance of Business 135
Section 7.12.  [Reserved] 135
Section 7.13.  Accounting Changes 135
Section 7.14.  Limitation on Issuance of Equity Interests 135
Section 7.15.  Financial Covenants 135

 

Article 8
Events of Default and Remedies

 

Section 8.01.  Events of Default 136
Section 8.02.  Waivers of Events of Defaults 138
Section 8.03.  Remedies Upon Event of Default 138
Section 8.04.  Standards for Exercising Rights and Remedies 139
Section 8.05.  Application of Funds 140

 

Article 9
Administrative Agent

 

Section 9.01.  Appointment and Authorization of Administrative Agent 142
Section 9.02.  Rights as a Lender 143
Section 9.03.  Exculpatory Provisions 143
Section 9.04.  Reliance by Administrative Agent 144
Section 9.05.  Delegation of Duties 145
Section 9.06.  Resignation of Administrative Agent 145
Section 9.07.  Non-Reliance on Administrative Agent and Other Lenders 147
Section 9.08.  No Other Duties, Etc 147
Section 9.09.  Administrative Agent May File Proofs of Claim 147
Section 9.10.  Collateral Matters 148
Section 9.11.  Certain ERISA Matters 150

 

iii 

 

 

Section 9.12.  Agency for Perfection 151
Section 9.13.  Legal Representation of Administrative Agent 151
Section 9.14.  Erroneous Payments 151

 

Article 10
General Provisions

 

Section 10.01.  Amendments, Etc 153
Section 10.02.  Notices; Effectiveness; Electronic Communications 156
Section 10.03.  No Waiver; Cumulative Remedies; Enforcement 159
Section 10.04.  Expenses; Indemnity; Damage Waiver 159
Section 10.05.  Marshalling; Payments Set Aside 162
Section 10.06.  Successors and Assigns 162
Section 10.07.  Treatment of Certain Information; Confidentiality 168
Section 10.08.  Right of Setoff 169
Section 10.09.  Interest Rate Limitation 169
Section 10.10.  Counterparts; Integration; Effectiveness; Electronic Execution 170
Section 10.11.  Collateral Matters 171
Section 10.12.  Severability 171
Section 10.13.  Lender-Creditor Relationship 171
Section 10.14.  USA Patriot Act Notice 172
Section 10.15.  Guaranty 172
Section 10.16.  Governing Law; Jurisdiction; Etc 179
Section 10.17.  Waiver of Right to Jury Trial 179
Section 10.18.  Survival 180
Section 10.19.  Judgment Currency 181
Section 10.20.  Cashless Settlement 182
Section 10.21.  Acknowledgement and Consent to Bail-In of Financial Institutions 182
Section 10.22.  Acknowledgement Regarding Any Supported QFCs 182
Section 10.23.  Effect of Amendment and Restatement of the First Restated Credit Agreement 183

 

 

 

iv 

 

SCHEDULES

 

1.01-A Existing Senior Credit Facilities
1.01-B Initial Unrestricted Subsidiaries
2.01 Lenders; Commitments; Percentage Shares
5.05 Litigation
5.06 Pension Plans
5.12 Intellectual Property
5.13, Part (a) Equity Interests
5.13, Part (b) Investments
5.15 Environmental Matters
6.14 Post-Closing Matters
7.01 Existing Liens
7.02 Existing Investments
7.03 Existing Indebtedness
7.08 Transactions with Affiliates
7.09 Burdensome Agreements
10.02 Administrative Agent’s Office; Certain Addresses for Notices
   
EXHIBITS  
   
A Form of Assignment and Assumption
B Form of Compliance Certificate
C Form of Joinder Agreement
D Form of Loan Notice
E-1 Form of Revolving Credit Note
E-2 Form of Incremental Term Loan Note
E-3 Form of Swing Line Loan Note
F Form of Swing Line Loan Notice
G-1 Form of U.S. Tax Compliance Certificate
G-2 Form of U.S. Tax Compliance Certificate
G-3 Form of U.S. Tax Compliance Certificate
G-4 Form of U.S. Tax Compliance Certificate

 

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of November 7, 2019, is entered among Semtech Corporation, a Delaware corporation, as borrower (“Borrower”), the Guarantors (unless otherwise indicated, this and each other capitalized term used in this Preamble and the following recitals having the meaning given to it in Section 1.01) party hereto, Lenders party hereto from time to time, and HSBC BANK USA, NATIONAL ASSOCIATION, a national banking association (“HSBC”), in its separate capacities as Administrative Agent, for the benefit of the Secured Parties, and as Swing Line Lender and L/C Issuer. This Agreement amends, restates, supersedes and replaces in its entirety the First Restated Credit Agreement and is not intended to, and will not, act as a novation of all or any portion of the Obligations (as defined in the First Restated Credit Agreement) or any other indebtedness, liabilities or other obligations, including the Guaranteed Obligations (as defined in the First Restated Credit Agreement) of each Guarantor (as defined in the First Restated Credit Agreement), evidenced thereby or otherwise arising or existing thereunder or under any of the other First Restated Loan Documents.

 

RECITALS

 

A.       Borrower and each of the Guarantors party hereto have entered into the Amended and Restated Credit Agreement dated as of November 15, 2016, as amended, modified and supplemented from time to time up to the Second Restatement Effective Date (as amended, modified and supplemented, the “First Restated Credit Agreement”), with the lenders party thereto (the “Existing Lenders”), HSBC in its separate capacities as administrative agent and as letter of credit issuer (the ““Existing L/C Issuer”) and swing line lender (the “Existing Swing Line Lender”), pursuant to which the Existing Lenders, together with Existing L/C Issuer and Existing Swing Line Lender, have extended and made available to Borrower a revolving credit facility in the aggregate principal amount of up to $250,000,000 outstanding at any one time, including a $40,000,000 sublimit for Credits (as defined in the First Restated Credit Agreement) and a $25,000,000 sublimit for swing line advances, and a term loan facility in the original principal amount of $150,000,000 (the “Existing Senior Credit Facilities”).

 

B.       Borrower desires to renew and extend the maturity of, and to restructure, the Existing Senior Credit Facilities and to amend the First Restated Credit Agreement in certain other respects, and, as so amended, to restate the First Restated Credit Agreement in its entirety as well as to amend, amend and restate or otherwise to reaffirm the other First Restated Loan Documents executed or delivered pursuant to or otherwise existing in support of the First Restated Credit Agreement and the Existing Senior Credit Facilities outstanding thereunder.

 

C.       It is the intent of Borrower, the Guarantors, the Lenders and HSBC in its separate capacities as Administrative Agent and as L/C Issuer and Swing Line Lender, that, except as hereinafter expressly provided, the First Restated Obligations outstanding under the First Restated Credit Agreement and the other First Restated Loan Documents will not be deemed to be repaid or terminated upon the effectiveness of this Agreement, but will continue to remain outstanding as Obligations under this Agreement and will be due and payable at the time and in the manner provided by this Agreement.

 

Now, Therefore, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:

 

 

AGREEMENT

 

Article 1
Certain Defined Terms; Certain Rules of Construction

 

Section 1.01.          Certain Defined Terms.

 

As used in this Agreement, the following terms will mean the following:

 

Acquisition” means any transaction or series of related transactions resulting, directly or indirectly, in (a) the acquisition by Borrower or by any Restricted Subsidiary of (i) all or substantially all of the assets of another Person or (ii) any business unit or division of another Person (other than a Person that is a Subsidiary of Borrower), (b) the acquisition by Borrower or any Restricted Subsidiary of the Equity Interests of another Person (other than a Person that is a Subsidiary of Borrower) resulting in the acquiring Person having the ability to Control the acquired Person, or otherwise causing any other Person to become a Subsidiary of such Person or (c) a merger or consolidation, or any other combination, of Borrower or any Restricted Subsidiary with another Person (other than a Person that is a Subsidiary of Borrower) pursuant to which Borrower or such Restricted Subsidiary is the surviving entity.

 

Acquisition Consideration” means, in connection with any Acquisition by Borrower or any Restricted Subsidiary of any Target, the consideration paid or payable in Cash or other property, including the issuance of Equity Interests of Borrower or any of its Subsidiaries (with the value of such other property determined as of the closing date of such Acquisition) in connection with such Acquisition or series of related Acquisitions (such consideration, including any deferred portion thereof constituting Deferred Purchase Price Obligations).

 

Additional Alternative Currency” has the meaning given such term in Section 1.02(l).

 

Additional Commitment Documentation” has the meaning given such term in Section 2.14(c).

 

Additional Commitments Effective Date” has the meaning given such term in Section 2.14(b).

 

Additional Revolving Credit Commitment” means the commitment of an Additional Revolving Credit Lender to make Additional Revolving Credit Loans pursuant to Section 2.14.

 

Additional Revolving Credit Lender” means, at any time, any lender providing an Additional Revolving Credit Commitment, other than any such Person that thereafter ceases to be a party hereto pursuant to an Assignment and Assumption.

 

Additional Revolving Credit Loans” means any loans made in respect of Additional Revolving Credit Commitments.

 

Adjusted EURIBOR Rate” means, with respect to any Eurocurrency Rate Loan denominated in Euros for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

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Adjusted LIBO Rate” means, with respect to any Eurocurrency Rate Loan denominated in Dollars, Sterling or Swiss Francs for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

Adjusted TIBOR Rate” means, with respect to any Eurocurrency Rate Loan denominated in Yen for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) the TIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

Administrative Agent” means, at any time, the administrative and collateral agent for the Secured Parties under the Loan Documents as appointed pursuant to Article 9 (which, initially, will be HSBC).

 

Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as Administrative Agent may from time to time notify Borrower and each Lending Party.

 

Administrative Detail Form” means an administrative detail form in a form supplied by, or otherwise acceptable to, Administrative Agent.

 

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified (excluding any trustee under, or any committee with responsibility for administering, any Employee Benefit Plan).

 

Agent Parties” has the meaning given such term in Section 10.02(b)(iii).

 

Aggregate Incremental Term Loan Commitments” means, at any time, the combined Incremental Term Loan Commitments of all Incremental Term Loan Lenders.

 

Aggregate Commitments” means, at any time, the sum of: (a) the Aggregate Revolving Credit Commitments plus (b) if applicable, the Aggregate Incremental Term Loan Commitments.

 

Aggregate Revolving Credit Commitments” means, at any time, the combined Revolving Credit Commitments of all Revolving Credit Lenders. As of the Second Restatement Effective Date, the Aggregate Revolving Credit Commitments of all Revolving Credit Lenders total $600,000,000.

 

Agreed Currencies” means Dollars and each Alternative Currency.

 

Agreement” has the meaning given such term in the Preamble to this Agreement.

 

Alternative Currency” means Sterling, Euros, Canadian Dollars, Swiss Francs, Yen and each Additional Alternative Currency (other than Dollars) that is approved from time to time in accordance with Section 1.02(l).

 

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Alternative Currency Available Credit” means, as of any date of determination, the lesser of (a) $40,000,000 less (i) the Dollar Equivalent of the aggregate of all Eurocurrency Rate Loans then outstanding denominated in an Alternative Currency, (ii) the Dollar Equivalent of the aggregate of all Credit Obligations then outstanding in respect of Credits denominated in an Alternative Currency and (iii) the Alternative Currency Reserve as of such date, and (b) the amount by which (i) the Aggregate Revolving Credit Commitments then in effect exceeds (ii) the Total Revolving Credit Outstandings plus the Alternative Currency Reserve as of such date.

 

Alternative Currency Reserve” has the meaning given such term inSection 2.01(b).

 

Announcements” has the meaning given such term in Section 1.02(s).

 

Applicable Margin” means, at any time with respect to, and as included in the computation of, (a) the rate of interest for Eurocurrency Rate Loans and Base Rate Loans, (b) Credit Fees and (c) Commitment Fees, as the context requires and as otherwise provided in this Agreement, the applicable rate percentage per annum set forth in the grid below, each such percentage being based, subject to Section 2.08(d), upon the corresponding Consolidated Leverage Ratio maintained by Borrower, measured as of the end of the most recent Fiscal Period for which Borrower has furnished a Compliance Certificate to Administrative Agent and the Lenders pursuant to Section 6.01(d).

 

Pricing Level (Tier) Consolidated Leverage Ratio Applicable Margin for Eurocurrency Rate Loans (and Credit Fees) Applicable Margin for Base Rate Loans Applicable Margin for Commitment Fees
I Less than 1.25:1.00 1.250% 0.250% 0.200%
II Equal to or greater than 1.25:1.00 and less than 2.00:1.00 1.500% 0.500% 0.250%
III Equal to or greater than 2.00:1.00 and less than 2.75:1.00 1.750% 0.750% 0.300%
IV Equal to or greater than 2.75:1.00 and less than 3.25:1.00 2.000% 1.000% 0.350%
V Equal to or greater than 3.25:1.00 2.250% 1.250% 0.350%

 

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Margin for any period and at any time will be subject to the provisions of Section 2.08(d).

 

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 reasonably determined by Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

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Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arranger” means and includes HSBC, U.S. Bank National Association, BBVA USA, Wells Fargo Bank, N.A. and Bank of the West in their capacities as joint lead arrangers and joint bookrunners for the Transactions contemplated by the Loan Documents.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lending Party and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.

 

Attributable Debt” means, on any date of determination, (a) in respect of any Capitalized Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease.

 

Automatic Extension Letter of Credit” means a Letter of Credit that has automatic extension provisions.

 

Availability Period” means the period from the Second Restatement Effective Date to the date that is (a) for Revolving Credit Loans, the Revolving Credit Maturity Date, and (b) for Swing Line Loans, one Business Day prior to the Revolving Credit Maturity Date.

 

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 3.03(b).

 

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

 

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing aw, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Bank Undertaking” means any independent undertaking of L/C Issuer within the meaning of, and complying with the requirements of, 12 C.F.R. §7.1016 as to which the issuer’s obligation to honor depends upon the presentation of specified documents and not upon non-documentary conditions or resolution of any questions of fact or law, issued hereunder pursuant to Section 2.03. Bank Undertakings may be issued in Dollars or an Alternative Currency as permitted by this Agreement.

 

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Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq.), and the Bankruptcy Rules promulgated thereunder.

 

Base Rate” means, for any day, the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate for such day plus one-half of one percent (0.50%) and (c) the Daily One Month LIBOR Rate for such day (determined on a daily basis as set forth below) plus one percent (1.00%). As used in this definition of “Base Rate”, the “Daily One Month LIBOR Rate” means, with respect to any interest rate calculation for a Loan or other Obligation bearing interest at the Base Rate, the rate per annum (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) determined by Administrative Agent to be the rate appearing on the Reuters “LIBOR01” screen displaying interest rates for Dollar deposits in the London interbank market for a one month interest period (or, in the event that such rate does not appear on such screen or on any successor or substitute screen provided by Reuters, or any successor to or commercially available substitute for such service providing rate quotations comparable to those provided on such Reuters screen, the LIBO Interpolated Rate as determined by Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the applicable day as the rate for Dollar deposits in the London interbank market with a maturity of one month; provided that if the Daily One Month LIBOR Rate, as determined above with respect to any interest rate calculation, shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 3.03(b)), then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. Each determination by Administrative Agent pursuant to this definition will be conclusive absent manifest error.

 

Base Rate Loan” means a Loan that bears interest based upon the Base Rate.

 

Benchmark” means, initially, the applicable Relevant Rate; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to such Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 3.03(b) or (c).

 

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in Euros, Yen or Canadian Dollars, “Benchmark Replacement” shall mean the alternative set forth in clause (3) below:

 

(1)       (a) in the case of any Loan denominated in Dollars, the sum of: (i) Term SOFR and (ii) the related Benchmark Replacement Adjustment;

 

(b)       in the case of any Loan denominated in Sterling, the sum of (i) Daily Simple SONIA and (ii) the related Benchmark Replacement Adjustment;

 

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(c)       in the case of any Loan denominated in Swiss Francs, the sum of (i) Daily Simple SARON and (ii) the related Benchmark Replacement Adjustment;

 

(2)       (A) in the case of any Loan denominated in Dollars, the sum of (i) Daily Simple SOFR and (ii) the related Benchmark Replacement Adjustment; and

 

(3)       the sum of: (a) the alternate benchmark rate that has been selected by Administrative Agent and Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time and (b) the related Benchmark Replacement Adjustment.

 

If the Benchmark Replacement, as so determined pursuant to any of clauses (1), (2) or (3) above, would be less than zero, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

 

Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:

 

(1)       for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement” set forth in this Section 1.01, the first alternative set forth in the order below that can be determined by Administrative Agent:

 

(a)       the spread adjustment, or method of calculating or determining such spread adjustment (which may be a positive or negative value or zero), in each case as of the Reference Time such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

 

(b)       the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

 

(2)       for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.;

 

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provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by Administrative Agent in its reasonable discretion.

 

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that Administrative Agent decides in its reasonable discretion is appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

 

Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:

 

(1)       in the case of clause (a) of the definition of “Benchmark Transition Event,” set forth in this Section 1.01, the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);

 

(2)       in the case of clause (b) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.; or

 

(3)       in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as Administrative Agent has not received, by 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising Required Lenders.

 

For the avoidance of doubt, (a) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (b) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

 

Benchmark Transition Event” means, with respect to any then-current Benchmark, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such

 

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Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.

 

Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition (as set forth in this Section 1.01) has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03, and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 3.03.

 

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. § 1841(k)) of such party.

 

Board of Directors” means, as to any Person, the board of directors (or comparable managers) of such Person (or, if applicable, the managing entity of such Person), or any committee thereof duly authorized to act on behalf of the board of directors (or comparable managers).

 

Borrower” has the meaning given such term in the Preamble.

 

Borrowing” means a Revolving Credit Borrowing, a Swing Line Borrowing or an Incremental Term Loan Borrowing, as the context may require.

 

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, New York, New York or such other city and state where Administrative Agent’s Office is located, provided that:

 

(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 Agreement in respect of any such Eurocurrency Rate Loan, that is also a London Banking Day;

 

(b)       if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euros, 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 Agreement in respect of any such Eurocurrency Rate Loan, that is also a TARGET Day;

 

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(c)       if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Yen, any fundings, disbursements, settlements and payments in Yen in respect of any such Eurocurrency Rate Loan, or any other dealings in Yen to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, that is also a day (other than a Saturday or Sunday) on which banks are open for business in Japan;

 

(d)       if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Canadian Dollars, any fundings, disbursements, settlements and payments in Canadian Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, that it is also a day on which banks are open for foreign exchange business in both London and Toronto;

 

(e)       if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars, Sterling, Euros, Yen or Canadian Dollars, that it is also a 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

 

(f)       if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Sterling, Euro, Yen or Canadian Dollars in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars, Sterling, Euros, Yen or Canadian Dollars, or any other dealings in any currency other than Dollars, Sterling, Euros, Yen or Canadian Dollars to be carried out pursuant to this Agreement in respect of any such Rate Loan (other than any interest rate settings), that it is also a day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

Canadian Dollars” means the lawful currency of Canada.

 

Capital Expenditures” means, as determined for any Person for any period, all expenditures by such Person which should be capitalized in accordance with GAAP and shown on the Consolidated balance sheet of such Person.

 

Capitalized Leases” means all leases that have been or are required to be, in accordance with GAAP, recorded as capitalized leases; provided that any lease would have been accounted for as an operating lease under GAAP prior to the adoption of FASB Accounting Standards Codification Topic 842, Leases (or any similar substitute accounting pronouncement), may, in the sole discretion of the Borrower, be accounted for as an operating lease and not as a Capitalized Lease.

 

Cash” means money, currency or a credit balance in a deposit account.

 

Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of Administrative Agent or the applicable L/C Issuer, as the case may be, and the Lenders, as collateral for Credit Obligations, Obligations or obligations of Lenders to fund participations in respect of either thereof (as the context may require), Cash or, if the L/C Issuer (in the case of Credit Obligations) will agree in its sole discretion, either (a) other credit support to be received and held or maintained under the control and dominion of Administrative Agent within the United States or (b) a “backstop” letter of credit, in each case pursuant to documentation in form and substance satisfactory to (i) Administrative Agent and (ii) the L/C Issuer, as the case may be. “Cash Collateral” will have a meaning correlative to the foregoing and will include the proceeds of such cash collateral and other credit support.

 

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Cash Equivalents” means, as to any Person, any of the following: (a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (but only so long as the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than one year from the date of acquisition; (b) domestic and Eurocurrency certificates of deposit, time or demand deposits or bankers’ acceptances maturing within one year after the date of acquisition issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any Lender or by any nationally or state chartered commercial bank or any branch or agency of a foreign bank licensed to conduct business in the United States having combined capital and surplus of not less than $250,000,000 (at the time of acquisition thereof) whose short-term securities are rated (at the time of acquisition thereof) at least A or the equivalent thereof by S&P or at least A2 or the equivalent thereof by Moody’s; (c) fully collateralized repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) of this definition entered into with any bank meeting the qualifications specified in clause (d) of this definition (at the time of acquisition thereof); (d) commercial paper issued by the parent corporation of any Lender or any commercial bank (provided that such parent corporation or bank is a U.S. Person) having capital and surplus in excess of $250,000,000 (at the time of acquisition thereof) and commercial paper issued by any Person incorporated in the United States, which commercial paper is rated (at the time of acquisition thereof) at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, and in each case maturing not more than one year after the date of acquisition by such Person; (e) investments, classified in accordance with GAAP as current assets of Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to investments of the character, quality and maturity described in clauses (a) through (d) of this definition; and (f) in the case of Foreign Subsidiaries, other investments utilized by such Foreign Subsidiaries in accordance with customary cash management practices in the jurisdictions in which such Foreign Subsidiaries are organized or are conducting business.

 

Cash Management Bank” has the meaning given such term in the definition of “Secured Cash Management Obligations” set forth in this Section 1.01.

 

Cash Management Obligations” means all liabilities and other obligations of Borrower or any of its Subsidiaries in respect of any overdraft and related liabilities arising from treasury, depository, cash pooling arrangements and cash management services or any automated clearing house transfers of funds, netting services, employee credit or purchase card programs and similar arrangements.

 

CDOR Rate” means for any Interest Period with respect to a Eurocurrency Rate Loan requested by Borrower pursuant to Section 2.02 to be funded in Canadian Dollars, the rate per annum (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) determined by Administrative Agent to be the Canadian dollar offered rate which, in turn, means, as determined as of any day, the rate equal to the sum of: (a) the rate determined by Administrative Agent with reference to the arithmetic average of the discount rate quotations of all institutions listed in respect of the relevant interest period for CAD Dollar-denominated bankers’ acceptances displayed and identified as such on the “Reuters Screen CDOR Page” as defined in the International Swap Dealer Association, Inc. definitions, as modified and amended from time to time, as of 10:00 a.m., Toronto time on such day, and if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by Administrative Agent after 10:00 a.m., Toronto time, to reflect any error in the posted rate of interest or in the posted average

 

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annual rate of interest), and (b) 0.10% per annum; provided that if such rates are not available on the Reuters Screen CDOR Page on any particular day, then the Canadian deposit offered rate component of such rate on that day will be calculated to be the rate determined by Administrative Agent to be the annual discount rate (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) as of 10:00 A.M. on such day, and if such day is not a Business Day, then on the immediately preceding Business Day, at which a Canadian chartered bank listed on Schedule I of the Bank Act (Canada) as selected by Administrative Agent is then offering to purchase Canadian Dollar bankers’ acceptances accepted by it having a tenor equal (or as close as possible) to such specified Interest Period; and provided that if the CDOR Rate, as determined above with respect to any interest rate calculation, shall be less than zero, such rate shall be deemed to be the Floor for purposes of this Agreement. Each determination by Administrative Agent pursuant to this definition will be conclusive absent manifest error.

 

Change in Law” means the occurrence, after the date of this Agreement, 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 Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 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, implemented or issued.

 

Change of Control” means any of the following occurs:

 

(a)       any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or shall become the “beneficial owner” (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of 30% or more on a fully diluted basis of the economic or voting interests in Borrower’s capital stock;

 

(b)       during any period of twenty-four (24) consecutive months, a majority of the members of the Board of Directors of Borrower cease to be composed of individuals (i) who were members of that Board of Directors on the first day of such period, (ii) whose election or nomination to that Board of Directors was approved by individuals referred to in the preceding clause (i) constituting at the time of such election or nomination at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in the preceding clauses (i) and (ii) (inclusive of, in the case of clause (ii), any such members of the Board of Directors who themselves were also previously approved in accordance with the preceding clause (ii)) constituting at the time of such election or nomination at least a majority of that Board of Directors; or

 

(c)       except as expressly permitted by Section 7.04, Borrower fails to own and control, directly or indirectly, 100% of the Equity Interests of (i) each other Loan Party that is wholly owned, directly or indirectly, by Borrower as of the Second Restatement Effective Date, and (ii) Semtech (International); or

 

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(d)       the occurrence of any “Change in Control” as defined in (or any covenant or other obligation having the equivalent effect under) any loan agreement, indenture or other agreement or instrument evidencing any Specified Permitted Indebtedness or in the documentation governing any Qualified Preferred Stock, to the extent such Change of Control requires an offer to purchase or redeem Specified Permitted Indebtedness or Qualified Preferred Stock or permits the holders thereof to require the payment thereof prior to the stated maturity thereof. For the avoidance of doubt, the occurrence of a “fundamental change” (or its equivalent) as defined in any Permitted Convertible Indebtedness will be deemed to be the occurrence of a “Change of Control” for purposes of this clause (d).

 

Code” means the Internal Revenue Code of 1986.

 

Collateral” means all property and rights in property and proceeds thereof now owned or hereafter acquired by any Loan Party in or upon which a Lien now or hereafter exists in favor of Administrative Agent to secure all or any portion of the Obligations, whether under this Agreement or under any other Collateral Document.

 

Collateral Documents” means, individually and collectively, the Security Agreement, the Grants of IP Security Interests, the Swiss Pledge Agreement and the Financing Statements and such other agreements (including deposit and securities account control agreements), assignments, documents and instruments as are from time to time executed and delivered by any Loan Party granting, assigning or transferring or otherwise evidencing or relating to any Lien granted, assigned or transferred to Administrative Agent, for the benefit of the Secured Parties, pursuant to or in connection with the transactions contemplated by this Agreement.

 

Commitment” means, as to any Lender, such Lender’s Revolving Credit Commitment, Additional Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and as to Swing Line Lender, Swing Line Lender’s Swing Line Commitment.

 

Commodity Exchange Act” means the Commodity Exchange Act of 1936 (7 U.S.C. §§ 1 et seq.).

 

Communications” means any Specified Materials distributed to Administrative Agent or any Lending Party by means of electronic communications pursuant to Section 10.02(b), including through an Electronic Platform.

 

Competitor” means any Person that is a bona fide direct competitor of Borrower or any of its Restricted Subsidiaries in the same industry or a substantially similar industry which offers a substantially similar product or service as Borrower or any of its Restricted Subsidiaries.

 

Compliance Certificate” means a certificate substantially in the form of Exhibit B.

 

Consolidated” refers, with respect to any Person, to the consolidation of accounts of such Person and its Subsidiaries (except to the extent otherwise expressly provided herein) in accordance with GAAP.

 

Consolidated EBITDA” means, as calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis for any period, Consolidated Net Income for such period, plus (a) the following to the extent deducted in calculating such Consolidated Net Income for such period (without duplication), all (i) Consolidated Interest Expense, (ii) amounts treated as expenses for such period for depreciation and amortization, (iii) provision for Federal, state, local and foreign taxes on or measured by income and foreign withholding taxes of Borrower and its Restricted Subsidiaries for such period, (iv) Transaction Costs to the extent paid in Cash and not

 

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capitalized, (v) fees and expenses incurred and associated with the Existing Senior Credit Facilities, (vi) reasonable and customary costs and expenses incurred in such period in connection with an actual or contemplated Permitted Acquisition or an Investment permitted by Section 7.02(q) or Section 7.02(p), whether or not such Permitted Acquisition or Investment is consummated, (vii) reasonable and customary costs and expenses incurred in such period in connection with the actual or contemplated issuance, prepayment or amendment or refinancing of Indebtedness expressly permitted under the Loan Documents or the issuance of any Equity Interests not prohibited under the Loan Documents, whether or not such transaction is consummated, (viii) extraordinary losses for such period, (ix) unusual or non-recurring losses, charges or expenses, (x) losses from the sales of assets other than inventory sold in the ordinary course of business, (xi) other non-Cash charges of Borrower and its Restricted Subsidiaries for such period other than Non-Cash charges Borrower elects to exclude from this clause (xi), (xii) restructuring costs, expenses, charges or reserves and severance, retention and relocation expenses, business optimization costs and integration costs (including any bonus, retention or success payments) incurred during such period, and (xiii) costs and expenses (including settlements or judgments) of any actual or threatened litigation, arbitration or other adversarial dispute (for purposes of this subclause (xiii), inclusive of all related matters or claims with respect to the same or affiliated parties, an “Adversary Matter”), which does not arise from ordinary course employee relations (provided that amounts added pursuant to this clause for any particular Adversary Matter shall not exceed $10,000,000); and minus (b) the following to the extent included in calculating such Consolidated Net Income for such period (without duplication), all (i) extraordinary gains for such period, (ii) non-recurring gains for such period, (iii) any gains from sales of assets other than inventory sold in the ordinary course of business, (iv) non-Cash income or non-Cash gains for such period (excluding ordinary course accruals) and (v) Cash payments made (or incurred) on account of any non-cash charges added back to Consolidated EBITDA pursuant to preceding subclause (a)(xi) in a previous period; and plus (c) the annualized amount of net cost savings, operating expense reductions and synergies reasonably projected by the Borrower in good faith to be realized as a result of specified actions (x) taken since the beginning of such period in respect of which Consolidated EBITDA is being determined or (y) initiated prior to or during such period or (z) reasonably anticipated to be taken in connection with or following an Acquisition or other Investment that is permitted under the Loan Documents (in each case, which cost savings, operating expense reductions and synergies shall be added to Consolidated EBITDA until fully realized, but in no event for more than five fiscal quarters) (calculated on a pro forma basis as though such annualized cost savings, operating expense reductions and synergies had been realized on the first day of such period, net of the amount of actual benefits realized during such period from such actions); provided that (1) such cost savings, operating expense reductions and synergies are reasonably identifiable, quantifiable and factually supportable in the good faith judgment of the Borrower and (2) no cost savings, operating expense reductions and synergies shall be added pursuant to this clause (c) to the extent duplicative of any expenses or charges otherwise added to Consolidated EBITDA for such period; provided further, that the aggregate amount added back to Consolidated EBITDA pursuant to this clause (c) shall not exceed in the aggregate 15% of Consolidated EBITDA (provided that the aggregate amount added back to Consolidated EBITDA pursuant to this clause (c) with respect to such cost savings, operating expense reductions and synergies related to internal restructurings and not in connection with an Acquisition or other Investment shall not exceed in the aggregate 10% of Consolidated EBITDA) for any such period (determined after giving effect to this clause (c); and provided further, that projected (and not yet realized) amounts may no longer be added in calculating Consolidated EBITDA pursuant to this clause (c) to the extent occurring more than five full fiscal quarters after the specified action taken or initiated in order to realize such projected cost savings, operating expense reductions and synergies (or to the extent relating to a Permitted Acquisition or other Investment and added pursuant to clause (z) above, to the extent occurring more than five full fiscal quarters after the relevant Acquisition or other Investment).

 

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Consolidated Funded Debt” means, as of any date of determination, calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis, the sum of (without duplication) all Indebtedness of a type described in clauses (a) through (h) inclusive (and, without duplication, all Guaranties of such Indebtedness) of the definition of “Indebtedness” set forth in this Section 1.01. Notwithstanding anything to the contrary herein, Consolidated Funded Debt shall not include any Indebtedness (“Subject Debt”) outstanding on any determination date which is to be refinanced pursuant to a refinancing permitted under this Agreement with the proceeds (the “Refinancing Proceeds”) of previously incurred refinancing Indebtedness that is included in Consolidated Funded Debt on such date; provided that a notice of redemption of, or an offer to purchase, such Subject Debt has been given or made (and, in the case of an offer to purchase, not withdrawn) on or prior to such date (any such Subject Debt, “Defeased Debt”) and the applicable Refinancing Proceeds have been irrevocably deposited in a trust or escrow account pursuant to the documentation relating to such redemption of, or offer to purchase the applicable Subject Debt (and such Refinancing Proceeds shall not be included as Consolidated Net Cash for purposes of this Agreement).

 

Consolidated Interest Expense” means, as calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis for any period, the sum of (without duplication) (a) all interest payable in Cash, premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including all commissions, discounts, fees and other charges under Swap Contracts, letters of credit and similar instruments and all capitalized interest) or in connection with the deferred purchase price of assets during such period, in each case to the extent treated as interest expense in accordance with GAAP, plus (b) the portion of rent expense with respect to such period under Capitalized Leases that is treated as interest in accordance with GAAP that is payable in Cash, plus (c) the “deemed interest expense” (i.e., the interest expense which would have been applicable if the respective obligations were structured as on-balance sheet financing arrangements) with respect to all Synthetic Lease Obligations to the extent the same does not arise from a financing arrangement constituting an operating lease.

 

Consolidated Interest Coverage Ratio” means, as determined as of the last day of any Test Period, calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis for the period consisting of the Test Period ending on such date, the ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period, excluding premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including all commissions, discounts, fees and other charges under Swap Contracts, letters of credit and similar instruments and all capitalized interest) or in connection with the deferred purchase price of assets during such period and excluding interest payable during or with respect to such period with respect to Defeased Debt.

 

Consolidated Leverage Ratio” means, as determined as of the last day of any Test Period, calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis, the ratio of (a) (i) Consolidated Funded Debt as of such date of determination less (ii) Consolidated Net Cash (not to exceed a maximum amount of $75,000,000) as of such date of determination to (b) Consolidated EBITDA for the period consisting of the Test Period ending on such date.

 

Consolidated Net Cash” means, as determined as of the last day of any Test Period, calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis, all cash or Cash Equivalents of the Loan Parties that is not Restricted and that is (a) deposited and held in a

 

15 

 

deposit account or credited to a securities account as to which the jurisdiction of the applicable depository bank or securities intermediary, as the case may be, for purposes of Articles 8 and 9 of the UCC is the United States of America, including any State thereof or the District of Columbia, and (b) subject to a security interest perfected by control pursuant to (and within the meaning of) (i) Sections 9314(a) and 9104(a) of the UCC, in the case of a deposit account, or (ii) Sections 9314(a) and 8106(d) of the UCC, in the case of a securities account, in favor of Administrative Agent.

 

Consolidated Net Income” means, as calculated for Borrower and its Restricted Subsidiaries on a Consolidated basis for any period, the sum of net income (or loss) for such period, but excluding (a) any income (or loss) of any Person if such Person is not a Subsidiary, except that Borrower’s direct or indirect equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of Cash actually distributed by such Person during such period to Borrower or any Restricted Subsidiary as a Dividend, and (b) any impact on net income of (i) purchase price adjustments, including the impact of adjustments for Deferred Purchase Price Obligations, (ii) compensation expenses which are not a Cash item during such period arising from the issuance of Equity Interests, options to purchase Equity Interests and any appreciation rights to officers, directors, employees or consultants of Borrower or any of its Restricted Subsidiaries, (iii) purchase accounting adjustments for such period and (iv) non-Cash tax charges. Income (or loss) of any Person that is not a Subsidiary but is otherwise consolidated with the Borrower and its Restricted Subsidiaries as required by GAAP will not be included in the calculation of Consolidated Net Income except to the extent of the aggregate amount of Cash actually distributed by such Person during such period to the Borrower or any Restricted Subsidiary as a Dividend.

 

Contractual Obligation” means, as to any Person, any document or other agreement or undertaking to which such Person is a party or by which it or any of its property is bound.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlled” has the meaning correlative thereto.

 

Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

 

Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

Credit” means any Letter of Credit or Bank Undertaking.

 

Credit Advance” means a Revolving Credit Lender’s funding of its participation in a Credit Borrowing in accordance with its Revolving Credit Percentage Share.

 

Credit Application” means an application and agreement (including any related reimbursement agreement) for the issuance or amendment of a Letter of Credit or a Bank Undertaking in the form from time to time in use by L/C Issuer.

 

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Credit Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit that has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

 

Credit Expiration Date” means the day that is five Business Days prior to the Revolving Credit Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

Credit Extension” means a Borrowing or an L/C Credit Extension.

 

Credit Fee” has the meaning given such term in Section 2.03(i).

 

Credit Obligations” means, as determined at any time, the sum of (a) the aggregate amount available to be drawn under all outstanding Credits and (b) the aggregate of all Unreimbursed Amounts, including all Credit Borrowings. For purposes of computing the amount available to be drawn under any Credit, the amount of such Credit will be determined in accordance with Section 1.02(i).

 

Credit Sublimit” means an amount equal to $40,000,000. The Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

Daily Simple SARON” means, for any day, SARON, with the conventions for this rate (which may include a lookback) being established by Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SARON” for syndicated business loans; provided that, if Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then Administrative Agent may establish another convention in its reasonable discretion.

 

Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which may include a lookback) being established by Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that, if Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then Administrative Agent may establish another convention in its reasonable discretion.

 

Daily Simple SONIA” means, for any day, SONIA, with the conventions for this rate (which will include a lookback) being established by Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SONIA” for syndicated business loans; provided that, if Administrative Agent decides that any such convention is not administratively feasible for Administrative Agent, then Administrative Agent may establish another convention in its reasonable discretion.

 

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.

 

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Debtor Relief Plan” means any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws.

 

Default” means any event or condition that, with the giving of notice, the passage of time, or both, would (unless cured or waived in accordance with this Agreement) constitute an Event of Default.

 

Default Rate” means, as determined at any time, (a) when used with respect to Obligations other than Credit Fees, a per annum interest rate equal to the sum of (i) the Base Rate plus (ii) the Applicable Margin, if any, then applicable to Base Rate Loans plus (iii) 2.0% per annum; provided that, with respect to a Eurocurrency Rate Loan, the Default Rate will be a per annum interest rate equal to the sum of (A) the interest rate (including any Applicable Margin and any applicable Benchmark Replacement Adjustment) otherwise then applicable to such Eurocurrency Rate Loan plus (B) 2.0% per annum; and (b) when used with respect to Credit Fees, a per annum interest rate equal to the sum of (1) the Applicable Margin then applicable to Eurocurrency Rate Loans plus (2) 2.0% per annum.

 

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

Defaulting Lender” means, subject to Section 3.07(b), any Lender that (a) has failed to (i) fund all or any portion of its funding obligations hereunder, including in respect of its Loans or participations in respect of Credits, within two Business Days of the date any such funding obligation was required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any Lending Party any other amount required to be paid by it hereunder (including in respect of its participation in Credits) within two Business Days of the date when due, (b) has notified Borrower, Administrative Agent or any Lending Party in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender will not be deemed a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such

 

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Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 3.07(b)) upon delivery of written notice of such determination to Borrower and each Lending Party from Administrative Agent.

 

Deferred Purchase Price Obligations” means unsecured obligations of Borrower or any of its Restricted Subsidiaries arising in connection with any Acquisition, including any Permitted Acquisition, permitted pursuant to Section 7.02 or any Investment otherwise made pursuant to Section 7.02(p) or (q) to the seller or other Person with respect to any Target and the payment of which is dependent on the future earnings or performance of such Target or another Person and contained in the agreement relating to such Acquisition or other Investment or in an employment agreement delivered in connection therewith (but in any event excluding compensation for employment and indemnification obligations).

 

Departing Lender” has the meaning given such term in Section 2.01(a)(ii).

 

Disposition” means the sale, assignment, transfer, conveyance, license (other than on a non-exclusive basis), lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer, conveyance or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. The term “Dispose” has a meaning correlative thereto; provided that the issuance, sale, assignment, transfer or other disposition by any Person of Equity Interests in itself (or rights with respect thereto) will not be deemed a Disposition by such Person.

 

Disqualified Equity Interest” means any Equity Interest of any Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof) or upon the happening of any event (a) matures or is mandatorily redeemable in Cash pursuant to a sinking fund obligation or other similar obligation (other than as a result of a “change of control” so long as all Obligations are required to be paid in full prior to any deposit or other payment in respect of such sinking fund obligation or other similar obligation), (b) is redeemable in Cash at the option of the holder thereof (excluding any redemption of fractional shares), or (c) requires or mandates the purchase, redemption, retirement, defeasance or other similar payment (other than Dividends) for Cash (other than as a result of a (i) “change of control” so long as all Obligations are required to be paid in full prior to any payment in respect of such Equity Interest or (ii) fractional shares), in each case on or prior to the last to occur of the Revolving Credit Maturity Date and the Incremental Term Loan Maturity Date, as applicable.

 

“Disqualified Institution” means, on any date, (a) any Person designated by the Borrower as a “Disqualified Institution” by written notice delivered to Administrative Agent on or prior to the Second Restatement Effective Date and (b) any other Person that is a Competitor of the Borrower or any of its Subsidiaries, which Person has been designated by the Borrower as a “Disqualified Institution” by written notice to Administrative Agent and the Lenders (including by posting such notice to the Electronic Platform designated by Administrative Agent for such purpose) not less than ten Business Days prior to such date; provided that “Disqualified Institutions” shall exclude any Person that the Borrower has designated as no longer being a “Disqualified Institution” by written notice delivered to Administrative Agent from time to time.

 

Disqualifying Event” has the meaning given such term in Section 3.03(c).

 

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Dividend” means, as to any Person, any dividend, distribution or return on equity capital declared by such Person and paid or made to the stockholders, members or partners of such Person, in their capacity as such, whether in Cash or other property (other than Equity Interests of such Person that are not Disqualified Equity Interests).

 

DQ List” has the meaning given such term in Section 10.06(g)(iii).

 

Dollar” and “$” mean lawful money of the United States.

 

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 (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward) in Dollars as determined by Administrative Agent 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.

 

Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia, provided that any Subsidiary of a Foreign Subsidiary of the Borrower that would otherwise constitute a Domestic Subsidiary will not constitute a Domestic Subsidiary for purposes of the Loan Documents.

 

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.

 

Early Opt-in Election” means ,

 

(a)       in the case of Eurocurrency Rate Loans denominated in Dollars, the occurrence of:

 

(1)       a notification by Administrative Agent to (or the request by Borrower to Administrative Agent to notify) each of the other parties hereto that at least five (5) currently outstanding Dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and

 

(2)       the joint election by Administrative Agent and Borrower to declare that an Early Opt-in Election for Dollars has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to Borrower and the Lenders; and

 

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(b)       in the case of Loans denominated in any Agreed Currency (other than Dollars), the occurrence of:

 

(1)       a notification by Administrative Agent to (or the request by Borrower to Administrative Agent to notify) each of the other parties hereto that syndicated credit facilities denominated in the applicable Agreed Currency being executed at such time, or that include language similar to that contained in Section 3.03(b) are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate; and

 

(2)       the joint election by Administrative Agent and Borrower to declare that an Early Opt-in Election for such Agreed Currency has occurred and the provision, as applicable, by Administrative Agent of written notice of such election to Borrower and the Lenders.

 

Electronic Platform” means an electronic system for the delivery of information (including documents), such as DXSyndicateTM, SyndTrak Online TM, Intralinks on Demand WorkspacesTM or DebtdomainTM that may or may not be provided or administered by Administrative Agent or an Affiliate thereof.

 

Electronic Record” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

 

Electronic Signature” has the meaning assigned to that term in, and shall be interpreted in accordance with, 15 U.S.C. 7006.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)); provided that no Disqualified Institution shall be an Eligible Assignee.

 

Employee Benefit Plan” means any Pension Plan and any employee welfare benefit plan, as defined in Section 3(1) of ERISA, that is maintained for the employees of any Person or any ERISA Affiliate of such Person.

 

Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources such as wetland, flora and fauna.

 

Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to public health or the Environment.

 

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Environmental Laws” means any and all federal, state, local, and foreign statutes, laws (including common law), regulations, standards, ordinances, rules, judgments, interpretations, orders, decrees, permits, agreements or governmental restrictions relating to pollution or the protection of the Environment or human health (to the extent related to exposure to hazardous materials), including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials, 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) whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law, directly or indirectly relating to (a) any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Environmental Permit” means any permit, certification, registration, approval, identification number, license or other authorization required under any Environmental Law.

 

Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

ERISA” means the Employee Retirement Income Security Act of 1974.

 

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Loan Party or any Subsidiary thereof within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of any Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such Person was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate a Pension Plan, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; or (i) any Foreign Benefit Event.

 

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Erroneous Payment” has the meaning given such term in Section 9.14(a)

 

Erroneous Payment Deficiency Assignment” has the meaning given such term in Section 9.14(d).

 

Erroneous Payment Return Deficiency” has the meaning given such term in Section 9.14(d).

 

Erroneous Payment Subrogation Rights” has the meaning given such term in Section 9.14(d).

 

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.

 

EURIBOR Interpolated Rate” means, at any time, with respect to any Eurocurrency Borrowing denominated in Euros and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the EURIBOR Screen Rate) determined by Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the EURIBOR Screen Rate for the longest period (for which the EURIBOR Screen Rate is available for Euros) that is shorter than the Impacted EURIBOR Rate Interest Period and (b) the EURIBOR Screen Rate for the shortest period (for which the EURIBOR Screen Rate is available for Euros) that exceeds the Impacted EURIBOR Rate Interest Period, in each case, at such time; provided that, if any EURIBOR Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

“EURIBOR Rate” means, with respect to any Eurocurrency Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate; provided that, if the EURIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted EURIBOR Rate Interest Period”) with respect to Euros then the EURIBOR Rate shall be the EURIBOR Interpolated Rate.

 

EURIBOR Screen Rate” means, for any day and time, with respect to any Eurocurrency Borrowing denominated in Euros and for any Interest Period, the Euro Interbank Offered Rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters as of 11:00 a.m. (Brussels time) two (2) TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, Administrative Agent may specify another page or service displaying the relevant rate after consultation with Borrower. If the EURIBOR Screen Rate shall be less than zero, the EURIBOR Screen Rate shall be deemed to be zero for purposes of this Agreement.

 

Euro” and “” mean the single currency of the Participating Member States.

 

Eurocurrency Rate” means for any Interest Period with respect to a Credit Extension:

 

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(a)       denominated in a LIBOR Quoted Currency (other than Euros, Yen or Canadian Dollars), the rate per annum (rounded upwards, as necessary, to the nearest 1/100th of one percent (0.01%)) equal to the Adjusted LIBO Rate;

 

(b)       denominated in Euros, the rate per annum equal to the Adjusted EURIBOR;

 

(c)       denominated in Yen, the rate per annum equal to the Adjusted TIBOR;

 

(d)       denominated in Canadian dollars, the rate per annum equal to the CDOR Rate; or

 

(e)       denominated in any other Non-LIBOR Quoted Currency, the rate per annum as designated with respect to such Alternative Currency at the time such Alternative Currency is approved by Administrative Agent and the relevant Lenders pursuant to Section 1.02(l);

 

provided that, if the Eurocurrency Rate shall be less than zero, such rate shall be deemed to be the Floor for purposes of this Agreement. Each determination by Administrative Agent pursuant to this definition will be conclusive absent manifest error.

 

Eurocurrency Rate Loan” means a Loan that bears interest based upon the applicable 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 given such term in Section 8.01.

 

Exchange Act” means the Securities Exchange Act of 1934.

 

Excluded Subsidiary” has the meaning given such term in Section 6.11(a).

 

Excluded Swap Obligation” means, with respect to any Guarantor, (a) any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, as applicable, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the U.S. Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any applicable keep well, support, or other agreement for the benefit of such Guarantor and any and all Guaranties of such Guarantor’s Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation or (b) any other Swap Obligation designated as an “Excluded Swap Obligation” of such Guarantor as specified in any agreement between the relevant Loan Parties and counterparty applicable to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.

 

Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office

 

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located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal and California withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 3.08) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.01, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any Taxes imposed under FATCA.

 

Exempt Subsidiary” means each direct or indirect non-wholly owned Domestic Subsidiary of Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case that is not a Non-Exempt Subsidiary (including which has not been designated an Non-Exempt Subsidiary pursuant to the definition thereof set forth in this Section 1.01).

 

Existing Lenders” has the meaning given such term in Recital A to this Agreement.

 

Existing Senior Credit Facilities” has the meaning given such term in Recital A to this Agreement, and refers to the credit facilities identified on Schedule 1.01-A.

 

Facility” means the Revolving Credit Facility or any Incremental Term Loan Facility, as the context requires.

 

FASB ASC means the Accounting Standards Codification of the Financial Accounting Standards Board.

 

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

 

FCA” has the meaning given such term in Section 1.02(s).

 

Federal Funds Rate” means, for any day, the rate per annum equal to the greater of (a) the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day and (b) the Floor; provided that (i) if such day is not a Business Day, then the Federal Funds Rate for such day will be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (ii) if no such rate is so published on such next succeeding Business Day, then the Federal Funds Rate for such day will be the average rate (rounded upward, if necessary, to a whole multiple of one one-hundredth of one percent (0.01%)) charged to HSBC on such day on such transactions as determined by Administrative Agent.

 

Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

 

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Fee Letter means the letter agreement dated September 30, 2019, between Borrower and HSBC, as Administrative Agent and as an Arranger, regarding certain fees to be paid by Borrower in connection with the transactions contemplated by the Loan Documents.

 

Financing Statements” means the Form UCC financing statements (or comparable documents now or hereafter filed in accordance with the UCC or other comparable Law) separately naming each Loan Party as debtor and Administrative Agent as secured party, authorized and delivered pursuant to the Collateral Documents, including a description of the personal property Collateral granted by such Loan Party to Administrative Agent, for the benefit of the Secured Parties, as security for the Obligations, which Financing Statements will be caused to be filed with the UCC (or comparable) filing office of the applicable Governmental Authorities.

 

First Restated Credit Agreement” has the meaning given such term in the Recital A to this Agreement means that Amended and Restated Credit Agreement.

 

First Restated Loan Documents” has the meaning given the term “Loan Documents” in the First Restated Credit Agreement.

 

First Restated Obligations” has the meaning given the term “Obligations” in the First Restated Credit Agreement.

 

Fiscal Period” means, for any Fiscal Year, the fiscal quarters of Borrower ending on or about the last Sunday in April, July and October of such Fiscal Year (it being understood that the first and second fiscal months of each such fiscal quarter are 4 weeks long and that the third fiscal month of each such fiscal quarter is 5 weeks long) and on the last Sunday in January of such Fiscal Year.

 

Fiscal Year” means each fiscal year of Borrower ending on the last Sunday in January of each calendar year.

 

Floor” means an interest rate per annum equal to zero percent (0.0%).

 

Foreign Benefit Event” means, with respect to any Foreign Pension Plan, (a) the existence of unfunded liabilities in excess of the amount permitted under any applicable law, or in excess of the amount that would be permitted absent a waiver from a Governmental Authority or other Person authorized to grant a waiver, (b) the failure to make the required contributions or payments, under any applicable law, on or before the due date for such contributions or payments, (c) the receipt of a notice by a Governmental Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency of any such Foreign Pension Plan, (d) the incurrence of any liability in excess of the Threshold Amount (or the Dollar Equivalent thereof in another currency applicable to an affected Foreign Pension Plan) by Borrower or any of its Subsidiaries under applicable Law on account of the complete or partial termination of such Foreign Pension Plan or the complete or partial withdrawal of any participating employer therein, or (e) the occurrence of any transaction that is prohibited under any applicable law and could reasonably be expected to result in the incurrence of any liability by Borrower or any of its Subsidiaries, or the imposition on Borrower or any of its Subsidiaries of any fine, excise tax or penalty resulting from any noncompliance with any applicable law, in each case in excess of the Threshold Amount (or the Dollar Equivalent thereof in another currency).

 

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Foreign Lender” means a Lender that is not a U.S. Person.

 

Foreign Pension Plan” means any defined benefit pension plan that is maintained or is contributed to outside the jurisdiction of the United States by Borrower or any of its Subsidiaries and which under applicable law is required to be funded through a trust or other funding vehicle other than a trust or funding vehicle maintained exclusively by a Governmental Authority.

 

Foreign Pledge Agreement” has the meaning given such term in Section 6.11(b).

 

Foreign Subsidiary” means any Subsidiary of Borrower that is not a Domestic Subsidiary.

 

Foreign Subsidiary Holdco” means any direct or indirect Domestic Subsidiary of Borrower that does not engage in any material direct operations and substantially all of the assets of which (either directly or indirectly) consists of (a) Equity Interests in one or more Foreign Subsidiaries or (b) Indebtedness owed to by one or more Foreign Subsidiaries. As of the Second Restatement Effective Date, Borrower has no Foreign Subsidiary Holdcos.

 

FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any L/C Issuer, such Defaulting Lender’s Revolving Credit Percentage Share of the outstanding Credit Obligations other than Credit Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to Swing Line Lender, such Defaulting Lender’s Revolving Credit Percentage Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders 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 activities.

 

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

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Grants of IP Security Interests” means, collectively, the separate (a) grants of security interest (patents), (b) grants of security interest (trademarks), and (c) grants of security interest (copyrights), and all supplements thereto and amendments and restatements thereof, from time to time separately executed by the Loan Parties to the extent any such Loan Party has any interest in Collateral comprising such registered intellectual property rights (or an application therefor) with the United States Patent and Trademark Office or United States Copyright Office, as applicable, with respect to the Liens granted to Administrative Agent, for the benefit of the Secured Parties, under the Collateral Documents.

 

Guaranteed Obligations” has the meaning given such term in Section 10.15(a).

 

Guarantor Applicable Insolvency Laws” has the meaning given such term in Section 10.15(c)(i)(A).

 

Guarantor Specified Lien” has the meaning given such term in Section 10.15(c)(i)(B).

 

Guarantor Subordinated Indebtedness” has the meaning given such term in Section 10.15(k).

 

Guarantor Subordinated Indebtedness Payments” has the meaning given such term in Section 10.15(k).

 

Guarantors” means, collectively, (a) for the purposes of Section 10.15 (i) each Person that is party to this Agreement as of the Second Restatement Effective Date and is named in the signature pages hereto as a Guarantor, (ii) Borrower (solely as to and for the Secured Cash Management Obligations and the Secured Swap Obligations of any Subsidiary of the Borrower) and (iii) each Subsidiary of Borrower that at a date subsequent to the Second Restatement Effective Date executes a Joinder Agreement, including as required by Section 6.11, in order to become a Guarantor hereunder, and (b) each other Person who, at a date subsequent to the Second Restatement Effective Date, becomes a guarantor of all or any portion of the Obligations.

 

Guaranty” means, as to any Person, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect: (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation; (b) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation; (c) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation; or (d) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), and will include the guaranty set forth in Section 10.15. The amount of any Guaranty will be deemed to be the amount recognized as a guaranty and shown on the guaranteeing Person’s financial statements in accordance with GAAP provided that if such financial statements of the guaranteeing Person are not reasonably available to Administrative Agent at its reasonable request, the amount of such Guaranty will be deemed to be the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

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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, natural gas, natural gas liquids, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, toxic mold, infectious or medical wastes and all other substances, wastes, chemicals, pollutants, contaminants or compounds of any nature in any form regulated pursuant to any Environmental Law.

 

Hedge Bank” has the meaning given such term in the definition of “Secured Swap Obligations” set forth in this Section 1.01.

 

Honor Date” means, with respect to any Letter of Credit, the date of any payment by the L/C Issuer in respect of any draw thereunder.

 

HSBC” has the meaning given such term in the Preamble to this Agreement.

 

IBA” has the meaning given such term in Section 1.02(s).

 

Impacted EURIBOR Rate Interest Period” has the meaning given to such term in the definition of “EURIBOR Rate” set forth in this Section 1.01.

 

Impacted LIBO Rate Interest Period” has the meaning given to such term in the definition of “LIBO Rate” set forth in this Section 1.01.

 

Impacted TIBOR Rate Interest Period” has the meaning given to such term in the definition of “TIBOR Rate” set forth in this Section 1.01.

 

Increasing Revolving Credit Lender” has the meaning given such term in Section 2.01(a)(iii).

 

Incremental Cap” means, as of any date of determination, the sum of (a) (i) the sum of (1) $300,000,000 (the “Fixed Cap”) and (2) the aggregate principal amount of all Incremental Term Loans voluntarily prepaid pursuant to Section 2.05(c)(ii), minus (ii) the sum of (A) the aggregate amount of Additional Revolving Credit Commitments at such time that were incurred in reliance on the preceding subclause (1) and (B) the aggregate principal amount of Incremental Term Loans outstanding at such time that were incurred in reliance on the preceding subclause (1) (the Fixed Cap, as adjusted from time to time in according with this clause (a) and in effect on such date of determination, the “Adjusted Fixed Cap”), plus (b) an unlimited amount, so long as the Consolidated Leverage Ratio, calculated on a pro forma basis (as of the last day of the Test Period for which Borrower most recently has delivered to Administrative Agent a completed and duly executed and Compliance Certificate pursuant to Section 6.01(d) and the accompanying financial statements of Borrower and its Subsidiaries as required by Section 6.01(a), (b) and (c), as applicable, after giving effect to the Borrowing of the full amount of any Additional Revolving Credit Commitment or Incremental Term Loan Commitment requested pursuant to Section 2.14 and other customary and appropriate pro forma adjustment events, including any Acquisitions or Dispositions after the end of the relevant Test Period but prior to or simultaneous with the Borrowing of such Additional Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, is less than 3.00:1.00 (the “Unlimited Incremental Basket”).

 

Incremental Term Loan” has the meaning given such term in Section 2.01(c).

 

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Incremental Term Loan Borrowing” means a borrowing consisting of simultaneous Incremental Term Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each Incremental Term Loan Lender pursuant to Section 2.01(c).

 

Incremental Term Loan Commitments” means the commitment of an Incremental Term Loan Lender to make Incremental Term Loans pursuant to Section 2.14.

 

Incremental Term Loan Facility” means, at any time, the aggregate principal amount of the Incremental Term Loans of all Incremental Term Loan Lenders outstanding at such time.

 

Incremental Term Loan Lender” means, at any time, a lender providing Incremental Term Loans, other than any such Person that thereafter ceases to be a party hereto pursuant to an Assignment and Assumption.

 

Incremental Term Loan Maturity Date” means the earlier of (a) the Incremental Term Loan Stated Maturity Date and (b) the acceleration of the Incremental Term Loans pursuant to Section 8.03.

 

Incremental Term Loan Percentage Share” means as to any Incremental Term Loan Lender at any time, the percentage (expressed as a decimal carried out to the ninth decimal place) of (a) on or prior to the Additional Commitment Effective Date of any Incremental Term Loans, the Aggregate Incremental Term Loan Commitments represented by such Incremental Term Loan Lender’s Incremental Term Loan Commitment, subject to adjustment as provided in Section 3.07; (b) following the Additional Commitment Effective Date of any Incremental Term Loans so long as any Incremental Term Loans are outstanding, the Outstanding Amount of all Incremental Term Loans represented by the Outstanding Amount of all Incremental Term Loans owing to such Incremental Term Loan Lender; and (c) following the Additional Commitment Effective Date of any Incremental Term Loans if all Incremental Term Loans have been repaid in full, the Outstanding Amount of all Incremental Term Loans represented by the Outstanding Amount of all Incremental Term Loans owing to such Incremental Term Loan Lender immediately prior to such repayment in full, giving effect to any subsequent assignments. The Incremental Term Loan Percentage Share of each Incremental Term Loan Lender will be set forth in the Additional Commitment Documentation or the Assignment and Assumption pursuant to which such Incremental Term Loan Lender became a party hereto, as applicable.

 

Incremental Term Loan Stated Maturity Date” means the maturity date specified for Incremental Term Loans pursuant to the applicable Incremental Term Documentation.

 

Incremental Term Loans” means any loans made in respect of Incremental Term Loan Commitments.

 

Indebtedness” means, as to any Person as of any date of determination, without duplication, all of the following, whether or not included or characterized as indebtedness or a liability in accordance with GAAP: (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (c) all direct or contingent obligations of such Person arising under letters of credit, bank undertakings, letters of guaranty (including, for each of the foregoing, the stated or available amount that is undrawn or that has been drawn but is unreimbursed); (d) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances; (e) all obligations of such Person to pay the deferred purchase price of property or services (including Deferred

 

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Purchase Price Obligations) to the extent (1) such obligations are required to be reflected on the balance sheet of Borrower and its Consolidated Subsidiaries in accordance with GAAP (excluding in the notes thereof) and (2) such obligations are due more than twelve months from the initial date of incurrence of the relevant obligation or are evidenced by a promissory note or similar instrument reflecting a payment obligation (excluding any such obligations to the extent that Borrower has elected to exclude such obligations (or a portion thereof) in a written notice delivered to Administrative Agent certifying that Borrower or a Subsidiary of Borrower has designated and maintains in reserve certain Unrestricted Cash or Cash Equivalents to pay such obligations as and when they become due and payable (in which case such reserved Unrestricted Cash and Cash Equivalents will not be counted towards determining the Minimum Liquidity Condition until such time that the Borrower delivers a written notice to Administrative Agent certifying that such designated Unrestricted Cash or Cash Equivalents (or specified portion thereof) no longer is being reserved for application to the payment of such outstanding deferred purchase price obligations); (f) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness will have been assumed by such Person or is limited in recourse (provided that if such Person has not assumed or become liable in respect of such indebtedness, such indebtedness will be deemed to be an amount equal to the lesser of (i) the fair market value of the property to which such Lien relates and (ii) the indebtedness secured by a Lien on such property); (g) all Attributable Debt in respect of all Capitalized Leases and Synthetic Lease Obligations of such Person; (h) all obligations of such Person to purchase, redeem, retire, defease or make other similar payments (other than dividends) in respect of Disqualified Equity Interests in Cash valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends (provided that (i) an issuance of Disqualified Equity Interests (without regard to the number of holders thereof) will not be considered Indebtedness for purposes of this definition if the aggregate of the obligations in respect thereof (as determined pursuant to this clause (h)) do not exceed $5,000,000 and (ii) obligations to make such payments in cash with respect to fractional shares will not be deemed to be Indebtedness); (i) all Guarantees of such Person in respect of Indebtedness referred to in any of the preceding clauses (a) through (h); and (j) the Swap Termination Value under all Swap Contracts to which such Person is a party. The Indebtedness of any Person will include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, none of the following will constitute Indebtedness for purposes of this Agreement: (i) trade or other accounts payable incurred in the ordinary course of such Person’s business, (ii) bonuses or other deferred compensation arrangements with respect to officers, directors, employees or agents of such Person, (iii) customer accounts and deposits, accrued employee compensation and other liabilities in the nature of employee compensation accrued, (iv) rebates, credits for returned products, discounts, refunds, allowances for customers and credits against receivables, in each case in this clause (iv) in the ordinary course of such Person’s business, and (v) earn-outs and other deferred payment obligations incurred in connection with an Acquisition to the extent not included in clause (e) above. For the avoidance of doubt, a Permitted Warrant Transaction shall not constitute Indebtedness of Borrower.

 

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 Loan Party under any Loan Document and (b) to the extent not otherwise described in the preceding clause (a), Other Taxes.

 

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Indemnitees” means, collectively, Administrative Agent (and any sub-agent thereof), each Arranger, each Lending Party and each Related Party of any of the foregoing Persons.

 

Information” has the meaning given such term in Section 10.07.

 

Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in the cases of each of the foregoing clauses (a) and (b) undertaken under Federal, state or foreign Law, including the Bankruptcy Code.

 

Intercreditor Agreement” has the meaning given to such term in Section 9.10(e).

 

Interest Payment Date” means (a) with respect to (i) a Eurocurrency Rate Loan (other than an RFR Daily Simple Rate Loan, the last day of each Interest Period applicable thereto and, in the case of a Eurocurrency Rate Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (ii) a Base Rate Loan (other than a Swing Line Loan) or an RFR Daily Simple Rate Loan, the last Business Day of each calendar month, and (iii) a Swing Line Loan, the last Business Day of each calendar month; and (b) (i) in the case of Revolving Credit Loans and Swing Line Loans, the Revolving Credit Maturity Date, and (ii) in the case of Incremental Term Loans, the applicable Incremental Term Loan Maturity Date.

 

Interest Period” means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, three or six months thereafter, as selected by Borrower in the related Loan Notice; provided that (a) Eurocurrency Rate Loans bearing interest at the CDOR Rate, Interest Periods available for such Loans will be limited to periods of one-and three-months; (b) any Interest Period that would otherwise end on a day that is not a Business Day will be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period will end on the next preceding Business Day; (c) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) will end on the last Business Day of the calendar month at the end of such Interest Period; and (d) no Interest Period for (i) any Revolving Credit Loan will extend beyond the Revolving Credit Stated Maturity Date and (ii) any Incremental Term Loan will extend beyond the applicable Incremental Term Loan Stated Maturity Date.

 

Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person in another Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or limited liability company interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitutes a business unit, or all or a substantial part of the business of, such Person. For purposes of calculating compliance with Section 7.02, the amount of any Investment will be the original principal or capital amount thereof without

 

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adjustment for subsequent increases or decreases in the value of such Investment, but less all returns of principal or equity thereon and less all distributions, dividends or other payments thereon or received in respect thereof (and with respect to Investments constituting Guarantees, less the amount of all obligations so guaranteed that are permanently terminated or satisfied other than through payment on such Guarantee), and will, if made by the transfer or exchange of Property other than Cash, be deemed to have been made in an original principal or capital amount equal to the fair market value of such Property.

 

IRS” means the United States Internal Revenue Service.

 

ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

 

ISP” means, with respect to any Credit, the “International Standby Practices 1998” (exclusive of Rule 3.14 thereof) published by the Institute of International Banking Law & Practice (or, if the L/C Issuer agrees at the time of issuance, such later version thereof as may be in effect at the time of issuance of such Credit).

 

Issuer Documents” means, with respect to any Credit, the Credit Application relating thereto and any other document entered into by the L/C Issuer and Borrower as account party or its permitted designee or otherwise delivered by Borrower or its permitted designee to or for the benefit of the L/C Issuer, in each case relating to such Credit.

 

Joinder Agreement” means an agreement entered into by a Subsidiary of Borrower following the date hereof pursuant to Section 6.11(a) to join in the Guaranty set forth in Section 10.15, in substantially the form of Exhibit C or any other form approved by Administrative Agent.

 

Joint Venture” means a joint venture, partnership, alliance, consortium or similar arrangement, whether in corporate, partnership or other legal form; provided that, as to any such arrangement in corporate form, such corporation will not, as to any Person of which such corporation is a subsidiary, be considered to be a Joint Venture to which such Person is a party.

 

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, concessions, grants, franchises, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law, and including all Debtor Relief Laws.

 

L/C Credit Extension” means, with respect to any Credit, the issuance thereof, the extension of the expiry date thereof or the increase of the amount thereof.

 

L/C Issuer” means HSBC in its capacity as the initial issuer of Credits hereunder, or any successor or additional issuer of Credits hereunder, and includes any branch or Affiliate thereof.

 

LCT Test Date” has the meaning given such term in Section 1.02(p).

 

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Lender” means, collectively, (a) initially, each Person designated on Schedule 2.01 as a “Lender” and (b) each Person that assumes a Revolving Credit Commitment, an Additional Revolving Credit Commitment and/or an Incremental Term Loan Commitment pursuant to an Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation or which otherwise holds a Revolving Credit Commitment, a Revolving Credit Loan, an Additional Revolving Credit Commitment, an Additional Revolving Credit Loan, an Incremental Term Loan Commitment, an Incremental Term Loan, a risk participation in a Swing Line Loan or a participation in a Credit or a Credit Borrowing (in each case, for so long as such Person holds Commitments or Loans).

 

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Detail Form, or such other office or offices as a Lender may from time to time notify Borrower, Administrative Agent and the Lending Parties.

 

Lending Parties” means, collectively, Lenders, Swing Line Lender and the L/C Issuers.

 

Letter of Credit” means any standby or commercial letter of credit issued hereunder.

 

LIBO Interpolated Rate” means, at any time, with respect to any Eurocurrency Borrowing denominated in Dollars, Sterling or Swiss Francs and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the LIBO Screen Rate) determined by Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the LIBO Screen Rate for the longest period (for which the LIBO Screen Rate is available for the applicable Agreed Currency) that is shorter than the Impacted LIBO Rate Interest Period and (b) the LIBO Screen Rate for the shortest period (for which the LIBO Screen Rate is available for the applicable Agreed Currency) that exceeds the Impacted LIBO Rate Interest Period, in each case, at such time; provided that if any LIBO Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

LIBO Rate” means, with respect to any Eurocurrency Rate Loan denominated in Dollars, Sterling or Swiss Francs and for any Interest Period, the LIBO Screen Rate at approximately 11:00 a.m. (London time) two (2) Business Days prior to the commencement of such Interest Period; provided that if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted LIBO Rate Interest Period”) with respect to such Agreed Currency then the LIBO Rate shall be the LIBO Interpolated Rate.

 

LIBO Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Loan denominated in Dollars, Sterling or Swiss Francs and for any Interest Period, the London Interbank Offered Rate (“LIBOR”) as administered by ICE Benchmark Administration (or any other Applicable Administrator that takes over the administration of such rate) for such Agreed Currency for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion); provided that if the LIBO Screen Rate shall be less than zero, such rate shall be deemed to be the Floor for the purposes of this Agreement.

 

LIBOR” has the meaning given such term in the definition of “Eurocurrency LIBOR Screen Rate” set forth in this Section 1.01.

 

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LIBOR Quoted Currency means Dollars, Sterling, Euros, Swiss Francs and Yen, in each case as long as there is a published LIBOR rate with respect thereto.

 

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement) and any easement, right of way or other encumbrance on title to real property.

 

Limited Condition Transaction” means any Acquisition that Borrower or any one or more of its Subsidiaries is contractually committed to consummate (it being understood that such commitment may be subject to conditions precedent, which conditions precedent may be amended, satisfied or waived in accordance with the terms of the applicable agreement) whose consummation is not conditioned upon the availability of, or on obtaining, third-party financing.

 

Limited Pledge Non-Control Investment” means an Investment by any Loan Party permitted by Section 7.02 in the Equity Interests of any Person incorporated or formed under the laws of any jurisdiction in the United States of America, including any State thereof or the District of Columbia, and as a result of which, after giving pro forma effect to such Investment, (a) such Person shall not be a Subsidiary and (b) Borrower does not, directly or indirectly, Control such Person; provided that the fair market value of any such Investment in a Person, as determined by Borrower in good faith, at the time of the consummation of such Investment does not exceed an amount equal to 2.5% of the lesser of (a) the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries and (b) the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.

 

Limited Pledge Subsidiary” means each Subsidiary of Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case which accounts for less than 2.5% of (a) the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries and (b) the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.

 

Linked Undertaking” means a Bank Undertaking with respect to which the L/C Issuer thereof is the beneficiary of a related Letter of Credit issued by such L/C Issuer’s Affiliate supporting such Bank Undertaking on terms substantially identical (other than the beneficiary) to those of such Bank Undertaking.

 

Loan” means any Revolving Credit Loan, Swing Line Loan, Additional Revolving Credit Loan or Incremental Term Loan.

 

Loan Document Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Credit, including any Erroneous Payment Subrogation Rights, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

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Loan Documents” means this Agreement, the Notes, the Credits and related Issuer Documents, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15, the Collateral Documents, the Fee Letter and any and all other agreements, documents and instruments executed and/or delivered by or on behalf of or in support of any Loan Party to Administrative Agent or any Lending Party or their respective authorized designee evidencing or otherwise relating to the Loans or the Credit Borrowings made or the Credits issued hereunder.

 

Loan Notice” means a notice, pursuant to Section 2.02(a), of (a) a borrowing of Loans, (b) a conversion of Loans from one Type to the other or (c) a continuation of Eurocurrency Rate Loans, which notice, if in writing, will be substantially in the form of Exhibit D.

 

Loan Parties” means, collectively, Borrower and all Guarantors.

 

London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurocurrency market.

 

Margin Stock” means “margin stock” as defined in Regulation U adopted by the FRB (12 C.F.R. Part 221).

 

Material Acquisition” means each Acquisition (or series of related Acquisitions) for which the Acquisition Consideration, including any Deferred Purchase Price Obligations, is equal to or greater than $75,000,000.

 

Material Adverse Effect” means any of the following: (a) a material adverse change in, or a material adverse effect on, the business, assets, properties, liabilities, condition (financial or otherwise) or results of operations of Borrower and its Subsidiaries taken as a whole; or (b) a material adverse effect on the ability of Borrower and the Guarantors, taken as a whole, to perform their payment obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against Borrower or any Guarantor of any Loan Documents to which it is a party.

 

Material Contract” means any written contract, license or other written arrangement to which any Loan Party is a party (other than the Loan Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have or result in a Material Adverse Effect.

 

Material First-Tier Foreign Subsidiary” means each Foreign Subsidiary of Borrower the Equity Interests of which are directly owned by Borrower or a Domestic Subsidiary of Borrower, whether such Foreign Subsidiary is now existing or hereafter acquired or formed, and each successor thereto, in each case which accounts for more than 2.5% of (a) the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries or (b) the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.

 

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Material Subsidiary” means each Subsidiary of Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case which accounts for more than 5% of (i) the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Subsidiaries or (ii) the Consolidated assets (after intercompany eliminations) of Borrower and its Subsidiaries, in each case as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.

 

Minimum Collateral Amount” means, at any time, (a) with respect to Cash Collateral consisting of Cash, an amount equal to 103% of the Fronting Exposure of the applicable L/C Issuer(s) with respect to Credits issued and outstanding at such time and (b) otherwise, an amount determined by Administrative Agent and the applicable L/C Issuer(s) with respect to Credits issued and outstanding at such time in their Reasonable Discretion.

 

Minimum Liquidity Condition” means, as of any date of determination, that the sum of (a) the Aggregate Revolving Credit Commitments minus the Total Revolving Credit Outstandings, and (b) the sum of (i) 100% of the Unrestricted Cash and Cash Equivalents of Borrower and its Domestic Subsidiaries on such date and (ii) 75% of the Unrestricted Cash and Cash Equivalents of Borrower’s Foreign Subsidiaries on such date, equals or exceeds $100,000,000 (provided that to the extent any Unrestricted Cash or Cash Equivalents have been designated by Borrower or its Subsidiaries as reserved for the payment of outstanding deferred purchase price obligations as contemplated by clause (e) of the definition of “Indebtedness” set forth in this Section 1.01 so that such obligations shall not constitute Indebtedness, such designated Unrestricted Cash or Cash Equivalents shall automatically be excluded from the determination of the Minimum Liquidity Condition unless and until Borrower delivers to Administrative Agent a written notice certifying that such designated Unrestricted Cash or Cash Equivalents (or specified portion thereof) no longer is being reserved by Borrower for application to the payment of such outstanding deferred purchase price obligations).

 

Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

National Currency Unit” means a fraction or multiple of one Euro expressed in units of the former national currency of a Participating Member State.

 

Net Cash Proceeds” means, with respect to any incurrence or issuance of any Indebtedness, the aggregate amount of Cash received from time to time (whether as initial consideration or through payment or disposition of deferred consideration, as and when received in Cash) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication) (a) reasonable and customary brokerage commissions, legal fees, finders’ fees and other similar fees and commissions, (b) the amount of taxes payable in connection with or as a result of such transaction, (c) the amount of any Indebtedness secured by a Lien on such asset (other than the Obligations) that, by the terms of such transaction, is required to be and is repaid upon such Disposition and the amount of any other non-contingent liabilities directly associated with such asset (including indemnity obligations) and (d) other transaction costs and expenses customary and reasonable for such transactions, in each case to the extent, but only to the extent, that the amounts so deducted are properly attributable to such Disposition or to the asset that is the subject thereof and are actually paid (or required to be paid) to a Person that is not a Loan Party (it being understood that if such amounts are not so paid within sixty (60) days of when so required to be paid, such amount shall not constitute a deduction from Net Cash

 

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Proceeds of the applicable Disposition); provided, that in the case of taxes that are deductible under clause (b) above and that at the time of receipt of such Cash, have not been actually paid or are not then payable, such Person may deduct an amount (the “Reserved Tax Amount”) equal to a reasonable estimate for such taxes; provided, that at the time such taxes are paid (and if further taxes in respect thereof are not due), an amount equal to the amount, if any, by which the Reserved Tax Amount exceeds the amount actually so paid, will constitute Net Cash Proceeds; provided, further, that at the time any tax indemnification in respect of a Reserved Tax Amount is received by such Person, an amount equal to the amount, if any, by which the tax indemnification amount received exceeds the amount actually paid in respect of the underlying indemnified event, will constitute Net Cash Proceeds.

 

Net Equity Proceeds” means, with respect to any issuance of any Equity Interest, including any securities convertible into or exchangeable for Equity Interests or any warrants, rights, options or other securities to acquire Equity Interests by an Person, the aggregate amount of Cash received from time to time (whether as initial consideration or through payment or disposition of deferred consideration, as and when received in Cash) by or on behalf of such Person in connection with such transaction after deducting therefrom only (without duplication): (a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees, finders’ fees and other similar fees and commissions and (b) other transaction costs customary and reasonable for such transactions, in each case to the extent, but only to the extent, that the amounts so deducted are properly attributable to such transaction and are, at the time of receipt of such Cash, actually paid to a Person that is not a Loan Party.

 

Net Equity Proceeds Amount” means, as of any time of determination, an amount equal to the aggregate Net Equity Proceeds received by Borrower or any of its Subsidiaries after the Second Restatement Effective Date which are used solely to fund all or a portion of the Acquisition Consideration for Acquisitions permitted pursuant to Section 7.02, with the Net Equity Proceeds Amount to be immediately reduced by the amount of the Acquisition Consideration for any such Permitted Acquisition made with such Net Equity Proceeds.

 

New Lender” has the meaning given such term in Section 4.01(g).

 

New Lender Agreement” has the meaning given such term in Section 4.01(g).

 

Non-Consenting Lender” means any Lender that does not (as determined by Administrative Agent in its Reasonable Discretion) approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 10.01 and (b) has been approved by Required Lenders (to the extent such consent, waiver or amendment requires the approval of all Lenders) or Required Revolving Credit Lenders or Required Incremental Term Loan Lenders (to the extent such consent, waiver or amendment requires the consent of all Revolving Credit Lenders or Incremental Term Loan Lenders, as applicable).

 

Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

Non-Exempt Subsidiary” means each direct or indirect non-wholly owned Domestic Subsidiary of Borrower now existing or hereafter acquired or formed, and each successor thereto, in each case which accounts for (a) more than 10% of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries or (b) more than 10% of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated

 

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Subsidiaries, in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable; provided that if the Exempt Subsidiaries of Borrower at any time account for, in the aggregate, (i) more than 20% of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries or (ii) more than 20% of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable, Borrower shall designate one or more of such Exempt Subsidiaries to be Non-Exempt Subsidiaries such that, after giving effect to such designations, the Exempt Subsidiaries of Borrower shall account for, in the aggregate, (A) not more than 20% of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries and (B) not more than 20% of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable.

 

Non-LIBOR Quoted Currency” means any currency other than a LIBOR Quoted Currency.

 

Note” means any promissory note executed by Borrower in favor of a Lender pursuant to Section 2.11 in substantially the form of Exhibit E.

 

Obligations” means, collectively, (a) the Loan Document Obligations, (b) the Secured Cash Management Obligations and (c) the Secured Swap Obligations (excluding with respect to any Guarantor that is a Subsidiary of Borrower, Excluded Swap Obligations of such Guarantor).

 

Organizational Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction) of such Person; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement of such Person; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization of such Person and any agreement, instrument, filing or notice with respect thereto filed in connection with such Person’s formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such Person.

 

Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.08).

 

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Outstanding Amount” means, as determined as of any date, (a) with respect to any Loans, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of such Loans, as the case may be, occurring on such date; and (b) with respect to any Credit Obligations on any date, the amount of such Credit Obligations after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the Credit Obligations as of such date, including as a result of any reimbursements by Borrower of Unreimbursed Amounts.

 

Participant” has the meaning given to such term in Section 10.06(d).

 

Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.

 

PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

 

Payment Recipient” has the meaning given such term in Section 9.14(a).

 

PBGC” means the Pension Benefit Guaranty Corporation.

 

Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, as applicable, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

Pension Plan” means any employee pension benefit plan, other than a Multiemployer Plan, that is maintained or is contributed to by any Loan Party and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

Percentage Share” means, as to any Lender, its Revolving Credit Percentage Share or Incremental Term Loan Percentage Share, as applicable.

 

Permitted Acquisition” means any Acquisition that meets the following conditions (in each case subject to Section 1.02(p)):

 

(a)       the proposed Acquisition will be undertaken and consummated in accordance and in compliance in all material respects with all applicable Laws;

 

(b)       such proposed Acquisition does not involve any material assets or businesses of the type prohibited pursuant to Section 7.11;

 

(c)       such proposed Acquisition is or will be approved by (i) to the extent required by Applicable Law, the Target’s Board of Directors and (ii) to the extent required by applicable Law, the holders of the Equity Interests in the Target;

 

(d)       no Default or Event of Default will have occurred and be continuing at the time of execution of a binding purchase agreement with respect to the proposed Acquisition or immediately after giving effect thereto;

 

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(e)       Borrower will be in compliance with the financial covenants set forth in Section 7.15, for the most recent Test Period ending prior to the closing date of the proposed Acquisition for which financial statements have been provided, on a pro forma basis as if such proposed Acquisition (as well as all other Permitted Acquisitions closed subsequent to such Test Period end) occurred on the first day of the Test Period ended on such date (but assuming, for purposes of determining pro forma compliance with Section 7.15(a) for such Test Period, that the maximum Consolidated Leverage Ratio permitted pursuant to Section 7.15(a) for such Test Period was 0.25 less than the maximum Consolidated Leverage Ratio set forth in Section 7.15(a) corresponding to such Test Period (after giving effect to any permitted increase to such maximum Consolidated Leverage Ratio corresponding to such Test Period assuming the consummation of such Permitted Acquisition); provided, at Borrower’s option, compliance with such covenants may be tested at the time a binding agreement with respect to the proposed Acquisition is entered into (and not at the time of consummation of such Acquisition), in which case the permitted increase to the Consolidated Leverage Ratio shall be based on the pro forma calculation of the Consolidated Leverage Ratio (giving effect to the Permitted Acquisition and the Indebtedness related thereto that is reasonably anticipated to be incurred or assumed);

 

(f)       after giving effect to the proposed Acquisition and the payment of all amounts (including fees and expenses) owing in connection therewith, the Minimum Liquidity Condition is satisfied;

 

(g)       the business and assets of the Target will be free and clear of Liens upon the consummation of the Acquisition, except Permitted Liens;

 

(h)       with respect to any Acquisition by Borrower or any Domestic Subsidiary of any Target that, upon the consummation of such Acquisition, would become a direct or indirect Foreign Subsidiary of the Borrower, the Acquisition Consideration payable for the proposed Acquisition (excluding any Acquisition Consideration payable in Equity Interests of the Borrower that are not Disqualified Equity Interests) will not exceed $10,000,000;

 

(i)       if the Acquisition Consideration payable for the proposed Acquisition equals or exceeds $25,000,000, Borrower will have delivered to Administrative Agent the historical audited financial statements of Target for the three immediately preceding fiscal years of Target (or, if less, the number of years available, if any) and unaudited financial statements thereof for the most recent interim period (if any) that is available;

 

(j)       Borrower will have delivered to Administrative Agent a certificate executed by a Responsible Officer of Borrower certifying, to the best of such Responsible Officer’s knowledge, the compliance with each of the conditions set forth in the preceding clauses (a) through (i), inclusive, and containing the calculations (in reasonable detail) required by the preceding clauses (e) and (f); and

 

(k)       Borrower will cause each Subsidiary which is formed to effect, or is acquired pursuant to, an Acquisition to comply with, and to execute and deliver all of the documentation as and to the extent required by the Loan Documents and within the time period prescribed therein (including Section 6.11).

 

Permitted Bond Hedge Transaction” means any call or capped call option (or substantively equivalent derivative transaction) relating to Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of Borrower) purchased by Borrower in connection with the issuance of any Permitted

 

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Convertible Indebtedness and settled in common stock of Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of Borrower.

 

Permitted Convertible Indebtedness” means senior, unsecured Indebtedness of Borrower that is (x) convertible into shares of common stock of Borrower (or other securities or property following a merger event, reclassification or other change of the common stock of Borrower), cash or a combination thereof (such amount of cash determined by reference to the price of Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of Borrower, (y) issued in connection with the Sunrise Acquisition (or to refinance any debt issued in connection with the Sunrise Acquisition) and (z) not mandatorily redeemable prior to the Revolving Credit Maturity Date; provided that such Indebtedness shall not be considered to be “mandatorily redeemable” on account of either (I) the right of holders to require Borrower to repurchase such Indebtedness in connection with a “fundamental change” or (II) the right of holders to convert such Indebtedness, in each case, in accordance with the terms of the indenture governing the Permitted Convertible Indebtedness.

 

Permitted Encumbrances” means any Cash Collateral or other credit support provided to any L/C Issuer in respect of a Defaulting Lender pursuant to clause (E) of Section 2.03(a)(iv).

 

Permitted Liens” has the meaning given such term in Section 7.01.

 

Permitted Pari Passu Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be pari passu with the Liens securing the Loans, an intercreditor agreement either (i) in the form of Exhibit B to the Second Amendment with such amendments thereto as the Administrative Agent shall deem acceptable or (ii) otherwise on terms consistent with market terms governing security arrangements for the sharing of liens on a pari passu basis at the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such liens, as determined by the Administrative Agent and the Borrower in the exercise of reasonable judgment.

 

Permitted Junior Intercreditor Agreement” shall mean, with respect to any Liens on Collateral that are intended to be junior to any Liens on Collateral securing the Loans, an intercreditor agreement the terms of which are consistent with market terms governing security arrangements for the sharing of liens on a junior basis at the time such intercreditor agreement is proposed to be established in light of the type of Indebtedness to be secured by such liens, as determined by the Administrative Agent and the Borrower in the exercise of reasonable judgment.

 

Permitted Warrant Transaction” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) relating to Borrower’s common stock (or other securities or property following a merger event, reclassification or other change of the common stock of Borrower) sold by Borrower substantially concurrently with any purchase by Borrower of a Permitted Bond Hedge Transaction and settled in common stock of Borrower (or such other securities or property), cash or a combination thereof (such amount of cash determined by reference to the price of Borrower’s common stock or such other securities or property), and cash in lieu of fractional shares of common stock of Borrower.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

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Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of any Loan Party or any ERISA Affiliate or any such Plan to which any Loan Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

Preferred Equity” means, as applied to the Equity Interests of any Person, Equity Interests of such Person (other than common Equity Interests of such Person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person.

 

Prime Rate” means the per annum rate of interest in effect for such day as publicly announced from time to time by HSBC as its “Prime Rate,” such rate being the rate of interest most recently announced within HSBC at its principal office in New York, New York as its “Prime Rate,” with the understanding that HSBC’s “Prime Rate” is one of HSBC’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as HSBC may designate. HSBC’s “Prime Rate” is not intended to be the lowest rate of interest charged by HSBC in connection with extensions of credit to borrowers. Any change in HSBC’s “Prime Rate” as announced by HSBC will take effect at the opening of business on the day specified in the public announcement of such change.

 

Proceeding” has the meaning given such term in Section 6.03(b).

 

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

 

QFC Credit Support” has the meaning specified in Section 10.22.

 

Qualified ECP Guarantor” means, in respect of any Secured Swap Obligations, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of the relevant security interest becomes effective with respect to such Secured Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

Qualified Preferred Stock” means any Preferred Equity of Borrower (a) that does not constitute Disqualified Equity Interests and (b) does not require the Cash payment of dividends or distributions that would otherwise be prohibited by the terms of this Agreement.

 

Reasonable Discretion” means, as to any Person, a determination or judgment made by such Person in the exercise of such Person’s reasonable (from the perspective of a secured commercial lender) business judgment.

 

Recipient” means (a) Administrative Agent and (b) any Lending Party, as applicable.

 

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Record” means information that is inscribed on a tangible medium or which is stored on an electronic or other medium and is retrievable in perceived form.

 

Reference Time” with respect to any setting of the then-current Benchmark means (a) if such Benchmark is the LIBO Rate, 11:00 a.m. (London time) on the day that is two (2) London Banking Days preceding the date of such setting, (b) if such Benchmark is EURIBOR Rate, 11:00 a.m. (Brussels time) two (2) TARGET Days preceding the date of such setting, and (d) if such Benchmark is neither the LIBO Rate nor the EURIBOR Rate, the time determined by Administrative Agent in its reasonable discretion.

 

Register” means a register for the recordation of the names and addresses of Lenders and, as applicable, the Commitments of, and Outstanding Amounts of the Loans and Credit Obligations owing to, each Lender pursuant to the terms hereof from time to time.

 

Regulation D” means Regulation D of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.

 

Related Business” means(i) any business that is the same, similar or otherwise reasonably related, ancillary or complementary to the businesses of the Loan Parties on the Second Restatement Effective Date or (ii) any business that is the same, similar or otherwise reasonably related, ancillary or complementary to the business of Sunrise Target on the Second Amendment Effective Date.

 

Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, members, directors, officers, employees, trustees, administrators, managers, advisors and agents and representatives of such Person and of such Person’s Affiliates, and specifically includes, in the case of HSBC, HSBC in its separate capacities as Administrative Agent, as Swing Line Lender, as L/C Issuer and as an Arranger.

 

Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure or facility.

 

Relevant Governmental Body” means (a) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the FRB or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the FRB or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to a Benchmark Replacement in respect of Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, any Alternative Currency, (i) the central bank for the Agreed Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the Applicable Administrator of such Benchmark Replacement or (ii) any working group or committee officially endorsed or convened by (x) the central bank for the Currency in which such Obligations, interest, fees, commissions or other amounts are denominated, or calculated with respect to, (y) any central bank or other supervisor that is responsible for supervising either (i) such Benchmark Replacement or (ii) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.

 

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Relevant Rate” means (a) with respect to any Eurocurrency Rate Loan denominated in Dollars, Sterling or Swiss Francs, the corresponding LIBO Rate, (b) with respect to any Eurocurrency Borrowing denominated in Euros, the EURIBOR Rate, (c) with respect to any Eurocurrency Borrowing denominated in Yen, the TIBOR Rate, or (d) with respect to any Eurocurrency Borrowing denominated in Canadian Dollars, the CDOR Rate, as applicable.

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

Request for Credit Extension” means (a) with respect to a Borrowing of Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, a Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

Required Incremental Term Loan Lenders” means, as determined at any time, Incremental Term Loan Lenders holding in excess of 50.0% of the Outstanding Amount of all Incremental Term Loans and Incremental Term Loan Commitments; provided that each determination of Required Incremental Term Loan Lenders will disregard the Outstanding Amount of all Incremental Term Loans and Incremental Term Loan Commitments held by any then Defaulting Lender.

 

Required Lenders” means, as determined at any time, Lenders holding in excess of 50.0% of the sum of (a) (i) the Revolving Credit Commitments then in effect or (ii) if the Aggregate Revolving Credit Commitments have been terminated in full, the Total Revolving Credit Outstandings at such time, plus (b) the Outstanding Amount of all Incremental Term Loans and Incremental Term Loan Commitments at such time; provided that each determination of Required Lenders will disregard the Revolving Credit Commitment of, the portion of the Total Revolving Credit Outstandings and the Outstanding Amount of all Incremental Term Loans and Incremental Term Loan Commitments, as the case may be, of any then Defaulting Lender.

 

Required Revolving Credit Lenders” means, as determined at any time, (a) Revolving Credit Lenders holding in excess of 50.0% of the Revolving Credit Commitments then in effect or (b) if the Aggregate Revolving Commitments have been terminated following the occurrence of an Event of Default, Revolving Credit Lenders holding in excess of 50.0% of the Total Revolving Credit Outstandings at such time; provided that each determination of Required Revolving Credit Lenders will disregard the Revolving Credit Commitment of, and the portion of the Total Revolving Credit Outstandings held or deemed held, by any then Defaulting Lender.

 

Resolution Authority” means an EEA Resolution Authority or with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer” means (a) with respect to Borrower in connection with any Request for Credit Extension to be delivered by Borrower hereunder, the chief executive officer, president, chief financial officer, treasurer or controller of Borrower; (b) with respect to Borrower in connection with any Compliance Certificate or any other certificate or notice pertaining to any financial information required to be delivery by Borrower hereunder or under any other Loan Document, the chief financial officer, treasurer, controller or other officer having primary responsibility for the financial affairs of such Person; and (c) otherwise, with respect to Borrower or any other Loan Party, the chief executive officer, president, chief operating officer, chief financial officer, treasurer, controller, secretary or general counsel of such Person or such other authorized person duly appointed by such Loan Party (or, if applicable, the chief executive officer, president, chief operating officer, chief financial officer, treasurer, controller, secretary or general counsel of such Loan Party’s managing entity or such other authorized person duly appointed by such managing entity).

 

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Restricted” means, when referring to Cash or Cash Equivalents of Borrower and its Subsidiaries, that such Cash or Cash Equivalents (a) are indicated as “restricted” (or such similar language) on a Consolidated balance sheet of Borrower (unless such indication is related to the Loan Documents or the Liens created thereunder), (b) are subject to any Liens in favor of any Person other than Administrative Agent to secure the Obligations or (c) are not otherwise generally available for use by Borrower or such Subsidiary (unless such restriction is related to the Loan Documents or the Liens created thereunder).

 

Restricted Payment” means, as to any Person, (a) any Dividend by such Person (whether in Cash, securities or other property) with respect to any Equity Interest of such Person, (b) any payment (whether in Cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of such Equity Interest or on account of any return of capital to any holder of any such Person’s Equity Interests and (c) the acquisition for value by such Person of any Equity Interests issued by such Person or any other Person that Controls such Person.

 

Restricted Subsidiary” means, as determined at any time, each direct or indirect Subsidiary of Borrower that (a) is not a Unrestricted Subsidiary (including, in each case, that has not been designated an Unrestricted Subsidiary pursuant to Section 2.16) and (b) is not a Subsidiary of an Unrestricted Subsidiary.

 

Revaluation Date” means with respect to any Loan, each of the following: (a) each date of the funding of a Eurocurrency Rate Loan hereunder denominated in an Alternative Currency, (b) each date of an amendment or modification of any such Loan having the effect of increasing the amount thereof (solely with respect to the increased amount), (c) each date of any prepayment or repayment of any Loan denominated in an Alternative Currency and (d) such additional dates as Administrative Agent or any Lending Party will reasonably determine in accordance with the provisions of this Agreement.

 

Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each Revolving Credit Lender pursuant to Section 2.01(b).

 

Revolving Credit Commitment” means, as to each Revolving Credit Lender at any time, its obligation to do the following pursuant to the terms hereof: (a) make Revolving Credit Loans to Borrower; (b) purchase participations in Credit Obligations; and (c) purchase participations in Swing Line Loans; all in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender became a party hereto or pursuant to the applicable Additional Commitment Documentation, as such amount may be adjusted from time to time in accordance with this Agreement.

 

Revolving Credit Commitment Fee” has the meaning given such term in Section 2.09(a).

 

Revolving Credit Exposure” means, as to any Revolving Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and such Revolving Credit Lender’s participation in Credit Obligations and Swing Line Loans at such time.

 

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Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.

 

Revolving Credit Lender” means, collectively, (a) initially, each Lender designated on Schedule 2.01 as a Lender having a Revolving Credit Commitment as of the Second Restatement Effective Date and (b) each Lender that assumes a Revolving Credit Commitment pursuant to an Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation or which otherwise holds a Revolving Credit Commitment, a Revolving Credit Loan, a risk participation in a Swing Line Loan or a participation in a Credit or a L/C Borrowing, other than any such Person that ceases to be a party hereto or ceases to hold any Revolving Credit Commitments or Revolving Credit Loans nor any such risk participations pursuant to an Assignment and Assumption.

 

Revolving Credit Loan” has the meaning given such term in Section 2.01(b).

 

Revolving Credit Maturity Date” means the earliest of (a) the Revolving Credit Stated Maturity Date, (b) the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.06 and (c) the date of the termination of the Aggregate Revolving Credit Commitments and of the obligation of any L/C Issuer to make L/C Credit Extensions and the acceleration of the Revolving Credit Loans pursuant to Section 8.03.

 

Revolving Credit Percentage Share” means as to any Revolving Credit Lender at any time, the percentage (expressed as a decimal carried out to the ninth decimal place) of the Aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 3.07; provided that, if the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of any L/C Issuer to issue L/C Credit Extensions have been terminated pursuant to Section 8.03 or if the Aggregate Revolving Credit Commitments have expired, then the Revolving Credit Percentage Share of each Revolving Credit Lender will be determined based upon such Lender’s Revolving Credit Percentage Share most recently in effect, giving effect to any subsequent assignments. The initial Revolving Credit Percentage Share of each Revolving Credit Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation pursuant to which such Lender became a party hereto, as applicable.

 

Revolving Credit Stated Maturity Date” means November 7, 2024.

 

RFR Daily Rate Loan” means, a Loan bearing interest based on the Daily Simple SOFR, the Daily Simple SONIA or the Daily Simple SARON, as the context may require.

 

S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

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 Administrative Agent to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.

 

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Sanctions” has the meaning given such term in Section 5.17(a).

 

SARON” means, with respect to any Business Day, a rate per annum equal to the Swiss Average Rate Overnight for such Business Day published by the SARON Administrator on the SARON Administrator’s Website.

 

SARON Administrator” means the SIX Swiss Exchange AG (or any successor administrator of the Swiss Average Rate Overnight).

 

SARON Administrator’s Website” means SIX Swiss Exchange AG’s website, currently at https://www.six-group.com, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.

 

SEC” means the Securities Exchange Commission and any successor thereto.

 

Second Amendment” shall mean the Second Amendment to Second Amended and Restated Credit Agreement, dated as of the Second Amendment Effective Date, by and among the Borrower, each of the Guarantors, the Lenders party thereto and HSBC, in its separate capacities as Administrative Agent for the Secured Parties and as Swing Line Lender and L/C Issuer.

 

Second Amendment Effective Date” shall mean the Second Amendment Effective Date (as such term is defined in the Second Amendment).

 

Second Restatement Effective Date” means the first date on which all of the conditions precedent to the initial Credit Extension set forth in Section 4.01 and Section 4.02 are satisfied (or waived in accordance with Section 10.01), which date is November 7, 2019.

 

Secured Cash Management Obligations” means Cash Management Obligations that are (a) owed to Administrative Agent or any of its Affiliates, (b) owed on the Second Restatement Effective Date to a Person that is a Lender or an Affiliate of a Lender as of the Second Restatement Effective Date or (c) owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations are incurred (each such Person to whom any such liabilities or other obligations are owed is referred to herein as a “Cash Management Bank” for such purpose).

 

Secured Parties” means (a) each Lending Party, (b) Administrative Agent, (c) each Cash Management Bank to whom any Secured Cash Management Obligations are owed, (d) each Hedge Bank that is a counterparty to any Swap Contract the obligations under which constitute Secured Swap Obligations, (e) the beneficiaries of each indemnification obligation undertaken by any Loan Party under any Loan Document and (f) the permitted successors and assigns of each of the foregoing.

 

Secured Swap Obligations” means all liabilities and other obligations of Borrower or any of its Subsidiaries under any Swap Contract permitted under Section 7.03(e); provided that such Swap Contract (a) is with a counterparty that is Administrative Agent or any of its Affiliates, (b) is in effect on the Second Restatement Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Second Restatement Effective Date or (c) is entered into after the Second Restatement Effective Date with any counterparty that is a Lender or an Affiliate of a Lender at the time such Swap Contract is entered into (each such counterparty being referred to herein as a “Hedge Bank” for such purpose), and in the case of each of the preceding clauses (a), (b) and (c), such counterparty has not delivered to Administrative Agent a written notice that the liabilities and other obligations of Borrower or any of its Subsidiaries under such Swap Contract are not to be treated as Secured Swap Obligations for purposes of this Agreement and the other Loan Documents.

 

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Security Agreement” means the Second Amended and Restated Security Agreement dated as of the date of this Agreement by Borrower, each other Loan Party that is a party to this Agreement as of the Second Restatement Effective Date and, upon their joinder thereto pursuant to Section 6.11(a), each other Person as will hereafter become a Loan Party, in favor of Administrative Agent, for the benefit of the Secured Parties.

 

Semtech (International)” means Semtech (International) AG, a corporation organized under the laws of Switzerland.

 

Significant Acquisition” means each Acquisition (or series of related Acquisitions) for which the Acquisition Consideration, including any Deferred Purchase Price Obligations, is equal to or greater than $3,000,000.

 

Significant Disposition” means each Disposition (or series of related Dispositions) for which the all-in consideration paid or payable in Cash or other property, including any deferred consideration included or characterized as indebtedness or a liability in accordance with GAAP, is equal to or greater than $3,000,000.

 

Significant Investment” means each Investment (or series of related Investments) permitted pursuant to Section 7.02(p) or Section 7.02(q) for which the all-in consideration paid or payable in Cash or other property, including any deferred consideration included or characterized as indebtedness or a liability in accordance with GAAP, is equal to or greater than $3,000,000.

 

SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website.

 

SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

 

SOFR Administrator’s Website” means the Federal Reserve Bank of New York’s Website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

 

Solvent” means, as to any Person at any time, that (a) the fair value of the property of such Person on a going concern basis is greater than the amount of such Person’s liabilities (including contingent liabilities), as such value is established and such liabilities are evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent Transfer Act or any similar state statute applicable to Borrower or any Subsidiary thereof; (b) the present fair salable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including contingent liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute unreasonably small capital. For the purposes of the foregoing, the amount of contingent liabilities at any time will be computed as the amount that, in light of all facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

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SONIA” means, with respect to any Business Day, a rate per annum equal to the Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website.

 

SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).

 

SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.

 

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.

 

Specified Event of Default” means any Event of Default occurring under Sections 8.01(a) or, in the case of the Borrower only, Section (f) or (g).

 

Specified Lender” means, at any time, any Lender that (a) has (i) requested compensation under Section 3.04 and has not rescinded such request within five Business Days of the making thereof or (ii) to whom Borrower must pay an additional amount (or on whose behalf Borrower must pay an additional amount to a Governmental Authority) pursuant to Section 3.01, and in the case of either of clauses (i) or (ii), such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.06; (b) gives a notice pursuant to Section 3.02; (c) is a Defaulting Lender; or (d) is a Non-Consenting Lender.

 

Specified Materials” means, collectively, all notices, demands, communications, documents and other materials or information provided by or on behalf of Borrower or any other Loan Party or any of their respective Subsidiaries or Affiliates, as well as documents and other written materials relating to Borrower or any other Loan Party or any of their respective Subsidiaries or Affiliates or any other materials or matters relating to this Agreement or any of the other Loan Documents (including any amendments or waivers of the terms thereof or supplements thereto) or the transactions contemplated herein or therein.

 

Specified Permitted Debt Documents” means, on and after the execution and delivery thereof, each note, indenture, purchase agreement, loan agreement, guaranty and other material agreement relating to the incurrence or issuance of Specified Permitted Indebtedness, as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof and thereof.

 

Specified Permitted Indebtedness” means any unsecured Indebtedness of Borrower, which may be guaranteed on an unsecured basis by any Subsidiary Guarantor, all of the terms of which satisfy the requirements of Section 7.03(b).

 

Specified Representations” means the representations and warranties of Borrower and, to the extent applicable, the other Loan Parties set forth in Section 5.01, Section 5.02(a) (with respect to entering into and performance of the Loan Documents), Section 5.04, Section 5.11 (only with respect to the second sentence thereof), Section 5.14, Section 5.16, Section 5.17 and Section 5.18.

 

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Specified Transaction” means, with respect to any period, any Investment, Disposition of assets, incurrence or repayment of Indebtedness, Restricted Payment, subsidiary designation or other event that by the terms of this Agreement requires “pro forma” compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a “pro forma” or after giving “pro forma” effect thereto.

 

Spot Rate” for a currency means the rate determined by Administrative Agent or L/C Issuer, 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., London time, on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that Administrative Agent or L/C Issuer may obtain such spot rate from another financial institution designated by Administrative Agent or L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided, further, that L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Credit denominated in an Alternative Currency.

 

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve, liquid asset, fees or similar requirements (including any marginal, special, emergency or supplemental reserves or other requirements) established by any central bank, monetary authority, the FRB, the FCA, the Prudential Regulation Authority, the European Central Bank or other Governmental Authority for any category of deposits or liabilities customarily used to fund loans in the applicable currency, expressed in the case of each such requirement as a decimal. Such reserve, liquid asset, fees or similar requirements shall include those imposed pursuant to Regulation D. Eurocurrency Rate Loans shall be deemed to be subject to such reserve, liquid asset, fee or similar requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under any applicable Law, including Regulation D. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve, liquid asset or similar requirement.

 

Sterling” and “£” mean the lawful currency of the United Kingdom.

 

Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Equity Interests having ordinary voting power for the election of directors or other governing body (other than Equity Interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” will refer to a Subsidiary or Subsidiaries of Borrower.

 

Subsidiary Guarantor” means, collectively, each Domestic Subsidiary of Borrower that executes this Agreement as a Guarantor as of the Second Restatement Effective Date and each other Domestic Subsidiary that becomes a Guarantor hereunder pursuant to Section 6.11(a) (in each case unless and until such Person is released as a Guarantor hereunder pursuant to Section 10.01 or Section 9.01(a), as applicable).

 

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Sunrise Acquisition” shall mean the acquisition of Sierra Wireless, Inc., a Canadian corporation (“Sunrise Target”), by 13548597 Canada Inc., a Canadian corporation and a wholly-owned subsidiary of the Borrower (the “Sunrise Buyer”), pursuant to the Sunrise Arrangement Agreement.

 

Sunrise Acquisition Indebtedness” has the meaning given to such term in Section 7.03(r).

 

Sunrise Arrangement Agreement” shall mean that certain Arrangement Agreement, dated as of August 2, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time by Permitted Amendments (as defined Exhibit C to the Second Amendment)), by and among the Sunrise Buyer, the Borrower and the Sunrise Target.

 

Sunrise Buyer” has the meaning given to such term in the definition of “Sunrise Acquisition”.

 

Sunrise Commitment Letter” means that certain commitment letter, dated as of August 2, 2022, by and between the Borrower and JPMorgan Chase Bank, N.A. (as the same may be amended, modified, restated or replaced from time to time).

 

Sunrise Target” has the meaning given to such term in the definition of “Sunrise Acquisition”.

 

Supported QFC” has the meaning specified in Section 10.22.

 

Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act; provided that neither a Permitted Bond Hedge Transaction nor a Permitted Warrant Transaction shall constitute a Swap.

 

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 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, that 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 including any such obligations or liabilities under any such master agreement (in each case, together with any related schedules); provided that neither a Permitted Bond Hedge Transaction nor a Permitted Warrant Transaction shall constitute a Swap Contract.

 

Swap Obligation” means, with respect to any Person, any obligation to pay or perform under any Swap.

 

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

 

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termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a) of this definition, the amount(s) determined as the mark-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 Lender or any Affiliate of a Lender).

 

Swing Line” means the revolving credit facility made available by Swing Line Lender pursuant to Section 2.04.

 

Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

 

Swing Line Lender” means, at any time, the provider of the Swing Line hereunder (which, initially, will be HSBC).

 

Swing Line Loan” has the meaning given such term in Section 2.04(a).

 

Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, will be substantially in the form of Exhibit F.

 

Swing Line Sublimit” means, as determined as of any date, an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Revolving Credit Commitments. The Swing Line Sublimit is a part of, but is not in addition to, the Aggregate Revolving Credit Commitments.

 

Swiss Francs” means the lawful currency of Switzerland.

 

Swiss Pledge Agreement” means that Share Pledge Agreement dated May 2, 2013, between Borrower and Administrative Agent, as amended and confirmed by that Security Confirmation and Amendment Agreement dated as of November 11, 2016, and as further confirmed and amended by that Security Confirmation and Amendment Agreement dated as of the date hereof, between Borrower and Administrative Agent, on behalf of itself and the Secured Parties, pursuant to which Borrower pledges and grants a security interest to Administrative Agent, on behalf and for the benefit of the Secured Parties, in 65% of the issued and outstanding Equity Interests in Semtech (International), which pledge agreement is governed by the laws of Switzerland.

 

Synthetic Lease Obligation” means the principal balance outstanding under any lease, funding agreement or other arrangement with respect to any real or personal property pursuant to which the lessor is treated as the owner of such property for accounting purposes and the lessee is treated as the owner of such property for federal income tax purposes, or any tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.

 

Target” means the Person, business unit or division that is the subject of an Acquisition.

 

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 Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

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Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholdings), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

 

Test Period” means each period of four consecutive Fiscal Periods then last ended, in each case taken as one accounting period.

 

TIBOR Interpolated Rate” means, at any time, with respect to any Eurocurrency Rate Loan Borrowing denominated in Yen and for any Interest Period, the rate per annum (rounded to the same number of decimal places as the TIBOR Screen Rate) determined by Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between (a) the TIBOR Screen Rate for the longest period (for which the TIBOR Screen Rate is available for Yen) that is shorter than the Impacted TIBOR Rate Interest Period and (b) the TIBOR Screen Rate for the shortest period (for which the TIBOR Screen Rate is available for Yen) that exceeds the Impacted TIBOR Rate Interest Period, in each case, at such time; provided that, if any TIBOR Interpolated Rate shall be less than zero, such rate shall be deemed to be the Floor for the purposes of this Agreement.

 

“TIBOR Rate” means, with respect to any Eurocurrency Borrowing denominated in Yen and for any Interest Period, the TIBOR Screen Rate; provided that, if the TIBOR Screen Rate shall not be available at such time for such Interest Period (an “Impacted TIBOR Rate Interest Period”) with respect to Yen then the TIBOR Rate shall be the TIBOR Interpolated Rate.

 

TIBOR Screen Rate” means, for any day and time, with respect to any Eurocurrency Rate Loan denominated in Yen and for any Interest Period, the Tokyo Interbank Offered Rate (“TIBOR”) administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the Applicable Administrator) on the applicable Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate as determined by Administrative Agent from time to time in place of Reuters as of 11:00 a.m. (Tokyo time) two (2) Business Days prior to the commencement of such Interest Period. If such page or service ceases to be available, Administrative Agent may specify another page or service displaying the relevant rate after consultation with Borrower. If the TIBOR Screen Rate shall be less than zero the TIBOR Screen Rate shall be deemed to be the Floor for purposes of this Agreement.

 

Trade Date” has the meaning given such term in Section 10.06(g)(i).

 

Threshold Amount” means $20,000,000.

 

Total Revolving Credit Outstandings” means, as determined as at any time, the sum of (a) the aggregate Outstanding Amount of all Revolving Credit Loans, plus (b) the Outstanding Amount of all Credit Obligations and plus (c) the Outstanding Amount of all Swing Line Loans.

 

Transactions” means, collectively, the (a) entry by the parties hereto into this Agreement and the other Loan Documents for the purpose of the Lending Parties making available to Borrower the Facility on the terms and subject to the conditions hereof and thereof, (b) refinancing, including through cashless settlements as applicable, of the Existing Senior Credit Facilities under the First Restated Credit Agreement and the other First Restated Loan Documents and (c) payment of all related Transaction Costs.

 

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Transaction Costs” means the fees, costs and expenses paid or payable by the Loan Parties in connection with the consummation of the transactions contemplated by the Loan Documents, including the initial funding of the Credit Extensions under this Agreement on the Second Restatement Effective Date.

 

Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.

 

UCP” means, with respect to any commercial Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, UCP 600, published by the International Chamber of Commerce (or, if L/C Issuer will agree at the time of issuance, such later version thereof as may be in effect immediately prior to the issuance of such Credits, the extension of the expiry date thereof or any increase of the amount thereof).

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

UK Regulatory Cost” means an addition to the interest rate on a Eurocurrency Rate Loan denominated in an Alternative Currency to compensate a Lender for the cost imputed to such Lender in respect of any such Eurocurrency Rate Loan denominated in an Alternative Currency made by such Lender hereunder resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 or by the Bank of England or the Financial Services Authority (including any successor thereto, the “FSA”) (or other United Kingdom governmental authorities or agencies) of a requirement to place non-interest-bearing deposits or special deposits (whether interest-bearing or not) with the Bank of England to meet cash ratio requirements and/or pay fees to the FSA calculated by reference to liabilities used to fund such Eurocurrency Rate Loan.

 

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement, excluding the Benchmark Replacement Adjustment.

 

Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, to the extent perfection or the effect of perfection or non-perfection or the priority of any security interest in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

 

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Unreimbursed Amount” means, with respect to any Credit, any amount (in Dollars, or if the applicable Credit is denominated in an Alternative Currency, the Dollar Equivalent thereof) drawn thereunder that Borrower has failed to reimburse to the L/C Issuer thereof by the time specified in Section 2.03(c)(i).

 

Unrestricted” means, when referring to Cash or Cash Equivalents of Borrower or any of its Subsidiaries, that such Cash or Cash Equivalents are not Restricted.

 

Unrestricted Subsidiary” means, as determined at any time, each direct or indirect Subsidiary of Borrower that (a) has been designated by Borrower as an Unrestricted Subsidiary on Schedule 1.01-B as of the Second Restatement Effective Date or pursuant to Section 2.16 subsequent to the Second Restatement Effective Date (and, in each case, has not been re-designated a Restricted Subsidiary pursuant to Section 2.16) or (b) is a Subsidiary of an Unrestricted Subsidiary.

 

U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

 

U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 3.01(f).

 

USD LIBOR” means, for any day and time, with respect to any Eurocurrency Rate Loan denominated in Dollars, LIBOR as determined for such Agreed Currency for any applicable Interest Period.

 

Withholding Agent” means any Loan Party and Administrative Agent.

 

Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule., and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

Yen” and “¥” mean the lawful currency of Japan.

 

Article 2
Credit Extensions

 

Section 2.01.          Transitional Matters; Revolving Credit Loans; Incremental Term Loans.

 

(a)             Certain Transitional Matters.

 

(i)            Borrower hereby certifies that (A) Schedule 1.01-A accurately and completely sets forth the Outstanding Amount of all Revolving Credit Loans and the Outstanding Amount of all Term Loans (as such terms are defined in the First Restated

 

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Credit Agreement) owed to each Existing Lender under the Existing Senior Credit Facilities immediately prior to the Second Restatement Effective Date and the giving effect to the repayments, re-allocations and settlements contemplated by this Section 2.01(a)), (B) there are no Swing Line Loans (as such term is defined in the First Restated Credit Agreement) outstanding as of the Second Restatement Effective Date and (C) there are no Credits nor any Unreimbursed Amounts (as such terms are defined in the First Restated Credit Agreement) outstanding as of the Second Restatement Effective Date.

 

(ii)            The Existing Lenders listed on the signature pages to this Agreement, which amends and restates the First Restated Credit Agreement, shall, together with each New Lender delivering a New Lender Agreement to Administrative Agent pursuant Section 4.01(h), be Lenders for all purposes hereunder and under the other Loan Documents as of the Second Restatement Effective Date, and shall have the respective Revolving Credit Commitments and Revolving Credit Percentage Shares as set forth in Schedule 2.01. Any Existing Lender party to the First Restated Credit Agreement not listed on the signature pages to this Agreement (each a “Departing Lender”) shall cease to be a Lender on the Second Restatement Effective Date upon payment in full of all Obligations due to it under (and as such term is defined in) the First Restated Credit Agreement. Notwithstanding anything to the contrary contained in the First Restated Credit Agreement, in order to effect the restructuring of the Existing Senior Credit Facilities as contemplated by this Agreement, all accrued and unpaid interest, and all accrued and incurred and unpaid fees, expenses, charges and other disbursements payable to the Existing Lenders in respect of the Existing Senior Credit Facilities outstanding under the First Restated Credit Agreement will be due and payable in full (without duplication) on the Second Restatement Effective Date.

 

(iii)            Each Departing Lender and each other Existing Lender having Revolving Credit Loans (as such term is defined in the First Restated Credit Agreement) outstanding on the Second Restatement Effective Date and whose Revolving Credit Percentage Share in respect of such Revolving Credit Loans has been decreased on the Second Restatement Effective Date shall be deemed to have assigned on the Second Restatement Effective Date, without recourse, ratably to each Revolving Credit Lender increasing its Revolving Credit Commitment hereunder (each an “Increasing Revolving Credit Lender”), to each New Lender having a Revolving Credit Commitment such portion of such outstanding Revolving Credit Loans (as defined in the First Restated Credit Agreement) as shall be necessary to result in each Lender having the Loans and Commitments set forth in Schedule 2.01. In connection therewith, it is agreed that upon the effectiveness of this Agreement $97,000,000.00 of Revolving Credit Loans under the First Restated Credit Agreement shall be Revolving Credit Loans hereunder on the Second Restatement Effective Date, and such Revolving Credit Loans shall be treated as funded under a cashless settlement mechanism in accordance with Section 10.20. Each Departing Lender and each other Existing Lender having Term Loans (as such term is defined in the First Restated Credit Agreement) outstanding on the Second Restatement Effective Date shall be deemed to have assigned on the Second Restatement Effective Date, without recourse, ratably to each Increasing Revolving Credit Lender and to each New Lender having a Revolving Credit Commitment such ratable portion of such outstanding Term Loans as shall be necessary to effectuate such adjustment (and all such Term Loans shall be deemed to be Revolving Credit Loans hereunder, funded under a cashless settlement mechanism in accordance with Section 10.20).

 

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(iv)            Each Increasing Revolving Credit Lender and each New Lender on the Second Restatement Effective Date shall (A) be deemed to have assumed such ratable portion of such Revolving Credit Loans and such outstanding Term Loans, as applicable, and (B) fund (which funding may be by cashless settlements in accordance with Section 10.20) on the Second Restatement Effective Date such assumed amounts to Administrative Agent for the account of each such assigning Lender in accordance with the provisions hereof in the amount notified to such Increasing Revolving Credit Lender or such New Lender, as the case may be, by Administrative Agent.

 

(b)             Revolving Credit Loans. Upon the terms, subject to the conditions and in reliance upon the representations and warranties of Borrower and each other Loan Party set forth in this Agreement and in the other Loan Documents, each Revolving Credit Lender having a Revolving Credit Commitment severally (but not jointly) agrees to make loans (each such loan, a “Revolving Credit Loan”) of immediately available funds to Borrower, on a revolving basis from time to time on any Business Day during the Availability Period, in an aggregate principal amount outstanding not to exceed at any time such Revolving Credit Lender’s Revolving Credit Commitment as then in effect, provided that, and notwithstanding the foregoing, after giving effect to any Revolving Credit Borrowing, (i)(i) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments less, if applicable, the Alternative Currency Reserve, and (ii)(ii) the sum of (A)(A) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender plus (B)(B) such Lender’s Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Credit Obligations plus (C)(C) such Lender’s Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Swing Line Loans, plus (D)(D) such Lender’s Revolving Credit Percentage Share multiplied by the Alternative Currency Reserve will not exceed such Lender’s Revolving Credit Commitment, and so long as the requirements of clauses (i) and (ii) of this Section 2.01(b) are not satisfied, the Revolving Credit Lenders will not be obligated to fund any Revolving Credit Loans; provided, further, that such portion of the Revolving Credit Loans made on the Second Restatement Effective Date as may be determined by the Administrative Agent may be funded pursuant to cashless settlement; and provided, further, that at any time any Revolving Credit Loans are outstanding and denominated in Alternative Currencies, Administrative Agent will establish a reserve in an amount equal to 5% multiplied by the amount of Total Revolving Credit Outstandings at such time which are denominated in Alternative Currencies (such amount, the “Alternative Currency Reserve”). Each Revolving Credit Loan will be denominated in Dollars or in an Alternative Currency as permitted by this Agreement and no Revolving Credit Lender will be obligated to make any Revolving Credit Loan if the requested Revolving Credit Loan is to be denominated in a currency other than Dollars or an Alternative Currency as permitted under this Agreement. Within the limits of each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Credit Loans may be requested and made as Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. All Revolving Credit Loans to be denominated in an Alternative Currency will be Eurocurrency Rate Loans.

 

(c)             Incremental Term Loans. Upon the terms, subject to the conditions and in reliance upon the representations and warranties of Borrower and each other Loan Party set forth in this Agreement and in the other Loan Documents, each Incremental Term Loan Lender severally (but not jointly) agrees to make a loan in immediately available funds to Borrower (each such loan, an “Incremental Term Loan”) on the date specified in the Additional Commitment Documentation in the principal amount of such Lender’s Incremental Term Loan Commitment. Immediately upon the making of an Incremental Term Loan by any Lender having an Incremental Term Loan

 

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Commitment, such Lender’s Incremental Term Loan Commitment will be permanently reduced to zero. Each Incremental Term Loan will be denominated in Dollars or in an Alternative Currency as permitted by this Agreement and no Incremental Term Loan Lender will be obligated to make any Incremental Term Loan if the requested Incremental Term Loan is to be denominated in a currency other than Dollars or an Alternative Currency as permitted under this Agreement. Incremental Term Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein. All Incremental Term Loans to be denominated in an Alternative Currency will be Eurocurrency Rate Loans. Amounts borrowed as Incremental Term Loans that are repaid or prepaid by Borrower may not be reborrowed.

 

(d)             Loans Generally. Each Loan will be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable; provided, however, that the failure of any Lender to make any Loan will not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender will be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender).

 

Section 2.02.          Procedures for Borrowing.

 

(a)             Notices of Borrowing, Conversion and Continuation. Each Borrowing (other than a Swing Line Borrowing), each conversion of Loans from one Type to the other and each continuation of Eurocurrency Rate Loans will be made upon Borrower’s irrevocable notice to Administrative Agent, which may, subject to the provisions of Section 10.02, be given by approved electronic communication; provided that any such notice may be conditioned on the occurrence of another transaction, in which case Borrower may, subject to Section 3.05, revoke or extend such notice by notifying Administrative Agent on or prior to the date set forth in such notice. Unless otherwise agreed by Administrative Agent in its discretion, each such notice must be received by Administrative Agent not later than 12:00 noon (i) three Business Days prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of, conversion to or continuation of Eurocurrency Rate Loans or of any conversion of Eurocurrency Rate Loans to Base Rate Loans; provided that if Borrower requests such Borrowing in an Alternative Currency, such notice must be received by Administrative Agent not later than 12:00 noon five Business Days (or six Business Days in the case of Special Notice Currency) prior to the requested date of the applicable Borrowing, and (ii) one Business Day prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of Base Rate Loans; provided, however, that if Borrower wishes to request Eurocurrency Rate Loans having an Interest Period other than one, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by Administrative Agent not later than 12:00 noon (1) four Business Days prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (2) six Business Days (or seven Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, whereupon Administrative Agent will give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. With respect to a request for Eurocurrency Rate Loans having an Interest Period other than one, three or six months in duration, not later than 12:00 noon, (A) three Business Days before the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Dollars, or (B) five Business Days (or six Business Days in the case of a Special Notice Currency) prior to the requested date of such Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, Administrative Agent shall notify Borrower whether or not the requested Interest Period has been consented to by all the Lenders. Notwithstanding

 

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anything to the contrary contained herein, but subject to the provisions of Section 10.02, any electronic communication by Borrower pursuant to this Section 2.02(a) may be given by an individual who has been authorized in writing to do so by an appropriate Responsible Officer of Borrower. Each such electronic communication must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed by an appropriate Responsible Officer of Borrower. Further, and notwithstanding anything to the contrary set forth in this Agreement, including this Section 2.02(a), the Lenders will have no obligation to make, convert or continue make any Eurocurrency Rate Loan denominated in an Alternative Currency to the extent the principal amount of such requested Eurocurrency Rate Loan exceeds the Alternative Currency Available Credit as of the date of the requested Borrowing, conversion or continuation.

 

(b)             Amount of Borrowing, Conversion or Continuation. (i) Each Borrowing (other than a Swing Line Borrowing) of, conversion to or continuation of Eurocurrency Rate Loans will be in a principal amount of $5,000,000 or a whole multiple of $100,000 in excess thereof, or, in the case of a Borrowing denominated in an Alternative Currency, in a principal amount of a Dollar Equivalent of $5,000,000 or a whole multiple of a Dollar Equivalent of $100,000 in excess thereof; and (ii) except as provided in Sections 2.03(c) and Section 2.04(c), each Borrowing of or conversion to Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.

 

(c)             Loan Notices Generally. Each Loan Notice (including by electronic communication to the extent permitted by this Agreement) will specify (i) that Borrower is requesting, as applicable: (A) a Revolving Credit Borrowing, (B) a conversion of outstanding Loans from one Type to the other or (C) a continuation of Eurocurrency Rate Loans; (ii) the requested date (which will be a Business Day) of such Borrowing, conversion or continuation, as the case may be; (iii) the principal amount of the Loans to be borrowed, converted or continued; (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted; (v) whether such Borrowing is to be denominated in Dollars or in an Alternative Currency, and if the latter, which Alternative Currency; and (vi) if applicable, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans will be made as, or converted to, Base Rate Loans; provided, however, that notwithstanding the foregoing, so long as no Default or Event of Default has occurred and is continuing, Borrower will be deemed to have elected to continue any Loan constituting a Eurocurrency Rate Loan into a new Eurocurrency Rate Loan having an Interest Period of one month. Any such automatic conversion to a Base Rate Loan (or continuation of a Eurocurrency Rate Loan into a new Eurocurrency Rate Loan having an Interest Period of one month) will be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans; provided, further, that if Borrower requests a Borrowing in an Alternative Currency but Borrower fails to specify a Type of Loan in such Loan Notice or if Borrower fails to give a timely notice requesting a conversion or continuation of a Loan in an Alternative Currency, then the applicable Loans will be deemed to have specified an Interest Period of one month. If Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

 

(d)             Procedures Concerning the Making of Loans. Following receipt of a Loan Notice, Administrative Agent will promptly notify each applicable Lender of the amount of its applicable Percentage Share of the requested Borrowing. If Borrower does not timely provide notice of a conversion or continuation, then Administrative Agent will notify each applicable Lender of the details of any automatic conversion to Base Rate Loans to the extent described in the preceding

 

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subsection. Each Lender will make the amount of its applicable Loan available to Administrative Agent in immediately available funds at Administrative Agent’s Office (or, at the request of Administrative Agent, in the case of a Eurocurrency Rate denominated in an Alternative Currency, at such bank as Administrative Agent may designate to the Revolving Credit Lenders or the Incremental Term Loan Lenders, as applicable) not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Subject to the prior satisfaction as of the Second Restatement Effective Date of the conditions precedent set forth in Section 4.01, upon the satisfaction of the applicable conditions precedent set forth in Section 4.02, Administrative Agent will make all funds so received available to Borrower in like funds as received by Administrative Agent either by: (i) crediting the account of Borrower on the books of HSBC with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Administrative Agent by Borrower; provided that, if, on the date the Loan Notice with respect to such Borrowing is given by Borrower, there are Credit Borrowings outstanding, then the proceeds of such Borrowing will be applied, first, to the payment in full of any such Credit Borrowings and, second, to Borrower as provided in this Section 2.02(d).

 

(e)             Special Provisions Applicable to Continuation or Conversions of Eurocurrency Rate Loans. Subject to Section 3.05, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default: (i) no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans without the consent of Administrative Agent or Required Lenders; and (ii) Required Revolving Credit Lenders or Required Incremental Term Loan Lenders may demand that any or all of the then outstanding Revolving Credit Loans or Incremental Term Loans, respectively, that are Eurocurrency Rate Loans be converted immediately to Base Rate Loans, whereupon Borrower will pay any amounts due under Section 3.05 in accordance with the terms thereof due to any such conversion.

 

(f)            Notification of Interest Rate. Administrative Agent will promptly notify Borrower and the applicable Lenders of the interest rate (including the Applicable Margin, if any) applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate.

 

(g)             Limitation on Interest Periods. After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there will not be more than: (i) seven Interest Periods in effect with respect to Revolving Credit Loans.

 

(h)             Discretion of Lenders as to Manner of Funding. Subject only to Section 3.06 and otherwise notwithstanding any provision of this Agreement to the contrary, each Lender will be entitled to fund and maintain its funding of all or any part of such Lender’s interest in Loans made hereunder in any manner such Lender deems to be appropriate (including funding such Loans through a foreign branch or Affiliate of such Lender, so long as such funding does not adversely affect the Borrowers).

 

Section 2.03.          Letters of Credit.

 

(a)             Letter of Credit Subfacility. Subject to the terms and conditions set forth herein:

 

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(i)            Upon the terms, subject to the conditions and in reliance upon the representations and warranties of Borrower and each of the other Loan Parties set forth in this Agreement and in the other Loan Documents and upon the agreements of the Revolving Credit Lenders set forth in this Section 2.03, each L/C Issuer agrees (A) from time to time on any Business Day, during the period from the Second Restatement Effective Date until the Credit Expiration Date, to issue Credits, in the form of standby or commercial Letters of Credit or Bank Undertakings denominated in Dollars or in an Alternative Currency in accordance with this Agreement for the account of Borrower on behalf of Borrower (or other Loan Parties and/or such Subsidiaries as Borrower designates) and amend or extend Credits previously issued by it, in accordance with subsection (b) of this Section 2.03; and (B) to honor drawings under the Credits.

 

(ii)            Each Revolving Credit Lender severally agrees to participate in each Credit issued by any L/C Issuer and each drawing thereunder; provided that, after giving effect to any L/C Credit Extension with respect to any Credit, (A) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments; (B) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender, plus an amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Credit Obligations, plus an amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit Commitment; and (C) the Outstanding Amount of the Credit Obligations will not exceed the Credit Sublimit. Each request by Borrower for the issuance or amendment of a Credit will be deemed to be a representation by Borrower that each such issuance or amendment complies with the applicable conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to obtain Credits will be fully revolving, and, accordingly, Borrower may, during the period described in Section 2.03(a)(i), obtain Credits to replace Credits that have expired or that have been drawn upon and reimbursed.

 

(iii)            Subject to Section 2.03(b)(v), no L/C Issuer will issue or extend any Credit if (A)(A) the expiry date of such requested Credit would occur more than twelve months after the date of issuance or last extension, unless the L/C Issuer thereof will have approved such expiry date, (B)(B) the expiry date of such requested Credit, including as extended pursuant to the preceding subclause (A), would occur after the Credit Expiration Date, unless (1)(1) all Revolving Credit Lenders will have approved such expiry date or (2)(2) Borrower has agreed, pursuant to arrangements satisfactory to the L/C Issuer, to Cash Collateralize such Credit by a date that is not later than the Credit Expiration Date in at least the Minimum Collateral Amount, or (C)(C) with respect to any Credit denominated in an Alternative Currency, to the extent that the face amount of such requested Credit exceeds the Alternative Currency Available Credit as of the requested issuance date.

 

(iv)            No L/C Issuer will have any obligation to issue a Credit if:

 

(A)            any order, judgment or decree of any Governmental Authority or arbitrator will by its terms purport to enjoin or restrain the L/C Issuer from issuing such Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer will prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Credit in particular or will impose upon the L/C Issuer with respect to such Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not

 

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otherwise compensated hereunder) not in effect on the Second Restatement Effective Date, or will impose upon the L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Second Restatement Effective Date and which the L/C Issuer in good faith deems material to it;

 

(B)            the issuance of such Credit would violate one or more policies of the L/C Issuer;

 

(C)            such Credit is to be denominated in a currency other than Dollars or an Alternative Currency;

 

(D)            in the case of any Credit to be denominated in an Alternative Currency, the L/C Issuer does not, as of the issuance date of such requested Credit, issue Credits in the requested currency; or

 

(E)            any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with Borrower or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 3.07(a)(iv)) with respect to the Defaulting Lender arising from either the Credit then proposed to be issued or that Credit and all other Credit Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

(v)            The L/C Issuer will have no obligation to amend any Credit if the L/C Issuer would not be obligated to issue such Credit in its amended form under the terms hereof or if the beneficiary of such Credit does not accept the proposed amendment to such Credit.

 

(vi)            The L/C Issuer will act on behalf of all Revolving Credit Lenders with respect to any Credits issued by it and the documents associated therewith, and L/C Issuer will have all of the benefits and immunities (A) provided to Administrative Agent in Article 9 with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Credits issued by it or proposed to be issued by it and Issuer Documents pertaining to such Credits as fully as if the term “Administrative Agent” as used in Article 9 included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

 

(b)             Procedures for Issuance and Amendment of Credits; Automatic Extensions of Credits.

 

(i)            Each Credit will be issued or amended, as the case may be, upon the request of Borrower delivered to the L/C Issuer thereof (with a copy to Administrative Agent) in the form of an Credit Application, appropriately completed and signed by a Responsible Officer of Borrower. Such Credit Application must be received by the L/C Issuer and Administrative Agent (A) in the case of any Credits to be denominated in an Alternative Currency or any Bank Undertakings, not later than 12:00 noon at least ten Business Days prior to the proposed issuance date or date of amendment (or such shorter period as may be agreed to by the applicable L/C Issuer, in its discretion), as the case may be, and (B) in the case of any other Credits, not later than 12:00 noon at least two Business Days prior to the proposed issuance date or date of amendment, as the case may

 

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be, or in each case such other date or time as the L/C Issuer and Administrative Agent may agree. In the case of a request for an initial issuance of a Credit, such Credit Application will specify in form and detail satisfactory to the L/C Issuer (A) the proposed issuance date of the requested Credit (which will be a Business Day), (B) the stated amount and currency thereof, (C) the expiry date thereof, (D) the name and address of the beneficiary thereof, (E) the documents to be presented by such beneficiary in case of any drawing thereunder, (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder, (G) whether the Credit is a Bank Undertaking or a Letter of Credit, and if any Linked Undertaking will exist in respect of the issuance of any Credit, (H) if the Credit is a Letter of Credit, whether it is a standby or commercial Letter of Credit, and (I) such other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Credit, such Credit Application will specify in form and detail satisfactory to the L/C Issuer (1) the Credit to be amended, (2) the proposed date of the amendment thereof (which will be a Business Day), (3) the nature of the proposed amendment and (4) such other matters as the L/C Issuer may require. Additionally, Borrower will furnish to the L/C Issuer and Administrative Agent such other documents and information pertaining to such requested Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Administrative Agent may require.

 

(ii)            Promptly after receipt of any Credit Application at the address provided pursuant to Section 10.02 for receiving Credit Applications and related correspondence, the L/C Issuer will confirm with Administrative Agent in writing (which, subject to the provisions of Section 10.02, may be by approved electronic communication) that Administrative Agent has received a copy of such Credit Application from Borrower and, if not, the L/C Issuer will provide Administrative Agent with a copy thereof (provided that such confirmation will not be required if the L/C Issuer and Administrative Agent are the same Person). Unless the L/C Issuer has received written notice from any Revolving Credit Lender, Administrative Agent or any Loan Party at least one Business Day prior to the requested date of issuance or amendment of the applicable Credit that one or more applicable conditions in Article 4 will not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer will, on the requested date, issue the Credit requested by Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.

 

(iii)            The L/C Issuer will promptly notify Administrative Agent in writing, and Administrative Agent will in turn notify each Lender in writing, of each such issuance of a Credit (including the amount, the expiry date and the beneficiary thereof). Immediately upon the issuance of each Credit, each Revolving Credit Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Credit equal to such Lender’s Revolving Credit Percentage Share multiplied by the face amount of such Credit.

 

(iv)            Promptly after its delivery of any Credit or any amendment to a Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to Borrower and Administrative Agent a true and complete copy of such Credit or amendment.

 

(v)            If Borrower specifically requests in any applicable Credit Application, the L/C Issuer may issue an Automatic Extension Letter of Credit. Unless otherwise directed by the L/C Issuer, Borrower will not be required to make a specific request to the

 

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L/C Issuer for any such extension. Once an Automatic Extension Letter of Credit has been issued, Revolving Credit Lenders will be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Automatic Extension Letter of Credit at any time to an expiry date not later than the earlier to occur of (A) twelve months after the date of the last extension and (B) the Credit Expiration Date unless Borrower has agreed, pursuant to arrangements satisfactory to the L/C Issuer, to Cash Collateralize such Automatic Extension Letter of Credit by a date that is not later than the Credit Expiration Date in at least the Minimum Collateral Amount; provided that the L/C Issuer will not permit any such extension if (1) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Automatic Extension Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.03(a) or otherwise), or (2) the L/C Issuer has received notice in writing (which, subject to the provisions of Section 10.02, may be by approved electronic communication) on or before the day that is thirty days before any date provided for in such Automatic Extension Letter of Credit as the last day by which notice of the non-extension thereof must be given (x) from Administrative Agent that Required Revolving Credit Lenders have elected not to permit such extension, or (y) from Administrative Agent, any Revolving Credit Lender or Borrower that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

 

(c)             Drawings and Reimbursements; Funding of Participations.

 

(i)            Upon receipt from the beneficiary of any Credit of any drawing under such Credit (or any notice thereof), the L/C Issuer thereof will notify Borrower and Administrative Agent thereof. If the L/C Issuer will make any payment in respect of a Credit, Borrower will reimburse the L/C Issuer the amount of such payment not later than 1:00 p.m. on the related Honor Date if Borrower will have received notice of such payment prior to 11:00 a.m. on the Honor Date, or, if such notice has not been received by Borrower prior to 11:00 a.m. on such Honor Date, then not later than 12:00 noon on the Business Day immediately following the day that Borrower receives such notice. If Borrower fails to so reimburse the L/C Issuer, then Administrative Agent will promptly notify each Revolving Credit Lender of the related Honor Date, the Unreimbursed Amount and the amount of such Lender’s Revolving Credit Percentage Share of such Unreimbursed Amount. In such event, Borrower will be deemed to have requested a Revolving Credit Borrowing consisting of Base Rate Loans to be disbursed on such Honor Date in an amount equal to such Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice).

 

(ii)            Each Revolving Credit Lender will, upon receipt of any notice pursuant to Section 2.03(c)(i), make funds available (and Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at Administrative Agent’s Office in an amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to Borrower in such amount on the Honor Date. Administrative Agent will remit the funds so received to the L/C Issuer.

 

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(iii)            With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing pursuant to Section 2.03(c)(ii), whether because each of the conditions (other than the delivery of a Loan Notice) set forth in Section 4.02 cannot be satisfied or otherwise, Borrower will be deemed to have incurred from the L/C Issuer a Credit Borrowing on the Honor Date in the amount of the Unreimbursed Amount that is not so refinanced, which Credit Borrowing will be due and payable on demand (together with interest) and will bear interest at the Default Rate. In such event, each Revolving Credit Lender’s payment to Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) will be deemed payment in respect of its participation in such Credit Borrowing and will constitute a Credit Advance from such Revolving Credit Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv)            Until each Revolving Credit Lender funds its Revolving Credit Loan or Credit Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer for any amount drawn under any Credit, interest in respect of the amount of such Lender’s Revolving Credit Percentage Share of such amount will be solely for the account of the L/C Issuer.

 

(v)            Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or Credit Advances to reimburse any L/C Issuer for amounts drawn under Credits issued by it, as contemplated by this Section 2.03(c), will be absolute and unconditional and will not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the L/C Issuer, Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by Borrower of a Loan Notice). No such making of a Credit Advance will relieve or otherwise impair the obligation of Borrower to reimburse any L/C Issuer for the amount of any payment made by the L/C Issuer under any Credit, together with interest as provided herein.

 

(vi)            If any Revolving Credit Lender fails to make available to Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer will be entitled to recover from such Revolving Credit Lender (acting through 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 L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) will be conclusive absent manifest error.

 

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(d)             Repayment of Participations.

 

(i)            If, at any time after any L/C Issuer has made a payment under any Credit issued by it and has received from any Revolving Credit Lender such Lender’s Credit Advance in respect of such payment in accordance with Section 2.03(c), Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from Borrower or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Lender an amount that equals its Revolving Credit Percentage Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s Credit Advance was outstanding) in the same funds as those received by Administrative Agent.

 

(ii)            If any payment received by Administrative Agent for the account of any L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Credit Lender will pay to Administrative Agent for the account of the L/C Issuer an amount equal to its Revolving Credit Percentage Share thereof on the demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of Revolving Credit Lenders under this clause (ii) will survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)             Obligations Absolute. The obligation of Borrower to reimburse each L/C Issuer for each drawing under each Credit issued by it and to repay each Credit Borrowing is absolute, unconditional and irrevocable and will be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)            any lack of validity or enforceability of such Credit, this Agreement or any other Loan Document;

 

(ii)            the existence of any claim, counterclaim, setoff, defense or other right that Borrower or any other Loan Party may have at any time against any beneficiary or any transferee of such Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Credit or any agreement or instrument relating thereto, or any unrelated transaction (including any underlying transaction between any Loan Party or any of their respective Subsidiaries and the beneficiary for which any Credit was procured);

 

(iii)            any draft, demand, certificate or other document presented under such Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(iv)            any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Credit;

 

(v)            any payment by the L/C Issuer under such Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Credit;

 

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(vi)            any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or of any other Loan Party or of any of their respective Subsidiaries;

 

(vii)            the fact that a Default or Event of Default will have occurred and be continuing;

 

(viii)            any payment made by the L/C Issuer under such 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 Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

 

(ix)            any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to Borrower or in the relevant currency markets generally; or

 

(x)            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, Borrower or any other Loan Party or any of their respective Subsidiaries.

 

Borrower will promptly examine a copy of each Credit and each amendment thereto that is delivered to it and will notify the L/C Issuer thereof in writing of any claim of noncompliance with Borrower’s instructions or other irregularity. Borrower will be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless Borrower will have given written notice thereof to the L/C Issuer within three Business Days of the L/C Issuer’s delivery to Borrower of a copy of the such Credit or amendment thereto, as applicable.

 

(f)            Role of the L/C Issuer. Each Revolving Credit Lender and Borrower agree that, in paying any drawing under a Credit, the L/C Issuer thereof will not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Credit issued, or requested to be issued, by it) 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 the L/C Issuer, Administrative Agent, any of their respective Related Parties and any correspondent, participant or assignee of the L/C Issuer will be liable to any Lender for: (i) any action taken or not taken, at the request or with the approval of Lenders or Required Revolving Credit Lenders, as applicable, in connection with a Credit or any Issuer Document; (ii) in the absence of gross negligence or willful misconduct of the L/C Issuer under the circumstances in question, as determined in a final, nonappealable judgment by a court of competent jurisdiction, any action taken or not taken in connection with a Credit or any Issuer Document; or (iii) the due execution, effectiveness, validity or enforceability of any document related to any Credit or Issuer Document. As between Borrower and any L/C Issuer, Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Credit issued by such L/C Issuer; provided that this assumption is not intended to, and will not, preclude Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, Administrative Agent or any of their respective Related Parties or any correspondent, participant or assignee of the L/C Issuer will be liable or responsible for any of the matters described in clauses (i) through (x) of Section 2.03(e); provided that, notwithstanding anything to the contrary contained in such clauses, Borrower may have a claim against the L/C Issuer, and the L/C Issuer

 

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may be liable to Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by Borrower that were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful or grossly negligent failure to pay under any Credit issued by it after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Credit, as determined by a court of competent jurisdiction by final and nonappealable judgment. In furtherance and not in limitation of the foregoing, the L/C Issuer 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 L/C Issuer will not be responsible for the validity or sufficiency of any document transferring or assigning or purporting to transfer or assign a Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason.

 

(g)             Applicability of ISP and UCP. Unless otherwise expressly agreed by L/C Issuer and Borrower, when a Credit is issued, (i) the rules of the ISP and Article 5 of the UCC will apply to each standby Credit, provided that in the event of a conflict between applicable provisions of the ISP and Article 5 of the UCC, the ISP will govern and (ii) the rules of the UCP and Article 5 of the UCC will apply to each commercial Credit, provided that in the event of a conflict between applicable provisions of the UCP and Article 5 of the UCC, the UCP will govern.

 

(h)             Credit Issued for the Benefit of the Issuers Thereof. The parties hereto recognize that some or all of the Credit from time to time issued under this Agreement will be issued by L/C Issuer for the benefit of itself or its Affiliate in connection with the simultaneous issuance of a Linked Undertaking. Notwithstanding anything to the contrary in the ISP or the UCP (to the extent applicable to a Credit) or under applicable Laws, it is the express intention of the parties that (i) each such Credit shall constitute, and be governed by the rules generally applicable to, a Credit hereunder and a “credit” under the ISP, the UCP and other applicable Laws as if the L/C Issuer of and beneficiary under such Credit were different Persons, (ii) Borrower’s reimbursement obligation hereunder shall exist, without duplication, with respect to any such Credit issued by or outstanding from L/C Issuer as well as any Linked Undertaking, and (iii) the L/C Issuer of a Credit and a Linked Undertaking will be entitled to funding of participations by the Lenders with respect to either the Credit or the Linked Undertaking, but not with respect to both.

 

(i)            Credit Fees. Borrower will pay to Administrative Agent for the account of each Revolving Credit Lender in accordance with its Revolving Credit Percentage Share a fee (the “Credit Fee”) equal to (i) for each standby Letter of Credit or Bank Undertaking, the Applicable Margin then applicable to the Eurocurrency Rate Loans multiplied by the actual daily amount available to be drawn under such Credit and (ii) for each commercial Letter of Credit, a rate per annum to be determined by L/C Issuer and Administrative Agent consistent with then prevailing market terms for issuances of commercial letters of credit; provided, however, any Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to L/C Issuer pursuant to this Section 2.03 will be payable, to the maximum extent permitted by applicable Law, to the other Revolving Credit Lenders in accordance with the upward adjustments in their respective Revolving Credit Percentage Share allocable to such Credit pursuant to Section 3.07(a)(iv), with the balance of such fee, if any, payable to L/C Issuer for its own account. For purposes of computing the actual daily amount available to be drawn under all Credits, the amount of each Credit will be determined in accordance with Section 1.02(j). Credit Fees will be (i) computed on a quarterly basis in arrears and (ii) due and payable on the last Business Day of each March, June, September and December (in each case for the calendar quarter then ending), commencing

 

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with the first such date to occur after the issuance of such Credit, on the Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Margin during any quarter, then the actual daily amount available to be drawn under all Credits will be computed and multiplied by the Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary contained herein, while any Event of Default exists, upon written notice to Borrower from Required Revolving Credit Lenders, all Credit Fees will accrue at the Default Rate.

 

(j)            Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. Borrower will pay directly to each L/C Issuer for its own account in respect of any Credits issued by or outstanding from such L/C Issuer, a fronting fee in Dollars with respect to each such Credit equal to 0.125% per annum, computed quarterly in arrears on the Dollar Equivalent of the daily maximum amount available to be drawn thereunder, due and payable quarterly in arrears on the last Business Day of each March, June, September and December (in each case for the calendar quarter then ending), commencing with the first such date to occur after the issuance of such Credit, on the Credit Expiration Date and thereafter on demand. In addition, Borrower will pay directly to L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges of the L/C Issuer relating to letters of credit and bank undertakings as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand of the L/C Issuer and are nonrefundable.

 

(k)             Additional L/C Issuers. Borrower may from time to time, upon not less than ten Business Days’ notice to Administrative Agent (or such shorter period as may be agreed by Administrative Agent in its sole discretion), designate a Lender hereunder as an additional L/C Issuer (upon obtaining such Lender’s prior consent thereto). Any such designation or increase in the number of L/C Issuers will be subject to the approval of Administrative Agent (such approval not to be unreasonably withheld). Administrative Agent will promptly notify Borrower and the Lenders of any designation and approval of an additional L/C Issuer. Upon any such approval of an additional L/C Issuer by Administrative Agent, such Lender will be an L/C Issuer for all purposes of this Agreement, and references to the L/C Issuers will mean and include such Lender in its capacity as an L/C Issuer. Any such additional L/C Issuer will be entitled to specify from time to time any Dollar limit on the stated amount of Credits permitted to be outstanding from such L/C at any time (an “Issuer Sublimit”). In the absence of any notice from an additional L/C Issuer to Administrative Agent specifying its Issuer Sublimit from time to time in effect, such additional L/C Issuer’s Issuer Sublimit shall be deemed to equal the Credit Sublimit.

 

(l)            Conflict with Issuer Documents. If a conflict exists between the terms hereof and the terms of any Issuer Document, the terms hereof will control.

 

Section 2.04.          Swing Line Loans.

 

(a)             The Swing Line. Upon the terms, subject to the conditions and in reliance upon the representations and warranties of Borrower and each of the other Loan Parties set forth in this Agreement and in the other Loan Documents and upon the agreements of the Revolving Credit Lenders set forth in this Section 2.04, Swing Line Lender may in its sole and absolute discretion make loans (each such loan, a “Swing Line Loan”) in immediately available funds denominated in Dollars to Borrower on a revolving basis from time to time on any Business Day from the Second Restatement Effective Date through the tenth Business Day immediately preceding the last day of the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans,

 

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when aggregated with the Revolving Credit Percentage Share of the Outstanding Amount of Revolving Credit Loans and Credit Obligations of the Revolving Credit Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided that, after giving effect to any Swing Line Loan, (i) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments; and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender (other than Swing Line Lender in such capacity), plus such Lender’s Revolving Credit Percentage Share of the Outstanding Amount of all Credit Obligations, plus such Lender’s Revolving Credit Percentage Share of the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit Commitment. Each Swing Line Loan will be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Credit Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Lender’s Revolving Credit Percentage Share multiplied by the amount of such Swing Line Loan.

 

(b)             Swing Line Borrowing Procedures. Each Swing Line Borrowing will be made upon Borrower’s irrevocable notice (a “Swing Line Loan Notice”) to Swing Line Lender and Administrative Agent, which, subject to the provisions of Section 10.02, may be given by approved electronic communication. Each such notice must be received by Swing Line Lender and Administrative Agent not later than 12:00 noon on the requested borrowing date, and must specify (i) the amount to be borrowed, which will be a minimum of $100,000, and (ii) the requested borrowing date, which must be a Business Day. Each such notice by electronic communication must be confirmed promptly by delivery to Swing Line Lender and Administrative Agent of a separate written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of Borrower. Promptly after receipt by Swing Line Lender of any electronic communication Swing Line Loan Notice, Swing Line Lender will confirm with Administrative Agent (in writing, including by electronic communication) that Administrative Agent has also received such Swing Line Loan Notice and, if not, Swing Line Lender will notify Administrative Agent (in writing, including by electronic communication) of the contents thereof. Unless (A) the Swing Line has been terminated or suspended by Swing Line Lender as provided in this Agreement, including Section 2.04(a), (B) Swing Line Lender has received notice (in writing, including by electronic communication) from Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (1) directing Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.04(a), or (2) that at least one of the applicable conditions specified in Article IV is not then satisfied, or (C) Swing Line Lender has otherwise determined, in its sole and absolute discretion, not to fund the Swing Line Borrowing requested by Borrower in such Swing Line Loan Notice, then, subject to the terms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in the related Swing Line Loan Notice, make the amount of its Swing Line Loan available to Borrower at its office by crediting the account of Borrower on the books of Swing Line Lender in immediately available funds. Revolving Credit Lenders agree that Swing Line Lender and Borrower may agree to modify the borrowing procedures used in connection with the Swing Line in its discretion and without affecting any of the obligations of Revolving Credit Lenders hereunder other than notifying Administrative Agent of a Swing Line Loan Notice.

 

(c)             Refinancing of Swing Line Loans.

 

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(i)            Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of Borrower (which hereby irrevocably authorizes Swing Line Lender to so request on its behalf), that each Revolving Credit Lender make a Revolving Credit Loan that is a Base Rate Loan in an amount equal to such Lender’s Revolving Credit Percentage Share of the then aggregate Outstanding Amount of Swing Line Loans. Such request will be made in writing (which written request will be deemed to be a Swing Line Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02. Swing Line Lender will furnish Borrower with a copy of the applicable Swing Line Loan Notice promptly after delivering such notice to Administrative Agent. Each Revolving Credit Lender will make an amount equal to its Revolving Credit Percentage Share multiplied by the aggregate amount of the requested Revolving Credit Loans specified in such Swing Line Loan Notice available to Administrative Agent in immediately available funds (and Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of Swing Line Lender at Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Swing Line Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so makes funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to Borrower in such amount. Administrative Agent will promptly remit the funds so received to Swing Line Lender.

 

(ii)            If for any reason the outstanding amount of all Swing Line Loans cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i), then the request for Revolving Credit Loans that are Base Rate Loans submitted by Swing Line Lender as set forth herein will be deemed to be a request by Swing Line Lender that each Revolving Credit Lender fund its risk participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to Administrative Agent for the account of Swing Line Lender pursuant to Section 2.04(c)(i) will be deemed payment in respect of such participation.

 

(iii)            If any Revolving Credit Lender fails to make available to Administrative Agent for the account of Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), Swing Line Lender will be entitled to recover from such Lender (acting through 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 Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Swing Line Lender in connection with the foregoing. A certificate of Swing Line Lender submitted to any Revolving Credit Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) will be conclusive absent manifest error.

 

(iv)            Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) will be absolute and unconditional and will not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against Swing Line Lender, Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or (C) any other occurrence, event or condition, whether or not similar to any of

 

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the foregoing; provided that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations will relieve or otherwise impair the obligation of Borrower to repay Swing Line Loans together with interest as provided herein.

 

(v)            Borrower may not use the proceeds of a Swing Line Loan borrowed pursuant to this Section 2.04 to refinance an outstanding Swing Line Loan.

 

(d)             Repayment of Participations.

 

(i)            If, at any time after any Revolving Credit Lender has purchased and funded a risk participation in a Swing Line Loan, Swing Line Lender receives any payment on account of such Swing Line Loan, then Swing Line Lender will distribute to such Lender an amount equal to its Revolving Credit Percentage Share multiplied by such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by Swing Line Lender.

 

(ii)            If any payment received by Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by Swing Line Lender in its discretion), each Revolving Credit Lender will pay to Swing Line Lender an amount equal to its Revolving Credit Percentage Share multiplied by the amount to be returned on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. Administrative Agent will make such demand upon the request of Swing Line Lender. The obligations of Revolving Credit Lenders under this clause will survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)             Interest for Account of Swing Line Lender. Swing Line Lender will be responsible for invoicing Borrower for interest on Swing Line Loans. Until each Revolving Credit Lender funds its Revolving Credit Loan that is a Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lender’s Revolving Credit Percentage Share of any Swing Line Loan, interest in respect of such proportionate share will be solely for the account of Swing Line Lender.

 

(f)            Payments Directly to Swing Line Lender. Borrower will make all payments of principal and interest in respect of Swing Line Loans directly to Swing Line Lender.

 

Section 2.05.          Payments and Prepayments.

 

(a)             Payments of the Swing Line Loans. Subject to the other terms and provisions of this Agreement, including the acceleration of the Obligations outstanding hereunder and under the other Loan Documents pursuant to Section 8.03 following the occurrence of an Event of Default, Borrower will repay each Swing Line Loan (A) on the tenth Business Day following the Borrowing thereof, and (B) to the extent outstanding on the Revolving Credit Maturity Date, on the Revolving Credit Maturity Date.

 

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(b)             Payments of the Incremental Term Loans. Subject to the other terms and provisions of this Agreement, including the acceleration of the Obligations outstanding hereunder and under the other Loan Documents pursuant to Section 8.03 following the occurrence of an Event of Default, the Incremental Term Loans will be payable on such dates and in such amounts as set forth in the applicable Incremental Term Documentation.

 

(c)             Voluntary Prepayments.

 

(i)            Borrower may, upon notice to Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by Administrative Agent not later than 12:00 noon (1) three Business Days prior to any date of prepayment of Revolving Credit Loans that are Eurocurrency Rate Loans and (2) four Business Days (or five Business Days, in the case of the prepayment of Loans determined in Special Notice Currencies) prior to any date of prepayment of Revolving Credit Loans that are Eurocurrency Rate Loans denominated in any Alternative Currency permitted hereunder and (3) on the date of prepayment of Revolving Credit Loans that are Base Rate Loans; and (B) any prepayment of Revolving Credit Loans that are Eurocurrency Rate Loans will be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof, or that are Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, or, if less, the entire principal amount thereof then outstanding. Each such notice will specify the date and amount of such prepayment and the Type(s) of Revolving Credit Loans to be prepaid. Administrative Agent will promptly notify each Revolving Credit Lender of its receipt of each such notice and of the amount of such Lender’s Revolving Credit Percentage Share thereof. If Borrower gives such notice, then Borrower’s prepayment obligation will be irrevocable, and Borrower will make such prepayment and the payment amount specified in such notice will be due and payable on the date specified therein. Notwithstanding the foregoing, any such notice of prepayment delivered in connection with any refinancing of all of the Obligations hereunder with the proceeds of such refinancing or of any incurrence of Indebtedness, may be, if expressly so stated to be, contingent upon the consummation of such refinancing or incurrence and may be revoked by Borrower in the event such refinancing is not consummated. Any prepayment of a Revolving Credit Loan that is a Eurocurrency Rate Loan will be accompanied by any additional amounts required pursuant to Section 3.05 (including amounts required pursuant to Section 3.05(c) and any foreign exchange losses). Subject to Section 3.07, each such prepayment will be applied to the Revolving Credit Loans of the Revolving Credit Lenders in accordance with their respective Revolving Credit Percentage Shares.

 

(ii)            Borrower may, upon notice to Swing Line Lender (with a copy to Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that: (A) such notice must be received by Swing Line Lender and Administrative Agent not later than 1:00 p.m. on the date of the prepayment; and (B) any such prepayment will be in a minimum principal amount of $100,000 or, if the aggregate Outstanding Amount of Swing Line Loans is less, the entire Outstanding Amount thereof. Each such notice will specify the date and amount of such prepayment. If Borrower gives such a notice, then Borrower’s prepayment obligation will be irrevocable, and Borrower will make such prepayment and the payment amount specified in such notice will be due and payable on the date specified therein.

 

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(d)             Mandatory Prepayments.

 

(i)            If, on any date, and for any reason, including following any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.06, the Outstanding Amount of Credit Obligations exceeds the Credit Sublimit, Borrower will promptly (and in any event within three Business Days thereof) Cash Collateralize the Outstanding Amount of such Credit Obligations in an amount equal to such excess. Any Cash Collateral required to be provided pursuant to this Section 2.05 will be subject to release in accordance with Section 2.15(d).

 

(ii)            If, on any date the Total Revolving Credit Outstandings, less the amount of Credit Obligations Cash Collateralized, exceeds the Aggregate Revolving Credit Commitments then in effect, including after giving effect to any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.06, Borrower will immediately, and without notice or demand, prepay the outstanding principal amount of the Revolving Credit Loans, Swing Line Loans and Credit Borrowings by an amount equal to the applicable excess. Any such prepayment will be applied, first, to any Credit Borrowings, second, to prepay any outstanding Swing Line Loans and third, to prepay any outstanding Revolving Credit Loans.

 

(iii)            If, on any Revaluation Date, the Dollar Equivalent of the Total Revolving Credit Outstandings in Alternative Currencies exceeds the lesser of (A) 105% times the Alternative Currency Available Credit then in effect and (B) the Aggregate Revolving Credit Commitments then in effect, including after giving effect to any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.06, Borrower will immediately, and without notice or demand, (x) prepay the Dollar Equivalent of the outstanding principal amount of the Revolving Credit Loans in Alternative Currencies and Credit Borrowings in Alternative Currencies by an amount equal to the applicable excess or (y) Cash Collateralize the Dollar Equivalent of the Outstanding Amount of such Credit Obligations in Alternative Currencies in an amount equal to the applicable excess. Any Cash Collateral required to be provided pursuant to this Section 2.05 will be subject to release in accordance with Section 2.12(d).

 

(iv)            If, following any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.06, the aggregate Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit (including as reduced by such reduction), Borrower will prepay on the reduction date the Outstanding Amount of Swing Line Loans by an amount equal to the amount by which such Outstanding Amount exceeds the Swing Line Sublimit.

 

(e)             Application of Certain Payments. Subject to the other provisions of this Agreement applicable to the prepayment of Loans, any prepayment of Loans will be applied first to Base Rate Loans to the full extent thereof before application to Eurocurrency Rate Loans, in each case in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 3.05.

 

Section 2.06.          Termination or Reduction of Aggregate Revolving Credit Commitments.

 

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Borrower may, upon notice to Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments; provided that (a) any such notice will be irrevocable and received by Administrative Agent not later than 12:00 noon one Business Day prior to the requested effective date of such termination or reduction; (b) any such partial reduction will be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof; (c) Borrower will not terminate or reduce the Aggregate Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments; and (d) if, after giving effect to any reduction of the Aggregate Revolving Credit Commitments, the Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such sublimit(s) will be automatically reduced by the amount of such excess. Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Revolving Credit Commitments will be applied to the commitment of each Revolving Credit Lender according to its Revolving Credit Percentage Share thereof. All Revolving Credit Commitment Fees accrued until the effective date of any termination of the Aggregate Revolving Credit Commitments will be paid on the effective date of such termination.

 

Section 2.07.          Final Repayment of Revolving Credit Loans, Swing Loans and Incremental Term Loans.

 

(a)             Payments Due on Revolving Credit Maturity Date. On the Revolving Credit Maturity Date, Borrower will repay (i) to the Revolving Credit Lenders in full the aggregate Outstanding Amount of all Revolving Credit Loans and (ii) to Swing Line Lender in full the aggregate Outstanding Amount of all Swing Line Loans, and in each case all accrued and unpaid interest thereon.

 

(b)             Payments Due on Incremental Term Loan Maturity Date. For each Incremental Term Loan, on the Incremental Term Loan Maturity Date applicable to such Incremental Term Loan, Borrower will repay to the Incremental Term Loan Lenders in full the aggregate Outstanding Amount of such Incremental Term Loan and all accrued and unpaid interest thereon.

 

Section 2.08.          Interest; Applicable Margins.

 

(a)             Interest Generally. At the option of the Borrower, Loans (other than Swing Line Loans) will be Eurocurrency Rate Loans or Base Rate Loans. Subject to the provisions of Section 2.08(b), (i) each Eurocurrency Rate Loan will bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the applicable Eurocurrency Rate (corresponding to the applicable Agreed Currency in which such Eurocurrency Rate Loan is denominated) for such Interest Period plus the Applicable Margin then in effect corresponding to Eurocurrency Rate Loans and (ii) each Base Rate Loan (including each Swing Line Loan) will bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin then in effect corresponding to Base Rate Loans. To the extent that any calculation of interest or any fee required to be paid under this Agreement shall be based on (or result in) a calculation that is less than zero, such calculation shall be deemed zero for purposes of this Agreement.

 

(b)             Default Rate.

 

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(i)            If (A) an Event of Default occurs under Section 8.01(a)(i) as a result of Borrower’s failure to timely make any principal payment on the Obligations when due and payable under this Agreement or any of the other Loan Documents, whether at stated maturity, by acceleration or otherwise, or (B) an Event of Default occurs under Section 8.01(f) or Section 8.01(g), or (C) an Event of Default occurs under Section 8.01(l) as the result of the occurrence of a Change of Control, then in any such event, any outstanding Obligations under this Agreement and the other Loan Documents (except for undrawn Credits) will thereafter, from the date such Event of Default occurred and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01, without any required notice from Lenders or Administrative Agent, bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(ii)            If an Event of Default occurs under Section 8.01(a)(ii) as a result of Borrower’s failure to timely make any payment (other than a principal payment subject to Section 8.01(a)(i)) on the Obligations when due and payable under this Agreement or any of the other Loan Documents, whether at stated maturity, by acceleration or otherwise, then, without limitation of and in addition to clause (i) of this Section 2.08(b), upon written notice to Borrower from Required Lenders (or from Administrative Agent at the direction of Required Lenders), any outstanding Obligations under this Agreement and the other Loan Documents (except for undrawn Credits) will, effective as of the date of delivery of such written notice to Borrower and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01 of this Agreement, bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(iii)            Accrued and unpaid interest on past due amounts (including interest on past due interest) will be due and payable upon demand.

 

(c)             Payment Dates; Accrual of Interest. Interest on each Loan will be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder (including interest at the Default Rate, to the extent applicable in accordance with Section 2.08(b)) will be due and payable in accordance with the terms hereof both before and after judgment, and both before and after the commencement of any proceeding under any Debtor Relief Law.

 

(d)             Increases and Decreases of Applicable Margins. Any increase or decrease in any Applicable Margin resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which Borrower is otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(d) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which Borrower actually delivers a Compliance Certificate in accordance with Section 6.01(d) for a given period; provided that the Applicable Margins in effect from the Second Restatement Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the first Test Period ending after the Second Restatement Effective Date will be set at levels corresponding to Tier I as indicated on the grid set forth in the definition of “Applicable Margin”; provided, further, that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(d) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier V as indicated on the grid set forth in the definition of “Applicable Margin” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent.

 

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Notwithstanding the foregoing, if, as a result of any restatement of or other adjustment to the financial statements of Borrower or for any other reason, Borrower or Administrative Agent (which may be at the direction of Required Lenders) determine that (A) the Consolidated Leverage Ratio as calculated by Borrower as of any applicable date was inaccurate and (B) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, Borrower will immediately and retroactively be obligated to pay to Administrative Agent for the account of the applicable Lenders or the applicable L/C Issuer(s), as the case may be, promptly on demand by Administrative Agent accompanied by calculations supporting Administrative Agent’s determination (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code, automatically and without further action by Administrative Agent, any Lender or L/C Issuer), 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.

 

(e)             Interest Act (Canada). For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the “deemed year”) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields.

 

Section 2.09.          Fees.

 

In addition to certain fees described in Sections 2.03(i) and (j):

 

(a)             Revolving Credit Facility Commitment Fee. Subject to Section 3.07(a)(iii), Borrower will pay to Administrative Agent for the account of each Revolving Credit Lender (other than a Defaulting Lender) in accordance with its Revolving Credit Percentage Share, a commitment fee (the “Revolving Credit Commitment Fee”) equal to the Applicable Margin then in effect corresponding to the Revolving Credit Commitment Fees multiplied by the actual daily amount by which the Aggregate Revolving Credit Commitments exceed the sum of the Total Revolving Credit Outstandings less the Outstanding Amount of Swing Line Loans as of and for such date of determination, subject to adjustment as provided in Section 3.07; provided that the Applicable Margin in effect from the Second Restatement Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the first Test Period ending after the Second Restatement Effective Date will be set at levels corresponding to Tier I as indicated on the grid set forth in the definition of “Applicable Margin”; provided, further, that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(d) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier V as indicated on the grid set forth in the definition of “Applicable Margin” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. The Revolving Credit Commitment Fee will accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article 4 is not met, and will be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Second Restatement Effective Date, and on the Revolving Credit Maturity Date. The Revolving Credit Commitment Fee will be calculated quarterly in arrears, and if there is any change in the

 

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Aggregate Revolving Credit Commitments or in the Applicable Margin during any quarter, the actual daily amount will be computed and multiplied by such Aggregate Revolving Credit Commitments or such Applicable Margin separately for each period during such quarter that such Aggregate Revolving Credit Commitments or such Applicable Margin was in effect.

 

(b)             Administrative Agent’s Fees. Borrower will pay to Administrative Agent for Administrative Agent’s own account such fees as are specified as owing to such Person in the Fee Letter.

 

Section 2.10.          Computations of Interest and Fees.

 

All computations of interest for Base Rate Loans based on the Prime Rate will 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 interest and fees hereunder will be made on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a year of 365 or 366 days, as applicable), 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. Interest will accrue on each Loan for the day on which the Loan is made, and will not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made will, subject to Section 2.12(a), bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder will be conclusive and binding for all purposes, absent manifest error. Without limitation of the foregoing, in computing the interest on any Eurocurrency Rate Loan denominated in an Alternative Currency, such Loan will have added to it the UK Regulatory Cost, if any, associated with such Loan.

 

Section 2.11.          Evidence of Indebtedness.

 

(a)             Evidence of Payments. The Credit Extensions made by each Lender will be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business, including the Register as described in Section 10.06(c). The accounts or records maintained by Administrative Agent will be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to Borrower and the interest and payments thereon. Any failure to so record or any error in doing so will not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Obligations. Upon the request of any Lender or the Swing Line Lender made through Administrative Agent, Borrower will execute and deliver to such Lending Party (through Administrative Agent) a Note, which Note will be, for Revolving Credit Loans, a “Revolving Credit Note” substantially in the form attached as Exhibit E-1, for Incremental Term Loans, an “Incremental Term Loan Note” substantially in the form attached as Exhibit E-2, and for Swing Line Loans, a “Swing Line Note” substantially in the form attached as Exhibit E-3, each of which will evidence such Lending Parties’ Loans in addition to such accounts or records. Each Lending Party may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(b)             Evidence of Certain Participations. In addition to the accounts and records referred to in Section 2.11(a), each Lender and Administrative Agent will maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Credits and Swing Line Loans. If any conflict exists between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent will control in the absence of manifest error.

 

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Section 2.12.          Payments Generally; Right of Administrative Agent to Make Deductions Automatically.

 

(a)             Payments Generally.

 

(i)            All payments to be made by Borrower will be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder will be made to Administrative Agent, for the account of the respective Lender to which such payment is owed, at Administrative Agent’s Office in Same Day Funds not later than (i) 12:00 noon on the date specified herein or (ii) after the Applicable Time specified by Administrative Agent in the case of payments in an Alternative Currency. If, for any reason, Borrower is prohibited by any requirement of applicable Law from making any required payment hereunder in an Alternative Currency, Borrower will make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. Administrative Agent will promptly distribute to each Lender its Percentage Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lending Party’s Lending Office. All payments received by Administrative Agent after 12:00 noon will be deemed received on the next succeeding Business Day and any applicable interest or fee will continue to accrue; provided, however, that at the request of Administrative Agent, payments of interest on Eurocurrency Rate Loans denominated in an Alternative Currency will be made in the applicable Alternative Currency in immediately available funds to such account at such bank as Administrative Agent may designate to Borrower, no later than 12:00 noon (local time in the place where such bank is located) on the due date. If any payment to be made by Borrower will come due on a day other than a Business Day, payment will be made on the next following Business Day, and such extension of time will be reflected in computing interest or fees, as the case may be.

 

(ii)            Borrower hereby authorizes Administrative Agent (A) to deduct automatically all principal, interest or fees when due hereunder or under any Note from any account of Borrower maintained with Administrative Agent and (B) if and to the extent any payment of principal, interest or fees under this Agreement or any Note is not made when due to deduct any such amount from any or all of the accounts of Borrower maintained at Administrative Agent. Administrative Agent agrees to provide written notice to Borrower of any automatic deduction made pursuant to this Section 2.12(a)(ii) showing in reasonable detail the amounts of such deduction. Each Lender agrees to reimburse Borrower based on its applicable Percentage Share for any amounts deducted from such accounts in excess of amount due hereunder and under any other Loan Documents.

 

(b)             Fundings by the Lenders, Payments by Borrower and Presumptions by Administrative Agent.

 

(i)            Unless Administrative Agent will have received notice from a Lender (A) in the case of Base Rate Loans (including Swing Line Loans), two hours prior to the proposed time of such Borrowing, and (B) otherwise prior to the proposed date of any Borrowing that such Lender will not make available to Administrative Agent such

 

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Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender, on the one hand, and Borrower, on the other hand, each severally agrees to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from the date such amount is made available to Borrower to the date of payment to Administrative Agent, at (1) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing; and (2) in the case of a payment to be made by Borrower, the interest rate applicable to Revolving Credit Loans that are Base Rate Loans. If Borrower and such Lender will pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent will promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid will constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower will be without prejudice to any claim Borrower may have against a Lender that will have failed to make such payment to Administrative Agent.

 

(ii)            Unless Administrative Agent will have received notice from Borrower prior to the date on which any payment is due hereunder to Administrative Agent for the account of the Lenders or any L/C Issuer that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if Borrower has not in fact made such payment, then the Lenders and the L/C Issuer, as the case may be, each severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lenders or the L/C Issuer, as the case may be, in immediately available funds with interest thereon, for each day from the date such amount is distributed to it to the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing under this Section 2.12(b) will be conclusive, absent manifest error.

 

(c)             Failure to Satisfy Conditions Precedent. Subject to Section 2.03 and Section 2.04, if any Lender makes available to Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article 2 and such funds are not made available to Borrower by Administrative Agent because the conditions to the applicable Credit Extension set forth in Article 4 are not satisfied or waived in accordance with the terms hereof, Administrative Agent will promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d)             Obligations of the Lenders are Several and not Joint. The obligations of the Lenders hereunder to make Loans, to fund participations in Credits and Swing Line Loans and to make payments under Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on

 

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any date required hereunder will not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender will be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 2.12(b)(ii), Section 10.04(c) or Section 10.05.

 

(e)             Funding Sources. Nothing herein will be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. Without limitation of the preceding sentence, neither Administrative Agent nor any Lender will be required actually to acquire Eurocurrency deposits to fund or otherwise match fund any Obligation as to which interest accrues at the Eurocurrency Rate. The provisions of this Section 2.12(e) will apply as if each Lender had match funded any Obligation as to which interest is accruing at the Eurocurrency Rate by acquiring Eurocurrency deposits for each Interest Period in the amount of the Eurocurrency Rate Loans.

 

Section 2.13.          Sharing of Payments.

 

If any Lender will, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in Credit Obligations or in Swing Line Loans held by it, resulting in such Lender receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its Percentage Share (or other applicable share as provided herein) thereof as provided herein, then the Lender receiving such greater proportion will: (a) notify Administrative Agent of such fact; and (b) purchase (for Cash at face value) participations in the Loans and subparticipations in Credit Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as will be equitable, so that the benefit of all such payments will be shared by Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations will be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.13 will not be construed to apply to (A) any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement including the application of funds arising from the existence of a Defaulting Lender, (B) the application of Cash Collateral provided for in Section 2.15 or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in Credit Obligations or Swing Line Loans to any assignee or participant, other than an assignment to any Loan Party or any Affiliate thereof (as to which the provisions of this Section 2.13 will apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

Section 2.14.          Increase in Aggregate Commitments.

 

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(a)             Increase in Aggregate Commitments Generally. Subject to the further conditions set forth in Section 2.14(c), upon notice to Administrative Agent, at any time after the Second Restatement Effective Date but not less than thirty days prior to the Revolving Credit Maturity Date, Borrower may request one or more Incremental Term Loan Commitments or one or more Additional Revolving Credit Commitments; provided that (i)(i) after giving effect to any such addition, the aggregate amount of Additional Revolving Credit Commitments and Incremental Term Loan Commitments that have been added pursuant to this Section 2.14 will not exceed the Incremental Cap (provided that any new Incremental Term Loan Commitment or Additional Revolving Credit Commitment, if it is incurred and becomes effective as of a date when the Unlimited Incremental Basket (as defined in clause (b) of the definition of “Incremental Cap” set forth in Section 1.01, with the Consolidated Leverage Ratio being calculated for such purpose without giving effect to any substantially concurrent incurrence of any new Incremental Term Loan Commitment or Additional Revolving Credit Commitment under and in reliance on the Adjusted Fixed Cap (as defined in clause (a) of the definition of “Incremental Cap”)) is in effect shall be deemed incurred under and reliance on the Unlimited Incremental Basket rather than the Adjusted Fixed Cap; (ii)(ii) any such addition will be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the then-existing Incremental Cap; (iii)(iii) no Lender will be required to participate in the Additional Revolving Credit Commitments or Incremental Term Loan Commitments; and (iv)(iv) the terms and conditions of any Incremental Term Loans (including as to the interest rate, fees, premium, required prepayments and participation in prepayments, amortization schedule and final maturity thereof or applicable thereto) shall be agreed to between the Borrower and the Lenders or additional lenders providing such Incremental Term Loans; provided that no Incremental Term Loan will have (A)(A) scheduled principal payments or repayments during any calendar year prior to the Revolving Credit Stated Maturity Date totaling in the aggregate for such year (including the year in which the Revolving Credit Stated Maturity Date occurs) in excess of 10% of the initial Incremental Term Loan Commitment for such Incremental Term Loan or (B)(B) an Incremental Term Loan Stated Maturity Date that is earlier than the Revolving Credit Stated Maturity Date; and provided further that to the extent any such Incremental Term Loans are subject to additional or more restrictive covenants or other provisions, then either (1)(1) such covenants and provisions are applicable solely after the latest maturity date for any Facility then outstanding or (2)(2) such covenants and provisions are added for the benefit of any Facility then outstanding. The Additional Revolving Credit Loans and Incremental Term Loans will (x) rank equal in right of payment with the Revolving Credit Loans, (y) be secured only by the Collateral securing the Loan Document Obligations (or assets that will become Collateral in connection with such transaction) and be secured on a pari passu basis with the Loan Document Obligations and (a) only be guaranteed by the Loan Parties (or Persons that will become Loan Parties in connection with such transaction).

 

(b)             Certain Provisions Regarding Increase of Aggregate Commitments. If any Additional Revolving Credit Commitments or Incremental Term Loan Commitments are added in accordance with this Section 2.14, Administrative Agent and Borrower will determine the effective date (the “Additional Commitments Effective Date”) of such addition and the amount of, and the Persons who will provide, such Additional Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable. Administrative Agent will promptly notify Borrower and Lending Parties of the final amount of such addition and the Additional Commitments Effective Date, as well as in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this Section 2.14.

 

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(c)             Conditions Precedent to the Effectiveness of each Increase of Aggregate Commitments. The effectiveness of any requested Additional Revolving Credit Commitments or Incremental Term Loan Commitments as of the applicable designated Additional Commitments Effective Date will, in each case, be subject to the satisfaction of each of the following conditions precedent: (i)(i) the representations and warranties contained in Article 5 (excluding those contained in Section 5.05 and Section 5.10(b)) and the other Loan Documents (including all documents required pursuant to Section 2.14(d)) will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation or warranty that is already qualified or modified by materiality in the text thereof) on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they will have been true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation or warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date, and except that, for purposes of this Section 2.14(c), the representations and warranties contained in Section 5.10(a) will be deemed to refer to the financial statements most recently furnished pursuant to Section 6.01 (provided, however, that if and to the extent such requested Additional Revolving Credit Commitments or Incremental Term Loan Commitments have been requested for the purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including any portion which repays Indebtedness of the Target, including any Subsidiary or other Affiliate thereof being acquired in such Limited Condition Transaction) and/or fees and expenses incurred by Borrower or its Subsidiaries in connection therewith, the representations and warranties required to be true and correct as set forth in this clause (i) shall be limited to the Specified Representations); (ii)(ii) no Default or Event of Default will exist immediately before or immediately after giving effect to such addition (provided, however, that if and to the extent such requested Additional Revolving Credit Commitments or Incremental Term Loan Commitments have been requested, in whole or in part, for the purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including any portion which repays, redeems or otherwise discharges any Indebtedness of the Target, including any Subsidiary or other Affiliate thereof being acquired in such Limited Condition Transaction) and/or fees and expenses incurred by Borrower or its Subsidiaries in connection therewith, the condition precedent of this clause (ii) will be limited solely to Specified Events of Default); (iii)(iii) as of the date of the making of any Additional Revolving Credit Loan or Incremental Term Loan (based on the financial statements most recently furnished pursuant to Section 6.01), Borrower will be in compliance with the financial covenants set forth in Section 7.15 after giving pro forma effect to the funding in full of the requested Additional Revolving Credit Loans or Incremental Term Loans, as applicable, and other outstanding and appropriate pro forma adjustments events consistent with Section 1.02(i), including and Acquisitions or Dispositions consummated after the beginning of the relevant Test Period but prior to or simultaneous with the Borrowing of such Additional Revolving Credit Loan or Incremental Term Loan, as the case may be (provided, however, that if and to the extent such requested Additional Revolving Credit Commitments or Incremental Term Loan Commitments have been requested, in whole or part, for the purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including any portion which repays, redeems or otherwise discharges any Indebtedness of the Target or any of its Subsidiaries or other Affiliates being acquired as part of such Limited Condition Transaction) and/or fees and expenses incurred by Borrower or its Subsidiaries in connection therewith, the condition precedent of this clause (iii) requiring that Borrower be in compliance with the financial covenants set forth in Section 7.15 after giving pro forma effect to the making of such Additional Revolving Credit Loans or Incremental Term Loans as of the date of making such Loans will instead be tested as of the LCT Test Date for such Limited Condition Transaction); (iv)(iv) Borrower, Administrative Agent and Lending Parties (including any new Lending Parties being added in connection with such addition) will have entered into all documents required pursuant to Section

 

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2.14(d), and Borrower will have complied with all of the conditions precedent to the effectiveness of such addition as provided in such documents (including any requirement to pay fees and expenses to any or all of Administrative Agent, the Arrangers and the Lending Parties, including any new Lending Parties); (v)(v) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders (other than any Defaulting Lender) that have been invoiced at least three Business Days prior to the applicable Additional Commitments Effective Date shall have been paid (or shall be paid substantially concurrently therewith); and (vi)(vi) Borrower will have delivered to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of Borrower, certifying as to the truth, accuracy and correctness of the matters set forth in the immediately preceding clauses (i), (ii) and (iii). On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person who is providing an Additional Revolving Credit Commitment or an Incremental Term Loan Commitment: (I) in the case of any Additional Revolving Credit Commitment, will become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents; and (II) in the case of any Incremental Term Loan Commitment, will make an Incremental Term Loan to Borrower in a principal amount equal to such Incremental Term Loan Commitment. Any Additional Revolving Credit Loan will be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. In furtherance of the foregoing, on any Additional Commitments Effective Date on which Additional Revolving Credit Commitments are made, subject to the satisfaction of the other terms and conditions contained in this Section 2.14, (x) each of the existing Revolving Credit Lenders will assign to each Person providing an Additional Revolving Credit Commitment, and each such Person will purchase from each of the existing Revolving Credit Lenders, in an amount equal to the Outstanding Amount thereof (together with accrued but unpaid interest thereon), such interests in the Revolving Credit Loans outstanding on such date as will be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and the Person making the Additional Revolving Credit Commitments ratably in accordance with their Revolving Credit Percentage Shares after giving effect to the addition of such Additional Revolving Credit Commitments to the existing Revolving Credit Commitments; and (y) each Person making an Additional Revolving Credit Commitment will be deemed for all purposes to have made a Revolving Credit Commitment and each Additional Revolving Credit Loan will be deemed, for all purposes, a Revolving Credit Loan.

 

(d)             Terms and Documentation. The terms of and documentation entered into in respect of any Additional Revolving Credit Commitments or any Incremental Term Loan Commitments provided in each case pursuant to this Section 2.14 (collectively, the “Additional Commitment Documentation”) will be consistent with the existing Revolving Credit Commitments, other than as contemplated by clause (iv) of Section 2.14(a). Any Additional Revolving Credit Commitments or Incremental Term Loans, as applicable, made or provided pursuant to this Section 2.14 will be evidenced by one or more entries in the Register maintained by Administrative Agent in accordance with the provisions set forth in Section 10.06(c).

 

Section 2.15.          Cash Collateral.

 

(a)             Certain Credit Support Events.

 

(i)            Upon the request of Administrative Agent or any L/C Issuer, if, as of the Credit Expiration Date, any Credit Obligation for any reason remains outstanding, or, in the case of any Bank Undertakings, such Bank Undertakings have not been surrendered, Borrower will promptly (but in any event within five Business Days of receiving such request) Cash Collateralize the Outstanding Amount of all Credit Obligations.

 

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(ii)            At any time that there exists a Defaulting Lender, within one Business Day following the written request of Administrative Agent or any L/C Issuer (with a copy to Administrative Agent) Borrower will Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 3.07(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than 100% of such Fronting Exposure.

 

(b)             Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) will be maintained in blocked, non-interest bearing deposit accounts at HSBC located in the United States of America. Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender hereby grants to (and subjects to the control of) Administrative Agent, for the benefit of the L/C Issuers, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lender’s obligation to fund participations in respect of Credit Obligations, to be applied pursuant to Section 2.15(c). If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent and the L/C Issuers as herein provided other than the security interests created by the Collateral Documents in favor of Administrative Agent, for the benefit of the Secured Parties, to secure the Obligations, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, Borrower will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency after giving effect to any Cash Collateral provided by the Defaulting Lender.

 

(c)             Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Section 3.07 in respect of Credits will be held and applied to the satisfaction of the applicable Defaulting Lender’s obligations to fund participations in respect of Credit Obligations (including, as to Cash Collateral provided by a Defaulting Lender, 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.

 

(d)             Release. Cash Collateral (or the appropriate excess portion thereof in the case of clause (ii) below) provided to reduce any L/C Issuer’s Fronting Exposure will no longer be required to be held as Cash Collateral pursuant to this Section 2.15 following (i)(i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender) or (ii)(ii) the determination by Administrative Agent and the L/C Issuer that there exists excess Cash Collateral; provided, however, (A)(A) that Cash Collateral furnished by or on behalf of a Loan Party will not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 8.05); (B)(B) the Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral will not be released but instead held to support future anticipated Fronting Exposure or other obligations; and (C)(C) to the extent Cash Collateral was provided by Borrower, such Cash Collateral will remain subject to the security interest created by the Collateral Documents in favor of Administrative Agent, for the benefit of the Secured Parties, to secure the Obligations.

 

Section 2.16.          Designation of Restricted and Unrestricted Subsidiaries.

 

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Borrower may, at any time from and after the Second Restatement Effective Date, designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (a) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing, (b) immediately after giving effect to such designation, Borrower shall be in compliance with the financial covenants set forth in Section 7.15 on a pro forma basis, (c) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated as an Unrestricted Subsidiary and (c) if a Restricted Subsidiary is being designated as an Unrestricted Subsidiary hereunder, such Restricted Subsidiary, together with all other Unrestricted Subsidiaries as of such date of designation, shall not at any time account for, in the aggregate, (i) more than 1.0% percent of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries (calculated inclusive of all Unrestricted Subsidiaries) or (ii) more than 1.0 % of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries (calculated inclusive of all Unrestricted Subsidiaries), in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), as applicable; and provided, further, that if all Unrestricted Subsidiaries at any time account for, in the aggregate, (A) more than 1.0% of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries or (B) more than 1.0% of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered have been delivered pursuant to Section 6.01(a) or (b), as applicable, but calculated, in connection with any Investment proposed to be consummated by any Unrestricted Subsidiary, on a pro forma basis as if such Investment occurred on the first day of such most recently completed Test Period, Borrower shall designate one or more of such Unrestricted Subsidiaries to be Restricted Subsidiaries such that, after giving effect to such designations, the Unrestricted Subsidiaries shall account for, in the aggregate, (1) not more than 1.0% of the Consolidated gross revenues (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries and (2) not more than 1.0% of the Consolidated assets (after intercompany eliminations) of Borrower and its Consolidated Subsidiaries, in each case, as of the last day of the most recently completed Test Period for which financial statements have been delivered pursuant to Section 6.01(a) or (b), but calculated on a pro forma basis to be inclusive of any Investments consummated by such Unrestricted Subsidiaries since the last day of such most recently completed Test Period. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Second Restatement Effective Date shall constitute an Investment by Borrower or the applicable Restricted Subsidiary therein at the date of designation in an amount equal to the fair market value of Borrower’s or the applicable Restricted Subsidiary’s investment therein. Neither Borrower nor any Restricted Subsidiary shall at any time be directly or indirectly liable for any Indebtedness that provides the holder thereof may (with the passage of time or notice or both) declare a default thereon or cause the payment thereof to be accelerated upon the occurrence of a default with respect to any Indebtedness, Lien or other obligation of an Unrestricted Subsidiary (including any right to take enforcement action against such Unrestricted Subsidiary). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (A) the incurrence at the time of designation of any Investment, Indebtedness or Liens of such Subsidiary existing at such time and (b) a return on any Investment by Borrower or the applicable Restricted Subsidiary in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of Borrower’s or such Restricted Subsidiary’s Investment in such Subsidiary.

 

Section 2.17.          Security for the Obligations.

 

Except as otherwise specifically provided in any Loan Document, all Obligations will be secured pursuant to the terms of the Collateral Documents.

 

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Article 3
Taxes, Yield Protection and Illegality

 

Section 3.01.          Taxes.

 

(a)             Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document will be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent will be entitled to make such deduction or withholding and will 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 Loan Party will be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(b)             Payment of Other Taxes by the Loan Parties. The Loan Parties will timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of Administrative Agent, timely reimburse it for the payment of, any Other Taxes.

 

(c)             Indemnification.

 

(i)            Indemnification by Each Loan Party. The Loan Parties will jointly and severally indemnify each Recipient, within ten days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail as to the amount or amounts of such payment or liability delivered to Borrower by a Lending Party (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lending Party, will be conclusive absent manifest error.

 

(ii)            Indemnification by the Lending Parties. Each Lending Party will severally indemnify Administrative Agent, within ten days after written demand therefor, for (i) any Indemnified Taxes attributable to such Lending Party (but only to the extent that any Loan Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lending Party’s failure to comply with the provisions of Section 10.06(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lending Party, in each case, that are payable or paid by Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail as to the amount or amounts of such payment

 

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or liability delivered to any Lending Party by Administrative Agent shall be conclusive absent manifest error. Each Lending Party hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lending Party under any Loan Document or otherwise payable by Administrative Agent to the Lending Party from any other source against any amount due to Administrative Agent under this Section 3.01(c)(ii).

 

(d)             Evidence of Payments. If requested by Administrative Agent, in its Reasonable Discretion, as soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this Section 3.01, such Loan Party will deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment or other evidence satisfactory to Administrative Agent, in its Reasonable Discretion, a copy of any return reporting such payment or other evidence of such payment satisfactory to Administrative Agent, in its Reasonable Discretion.

 

(e)             Status of Lenders.

 

(i)            Any Lending Party that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document will deliver to Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lending Party, if reasonably requested by Borrower or Administrative Agent, will deliver such other documentation prescribed by applicable Law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether or not such Lending Party is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A), (B) and (D)) will not be required if in the Lending Party’s reasonable judgment such completion, execution or submission would subject such Lending Party to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lending Party. For purposes of this Section 3.01(e), Administrative Agent will be treated as a Lending Party.

 

(ii)            Without limiting the generality of the foregoing,

 

(A)            any Lending Party that is a U.S. Person will deliver to Borrower and Administrative Agent on or prior to the date on which such Lending Party becomes a Lending Party under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lending Party is exempt from U.S. federal backup withholding tax;

 

(B)            any Foreign Lender will, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lending Party under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:

 

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(1)            in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or W-8BEN-E (as applicable) 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 Loan Document, IRS Form W-8BEN or W-8BEN-E (as applicable) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)            executed originals of IRS Form W-8ECI;

 

(3)            in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “ten percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E (as applicable); or

 

(4)            to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E (as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;

 

(C)            any Foreign Lender will, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lending Party under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made;

 

(D)            if a payment made to a Lending Party under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or

 

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1472(b) of the Code, as applicable), such Lending Party will deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lending Party has complied with such Lending Party’s obligations under FATCA or to determine the amount to deduct and withhold from such payment (and solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement); and

 

(E)            for purposes of determining withholding Taxes imposed under FATCA, from and after the Second Restatement Effective Date, Borrower and Administrative Agent shall treat (and the Lenders hereby authorize Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

Each Lending Party agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it will update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so.

 

(f)            Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01), it will pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, will repay to such indemnified party the amount paid over pursuant to this Section 3.01(f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.01(f), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 3.01(f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if 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 Section 3.01(f) will not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(g)             Original Issue Discount. Administrative Agent shall cooperate with Borrower and will provide information and assistance reasonably requested by Borrower to determine (i) the “issue price” of the Loans (within the meaning of Sections 1273 and 1274 of the Code) for U.S. federal income and other applicable Tax purposes, and (ii) any other information necessary or helpful for Borrower to comply with its Tax reporting and filing obligations.

 

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(h)             Survival. Each party’s obligation under this Section will survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

Section 3.02.          Illegality.

 

If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after the Second Restatement Effective Date that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has after the Second Restatement Effective Date imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on written notice thereof by such Lender to Borrower through Administrative Agent, (a) any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies, or, in the case of Eurocurrency Rate Loans denominated in Dollars, to convert Revolving Credit Loans that are Base Rate Loans to Eurocurrency Rate Loans will be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case until such Lender notifies Administrative Agent and Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) Borrower will, upon written demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be determined by 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 Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans as indicated by a written notice from such Lender to Administrative Agent and Borrower, and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, Administrative Agent will during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, Borrower will also pay accrued interest on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or conversion. A Lender seeking payment of any amount under this Section 3.02 will use commercially reasonable efforts to deliver to Borrower a certificate setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.02, which certificate will be conclusive absent manifest error; provided that the failure to deliver a certificate hereunder will not relieve Borrower from any liability that it may have under this Section 3.02.

 

Section 3.03.          Alternate Rates of Interest.

 

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(a)             Inability to Determine Rates. If in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof, (i)(i) Administrative Agent determines that (A)(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)(B) (1)(1) 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 (whether denominated in Dollars or an Alternative Currency) or in connection with an existing or proposed Base Rate Loan and (2)(2) the circumstances described in Section 3.03(b) do not apply, or (ii)(ii) Required Lenders determine that for any reason the 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 Lenders of funding such Eurocurrency Rate Loan, Administrative Agent will promptly so notify Borrower and each Lender. Thereafter, (1) the obligation of the Lenders 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 (2) 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 Administrative Agent (or, in the case of a determination by Required Lenders described in clause (ii) of this Section 3.03(a), until Administrative Agent upon instruction of Required Lenders given at such time as the relevant circumstances ceases to be applicable, as determined by Required Lenders in good faith) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein; provided that, in the case of a pending request for a Loan denominated in an Alternate Currency, Borrower, Administrative Agent and Required Lenders may alternatively establish a mutually acceptable alternative rate.

 

(b)             Benchmark Replacement Setting.

 

(i)            Benchmark Replacement.

 

(A)            Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or any Early Opt-In Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the Adjusted LIBO Rate for Dollars, then (x) if a Benchmark Replacement is determined in accordance with clause (1)(a) or clause (2) of the definition of “Benchmark Replacement” (as set forth in Section 1.01) for such Benchmark Replacement Date, such Benchmark Replacement will replace the then-current Benchmark with respect to Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising Required Lenders.

 

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(B)            Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or any Early Opt-In Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the Adjusted LIBO Rate for Sterling or Swiss Francs, as the case may be, then (x) if a Benchmark Replacement is determined in accordance with clause (1)(b) or (c), as applicable, of the definition of “Benchmark Replacement” (as set forth in Section 1.01) for such Benchmark Replacement Date, such Benchmark Replacement will replace the then-current Benchmark with respect to Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling or Swiss Francs, as applicable, for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising Required Lenders.

 

(C)            Subject to Sections 3.03(b)(i)(A) and (B) but otherwise notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or any Early Opt-In Election, as applicable, and its related Benchmark Replacement. Date have occurred prior to the Reference Time in respect of any setting of the Relevant Rate (other than the Adjusted LIBO Rate for Dollars, Sterling or Swiss Francs), then the Benchmark Replacement shall be determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date and such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising Required Lenders.

 

(ii)            Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document; provided that, in each case, Administrative Agent shall provide Borrower with prior written notice of any such Benchmark Replacement Conforming Changes.

 

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(iii)            Notices; Standards for Decisions and Determinations. Administrative Agent will promptly notify Borrower and the Lenders of (A) the implementation of any Benchmark Replacement and (B) the effectiveness of any Benchmark Replacement Conforming Changes. Administrative Agent will promptly notify Borrower of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 3.03(b)(iv). Any determination, decision or election that may be made by Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 3.03(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 3.03(b).

 

(iv)            Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (A)(A) if any then-current Benchmark is a term rate (including any Adjusted LIBO Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, CDOR Rate or Term SOFR) and either (I) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Administrative Agent in its reasonable discretion or (II) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then Administrative Agent may modify the definition of “Interest Period” set forth in Section 1.01 (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (B)(B) if a tenor that was removed pursuant to clause (A) above either (I) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (II) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

 

(v)            Benchmark Unavailability Period. Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a given Benchmark, Borrower may revoke any pending request for a borrowing of, conversion to or continuation of Eurocurrency Rate Loans to be made, converted or continued during any Benchmark Unavailability Period denominated in the applicable Agreed Currency and, failing that, (A)(A)(I) in the case of any request for any affected Eurocurrency Rate Loans denominated in Dollars, Borrower will be deemed to have converted any such request into a request for a borrowing of or conversion to Base Rate Loans. in the amount specified therein and (II) in the case of any request for any Eurocurrency Rate Loan denominated in an Alternative Currency, then such request shall be ineffective, and (B)(B)(I) any outstanding affected Eurocurrency Rate Loans denominated in Dollars, at the Borrower’s election, shall either (1)(1) be deemed to have been converted into Base Rate Loans immediately or at the end of the applicable Interest Period or (2)(2) be prepaid in full

 

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at the end of the applicable Interest Period, and (II) any outstanding affected Eurocurrency Rate Loans denominated in an Alternative Currency, at the Borrower’s election, shall either (1) be converted into Base Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Eurocurrency Rate Loans based on a term rate, at the end of the applicable Interest Period or (2) be prepaid in full immediately or, in the case of Eurocurrency Rate Loans based on a term rate, at the end of the applicable Interest Period; provided that if no election is made by Borrower by the date that is three (3) Business Days after receipt by Borrower of such notice, Borrower shall be deemed to have elected clause (1) of each of the foregoing clauses (I) and (II) above. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 3.05. During a Benchmark Unavailability Period with respect to any Benchmark or at any time that a tenor for any then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark that is the subject of such Benchmark Unavailability Period or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.

 

(c)             Alternative Currencies. If, after the designation by the Lenders of any currency as an Alternative Currency, any change in currency controls or exchange regulations or any change in national or international financial, political or economic conditions are imposed in the country in which such currency is issued, and such change results in, in the reasonable opinion of Administrative Agent (including based on notices received from one or more Lenders), that (i)(i) such currency no longer being readily available, freely transferable and convertible into Dollars, (ii)(ii) a Dollar Equivalent no longer being readily calculable with respect to such currency, (iii)(iii) such currency being impracticable for the Lenders to loan or (iv)(iv) such currency no longer being a currency in which Lenders comprising Required Lenders are willing to make Credit Extensions (each of clauses (i), (ii), (iii) and (iv), a “Disqualifying Event”), then Administrative Agent shall promptly notify the Lenders and Borrower in writing, and such currency shall no longer be an Alternative Currency until such time as the Disqualifying Event(s) no longer exist. Within five (5) Business Days after receipt of such a written notice from Administrative Agent, Borrower shall repay all Loans denominated in such currency to which the Disqualifying Event(s) apply or convert such Loans into the Dollar Equivalent in Dollars, bearing interest at the Base Rate, subject to the other terms contained herein.

 

Section 3.04.          Increased Costs.

 

(a)             Increased Costs Generally. If any Change in Law will:

 

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lending Party (except any reserve requirement reflected in the applicable Eurocurrency Rate);

 

(ii)            subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

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(iii)            impose on any Lender or L/C Issuer or the London interbank offered market any other condition, cost or expense (other than Taxes) affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Credit or participation therein;

 

and the result of any of the foregoing will be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or L/C Issuer of participating in, issuing or maintaining any Credit (or of maintaining its obligation to participate in or to issue any Credit), or to reduce the amount of any sum received or receivable by such Lending Party hereunder (whether of principal, interest or any other amount), then, upon request of such applicable Lending Party, Borrower will pay to such Lending Party such additional amount or amounts as will compensate such Lending Party for such additional costs incurred or reduction suffered.

 

(b)             Capital Requirements. If any Lending Party determines that any Change in Law affecting such Lending Party or the Lending Office of such Lending Party or such Lending Party’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lending Party’s capital or on the capital of such Lending Party’s holding company, if any, as a consequence of this Agreement, the Commitments of any such Lender or the Loans made by, or participations in Credits held by, any such Lender, or the Credits issued by any such L/C Issuer, to a level below that which such Lending Party or such Lending Party’s holding company could have achieved but for such Change in Law (taking into consideration such Lending Party’s policies and the policies of such Lending Party’s holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lending Party such additional amount or amounts as will compensate such Lending Party or such Lending Party’s holding company for any such reduction suffered.

 

(c)             Certificates for Reimbursement. A certificate of a Lending Party setting forth the amount or amounts necessary to compensate such Lending Party or its holding company, as the case may be, as specified in Sections 3.04(a) and 3.04(b), and delivered to Borrower will be conclusive absent manifest error. Borrower will pay such Lending Party the amount shown as due on any such certificate within ten days after receipt thereof.

 

(d)             Delay in Requests. Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 will not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation; provided that Borrower will not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender or L/C Issuer, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’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 180 day period referred to in this subsection (d) will be extended to include the period of retroactive effect thereof).

 

Section 3.05.          Compensation for Losses.

 

Upon written demand of any Lender (with a copy to Administrative Agent) from time to time, Borrower will promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of (a)(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of

 

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acceleration, or otherwise), (b)(b) any failure by Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than to continue a Loan as, or to convert a Loan to, a Base Rate Loan on the date or in the amount notified by Borrower or (c)(c) any assignment of a Eurocurrency Rate Loan other than on the last day of the Interest Period applicable thereto as a result of a request by Borrower, including pursuant to Section 3.08, in the case of each of the foregoing clauses (a) through (c) for the loss, cost and expense attributable to such event in an amount computed as follows: the excess, if any, of (i)(i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the interest rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii)(ii)the amount of interest that would accrue on such principal amount for such period at the interest rate with the Lender (or an affiliate of the Lender) would bid were it to bid, at the commencement of the interest period, for U.S. Dollar deposits of a comparable amount and period from other banks in the London interbank Eurocurrency market. For purposes of calculating amounts payable to any Lender under this Section 3.05, such Lender will be deemed to have funded each Eurocurrency Rate Loan denominated in an Alternative Currency made by it at the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded. A Lender seeking payment of any amount under this Section 3.05 will use commercially reasonable efforts to deliver to Borrower a certificate setting forth in reasonable detail the amount or amounts necessary to compensate such Lender as specified in this Section 3.05, as well as the basis for determining such amount or amounts, which certificate will be conclusive absent manifest error; provided that the failure to deliver a certificate hereunder will not relieve Borrower from any liability that it may have under this Section 3.05. Borrower will pay such Lender the amount shown as due on any such certificate on demand within ten days after receipt of such certificate.

 

Section 3.06.          Mitigation Obligations.

 

Notwithstanding anything to the contrary contained in Section 10.01, if any Lending Party requests compensation under Section 3.04, or Borrower is required to pay additional amounts to any Lending Party or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lending Party gives a notice pursuant to Section 3.02, then such Lending Party, at the request of Borrower, will use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lending Party, such designation or assignment: (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable; and (ii) in each case, would not subject such Lending Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lending Party as reasonably determined by such Lending Party. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lending Party in connection with any such designation or assignment.

 

Section 3.07.          Defaulting Lenders.

 

(a)             Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

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(i)            Waivers and Amendments. That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement will be restricted as set forth in Section 10.01.

 

(ii)            Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise, and including any amounts made available to Administrative Agent by that Defaulting Lender pursuant to Section 10.08), will be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to L/C Issuer or Swing Line Lender hereunder; third, to Cash Collateralize each L/C Issuer’s Fronting Exposure with respect to that Defaulting Lender in accordance with Section 2.15; fourth, as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and Borrower, to be held in a non-interest bearing deposit account and released pro rata in order to (1) satisfy that Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (2) Cash Collateralize each L/C Issuer’s future Fronting Exposure with respect to that Defaulting Lender with respect to future Credits issued under this Agreement in accordance with Section 2.15; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (2) such Loans were made or the related Credits were issued at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment will be applied solely to pay the Loans of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender until such time as all Loans and funded and unfunded participations in Credit Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments under the applicable Facility without giving effect to Section 3.07(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 3.07(a)(ii) will be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)            Certain Fees.

 

(A)            No Defaulting Lender will be entitled to receive any Revolving Credit Commitment Fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender (and Borrower will not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

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(B)            A Defaulting Lender will be entitled to receive Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Revolving Credit Percentage Share of the stated amount of Credits for which it has provided Cash Collateral pursuant to Section 2.15.

 

(C)            With respect to any Revolving Credit Commitment Fee or Credit Fee not required to be paid to any Defaulting Lender pursuant to the preceding clauses (A) or (B), Borrower will (1)(1) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Credit Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to Section 3.07(a)(iv), (2)(2) pay to the L/C Issuer and the Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the L/C Issuer’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (3)(3) not be required to pay the remaining amount of any such fee.

 

(iv)            Reallocation of Participations to Reduce Fronting Exposure. All or any part of that Defaulting Lender’s participation in Credit Obligations and Swing Line Loans will be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving Credit Percentages Shares (calculated without regard to that Defaulting Lender’s Revolving Credit Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. No reallocation hereunder will constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v)            Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in Section 3.07(a)(iv) cannot or can only partially be effected, Borrower will, without prejudice to any right or remedy available to it hereunder or under applicable Law, first, prepay all Swing Line Loans then outstanding in an amount equal to the Swing Line Lenders’ Fronting Exposure and second, Cash Collateralize each L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.15.

 

(b)             Defaulting Lender Cure. If Borrower, Administrative Agent, the L/C Issuers and Swing Line Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Credit Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and funded and unfunded participations in Credits and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Revolving Credit Percentage Share (without giving effect to Section 3.07(a)(iv)), whereupon

 

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that Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

(c)             New Swing Line Loans/Credits. So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender will not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) the L/C Issuers will not be required to issue, extend, renew or increase any Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

 

Section 3.08.          Replacement of Lenders.

 

(a)             Notwithstanding anything to the contrary contained in Section 10.01, Borrower may, with respect to any Specified Lender, at its sole expense and effort and upon written notice to such Lender and Administrative Agent, require such Specified Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06(b)), all of its interests, rights (except to the extent provided in Section 3.07(b)) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

 

(i)            Borrower will have paid to Administrative Agent the assignment fee (if any) specified in Section 10.06(b);

 

(ii)            such Specified Lender will have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other Obligations payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);

 

(iii)            in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;

 

(iv)            such assignment does not conflict with applicable Law; and

 

(v)            in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee will have consented to the applicable amendment, waiver or consent;

 

provided; however, that a Lender will not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

 

Each Lender hereby grants to Administrative Agent a power of attorney (which power of attorney, being coupled with an interest, is irrevocable) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in circumstances contemplated by this Section 3.08(a).

 

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(b)             Certain Rights as a Lender. Upon the prepayment of all amounts owing to any Specified Lender and the termination of such Lender’s Commitments pursuant to this Section 3.08, such Specified Lender will no longer constitute a “Lender” for purposes hereof; provided that such Specified Lender will continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the date on which all amounts owing to such Specified Lender were prepaid in full and the Commitments of such Specified Lender were terminated pursuant to this Section 3.08.

 

(c)             Evidence of Replacement. Promptly following the replacement of any Specified Lender in accordance with this Section 3.08, Administrative Agent will distribute an amended Schedule 2.01, which will be deemed incorporated into this Agreement, to reflect changes in the identities of Lenders and adjustments of their respective Commitments or Percentage Shares, as applicable, resulting from any such removal or replacement.

 

Section 3.09.          Survival.

 

All obligations of the Loan Parties under this Article 3 will survive termination of the Aggregate Commitments and repayment of all other Obligations.

 

Article 4
Conditions Precedent

 

Section 4.01.          Conditions to the Effectiveness of this Agreement.

 

The effectiveness of this Agreement and the agreement of the Lending Parties to provide the Credit Extensions described herein (including the initial Credit Extensions hereunder) is subject to the satisfaction of the conditions precedent set forth in this Section 4.01.

 

(a)             Receipt of Certain Documents. Administrative Agent will have received the following, each of which will be, unless otherwise specified herein or otherwise required by Administrative Agent, originals (or facsimiles or other electronic image scan versions thereof (e.g., “PDF”), each, to the extent to be executed by a Loan Party, duly executed by a Responsible Officer of such Loan Party, each dated the Second Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Second Restatement Effective Date):

 

(i)            This Agreement. this Agreement, executed by Borrower and each other Loan Party, each Lending Party and Administrative Agent, together with all completed Schedules to this Agreement;

 

(ii)            Notes. if requested by any Lender at least two Business Days in advance of the Second Restatement Effective Date, separate Notes executed by Borrower in favor of each such requesting Lending Party evidencing, as applicable, the Revolving Credit Loans or Swing Line Loans to be made by such Lending Party hereunder;

 

(iii)            Secretary’s Certificates. certificates, executed by the secretary or assistant secretary (or other Responsible Officer) of each Loan Party on behalf of such

 

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Loan Party, certifying, among other things, (A) that attached to such certificate are true, correct and complete copies of (1) the Organizational Documents of such Loan Party then in full force and effect, (2) the resolutions then in full force and effect adopted by the Board of Directors of such Loan Party authorizing and ratifying the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and (3) a certificate of good standing or status from the secretary of state of the state under whose laws such Loan Party was formed or incorporated, as applicable, (B) the name(s) of the Responsible Officers of such Loan Party authorized to execute Loan Documents on behalf of such Loan Party, together with a incumbency samples of the true signatures of such Responsible Officers, and (C) that Administrative Agent and the Lending Parties may conclusively rely on such certificate;

 

(iv)            Bring-Down Certificate. a certificate executed by a Responsible Officer of Borrower, certifying that the conditions specified in clauses (a), (b) and (c) of Section 4.02 to the Credit Extensions requested by Borrower to be advanced on the Second Restatement Effective Date have been satisfied;

 

(v)            Opinions of the Loan Parties’ Counsel. such favorable opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Loan Parties, reasonably acceptable to Administrative Agent and its counsel, addressed to Administrative Agent and each Lending Party as of the Second Restatement Effective Date, as to such matters as are reasonably required by Administrative Agent or any Lending Party with respect to the Loan Parties and the Loan Documents;

 

(vi)            Collateral Documents. the following Collateral Documents:

 

(A)            Security Agreement. (i) the Security Agreement, executed by each Loan Party in favor of Administrative Agent, for the benefit of the Secured Parties, together with all completed schedules thereto and (ii) the original stock certificates (or equivalent certificates) evidencing all of the outstanding issued and outstanding Equity Interests in each of Borrower’s direct and indirect Subsidiaries that are required to be delivered pursuant to the Security Agreement as of the Second Restatement Effective Date, with accompanying undated stock powers (or equivalent assignments) executed in blank (collectively, the “Second Restatement Effective Date Domestic Equity Interest Collateral”) (for purposes of satisfying the condition precedent of this clause (vi)(A), Administrative Agent confirms that, as of the Second Restatement Effective Date, it continues to maintain possession of the Second Restatement Effective Date Domestic Equity Interest Collateral as previously delivered to Administrative Agent pursuant to the First Restated Credit Agreement);

 

(B)            Financing Statements. Financing Statements naming each Loan Party as debtor and Administrative Agent as secured party and describing the collateral as “all assets now owned or existing or hereafter acquired or arising” or words of similar effect, to be filed by the Administrative Agent, on or after the Second Restatement Effective Date, with such governmental UCC filing offices as Administrative Agent will reasonably require, which Financing Statements will be in addition to the Financing Statements (as defined in the First Restated Credit Agreement) previously filed with governmental UCC filing offices pursuant to the First Restated Credit Agreement; and

 

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(C)            Foreign Collateral Documents. (1) the Security Confirmation dated as of the date hereof, confirming the Swiss Pledge Agreement, executed by Borrower, together with original stock certificate(s) evidencing 65% of the outstanding shares of issued and outstanding voting Equity Interests in Semtech (International), with accompanying assignments in blank (the “Second Restatement Effective Date Swiss Equity Interest Collateral”), and (2) a copy of the register of shareholders and beneficial owners in Semtech (International) certified by a Responsible Officer of Semtech (International) to be accurate and complete as of the date of this Agreement (for purposes of satisfying the condition precedent of this clause (vi)(C), Administrative Agent confirms that, as of the Second Restatement Effective Date, it continues to maintain possession of the Second Restatement Effective Date Swiss Equity Interest Collateral as previously delivered to Administrative Agent pursuant to the First Restated Credit Agreement);

 

(b)             Insurance. Administrative Agent will have received documentation reasonably satisfactory to it demonstrating that all insurance required to be maintained pursuant to Section 6.06 has been obtained and is in effect, including the certificates and lender loss payable endorsement naming Administrative Agent, for the benefit of the Secured Parties, as lender loss payee in respect of each policy of property insurance of the Loan Parties, and Administrative Agent, on behalf and for the benefit of itself and the Lending Parties, as additional insureds in respect of each policy of liability insurance of the Loan Parties.

 

(c)             No Litigation. No Proceeding instituted by any Person (including any Governmental Authority) will be pending in any court or before any arbitrator or mediator or before any Governmental Authority, or will have been threatened in writing by any Person (including any Governmental Authority) to be instituted, (i) with respect to this Agreement or any of the related Loan Documents, or (ii) which could, if adversely determined, reasonably be expected to have or result in a Material Adverse Effect.

 

(d)             [Reserved].

 

(e)             Financial Projections. Administrative Agent will have received projected financial statements (including Consolidated balance sheets, income statements and statements of cash flows) of Borrower and its Consolidated Subsidiaries through the fifth Fiscal Year following the Second Restatement Effective Date (which for the first Fiscal Year will be shown on a quarterly basis) prepared on a pro forma basis after giving effect to the Transactions, in form and substance and at levels satisfactory to the Arrangers.

 

(f)            Know Your Customer. Administrative Agent will have received all documentation and other information requested by any Lender from the Loan Parties under applicable “know your customer” and other Sanctions, anti-money laundering and anti-corruption Laws, including the PATRIOT Act, with results satisfactory to each Lender.

 

(g)             Beneficial Ownership Certification. To the extent Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three Business Days prior to the Second Restatement Effective Date, if any Lender has so requested in a written notice delivered to Borrower at least ten Business Days prior to the Second Restatement Effective Date, such Lender shall have received a Beneficial Ownership Certification in relation to Borrower.

 

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(h)             New Lender Agreements. Administrative Agent will have received from any new Lender acceding to this Agreement, and not previously party to the First Restated Credit Agreement (each a “New Lender”) an accession agreement (a “New Lender Agreement”), executed by such New Lender and accepted by Administrative Agent.

 

(i)            Payment of Unpaid Fees, Expenses, Charges and Disbursements Related to the First Restated Credit Agreement. Borrower will have paid or will concurrently pay, using proceeds of the initial Credit Extensions under this Agreement, all accrued and unpaid interest, and all accrued and incurred and unpaid fees, costs and expenses payable to the Existing Lenders outstanding as of the Second Restatement Effective Date under the First Restated Credit Agreement.

 

(j)            Payment of Fees, Expenses, Charges and Disbursements Related to the Transactions. Borrower will have paid or will concurrently pay, using proceeds of the initial Credit Extensions under this Agreement, all (i) fees required to be paid to Administrative Agent, the Arrangers and any Lending Party on or before the Second Restatement Effective Date and (ii) reasonable and documented out-of-pocket fees, expenses, charges and disbursements of HSBC as an Arranger and as Administrative Agent (limited, in the case of legal fees and expenses, to the reasonable fees, expenses, charges and other disbursements of Sheppard Mullin Richter & Hampton, LLP, as primary counsel to HSBC in its capacities as an Arranger and Administrative Agent, plus, if retained by HSBC as an Arranger and as Administrative Agent, one firm of local counsel in each relevant material jurisdiction, which shall include Switzerland and such other relevant jurisdictions as are determined by HSBC in good faith to be material, and which may include a single special counsel acting in multiple jurisdictions), in each case invoiced at least two Business days prior to the Second Restatement Effective Date and incurred in connection with the Facilities and the preparation, negotiation and enforcement of the Loan Documents and any collateral arrangements in connection therewith, plus such additional amounts of such fees, charges and disbursements as will constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by HSBC through the closing proceedings (provided that such estimate will not thereafter preclude a final settling of accounts between Borrower and Administrative Agent).

 

Notwithstanding anything to the contrary contained herein, this Agreement will not become effective or be binding on any party hereto unless all of the conditions precedent to the effectiveness of this Agreement as specified in this Section 4.01 are satisfied (or are otherwise waived in writing in accordance with this Agreement) at or before 2:00 p.m. on December 26, 2019. Administrative Agent will promptly notify each Borrower and each Lending Party of the occurrence of the Second Restatement Effective Date, and such notice will be conclusive and binding on all parties hereto. For purposes of determining compliance with the conditions specified in this Section 4.01 (but without limiting the generality of the provisions of Section 9.04), (a) each Lending Party that has signed this Agreement will be deemed to have consented to, approved or accepted or become satisfied with, each document or other matter required hereunder to be consented to or approved by or to be acceptable or satisfactory to a Lending Party unless Administrative Agent will have received written notice from such Lending Party prior to the proposed Second Restatement Effective Date specifying its objection thereto, and (b) the making or issuance of a Credit Extension hereunder by a Lending Party on the Second Restatement Effective Date being conclusively deemed to be its satisfaction or waiver of the conditions precedent set forth in this Section 4.01 and in Section 4.02 with respect to such Credit Extension.

 

Section 4.02.          Conditions to All Credit Extensions.

 

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The obligation of each Lending Party to make any Credit Extension hereunder (including its initial Credit Extensions on the Second Restatement Effective Date) or to honor any Request for Credit Extension is further subject to the satisfaction, as determined by Administrative Agent, of each of the separate and additional conditions precedent set forth in this Section 4.02.

 

(a)             Truth and Correctness of Representations and Warranties. The representations and warranties of Borrower and each other Loan Party contained in this Agreement (including Article 5) or in any other Loan Document (or, in respect of the initial Credit Extensions to be made as of the Second Restatement Effective Date only, in the Collateral Information Certificate) will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) on and as of the date of such Credit Extension (excluding, with respect to requested Credit Extensions other than the initial Credit Extensions made on the Second Restatement Effective Date, the representations and warranties contained in Section 5.05 and Section 5.10(b)), except to the extent that any such representation or warranty specifically refers to an earlier date, in which case such representation or warranty will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in Section 5.10(a) will be deemed to refer to the most recent statements furnished pursuant to Section 6.01 (provided, however, that in the case of any Borrowing of any Additional Revolving Credit Loan or any Incremental Term Loan for the express purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including any portion which repays Indebtedness of the Target, including any Subsidiary or other Affiliate thereof being acquired in such Limited Condition Transaction), the representations and warranties required to be true and correct as set forth in this clause (a) shall be limited to the Specified Representations).

 

(b)             No Default or Event of Default. No Default or Event of Default will then exist, or will result from such proposed Credit Extension or from the application of the proceeds thereof or from the honoring of any Request for Credit Extension (provided, however, that in the case of any Borrowing of any Additional Revolving Credit Loan or any Incremental Term Loan for the express purpose of funding, in whole or in part, the Acquisition Consideration of a Limited Condition Transaction (including any portion which repays Indebtedness of the Target, including any Subsidiary or other Affiliate thereof being acquired in such Limited Condition Transaction), no Specified Event of Default shall have occurred and be continuing).

 

(c)             No Material Adverse Effect. No Material Adverse Effect will have occurred since January 27, 2019.

 

(d)             Requests for Credit Extensions. Administrative Agent and, if applicable, the Swing Line Lender or L/C Issuer will have received the applicable Request for Credit Extension.

 

(e)             Alternative Currencies. In the case of a Credit Extension to be denominated in an Alternative Currency, there will 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 Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.

 

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Notwithstanding the foregoing or anything to the contrary in this Agreement or any other Loan Document, any Borrowing in connection with the Sunrise Acquisition shall be subject solely to the conditions precedent set forth on Exhibit C to the Second Amendment, subject to any amendment, modification or waiver thereof by the Borrower with the consent of the Required Revolving Credit Lenders.

 

Article 5
Representations and Warranties

 

To induce Administrative Agent and each Lending Party to enter into this Agreement and the Lending Parties to make or issue the Credit Extensions hereunder, each Loan Party hereby represents and warrants to Administrative Agent and each Lending Party as set forth in this Article 5.

 

Section 5.01.          Corporate Existence and Power.

 

Each Loan Party and each of its Restricted Subsidiaries (a)(a) is a corporation, partnership or limited liability company or other entity duly incorporated or organized, validly existing and, to the extent such concept is applicable in the relevant jurisdiction, in good standing under the laws of the jurisdiction of its incorporation, organization or formation (subject to such changes after the date hereof as are permitted under the Loan Documents); (b)(b) has the legal power and authority (i)(i) to own its assets and carry on its business substantially as conducted by it on the Second Restatement Effective Date or as otherwise not prohibited to be conducted by it under this Agreement, and (ii)(ii) to execute, deliver, and perform its obligations under each of the Loan Documents to which it is a party; and (c)(c) to the extent such concept is applicable in the relevant jurisdiction, is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is licensed and in good standing under the laws of each jurisdiction where its ownership, leasing or operation of property or the conduct of its business requires such qualification or license, except, in the case of the preceding clauses (a) (but only as to any Restricted Subsidiary that is not a Loan Party), (b) and (c), to the extent that the failure to do so could not reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.02.          Corporate Authorization; No Contravention.

 

The execution and delivery by each Loan Party, and the performance by each Loan Party of its obligations under each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a)(a) contravene the terms of any of such Person’s Organizational Documents, (b)(b) conflict with or result in any breach or contravention of, or the creation of any Lien under, any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c)(c) violate any Law applicable to any Loan Party or any of its Subsidiaries or any of their respective properties, except with respect to clauses (b) and (c), to the extent such conflict, breach, violation or contravention or creation of Lien could not reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.03.          Governmental Authorization; Compliance with Laws.

 

(a)             Governmental Authorizations. As of the Second Restatement Effective Date, no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with (i) the execution, delivery or performance by any Loan Party, in each case to which it is a party, or any

 

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of its Subsidiaries of this Agreement or any other Loan Document, (ii) the grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents, or (iii) the validity or perfection of the Liens created under the Collateral Documents (including the first priority nature thereof, subject only to Permitted Liens), except (A) as have been obtained or made as of the Second Restatement Effective Date and are in full force and effect, (B) for the authorizations, approvals, actions, notices and filings necessary for the perfection of Liens created pursuant to the Collateral Documents or the exercise of remedies pursuant thereto and (C) for any subsequent filings and recordings in the United States Patent and Trademark Office or United States Copyright Office with respect to registrations of, or applications for intellectual property.

 

(b)             Compliance with Laws. Each Loan Party and each of its Subsidiaries is in compliance in all material respects with the requirements of all Laws applicable to such Person or any of its properties and with all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have or result in a Material Adverse Effect. Each Loan Party and each of its Subsidiaries has all governmental licenses, authorizations, consents and approvals required or otherwise necessary to own its assets and carry on its business substantially as currently conducted by it and such business as contemplated to be conducted by it upon and following the consummation of the transactions contemplated by the Loan Documents, except to the extent the failure to have such licenses, authorizations, consents and approvals could not reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.04.          Binding Effect.

 

This Agreement has been, and each other Loan Document (when delivered hereunder) will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement and each other Loan Document to which any Loan Party is a party constitute the legal, valid and binding obligations of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement thereof may be limited by Debtor Relief Laws or other applicable Laws affecting the enforcement of creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in law or equity).

 

Section 5.05.          Litigation.

 

Except as specifically disclosed on Schedule 5.05, as of the Second Restatement Effective Date (a)(a) there are no Proceedings pending or, to each Loan Party’s knowledge, threatened in writing against any Loan Party or any of its respective Subsidiaries, or against any of such Persons’ properties, at law or in equity, before any court, arbitrator, mediator or other Governmental Authority, and (b)(b) to each Loan Party’s knowledge, there is no investigation by any Governmental Authority of any Loan Party’s or any such Subsidiary’s affairs or properties, except (in the cases of the preceding clauses (a) and (b)) for such Proceedings and investigations as could not reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.06.          ERISA Compliance.

 

(a)             Except as could not reasonably be expected to have or result in a Material Adverse Effect, each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal, foreign or, to the extent not pre-empted by ERISA, state Laws. Except as could not reasonably be expected to have or result in a Material Adverse Effect,

 

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each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code is so qualified or is entitled to rely upon an opinion or notification letter issued to the sponsor of an IRS-approved master or prototype plan or volume submitter plan document or an application for such a letter is currently being processed by the IRS. Except as could not reasonably be expected to have or result in a Material Adverse Effect, each trust related to any such Plan is exempt from Federal income tax under Section 501(a) of the Code. To the knowledge of each Loan Party, nothing has occurred that would prevent or cause the loss of such tax-qualified status.

 

(b)             There are no pending or, to the knowledge of each Loan Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to have or result in a Material Adverse Effect.

 

(c)             Except as could not reasonably be expected to have or result in a Material Adverse Effect, (i) no ERISA Event has occurred, and no Loan Party is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) each Loan Party and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and no Loan Party knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither any Loan Party nor any ERISA Affiliate has engaged in a transaction that could reasonably be expected to be subject to Section 4069 or Section 4212(c) of ERISA; and (v) no Pension Plan has been terminated by the plan administrator thereof or by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.

 

(d)             As of the Second Restatement Effective Date, neither any Loan Party nor any ERISA Affiliate maintains or contributes to, or has any liability under, any active or terminated Pension Plan other than those listed on Schedule 5.06.

 

(e)             Each Foreign Pension Plan is in compliance in all material respects with all requirements of Law applicable thereto and the respective requirements of the governing documents for such plan except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect. With respect to each Foreign Pension Plan, none of Borrower, its Subsidiaries or any of their respective directors, officers, employees or agents has engaged in a transaction which would subject Borrower or any of its Subsidiaries, directly or indirectly, to a tax or civil penalty which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. With respect to each Foreign Pension Plan, reserves have been established in the financial statements furnished to Administrative Agent and the Lenders in respect of any unfunded liabilities in accordance with applicable Law or, where required, in accordance with ordinary accounting practices, if any, in the jurisdiction in which such Foreign Pension Plan is maintained, in each case except to the extent the failure to establish any such reserves could not reasonably be expected to have or result in a Material Adverse Effect. The aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be expected to result in a Material Adverse Effect. There are no actions, suits or claims (other than routine claims for benefits) pending or threatened against Borrower or any of its Subsidiaries with respect to any Foreign Pension Plan which could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

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Section 5.07.          Use of Proceeds.

 

Borrower will use the proceeds of the Loans and other Credit Extensions made available hereunder solely for the purposes set forth in and as permitted by Section 7.10.

 

Section 5.08.          Title to Properties.

 

Each Loan Party has good record and marketable title in fee simple to, or valid leasehold interests in, or valid rights to use (including easements) all real property necessary to the ordinary conduct of their respective businesses, except for Permitted Liens and for defects in title that do not interfere in any material respect with the Loan Parties’ ability, taken as a whole, to conduct business. As of the Second Restatement Effective Date, no property owned by any Loan Party or any of its respective Restricted Subsidiaries is subject to any Liens, other than Permitted Liens.

 

Section 5.09.          Taxes.

 

All Federal and other state, local and foreign tax returns, reports and statements required to be filed by any Loan Party or any of its Subsidiaries have been filed with the appropriate Governmental Authorities and all Taxes shown thereon to be due and payable by such Person have been paid prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof, or any such fine, penalty, interest, late charge or loss has been paid, except (a) that are being contested in good faith by appropriate proceedings for which adequate reserves in conformity with GAAP have been set aside on the books of the relevant Loan Party or (b) to the extent such failure could not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.

 

Section 5.10.          Financial Condition; No Material Adverse Effect; No Event of Default.

 

(a)             All balance sheets, and all statements of income, of shareholders’ equity, and of changes in cash flow furnished to Administrative Agent and the Lenders by or on behalf of Borrower for the purposes of or in connection with this Agreement or any of the other Loan Documents have been prepared in accordance with GAAP consistently applied (from period to period except as and to the extent disclosed in the financial statements or otherwise required by GAAP; provided, that any such disclosed changes will continue to be in accordance with GAAP) throughout the periods involved and such data, together with all other financial data (excluding projected financial information, pro forma financial information, estimated financial information, other projected or estimated information and other forward-looking statements and information of a general economic or industry specific nature) will present fairly in all material respects the financial condition of the entities involved as of the dates thereof and the result of their operations for the periods covered thereby (except that interim financial statements will be subject to audit and customary year-end adjustments and may not have footnotes). All financial projections and forecasts which have been furnished to Administrative Agent and the Lenders for purposes of or in connection with this Agreement were prepared in good faith on the basis of assumptions which were, in the opinion of the management of Borrower, reasonable at the time made; and at the time of delivery, the management of Borrower believed, in good faith, that the assumptions used in preparation of the financial projections and forecasts remain reasonable (it being understood that such financial projections and forecasts are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control

 

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of Borrower and its Subsidiaries, and are not guarantees of financial performance, that actual results may differ significantly from such financial projections and forecasts and such differences may be material, and no assurances can be given that such financial projections and forecasts will be realized).

 

(b)             Since January 27, 2019, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have or result in a Material Adverse Effect.

 

(c)             No Event of Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document. Other than this Agreement and the other Loan Documents, no default exists under any Material Contract or other document to which any Loan Party or any of their Subsidiaries is a party or otherwise subject to that has had or could reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.11.          Margin Regulations.

 

No Loan Party nor any of its Subsidiaries is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock (it being understood that Loan Parties may purchase common stock of Borrower from time to time). No part of the proceeds of the Loans will be used, directly or indirectly, to purchase or carry any Margin Stock, or to refinance any Indebtedness originally incurred for such purpose, or for any other purpose, in each case, in a manner that entails a violation (including on the part of any Lender) of the provisions of Regulations U or X adopted by the FRB.

 

Section 5.12.          Intellectual Property.

 

Except as specifically disclosed on Schedule 5.12, each Loan Party and each of its Restricted Subsidiaries owns or is licensed or otherwise has the right to use all of the patents, copyrights, trademarks, service marks, trade names, domain names, mask works, trade secrets, proprietary information, proprietary formulas, rights in computer programs and databases and other intellectual property rights that are reasonably necessary for the operation of its respective businesses (including the business of Borrower and its Restricted Subsidiaries) as currently conducted by it, except to the extent that failure to hold such ownership, license or other right could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect. No Loan Party has any knowledge that the use of such intellectual property by such Loan Party or any of its Restricted Subsidiaries in, and the operation of, its business as currently conducted infringes any valid and enforceable intellectual property rights of any other Person, except to the extent any such infringement could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.

 

Section 5.13.          Capitalization and Subsidiaries.

 

As of the Second Restatement Effective Date, Borrower has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13. Set forth on Part (a) of Schedule 5.13 is a complete and accurate list of all Loan Parties as of the Second Restatement Effective Date, showing as of the Second Restatement Effective Date (as to each Loan Party) the jurisdiction of its incorporation and the address of its principal place of business. The copy of each Organizational Document of each Loan Party provided pursuant to Section 4.01(a)(iii) is a true

 

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and correct copy of such document, and is valid and in full force and effect, in each case, as of the Second Restatement Effective Date. Aside from its Subsidiaries disclosed in Part (a) of Schedule 5.13, as of the Second Restatement Effective Date no Loan Party owns, of record or beneficially, any Equity Interests in any other Person other than those specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity Interests owned by any Loan Party in each of its direct Restricted Subsidiaries has been validly issued, is fully paid and non-assessable (if applicable), and is owned by such Loan Party of record and beneficially free and clear of all Liens, except those created under the Collateral Documents and Permitted Liens.

 

Section 5.14.          Liens on Collateral.

 

The provisions of the Collateral Documents and the other Loan Documents create legal and valid security interests in and Liens on the Collateral in favor of Administrative Agent, for the benefit of the Secured Parties, and such Liens constitute valid and, in the case of the personal property Collateral, upon the taking of actions, notices and filings set forth in the Security Agreement, perfected and continuing Liens on the Collateral (except to the extent otherwise provided or permitted by the Security Agreement or, with respect to perfection, otherwise not required to be perfected under this Agreement or the Collateral Documents) securing, in the case of Borrower, the Obligations, and in the case of the Guarantors (on a joint and several basis), the Guaranteed Obligations, enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens in and on the Collateral except (a) Permitted Liens, to the extent any such Permitted Liens would have priority over the Liens in favor of Administrative Agent pursuant to applicable Law or are otherwise expressly permitted by any Loan Document to have priority over the Liens of Administrative Agent, and (b) Liens perfected only by possession (including possession of any certificate of title) to the extent Administrative Agent has not obtained or does not maintain possession of such Collateral.

 

Section 5.15.          Environmental Matters.

 

Except as specifically disclosed on Schedule 5.15, no Loan Party nor any of its Subsidiaries (a) has failed to comply with any applicable Environmental Law or to obtain, maintain or comply with any Environmental Permit required under any applicable Environmental Law, (b) has become subject to any Environmental Liability, (c) has received written notice of any Environmental Claim or (d) knows of any basis for any Environmental Liability, in each case in a manner that could reasonably be expected to have a Material Adverse Effect.

 

Section 5.16.          Solvency.

 

Borrower and its Subsidiaries, taken as a whole on a Consolidated basis, are, Solvent, including upon the consummation of the transactions contemplated by this Agreement to be consummated on the Second Restatement Effective Date.

 

Section 5.17.          Sanctions and Anti-Corruption Laws.

 

(a)             Sanctions. None of Borrower, any of its Subsidiaries, or to the knowledge of Borrower, any director, officer, employee, or agent of Borrower or any of its Subsidiaries is a Person that is, or is owned or Controlled by, Persons that are, (i) the target of any sanctions administered or enforced by the United States Department of the Treasury’s Office of Foreign Assets Control, the United States Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or the Hong Kong Monetary Authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is the target of Sanctions, including as of the Second Restatement Effective Date, the Crimea region, Cuba, Iran, North Korea and Syria other than to the extent that such representation/warranty would result in a violation of Council Regulation (EC) No 2271/96, as amended (or any implementing law or regulation in any member state of the European Union or the United Kingdom).

 

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(b)             Anti-Corruption Laws. None of Borrower, any of its Subsidiaries nor to the knowledge of Borrower, any director, officer, agent, employee, Affiliate or other person acting on behalf of Borrower or any of its Subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a material violation by such persons of any applicable anti-bribery Law or other anti-corruption Law, including the United Kingdom Bribery Act 2010 (the “UK Bribery Act”) and the United States Foreign Corrupt Practices Act of 1977 (the “FCPA”). Furthermore, Borrower and its Subsidiaries and, to the knowledge of Borrower, Borrower’s Affiliates have conducted their businesses in material compliance with the UK Bribery Act, the FCPA and similar applicable Laws, and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.

 

Section 5.18.          Investment Company Status.

 

None of the Loan Parties is required to register as an “investment company” under the Investment Company Act of 1940, as amended from time to time.

 

Section 5.19.          Insurance.

 

The assets, properties and businesses of each Loan Party and each of its Restricted Subsidiaries are insured with financially sound and reputable insurance companies that are not Affiliates of any Loan Party (in each case, determined at the time such insurance is obtained, renewed or reissued), in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in similar locations and as required to be maintained pursuant to Section 6.06.

 

Section 5.20.          Full Disclosure.

 

The Loan Parties have disclosed or made available, including pursuant to public filings with the SEC, to Administrative Agent and the Lending Parties all matters known to them, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No financial statement, material report, material certificate or other material information (excluding projected financial information, pro forma financial information, estimated financial information, other projected or estimated information and other forward-looking statements and information of a general economic or industry specific nature) furnished (in writing) by or on behalf of any Loan Party or any Subsidiary thereof to Administrative Agent or any Lending Party in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken together as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information, pro forma financial information, estimated financial information, other projected or estimated information and other forward-looking statements, such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that such financial projections and forecasts are as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond the control of any Loan Party, and are not guarantees of financial performance, that actual results may differ significantly from such financial projections and forecasts and such differences may be material, and no assurances can be given that such financial projections and forecasts will be realized).

 

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Section 5.21.          Covered Entities.

 

No Loan Party is a Covered Entity.

 

Section 5.22.          Beneficial Ownership Certification.

 

As of the Second Restatement Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

 

Article 6
Affirmative Covenants

 

Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees, expenses and other amounts (other than under Secured Swap Obligations, Secured Cash Management Obligations and contingent amounts not yet due) under any Loan Document have been paid in full in cash and all Credits have expired or been terminated and the Unreimbursed Amount of all Credit Borrowings shall have been reimbursed (unless the outstanding amount of the Obligations in respect of any Credits related thereto has been cash collateralized or a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer is in place), each Loan Party hereto covenants and agrees with the Lenders that it will, and will cause each of its Restricted Subsidiaries to, perform each of the covenants set forth in this Article 6.

 

Section 6.01.          Financial Statements.

 

Deliver to Administrative Agent (and Administrative Agent will promptly make such information available to the Lending Parties in accordance with its customary practice):

 

(a)             Annual Financial Statements. No later than ninety days after the end of each Fiscal Year, a Consolidated balance sheet as at the end of such year and related Consolidated statements of income, shareholders’ equity and cash flows of Borrower and its Consolidated Subsidiaries prepared for such Fiscal Year, setting forth, in comparative form against the figures for the previous Fiscal Year, all in reasonable detail and accompanied by (i) a report thereon of Deloitte Touche LLP, any other “big four” firm of independent public accountants or any other independent public accountants of recognized national standing selected by Borrower (or any other independent accounting firm not of recognized national standing that is acceptable to Administrative Agent), which report will not be qualified as to scope or contain any “going concern” qualification, other than a qualification related to any upcoming maturity of the Obligations hereunder or potential non-compliance with any financial covenant, and will state that such financial statements present fairly in all material respects the financial position of Borrower and its Subsidiaries on a Consolidated basis as at the dates indicated and the results of its operations and changes in its financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise required by GAAP or stated therein) and that the examination by such accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards, and (ii) management’s discussion and analysis of the important operational and financial developments during such Fiscal Year;

 

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(b)             Fiscal Period Financial Statements. No later than forty-five days after the end of each of the first three Fiscal Periods during each Fiscal Year, a Consolidated balance sheet as at the end of such period and the related Consolidated statements of income and cash flows of Borrower and its Consolidated Subsidiaries prepared for such Fiscal Period and (for such financial statements prepared for the first three Fiscal Periods of any Fiscal Year) for such Fiscal Year to date, setting forth in each case in comparative form the figures for the corresponding period(s) of the previous Fiscal Year end and the then current Fiscal Year, all in reasonable detail and certified by a Responsible Officer of Borrower having responsibility for financial matters that they (i) present fairly in all material respects the financial condition of Borrower and its Consolidated Subsidiaries as at the dates indicated and the results of its operations and changes in their cash flow for the periods indicated and (ii) have been prepared in accordance with GAAP, subject to the absence of footnotes and changes resulting from audit and customary year-end adjustments. With each such quarterly financial reports, Borrower will also deliver management’s discussion and analysis of the important operational and financial developments during such Fiscal Period and a general comparison of such financial reports against the budget delivered pursuant to Section 6.01(e);

 

(c)             Consolidating Financial Statements Reflecting Adjustments for Unrestricted Subsidiaries. Concurrently with the delivery of any financial statements pursuant to Section 6.01(a) or (b), if there are any Unrestricted Subsidiaries at the time, the related consolidating financial statements reflecting the adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries from such Consolidated financial statements;

 

(d)             Compliance Certificate. Together with the financial statements delivered pursuant to Section 6.01(a), (b) and (c), as applicable, a Compliance Certificate dated as of the last day of such reporting period, in each case certified by a Responsible Officer of Borrower having responsibility for financial matters, with appropriate insertions (which delivery may, unless Administrative Agent, or a Lender requests executed originals, be by electronic communication, including facsimile or electronic mail, and will be deemed to be an original authentic counterpart thereof for all purposes);

 

(e)             Budget. No later than forty-five Business Days after approval thereof by Borrower’s Board of Directors (and in any event no later than the date of delivery of the annual financial statements for the current Fiscal Year pursuant to Section 6.01(a), as determined by the last paragraph of this Section 6.01), an annual operating budget of Borrower and its Consolidated Subsidiaries for the forthcoming Fiscal Year in the form presented to, and approved by, Borrower’s Board of Directors; provided that in the event any budget is materially revised in any Fiscal Year and is subsequently approved by Borrower’s Board of Directors, such revised budget will be delivered to Administrative Agent promptly and in any event no later than twenty Business Days after approval thereof by Borrower’s Board of Directors (or such longer period as may be agreed by Administrative Agent in its sole discretion); and provided further that each such budget shall be prepared in good faith on the basis of assumptions which are, in the opinion of the management of Borrower, reasonable at the time made; and

 

(f)            Other Reports. Promptly upon any request by Administrative Agent or any Lending Party, a copy of any detailed audit reports, management letters or recommendations submitted to the Board of Directors (or the audit committee of the Board of Directors) of Borrower by independent accountants in connection with the accounts or books of Borrower or any Restricted Subsidiary thereof, or any audit of any of them.

 

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Documents required to be delivered pursuant to this Section 6.01 may be delivered electronically and if so delivered, will be deemed to have been delivered on the date (i)(i) on which Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as updated from time to time); (ii)(ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lending Party and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); or (iii)(iii) on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System (or any successor thereto), including on any Form 10-K, Form 10-Q or Form 8-K filing; provided that (A)(A) Borrower will notify Administrative Agent of the posting of such documents. Administrative Agent will have no obligation to request the delivery of or to maintain paper copies of the documents referred to above and (B)(B) upon Administrative Agent’s written request to Borrower, Borrower will deliver paper copies of such documents (as may be specified by Administrative Agent or any Lending Party after using reasonable efforts to obtain such documents by electronic means as contemplated by the preceding clauses (i) through (iii) of this paragraph) to Administrative Agent until such time as a written request to cease delivering such paper copies is given by Administrative Agent or such Lending Party. Notwithstanding anything to the contrary in this Section 6.01 or any other Loan Document, none of Borrower or any of its Subsidiaries shall be required to disclose any document, information or other matter (a) that constitutes non-financial trade secrets, (b) in respect of which disclosure to Administrative Agent or any Lending Party (or any of their respective representatives) is prohibited by any Applicable Law or any binding contractual agreement as to confidentiality with a third party or (c) is subject to attorney-client privilege or constitutes attorney work product.

 

Section 6.02.          Other Information.

 

Deliver to Administrative Agent (which will promptly make such information available to the Lending Parties in accordance with its customary practice):

 

(a)             Equity Interest Reports and Public Filings. Promptly after the same are filed or delivered, copies of each annual report, proxy or financial statement or other material report or communication sent to the holders of Equity Interests of Borrower (including any Qualified Preferred Stock) in their capacity as shareholders, and copies of all annual, regular, periodic and special reports and registration statements that Borrower or any of its Restricted Subsidiaries may file or be required to file with the SEC under Section 13 or Section 15(d) of the Exchange Act, and, in each case, not otherwise required to be delivered to Administrative Agent pursuant hereto;

 

(b)             Materials from Governmental Authorities. Promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Restricted Subsidiary thereof, copies of each material notice or other material non-routine correspondence received from any Governmental Authority (including the SEC or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding any material financial or other material operational results of Borrower and Restricted Subsidiaries, together or individually;

 

(c)             “Know Your Customer”. Promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable Beneficial Ownership Regulations and “know your customer”, anti-corruption and anti-money laundering Laws (including the PATRIOT Act), as from time to time reasonably requested by Administrative Agent or any Lending Party;

 

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(d)             Accounting Policies and Financial Reporting Practices. Promptly upon the occurrence thereof, notice of any material change in Borrower’s or any of its Consolidated Restricted Subsidiaries’ accounting policies or financial reporting practices, except changes required by GAAP;

 

(e)             Security Agreement Schedules. Together with the delivery of the Compliance Certificate dated as of the last day of the second and fourth Fiscal Periods of each Fiscal Year pursuant to Section 6.01(d), provide Administrative Agent with supplements to the schedules to the Security Agreement to the extent necessary to update or correct such schedules so that such schedules are accurate in all material respects; provided that, with respect to Schedule V of the Security Agreement, Borrower may provide a new version of such schedule rather than a supplement; and

 

(f)            Additional Information. Promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary thereof or compliance with the terms of the Loan Documents, as Administrative Agent or any Lending Party may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a), (b), (d) or (f) may be delivered electronically and if so delivered, will be deemed to have been delivered on the date (i)(i) on which Borrower posts such documents, or provides a link thereto on Borrower’s website on the Internet at the website address listed on Schedule 10.02 (as updated from time to time); (ii)(ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lending Party and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); or (iii)(iii) on which such documents are filed for public availability on the SEC’s Electronic Data Gathering and Retrieval System (or any successor thereto), including on any Form 10-K, Form 10-Q or Form 8-K filing; provided that (A)(A) Borrower will notify Administrative Agent of the posting of such documents. Administrative Agent will have no obligation to request the delivery of or to maintain paper copies of the documents referred to above and (B)(B) upon Administrative Agent’s written request to Borrower, Borrower will deliver paper copies of such documents (as may be specified by Administrative Agent or any Lending Party after using reasonable efforts to obtain such documents by electronic means as contemplated by the preceding clauses (i) through (iii) of this paragraph) to Administrative Agent until such time as a written request to cease delivering such paper copies is given by Administrative Agent or such Lending Party. Notwithstanding anything to the contrary in this Section 6.02 or any other Loan Document, none of Borrower or any of its Subsidiaries shall be required to disclose any document, information or other matter (a) that constitutes non-financial trade secrets, (b) in respect of which disclosure to Administrative Agent or any Lending Party (or any of their respective representatives) is prohibited by any Applicable Law or any binding contractual agreement as to confidentiality with a third party or (c) is subject to attorney-client privilege or constitutes attorney work product.

 

Section 6.03.          Notices.

 

Promptly, and in no event more than five Business Days after any Responsible Officer or any other senior executive officer of any Loan Party becomes aware thereof, notify Administrative Agent (which will promptly make such information available to the Lending Parties in accordance with its customary practice) of:

 

(a)             Defaults and Events of Default. The occurrence of any Default or Event of Default;

 

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(b)             Litigation. The (i)(i) institution of any investigation (including in respect of any noncompliance with any applicable Environmental Law or Environmental Permit), litigation, alternative dispute proceeding (including any Insolvency Proceeding) or other similar suit or proceeding (a “Proceeding”) by any Person, including any Governmental Authority, (A)(A) which could reasonably be expected to result, after giving effect to any applicable insurance, in the payment by any Loan Party of more than the Threshold Amount, (B)(B) with respect to which there is a reasonable likelihood of a finding adverse to a Loan Party, which adverse finding, if made, could reasonably be expected to have or result in a Material Adverse Effect, or (C)(C) which seeks in any manner to invalidate any Loan Document or any provision thereof or to otherwise enjoin the performance of any Loan Document or any provision thereof, and (ii)(ii) of any material development in any Proceeding described in the foregoing subclause (i);

 

(c)             ERISA Events. The occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

 

(d)             Change of Control. The occurrence of a Change of Control; and

 

(e)             Material Adverse Effect. Any other event or occurrence (including any event or occurrence with respect to the Collateral) in addition to those listed in clauses (a) through (d) above which has resulted or could reasonably be expected to result in a Material Adverse Effect.

 

Each notice pursuant to this Section 6.03 will be accompanied by a statement of a Responsible Officer of Borrower setting forth details of the occurrence referred to therein and, to the extent applicable, stating what action, if any, Borrower (or the other applicable Person) has taken or proposes to take with respect thereto.

 

Section 6.04.          Preservation of Existence and Entitlements.

 

(a)             Preserve, renew and maintain in full force and effect its respective legal existence and good standing under the Laws of the jurisdiction of its incorporation or formation, as applicable, except (i)(i) in a transaction permitted by Section 7.04 or (ii)(ii) with respect to non-Loan Parties, except to the extent such failure to preserve, renew and maintain its legal existence and good standing could not reasonably be expected to have or result in a Material Adverse Effect;

 

(b)             Take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its respective businesses, except to the extent that the failure to do so could not reasonably be expected to have or result in a Material Adverse Effect; and

 

(c)             Preserve or renew their respective registrations for copyrights, patents, trademarks, service marks, mask works, and domain names, the non-preservation or non-renewal of which could reasonably be expected to have or result in a Material Adverse Effect.

 

Section 6.05.          Maintenance of Properties.

 

Maintain, preserve and protect (or replace in the ordinary course of business) all of their respective material tangible properties and equipment necessary to the operation of its respective businesses in good working order and condition, ordinary wear and tear excepted and subject to the occurrence of casualty or force majeure events, and make all necessary repairs thereto and renewals and replacements thereof, in each case except where the failure to do so could not, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect.

 

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Section 6.06.          Maintenance of Insurance.

 

(a)             Property and Liability Insurance. Maintain or cause to be maintained, with financially sound and reputable insurance companies or other insurers (determined at the time such insurance is obtained, renewed or reissued), such insurance with respect to liabilities, losses or damage in respect of the assets, properties and businesses of the Loan Parties and their Subsidiaries as may customarily be carried or maintained under similar circumstances by companies of similar size engaged in similar businesses and owning similar properties, in each case in such amounts with such deductibles, covering such risks and otherwise on such terms and conditions as will be customary for companies similarly situated in the industry, subject to commercially reasonable and prudent adjustments made by Borrower and its Subsidiaries (determined at the time such insurance is obtained, renewed or reissued). Each such policy of general liability insurance or property insurance covering the Collateral will (i) name Administrative Agent, for the benefit of the Secured Parties, as an additional insured in respect of public liability policies of the Loan Parties and (ii) in the case of each property or casualty insurance policy of the Loan Parties, contain a lender loss payable clause or endorsement, as the case may be, satisfactory to Administrative Agent in its Reasonable Discretion, that names Administrative Agent, for the benefit of the Secured Parties, as the loss lender payee thereunder. Borrower will use commercially reasonable efforts to obtain endorsements to its general liability and property insurance covering the Collateral that provide for at least thirty days (or ten days in the case of nonpayment of premiums) prior written notice to Administrative Agent of any cancellation of such policy. The provisions of this Section 6.06 will be deemed supplemental to, but not duplicative of, the provisions of any Collateral Document that requires the maintenance of insurance.

 

(b)             Flood Insurance. If at any time any real property that is subject to a deed of trust or mortgage securing the Obligations hereunder is located in an area identified as a special flood hazard area by the Federal Emergency Management Agent or any successor thereto, Borrower will, and will cause each of its Subsidiaries, as applicable, to, at all times keep and maintain flood insurance in an amount reasonably satisfactory to Administrative Agent but in no event less than the amount sufficient to comply with the rules and regulations promulgated under the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973 (and any other applicable similar Law).

 

Section 6.07.          Compliance with Laws.

 

Comply in all material respects with the requirements of all applicable Laws and all orders, writs, injunctions and decrees applicable to them or to their respective assets, properties or businesses, and will use and operate all of its facilities and properties in compliance with all applicable Laws and keep all permits, approvals, certificates and other authorizations of Governmental Authorities as is required by applicable Law in effect and remain in compliance therewith, except, in each case, where the failure to comply therewith could not reasonably be expected to have or result in a Material Adverse Effect.

 

Section 6.08.          Books and Records.

 

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Maintain proper books of record and account, in which full, true and correct (in all material respects) entries in conformity with GAAP consistently applied (except as otherwise required by GAAP or as otherwise disclosed in financial statements delivered pursuant to Section 6.01(a) or (b)) are made of all material financial transactions and matters involving its respective properties and businesses.

 

Section 6.09.          Inspection Rights.

 

Permit representatives and independent contractors of Administrative Agent to visit and inspect any of their respective properties, to examine their corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors (solely in their capacity as such) (limited, in the case of directors, to the directors of Restricted Subsidiaries of Borrower), officers, managers and independent public accountants (in which case, so long as no Event of Default has occurred and is continuing at the time of such inspection, representatives of Borrower shall be afforded a reasonable opportunity to attend such inspection and any related discussions), at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to Borrower, and, if an Event of Default has occurred and is continuing at the time of such inspection, Borrower agrees to bear the reasonable and documented out-of-pocket costs and expenses of such visits; provided that, unless an Event of Default has occurred and is continuing, only one such visit and related inspection may occur during any Fiscal Year. Notwithstanding anything to the contrary in this Section 6.09 or any other Loan Document, neither Borrower nor any of its Subsidiaries shall be required to disclose, permit the inspection, examination or making of copies or taking of extracts of, or discussion of, any document, information or other matter (a) that constitutes non-financial trade secrets, (b) in respect of which disclosure to Administrative Agent or any Lending Party (or any of their respective representatives) is prohibited by any Applicable Law or any binding contractual agreement as to confidentiality with a third party or (c) that is subject to attorney-client privilege or constitutes attorney work product.

 

Section 6.10.          Compliance with Environmental Laws.

 

(a)             Compliance with Environmental Laws. Comply with all applicable Environmental Laws, and obtain and comply with and maintain all Environmental Permits required by applicable Environmental Laws, except, in each case, to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(b)             Environmental Investigations. Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under Environmental Laws and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.11.          Covenant to Guarantee Obligations and Give Security.

 

(a)             New or Acquired Subsidiaries. Upon (i)(i) the formation, incorporation or acquisition by any Loan Party of any new direct or indirect Subsidiary, other than any such Subsidiary that constitutes (A)(A) a Foreign Subsidiary, (B)(B) a Domestic Subsidiary that is either a Foreign Subsidiary Holdco or an Exempt Subsidiary or (C)(C) a Subsidiary that otherwise is prohibited by applicable Law existing as of the date such Subsidiary was formed or acquired by Borrower from providing the Guaranty of the Obligations contemplated by Section 10.15 or would require the express consent, approval, license or authorization of a Governmental Authority (including any such regulatory authority) having jurisdiction thereover unless such

 

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express consent, approval, license or authorization has been obtained (any Subsidiary described in any of the preceding subclauses (A) through (C), inclusive, an “Excluded Subsidiary”), or (ii)(ii) the re-designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to Section 2.16, Borrower will (subject to the proviso at the end of this Section 6.11(a)), in each case at Borrower’s expense:

 

(iii)            within twenty Business Days after such formation, incorporation, acquisition or designation (or such longer period as may be agreed by Administrative Agent in its sole discretion), cause such Subsidiary to duly execute and deliver to Administrative Agent a Joinder Agreement in the form attached to this Agreement as Exhibit C pursuant to which such Person is joined to this Agreement and becomes a Guarantor hereunder for all purposes of this Agreement, including Section 10.15, and the other Loan Documents, guaranteeing the other Loan Parties’ Obligations under the Loan Documents;

 

(iv)            subject to clauses (iii) and (iv) below of this Section 6.11(a), within twenty Business Days after such formation, incorporation, acquisition or designation (or such longer period as may be agreed by Administrative Agent in its sole discretion), cause such Subsidiary (and cause each direct parent of such Subsidiary, if it has not already done so) to duly execute and deliver to Administrative Agent such Loan Documents, or joinders, supplements or addenda thereto, as applicable, including a joinder to the Security Agreement (substantially in the form attached as Annex A thereto), as may be deemed necessary or advisable by Administrative Agent, in its Reasonable Discretion, which Loan Documents, including any joinders, supplements or addenda thereto, will be in form and substance satisfactory to Administrative Agent, in its Reasonable Discretion;

 

(v)            within sixty days after such formation, incorporation, acquisition or designation (or such longer period as may be agreed by Administrative Agent in its sole discretion), cause such Subsidiary (and cause each direct parent of such Subsidiary, if it has not already done so) to take whatever action (including providing information needed in connection with the filing of Financing Statements, the delivery of original possessory collateral and the giving of notices) as is required under the Collateral Documents to vest in Administrative Agent valid Liens on and perfected (to the extent required to be perfected under the Collateral Documents) security interests in the properties purported to be subject to the Collateral Documents delivered pursuant to this Section 6.11, in each case enforceable against all third parties in accordance with their terms, subject only to Permitted Liens; and

 

(vi)            in the case of any formation, incorporation, acquisition or designation, if requested by Administrative Agent, in its Reasonable Discretion, within sixty days after such formation or acquisition (or such longer period as may be agreed by Administrative Agent in its sole discretion), deliver to Administrative Agent a favorable opinion, addressed to Administrative Agent and the Lending Parties, of counsel for the Loan Parties as to the matters contained in clauses (i), (ii) and (iii) above, and as to such other matters as Administrative Agent may reasonably request,

 

provided that, notwithstanding the foregoing or anything to the contrary in any Loan Document, and subject to Section 6.11(b), (A)(A) such Person will not be required to execute and deliver a Joinder Agreement to Administrative Agent and thereby become a Guarantor hereunder

 

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or to execute and deliver or otherwise provide the Collateral Documents and other documents contemplated of a new Guarantor under thisSection 6.11(a) if such Person is an Excluded Subsidiary; (B)(B) only 65% of the total combined power of all classes of Equity Interests entitled to vote (within the meaning of Treasury Regulations section 1.956-2(c)(2)) of (1)(1) any first tier Foreign Subsidiary that is a corporation (or treated as such for U.S. federal tax purposes) or (2)(2) any Foreign Subsidiary Holdco, will be required to be pledged to secure the Obligations of Borrower (or the Guaranteed Obligations of any Guarantor) (although 100% of the non-voting Equity Interests of each first tier Foreign Subsidiary or Foreign Subsidiary Holdco described in the preceding subclauses (1) or (2) will be required to be pledged); (C)(C) the Collateral shall not include any Excluded Collateral (as described and defined in the Security Agreement); (D)(D) no control agreements will be required to perfect Administrative Agent’s security interest in any deposit accounts or security accounts (except as requested by Borrower for the purpose of establishing a security interest perfected by control in Consolidated Net Cash in favor of Administrative Agent); (E)(E) no Grant of IP Security Interest or similar document will be required to be recorded with the United States Patent & Trademark Office (other than those recorded prior to the Second Restatement Effective Date pursuant to the First Restated Credit Agreement) other than as is necessary or advisable (as determined by Administrative Agent in its Reasonable Discretion) to perfect Administrative Agent’s security interest in any U.S. copyrights registered after the Second Restatement Effective Date; (F)(F) no Pledged Interest Addendum (as such term is defined in the Security Agreement) will be required to be delivered with respect to Pledged Interests (as such term is defined in the Security Agreement) in any Pledged Company (as such term is defined in the Security Agreement) formed, incorporated or acquired after the Second Restatement Date that is a Limited Pledge Subsidiary or a Limited Pledge Non-Control Investment, nor will any original certificates evidencing such Pledged Interests be required to be delivered as possessory collateral (provided that the Loan Parties shall also be prohibited by the Security Agreement from delivering such original certificates evidencing such Pledged Interests to any other secured creditor for the purpose of serving as possessory collateral).

 

(b)             Foreign Pledge Agreements. Within sixty days (or such longer period as may be agreed by Administrative Agent in its sole discretion), after any request by Administrative Agent, with respect to any Equity Interests in one or more Material First-Tier Foreign Subsidiaries that have been pledged pursuant to the Collateral Documents, if Administrative Agent in its Reasonable Discretion determines (based on advice of local counsel and to the extent legally permitted by the relevant applicable foreign law) that it would be in the interests of the Secured Parties that the respective Loan Party or Loan Parties which own such Equity Interests authorize, execute and deliver one or more additional pledge agreements governed by the laws of the jurisdiction or jurisdictions in which any such Material First-Tier Foreign Subsidiary is organized, then the respective Loan Party or Loan Parties will, subject to local Law limitations, (i) so authorize, execute and deliver one or more such additional pledge agreements (each, a “Foreign Pledge Agreement”), and (ii) take such reasonable actions as may be necessary or desirable under local law (as advised by local counsel) to create, maintain, effect, perfect, preserve, maintain and protect the security interests granted (or purported to be granted) by each such Foreign Pledge Agreement (including the delivery of a favorable opinion, addressed to Administrative Agent and the other Secured Parties, of counsel for the Loan Parties as to such Foreign Pledge Agreement(s)). Each Foreign Pledge Agreement will (A) be prepared by local counsel satisfactory to the Administrative Agent in its Reasonable Discretion and (B) be in form and substance satisfactory to the Administrative Agent in its Reasonable Discretion, it being understood and agreed, however, in the case of any Foreign Pledge Agreement entered into by Borrower or any other Loan Party, the respective Loan Party will not be required to pledge more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of any such Material First-Tier Foreign Subsidiary that is a corporation (or treated as such for U.S.

 

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federal tax purposes) in support of its obligations (x) as Borrower under this Agreement (in the case of the Borrower) or (y) under its Guaranty in respect of the Guaranteed Obligations (in the case of the other Loan Parties) (although 100% of the non-voting Equity Interests, if any, of any such Material First-Tier Foreign Subsidiary will be required to be pledged in support of such obligations). In determining whether to require one or more Foreign Pledge Agreements as permitted above, Administrative Agent will, in its Reasonable Discretion, consider the costs of the actions required in connection with the execution and delivery of the respective Foreign Pledge Agreements as against the relative value of the security interests and additional protection provided thereby.

 

Section 6.12.          Payment of Taxes.

 

Pay and discharge as the same will become due and payable, all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets the failure of which to pay could reasonably be expected to have or result in a Material Adverse Effect, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such Person.

 

Section 6.13.          Environmental Matters.

 

(a)             Comply with all applicable Environmental Laws, and obtain and comply with and maintain all Environmental Permits required by applicable Environmental Laws, except, in each case, to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

(b)             Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under applicable Environmental Laws and Environmental Permits, and promptly comply with all lawful orders and directives of all Governmental Authorities regarding Environmental Laws, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.14.          Post-Closing Matters.

 

Execute and deliver the documents and complete the tasks expressed on Schedule 6.14 in each instance within the time limits specified on such Schedule.

 

Section 6.15.          Further Assurances.

 

In addition to the obligations and documents which this Agreement expressly requires that any Loan Party or any Restricted Subsidiary thereof execute, acknowledge, deliver and perform, each Loan Party will execute and acknowledge (or cause to be executed and acknowledged) and deliver to Administrative Agent all documents, and take all actions, that may be reasonably requested by Administrative Agent from time to time hereunder to confirm the rights created or now or hereafter intended to be created under the Loan Documents, to protect and further the validity, extent, priority and enforceability of the Liens created under the Collateral Documents, to subject to the Liens created under the Collateral Documents any property or assets intended by the terms of any Loan Document to be covered by the Collateral Documents, or otherwise to carry out the purposes of the Loan Documents and the transactions contemplated hereunder and thereunder.

 

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Article 7
Negative Covenants

 

Until the Commitments shall have expired or been terminated, the principal of and interest on each Loan and all fees, expenses and other amounts (other than under Secured Swap Obligations, Secured Cash Management Obligations and contingent amounts not yet due) under any Loan Document have been paid in full in cash and all Credits have expired or been terminated and the Unreimbursed Amount of all Credit Borrowings shall have been reimbursed (unless the outstanding amount of the Obligations in respect of any Credits related thereto has been cash collateralized or a backstop letter of credit reasonably satisfactory to the applicable L/C Issuer is in place), each Loan Party hereto covenants and agrees with the Lenders that it will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly, to:

 

Section 7.01.          Liens.

 

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than any of the following (collectively, “Permitted Liens”):

 

(a)             Liens created under any Collateral Document securing the Obligations for the benefit of the Secured Parties;

 

(b)             (i) Liens granted in the ordinary course of business on the unearned portion of insurance premiums securing the financing of insurance premiums to the extent the financing is permitted under Section 7.03 and (ii) deposits in the ordinary course of business securing liability for reimbursement obligations of insurance carriers providing insurance to Borrower or any of its Subsidiaries;

 

(c)             Liens existing on the date hereof and listed on Schedule 7.01 and any renewals, extensions or replacements thereof; provided that the outstanding or committed principal amount secured or benefited thereby is not increased (except by the amount of any accrued and unpaid interest and premium thereon and underwriting discounts, defeasance costs, fees, commissions and expenses related thereto and any unutilized commitments thereunder);

 

(d)             Liens for tax liabilities, fees, assessments and other governmental charges or levies not yet delinquent or remaining payable without penalty or to the extent that non-payment thereof is permitted by Section 6.12; provided that no notice of lien has been filed or recorded under the Code asserting delinquent Taxes owing of $1,000,000 or more, which notice has not been expunged from the applicable public record (or otherwise terminated or released) within five Business Days after the earlier of (i) the date on which a Responsible Officer of any Loan Party becomes aware of such filing or recordation of the notice of lien or (ii) the date on which notice thereof is given to a Loan Party by Administrative Agent or any Lending Party;

 

(e)             Landlord’s, grower’s, supplier’s, producer’s, carrier’s, warehouseman’s, mechanic’s, materialman’s, repairman’s or other like Liens (whether arising by operation of law, contract or otherwise) arising in the ordinary course of business and which in the aggregate at any one time do not materially detract from the value of the Collateral, taken as a whole, or materially impair the use thereof in the operation of the business of the Loan Parties as a whole (or that are being contested in good faith and by appropriate proceedings timely instituted and diligently conducted, if adequate reserves with respect thereto, if any, in accordance with GAAP are set aside on the financial statements of the applicable Person);

 

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(f)            pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

 

(g)             deposits to secure the performance of bids, trade contracts or leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature, in each case incurred in the ordinary course of business;

 

(h)             zoning, building and other land use restrictions, easements, rights-of-way, covenants, restrictions and other similar encumbrances incurred in the ordinary course of business which do not in any case materially detract from the value of the real property subject thereto or materially interfere with the ordinary conduct of the business of Borrower and its Restricted Subsidiaries;

 

(i)            Liens securing Indebtedness permitted under Section 7.03(g) (and extension, renewal and replacement Liens upon the same property); provided that (i)(i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, improvements thereto and proceeds thereof, (ii)(ii) the principal amount of Indebtedness secured thereby does not exceed the cost of acquiring, constructing and/or improving such property (including interest during construction) and (iii)(iii) such security interests and the Indebtedness secured thereby are incurred and attach prior to or within one hundred-eighty days after such acquisition or the completion of such construction or improvement;

 

(j)            rights of a licensor or sublicensor under any license agreement (or other license or grant of rights to use) for the use of intellectual property or other intangible assets as to which any Loan Party or any of its Restricted Subsidiaries is the licensee or sublicensee, as applicable;

 

(k)             rights of a licensee or sublicensee under any license agreement (or other license or grant of rights to use) for the use of intellectual property or other intangible assets of (or licensed to) any Loan Party or any of its Restricted Subsidiaries as to which such Loan Party or other Restricted Subsidiary is the licensor or sublicensor, as applicable;

 

(l)            leases or subleases granted to others in the ordinary course of business;

 

(m)             interests or title of a lessor or sublessor under an operating lease;

 

(n)             Liens securing a judgment for the payment of money not constituting an Event of Default under Section 8.01(h) or securing an appeal or other surety bond related to any such judgment;

 

(o)             Liens arising by virtue of any contractual, statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit or security accounts or other funds or financial assets maintained with a creditor depository institution or securities intermediary; provided that such deposit account is not a dedicated cash collateral account in favor of such depository institution and the primary purpose of which is not to provide collateral security (other than for customary account commissions, fees and reimbursable expenses relating solely to such deposit account, and for returned items);

 

(p)             Liens existing on any property or assets of a Person prior to the Acquisition thereof by any Loan Party or any Restricted Subsidiary thereof or existing on any property or asset of any

 

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Person that thereafter becomes a Restricted Subsidiary of Borrower after the Second Restatement Effective Date (and extension, renewal and replacement Liens upon the same property); provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary of Borrower; (ii) such Lien does not extend or attach (including by being in the nature of a floating Lien) to any other property of any Loan Party or any of its Restricted Subsidiaries following such Acquisition other than, if required by terms of the instrument originally creating such Lien, other property which is an improvement to or is acquired for specific use in connection with such acquired property; and (iii) such Lien will secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary of Borrower, and extensions, refinancings, renewals and replacements thereof, provided that (A) the outstanding principal amount secured or benefited thereby is not increased (except by the amount of any accrued and unpaid interest and premium thereon and underwriting discounts, defeasance costs, fees, commissions and expenses related thereto and any unutilized commitments thereunder) and (B) if such Lien secures Indebtedness, the Indebtedness secured or benefited thereby (including any such extension, renewal or replacement) is permitted by Section 7.03(f) or (g);

 

(q)             Liens securing Indebtedness permitted under Section 7.03(e) (provided that the counterparty to any such permitted Swap Contract is a Hedge Bank);

 

(r)            Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Loan Party or any Restricted Subsidiary thereof in the ordinary course of business to the extent such Liens do not attach to any assets other than the goods subject to such arrangements and the proceeds thereof;

 

(s)             Liens deemed to exist in connection with repurchase agreements permitted under the definition of “Cash Equivalents” set forth in Section 1.01;

 

(t)            real estate security deposits with respect to leaseholds in the ordinary course of business;

 

(u)             interests of any collection agency in accounts receivable assigned to it by the Borrower or any Restricted Subsidiary in the ordinary course of business for the purpose of facilitating the collection of such accounts receivable;

 

(v)             Liens in favor of customs and revenues authorities arising as a matter of law which secure payment of customs duties in connection with the importation of goods;

 

(w)             reservations by vendors of security interests in the ordinary course of business pursuant to Section 2-401(1) of the Uniform Commercial Code as in effect in the applicable jurisdiction;

 

(x)             Permitted Encumbrances;

 

(y)             Liens on earnest money deposits made in connection with any agreement in respect of an anticipated Permitted Acquisition;

 

(z)             Liens not otherwise permitted under this Section 7.01, provided that the obligations secured by such other Liens will not exceed $25,000,000 in the aggregate at any time outstanding; and

 

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(aa)            to the extent constituting Liens on the assets of Borrower or any of its Restricted Subsidiaries, Liens incurred in connection with Defeased Debt, which Liens attach only to the Refinancing Proceeds deposited in a trust or escrow account in connection with such Defeased Debt.; and

 

(bb)             Liens on the Collateral securing Indebtedness permitted under Section 7.03(r); provided that, (i) any such Liens on the Collateral are pari passu or junior to the Liens on the Collateral securing the Obligations, (ii) in the case of Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement and (iii) in the case of Liens on the Collateral that are (or are intended to be) junior in priority to the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Junior Intercreditor Agreement.

 

Section 7.02.          Investments.

 

Except as may be permitted by Section 7.04, make any Acquisition, or make, purchase or acquire any Investment, except for:

 

(a)             Investments in Cash and Cash Equivalents;

 

(b)             Investments to the extent constituting Permitted Acquisitions;

 

(c)             Guaranties constituting Indebtedness to the extent permitted by Section 7.03;

 

(d)             (i)(i) Investments in any Loan Party by Borrower or any of its Subsidiaries, (ii)(ii) Investments by Borrower or any other Loan Party in any Foreign Subsidiary or any Foreign Subsidiary Holdco (including, (A) making capital contributions to Foreign Subsidiaries or Foreign Subsidiary Holdcos, and capitalizing or forgiving any Indebtedness owed to them by a Foreign Subsidiary or a Foreign Subsidiary Holdco and permitted by Section 7.03(i), (B) all Guarantees by Loan Parties of the obligations of Foreign Subsidiaries permitted by Section 7.03(d) and (C) all Dispositions by Loan Parties to Foreign Subsidiaries and Foreign Subsidiary Holdcos (net of the fair value of all Cash or non-Cash consideration received by the Loan Parties from Foreign Subsidiaries and Foreign Subsidiary Holdcos in respect of such Dispositions), (iii)(iii) Investments by any Loan Party in any Domestic Subsidiary that is not a Loan Party, (iv)(iv) Investments by Domestic Subsidiary that is not a Loan Party or a Foreign Subsidiary Holdco in any other Domestic Subsidiary that is not a Loan Party or a Foreign Subsidiary Holdco, and (v)(v) Investments by any Foreign Subsidiary or Foreign Subsidiary Holdco in any other Foreign Subsidiary or Foreign Subsidiary Holdco; provided that (x) as calculated without duplication, the amount of all outstanding Investments made since the Second Restatement Effective Date pursuant to the preceding clause (ii) will not exceed, in the aggregate, $50,000,000 (the amount of such outstanding Investments to be determined without regard to any write-downs or write-offs thereof (provided that the outstanding amount of all such Investments shall be reduced by (aa) Cash payments of principal, interest and other obligations or amounts (other than indemnification payments and reimbursements for disbursements) thereon in the case of loans or advances, (bb) sale proceeds with respect thereto in the case of Dispositions of Investments, (cc) cash equity returns, Dividends and other comparable payments in the case of equity investments and (dd) cancellation or termination of obligations under the applicable Guaranty in the case of Investments in the form of Guaranties), (y) no Investment may be made pursuant to the preceding clauses (ii) and (iii) above at any time that a Default or an Event of Default has occurred and its continuing and (z) Investments made pursuant to the preceding clauses (iii) and (iv) shall also be subject to Section 2.16 and the proviso of the definition of “Non-Exempt Subsidiary” in Section 1.01, in each case as applicable;

 

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(e)              

 

(e) [Reserved];

 

(f)            the purchase of any Permitted Bond Hedge Transaction by Borrower and the performance of its obligations thereunder;

 

(g)             Investments in the form of loans and advances to employees of Borrower and its Restricted Subsidiaries (including the acquisition and holding of obligations of such employees in connection with such employees’ acquisition of shares of the common Equity Interests of Borrower (so long as no Cash is actually advanced by Borrower or any of its Restricted Subsidiaries in connection with the acquisition of such obligations)); provided that with respect to any loans or advances for moving, relocation and travel expenses and other similar expenditures, all such loans or advances will not exceed an aggregate principal amount of $2,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances);

 

(h)             Swap Contracts to the extent permitted by Section 7.03(e);

 

(i)            Investments existing on the Second Restatement Effective Date and set forth on Schedule 7.02 and any modification, replacement, renewal or extension thereof to the extent not involving an additional Investment;

 

(j)            Investments arising from transactions by Borrower or any of its Restricted Subsidiaries with customers or suppliers in the ordinary course of business, including Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers and suppliers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business;

 

(k)             Investments constituting Capital Expenditures;

 

(l)            Investments constituting extensions of trade credit (including in the form of accounts receivable) in the ordinary course of business;

 

(m)             Investments constituting prepaid expenses, negotiable instruments held for collection and lease, utility and workers’ compensation, performance and other similar deposits provided to third parties, in each case, in the ordinary course of business;

 

(n)             promissory notes and other non-Cash consideration received in connection with Dispositions permitted by this Agreement;

 

(o)             Investments contemplated by Sections 7.04(a), 7.04(d) and 7.04(e);

 

(p)             Investments in Foreign Subsidiaries by Borrower or any other Loan Party made solely with (i) the Net Cash Proceeds received by Borrower from the incurrence of Specified Permitted Indebtedness, (ii) the proceeds of any Loans made hereunder (including Incremental Term Loans and Additional Revolving Credit Loans) or (iii) Net Equity Proceeds utilizing the Net Equity Proceeds Amount as in effect immediately prior to the respective Investment, provided that, in each case, (A) no Default or Event of Default has occurred and is continuing or would result from the making of such Investment and (B) the proceeds of such Investment are immediately used by the respective wholly-owned Foreign Subsidiary to consummate a Permitted Acquisition;

 

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(q)             In addition to Investments permitted by Sections 7.02(a) through 7.02(o), so long as no Default or Event of Default has occurred and is continuing or would result from the making of such Investment, Borrower and its Restricted Subsidiaries may make additional Investments in any Person in an aggregate amount for all such Investments made pursuant to this Section 7.02(p) (determined without regard to any write-downs or write-offs thereof), net of Cash payments of principal, interest or other obligations in the case of loans or advances, sale proceeds in the case of Dispositions of Investments, cash equity returns or amounts received in respect of cash equity (whether as a Dividend, redemption or sale) in the case of equity investments and cancellation or termination of obligations under guarantees in the case of Indebtedness in the form of guarantees, not to exceed $75,000,000;

 

(r)            In addition to Investments permitted by Sections 7.02(a) through 7.02(p), Borrower and its Restricted Subsidiaries may make additional Investments in any Person); provided that (i) no Default or Event of Default has occurred and is continuing at the time of the making of such Investment or would result therefrom, (ii) after giving effect to the making of such Investment, the Minimum Liquidity Condition is satisfied, and (iii) Borrower will be in compliance with the financial covenants set forth in Section 7.15, for the Test Period ended as of the last day of the Test Period immediately preceding the making of such Investment for which financial statements have been delivered in accordance with Section 6.01, on a pro forma basis after giving effect to the making of such Investment (but assuming, for purposes of determining pro forma compliance with Section 7.15(a) for such Test Period, that the maximum Consolidated Leverage Ratio permitted pursuant to Section 7.15(a) for such Test Period was 0.25 less than the maximum Consolidated Leverage Ratio set forth in Section 7.15(a) corresponding to such Test Period (without giving effect to any permitted increase to such maximum Consolidated Leverage Ratio corresponding to such Test Period as the result of the prior consummation of a Permitted Acquisition); and

 

(s)             Investments of any Person existing at the time such Person becomes a Restricted Subsidiary of Borrower or consolidates or merges with Borrower or any of its Restricted Subsidiaries (including in connection with a Permitted Acquisition) and any modification, replacement, renewal or extension thereof to the extent not involving an additional Investment so long as such Investments were not made in contemplation of such Person becoming a Restricted Subsidiary of Borrower of such consolidation or merger.; and

 

(t)            the Sunrise Acquisition.

 

Section 7.03.          Indebtedness.

 

Create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:

 

(a)             Indebtedness under this Agreement and the other Loan Documents;

 

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(b)             unsecured Indebtedness incurred by Borrower, which may be guaranteed on an unsecured basis by the Guarantors so long as (i)(i) no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, (ii)(ii) Borrower will be in compliance with the financial covenants set forth in Section 7.15, for the Test Period ended as of the last day of the Test Period immediately preceding the incurrence of such Indebtedness for which financial statements have been delivered in accordance with Section 6.01, on a pro forma basis after giving effect to the incurrence of such Indebtedness (but assuming, for purposes of determining pro forma compliance with Section 7.15(a) for such Test Period, that the maximum Consolidated Leverage Ratio permitted pursuant to Section 7.15(a) for such Test Period was 0.25 less than the maximum Consolidated Leverage Ratio set forth in