UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
Amendment to Term Loan Facility.
On February 14, 2020, Floor and Decor Outlets of America, Inc. (“F&D”), a wholly-owned subsidiary of Floor & Decor Holdings, Inc. (the “Company”), refinanced its senior secured term loan credit facility by entering into a repricing and general amendment, among F&D, the other loan parties party thereto, the lenders party thereto, and UBS AG, Stamford Branch as the administrative agent and collateral agent (as amended, the “Amended Term Loan Facility”). The Amended Term Loan Facility, among other things, (a) refinanced F&D’s existing term loan facility with a new term loan facility in the aggregate principal amount of $144.625 million, and (b) extended the stated maturity date under the Amended Term Loan Facility to February 14, 2027. The Amended Term Loan Facility also includes an “accordion” feature that allows F&D, under certain circumstances, to increase the size of the facility by an amount up to the greater of $270 million or 100% of Consolidated EBITDA (as defined in the Amended Term Loan Facility), subject to certain additional adjustments.
The Amended Term Loan Facility also amended the margin applied to loans to (x) in the case of ABR Loans (as defined in the Amended Term Loan Facility), from 1.75% or 1.50% per annum (based on credit rating tests) to 1.00% per annum (subject to a leverage-based step-up to 1.25% if F&D exceeds certain leverage ratio tests), and (y) in the case of Eurodollar Loans (as defined in the Amended Term Loan Facility), from 2.75% or 2.50% per annum (based on credit rating tests) to 2.00% per annum (subject to a leverage-based step-up to 2.25% if F&D exceeds certain leverage ratio tests) (subject to a 0.00% floor on Eurodollar Loans).
The indebtedness outstanding under the Amended Term Loan Facility continues to be secured by substantially all of F&D’s assets and guaranteed by F&D’s U.S. subsidiaries. In particular, the indebtedness outstanding under the Amended Term Loan Facility is secured by a first-priority security interest in all of F&D’s fixed assets and intellectual property, and a second-priority interest in the collateral that secures the Amended ABL Facility (as defined below) on a first-priority basis.
Under the Amended Term Loan Facility, F&D has made certain representations and warranties and is required to comply with various covenants, reporting requirements and other customary requirements for similar credit facilities, including covenants related to: (a) limitations on the incurrence of additional indebtedness and liens; (b) limitations on the payment of dividends and certain other restricted payments; (c) limitations on the ability to effect mergers or consolidations; (d) limitations on the ability to enter into transactions with affiliates; (e) limitations on the ability to sell or dispose of property or assets; and (f) limitations on the ability to engage in unrelated lines of business. The Amended Term Loan Facility also continues to include usual and customary events of default for senior secured credit facilities of this nature.
Certain parties to the Amended Term Loan Facility, and affiliates of those parties, provide banking, investment banking and other financial services to the Company and its subsidiaries from time to time. The description above is only a summary of the material provisions of the Amended Term Loan Facility and is qualified in its entirety by reference to a copy of the Amended Term Loan Facility, which is filed as Exhibit 10.1 to this current report on Form 8-K and incorporated by reference herein.
Amendment to ABL Facility.
On February 14, 2020, F&D refinanced its senior secured revolving credit facility by entering into a repricing and general amendment, among F&D, the other loan parties party thereto, the lenders party thereto, and Wells Fargo Bank, National Association as the administrative agent and collateral agent (as amended, the “Amended ABL Facility”). The Amended ABL Facility, among other things, (a) increased F&D’s revolving commitments to a total aggregate principal amount of $400 million, and (b) extended the stated maturity date under the Amended ABL Facility to February 14, 2025. The Amended ABL Facility also includes an “accordion” feature that allows F&D, under certain circumstances, to increase the size of the facility by an amount up to $100 million, or such higher amount as may be agreed to by the Required Lenders (as defined in the Amended ABL Facility).
The Amended ABL Facility also amended the margin applied to loans and letters of credit to (x) in the case of Base Rate Loans (as defined in the Amended ABL Facility), from 0.25% or 0.50% per annum (based on availability) to a flat rate of 0.25% per annum, (y) in the case of LIBO Rate Loans and Letter of Credit Fees for Standby Letters of Credit (each capitalized term as defined in the Amended ABL Facility), from 1.25% or 1.50% per annum (based on availability) to a flat rate of 1.25% per annum (subject to a 0.00% floor on LIBO Rate Loans) and (z) in the case of Letter of Credit Fees for Commercial Letters of Credit (each capitalized term as defined in the Amended ABL Facility), from 0.75% or 1.00% per annum (based on availability) to a flat rate of 0.75% per annum.
The indebtedness outstanding under the Amended ABL Facility continues to be secured by substantially all of F&D’ assets and guaranteed by F&D’s U.S. subsidiaries. In particular, the indebtedness outstanding under the Amended ABL Facility is secured by a first-priority security interest in all of F&D’s current assets, including inventory and accounts receivable, and a second-priority security interest in the collateral that secures the Amended Term Loan Facility on a first-priority basis.
Under the Amended ABL Facility, F&D has made certain representations and warranties and is required to comply with various covenants, reporting requirements and other customary requirements for similar credit facilities, including covenants related to: (a) limitations on the incurrence of additional indebtedness and liens; (b) limitations on the payment of dividends and certain other restricted payments; (c) limitations on the ability to effect mergers or consolidations; (d) limitations on the ability to enter into transactions with affiliates; (e) limitations on the ability to sell or dispose of property or assets; (f) limitations on the ability to engage in unrelated lines of business; and (g) certain financial tests. The Amended ABL Facility also continues to include usual and customary events of default for senior secured credit facilities of this nature.
Certain parties to the Amended ABL Facility, and affiliates of those parties, provide banking, investment banking and other financial services to the Company and its subsidiaries from time to time. The description above is only a summary of the material provisions of the Amended ABL Facility and is qualified in its entirety by reference to a copy of the Amended ABL Facility, which is filed as Exhibit 10.2 to this current report on Form 8-K and incorporated by reference herein.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of Registrant.
The information contained in Item 1.01 to this current report on Form 8-K is by this reference incorporated in this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits:
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.
| FLOOR & DECOR HOLDINGS, INC. | ||
| Date: February 19, 2020 | By: | /s/ David V. Christopherson |
| Name: | David V. Christopherson | |
| Title: | Executive Vice President, General Counsel, and Secretary | |
Exhibit 10.1
Execution Version
AMENDMENT NO. 3 TO CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SECURITY AGREEMENT
AMENDMENT NO. 3 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO SECURITY AGREEMENT, dated as of February 14, 2020 (this “Amendment”), is entered into by and among FDO ACQUISITION CORP., a Delaware corporation (“Holdings”), FLOOR AND DECOR OUTLETS OF AMERICA, INC., a Delaware corporation (the “Borrower”), FD SALES COMPANY LLC, a Delaware limited liability company (“FD Sales” and, collectively with Holdings and the Borrower, the “Companies” and each, a “Company”), UBS AG, STAMFORD BRANCH, as administrative agent for the lenders under the Existing Credit Agreement (defined below), each person set forth on Schedule 2.01(a) hereto (each a “Replacement Term B-3 Lender”) and each of the undersigned banks and other financial institutions and the other Lenders party hereto.
PRELIMINARY STATEMENTS:
WHEREAS, the Companies, the Administrative Agent, the Lenders and the other parties thereto entered into (i) that certain Credit Agreement, dated as of September 30, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, including by Amendment No. 1 to Credit Agreement, dated as of March 31, 2017 and by Amendment No. 2 to Credit Agreement, dated as of November 22, 2017, the “Existing Credit Agreement” and, as further amended pursuant to this Amendment, the “Amended Credit Agreement”) and (ii) that certain Security Agreement, dated as of September 30, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Security Agreement” and, as further amended pursuant to this Amendment, the “Amended Security Agreement”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement or the Amended Security Agreement, as the context may require.
WHEREAS, pursuant to Section 2.11 of the Existing Credit Agreement, the Borrower has requested a new term loan facility in an aggregate amount sufficient to refinance all of its outstanding Initial Term Loans upon the terms and subject to the conditions set forth therein;
WHEREAS, each Replacement Term B-3 Lender has agreed, upon the terms and subject to the conditions set forth herein, to make its Replacement Term B-3 Loans (as defined below) in an aggregate principal amount not to exceed the amount set forth opposite such Replacement Term B-3 Lender’s name under the heading “Replacement Term B-3 Loan Commitment” on Schedule 2.01(a) hereto (as to each such Replacement Term B-3 Lender, its “Replacement Term B-3 Commitment”, and the term loans made by each Replacement Term B-3 Lender in respect thereof, “Replacement Term B-3 Loans”);
WHEREAS, the proceeds of the Replacement Term B-3 Loans will be used by the Borrower, to repay in full the outstanding principal amount of the Initial Term Loans, together with a portion of the accrued but unpaid interest, fees and expenses in connection therewith;
WHEREAS, upon the Third Amendment Effective Date (as defined below), each existing Lender of Initial Term Loans under the Existing Credit Agreement that executes and delivers a signature page to this Amendment in the form of the Lender Consent attached to the Election Notice Memorandum posted on LendAmend.com on February 3, 2020 (a “Consent”) electing the “Consent and Cashless Settlement Option” or the “Consent and Assignment Settlement Option” (such consenting Lender, an “Exchanging Term Lender”) shall be deemed to have consented to the Replacement Amendments (as defined below) and, on the Third Amendment Effective Date, shall be deemed to have exchanged all (or such lesser amount as UBS Securities LLC shall allocate) of such Initial Term Loans (which Initial Term Loans shall thereafter no longer be deemed to be outstanding) for Replacement Term B-3 Loans in the same aggregate principal amount as such Lender’s Initial Term Loans as in effect immediately prior to the Third Amendment Effective Date (or such lesser amount as UBS Securities LLC shall allocate) (such loans, the “Exchanged Loans”), and such Lender shall thereafter be a Replacement Term B-3 Lender under the Amended Credit Agreement;
WHEREAS, upon the Third Amendment Effective Date, (i) each existing Lender of Initial Term Loans under the Existing Credit Agreement that is not an Exchanging Term Lender shall have its Initial Term Loans prepaid in full in accordance with the terms of the Existing Credit Agreement with the proceeds of Replacement Term B-3 Loans, (ii) each Exchanging Term Lender that is allocated an aggregate principal amount of Replacement Term B-3 Loans that is less than the aggregate principal amount of its Initial Term Loans under the Existing Credit Agreement shall have its remaining Initial Term Loans (after giving effect to its acquisition of Replacement Term B-3 Loans in exchange for Initial Term Loans) prepaid in full in accordance with the terms of the Existing Credit Agreement with the proceeds of Replacement Term B-3 Loans, and (iii) all Initial Term Loans under the Existing Credit Agreement so prepaid shall thereafter be deemed to be no longer outstanding; and
WHEREAS, the Companies, the Lenders party hereto and the Administrative Agent have agreed to amend the Existing Credit Agreement and the Existing Security Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Replacement Term B-3 Loans.
(a) Subject to the terms and conditions set forth herein, each of the Replacement Term B-3 Lenders hereby (i) commits to provide Replacement Term B-3 Loans to the Borrower in the amount of its Replacement Term B-3 Commitment and (ii) agrees, on the Third Amendment Effective Date, to fund Replacement Term B-3 Loans to the Borrower in the amount of its Replacement Term B-3 Commitment, after which such commitment shall terminate immediately and without further action.
(b) The amendments set forth in this Section 1 (the “Replacement Amendments”) constitute a “Specified Refinancing Amendment” with respect to the establishment of the Replacement Term B-3 Commitments and the Replacement Term B-3 Loans as “Specified Refinancing Term Loans.” Each Replacement Term B-3 Loan constitutes a “Specified Refinancing Term Loan” incurred in accordance with Section 2.11 of the Existing Credit Agreement.
(c) With effect from the Third Amendment Effective Date, the Replacement Term B-3 Loans shall be “Term Loans” and “Initial Term Loans” and each Replacement Term B-3 Lender shall be a Lender with outstanding Initial Term Loans.
(d) The Replacement Term B-3 Loans shall be subject to the provisions, including any provisions restricting the rights, or regarding the obligations, of the Loan Parties or any provisions regarding the rights of the Lenders, of the Amended Credit Agreement and the other Loan Documents and shall have an initial Interest Period as set forth in the notice of borrowing relating thereto.
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(e) The Borrower shall use the proceeds of the Replacement Term B-3 Loans as set forth in the recitals to this Amendment.
SECTION 2.
Amendments to Existing Credit Agreement. The Existing Credit Agreement is, effective as of the Third Amendment Effective
Date and subject to the satisfaction of the conditions precedent set forth in Section 5, hereby amended to (i) delete the stricken
text (indicated textually in the same manner as the following example: stricken text)
and (ii) 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 Amended Credit Agreement attached as Annex A hereto. The Existing Credit
Agreement is further amended by inserting as part of Schedule A thereto, Schedule 2.01(a) attached hereto. Such deletions
and additions are inclusive of the amendments previously made in Amendment No. 1 to Credit Agreement and Amendment No. 2 to Credit
Agreement.
SECTION 3. Amendments to Existing Security Agreement. Section 1.1 of the Existing Security Agreement is, effective as of the Third Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 5, hereby amended as follows:
(a) Clause (c) of the definition of “Excluded Property” shall be amended in its entirety to read:
“(c) any fee interest in owned real property (including Fixtures related thereto) (x) if the fair market value of such fee interest is less than $20,250,000 individually or (y) that is subject to Indebtedness permitted pursuant to Section 8.1(b)(xviii) of the Credit Agreement.”
SECTION 4. Reference to and Effect on the Loan Documents.
(a) This Amendment shall constitute a Loan Document for purposes of the Amended Credit Agreement and the other Loan Documents, and on and after the Third Amendment Effective Date, (i) each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Amended Credit Agreement and (ii) each reference in the Amended Security Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Security Agreement, and each reference in the other Loan Documents to “the Security Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Security Agreement, shall mean and be a reference to the Amended Security Agreement.
(b) The Existing Credit Agreement and the Existing Security Agreement, as specifically amended by this Amendment, and the other Loan Documents are, and shall continue to be, in full force and effect, and are hereby in all respects ratified and confirmed. The parties hereto hereby acknowledge and confirm that the Replacement Term B-3 Loans and all obligations related thereto are, and continue to be, subject to the ABL/Term Loan Intercreditor Agreement.
(c) Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement, Amended Security Agreement or any other Loan Document, nor shall it constitute a waiver of any provision of the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement, Amended Security Agreement or any Loan Document.
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(d) Each of the Guarantors hereby consents to the amendments to the Existing Credit Agreement and the Existing Security Agreement effected hereby, and hereby confirms, acknowledges and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of such Guarantor contained in any of the Loan Documents to which it is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in all respects. Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection, priority or continuation of the security interests in, security titles to or other Liens on any Collateral for the Obligations. Each of the Companies hereby confirms, acknowledges and agrees that (i) the pledge and security interest in the Collateral granted by it pursuant to the Security Documents (including the Existing Security Agreement as amended by this Amendment) to which it is a party shall continue in full force and effect and (ii) such pledge and security interest in the Collateral granted by it pursuant to such Security Documents shall continue to secure the Obligations purported to be secured thereby, as amended or otherwise affected hereby.
(e) The parties hereto hereby consent to the incurrence of the Replacement Term B-3 Loans upon the terms and subject to the conditions set forth herein. Upon the Third Amendment Effective Date, (i) all conditions and requirements set forth in the Existing Credit Agreement, Amended Credit Agreement or the other Loan Documents relating to the effectiveness of this Amendment shall be deemed satisfied, (ii) all conditions and requirements set forth in the Existing Credit Agreement, Amended Credit Agreement or the other Loan Documents relating to the incurrence of the Replacement Term B-3 Loans shall be deemed satisfied and (iii) the incurrence of the Replacement Term B-3 Loans shall be deemed arranged and consummated in accordance with the terms of the Existing Credit Agreement, Amended Credit Agreement and the other Loan Documents.
SECTION 5. Conditions to Effectiveness. This Amendment shall become effective as of the date (the “Third Amendment Effective Date”) on which the following conditions shall have been satisfied (or waived):
(a) Execution. The Administrative Agent shall have received counterparts of this Amendment executed by the Companies, the Lenders and the Replacement Term B-3 Lenders.
(b) ABL Amendment. The amendment to that certain Amended and Restated Credit Agreement, dated as of September 30, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”) extending the maturity date therein to February 14, 2025 shall have been executed substantially simultaneously with this Amendment.
(c) Fees and Expenses. The Borrower shall have paid all reasonable, documented and invoiced out-of-pocket expenses of the Lead Arrangers (including the reasonable fees, disbursements and other charges of Latham & Watkins LLP, counsel to the Lead Arrangers) incurred in connection with the preparation and negotiation of this Amendment.
(d) Interest on Initial Term Loans. The Borrower shall have paid all accrued and unpaid interest on the Initial Term Loans through the Third Amendment Effective Date; provided that, notwithstanding anything herein or in the Existing Credit Agreement to the contrary, in no event shall the Companies be liable to any Replacement Term B-3 Lender for amounts owing under Section 4.12 of the Existing Credit Agreement in connection with the prepayment of outstanding Indebtedness pursuant to the transactions contemplated by this Amendment.
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(e) Notice of Borrowing. The Administrative Agent shall have received any required notice of borrowing of Replacement Term B-3 Loans pursuant to Subsection 6.2(a) of the Existing Credit Agreement.
(f) Officer’s Certificate. The Administrative Agent shall have received a certificate, dated the Third Amendment Effective Date and signed by a Responsible Officer of the Borrower, certifying on behalf of the Borrower that (i) the representations and warranties made by the Loan Parties in Section 6 hereof are true and correct on the Third Amendment Effective Date and (ii) as of the Third Amendment Effective Date and immediately after giving effect to the transactions contemplated by this Amendment, no Default or Event of Default shall have occurred and be continuing.
(g) Legal Opinion. The Administrative Agent shall have received a customary written opinion, dated as of the Third Amendment Effective Date, of Kirkland & Ellis LLP, in its capacity as special counsel for the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent.
(h) Secretary’s Certificate and Good Standing Certificates. The Administrative Agent shall have received (i) a certificate from the Borrower and each other Loan Party, dated as of the Third Amendment Effective Date, substantially in the form of Exhibit F of the Existing Credit Agreement, executed by a Responsible Officer and the secretary or any assistant secretary or other authorized representative of such Loan Party, with appropriate insertions and attachments of resolutions or other actions, evidence of incumbency and the signature of authorized signatories and Organizational Documents, which shall include a true and complete copy of resolutions or written consents of the shareholders or board of directors or other governing body of each Loan Party, as the case may be, authorizing the execution, delivery and performance of this Amendment and (ii) good standing certificates for each Loan Party certified by the secretary of state or other proper Governmental Authority of the jurisdiction of organization of such Loan Party.
(i) Payment of Fees. The Lead Arrangers and Replacement Term B-3 Lenders shall have received all fees and other amounts due and payable to them on or prior to the Third Amendment Effective Date pursuant to this Agreement and that certain Engagement Letter, dated as of January 28, 2020, by and among the Borrower and the Lead Arrangers and that certain Agent Fee Letter, dated as of January 28, 2020 in the amounts and at the times so specified.
(j) Consent Fee. Each Exchanging Term Lender that executes a counterpart hereof and returns such counterpart to the Administrative Agent prior to 5:00 p.m., New York time, on February 12, 2020, shall be entitled to a consent fee (collectively, the “Consent Fees”) payable upon the Third Amendment Effective Date equal to 0.25% of the sum of its Exchanged Loans, in each case, as calculated on the Third Amendment Effective Date. The Consent Fees payable under this Section 5 to each Exchanging Lender shall be paid in immediately available funds to the Administrative Agent for the account of such Exchanging Lender, and, once paid, shall not be refundable under any circumstances.
(k) KYC. The Administrative Agent shall have received at least two days prior to the Third Amendment Effective Date all documentation and other information about the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), that has been requested in writing at least 5 days prior to the Third Amendment Effective Date.
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SECTION 6. Representations and Warranties. Each of the Companies hereby represents and warrants to the Administrative Agent that:
(a) on and as of the Third Amendment Effective Date (i) it has all requisite corporate power and authority and all requisite governmental licenses, authorizations, consents and approvals to enter into and perform its obligations under this Amendment, the Amended Credit Agreement and the Amended Security Agreement and (ii) this Amendment has been duly authorized, executed and delivered by it;
(b) this Amendment, the Amended Credit Agreement and the Amended Security Agreement constitute legal, valid and binding obligations of such entity, enforceable against it in accordance with their respective terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); and
(c) each of the representations and warranties made by any Loan Party set forth in Section 5 of the Amended Credit Agreement or in any other Loan Document shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects) on and as of the Third Amendment Effective Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or similar qualifier, in which case, it was true and correct (after giving effect to any such qualifier) in all respects) on and as of such earlier date).
SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment in any number of separate counterparts (including by telecopy and other electronic transmission), and all of such counterparts taken together shall be deemed to constitute one and the same instrument. A copy of this Amendment signed by all the parties shall be delivered to the Borrower and the Administrative Agent. The words “execution,” “signed,” “signature,” and words of like import in this Amendment, any Assignment and Acceptance or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures 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.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
SECTION 9. WAIVER OF RIGHT OF TRIAL BY JURY. EACH PARTY TO THIS AMENDMENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.
| FLOOR AND DECOR OUTLETS OF AMERICA, INC., | |||
| a Delaware corporation | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
| FDO ACQUISITION CORP., | |||
| a Delaware corporation | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
| FD SALES COMPANY LLC, | |||
| a Delaware limited liability company | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
[Signature Page to Amendment No. 3 to Credit Agreement and
Amendment No. 1 to Security Agreement]
| UBS AG, STAMFORD BRANCH, | |||
| as Administrative Agent and as Replacement Term B-3 Lender | |||
| By: | /s/ Anthony Joseph | ||
| Name: | Anthony Joseph | ||
| Title: | Associate Director | ||
| By: | /s/ Houssem Daly | ||
| Name: | Houssem Daly | ||
| Title: | Associate Director | ||
[Signature Page to Amendment No. 3 to Credit Agreement and
Amendment No. 1 to Security Agreement]
Schedule 2.01(a)
Replacement Term B-3 Loan Commitments
| Lender | Replacement Term B-3 Loan Commitments |
| UBS AG, Stamford Branch | $144,624,999.73 |
| Total: | $144,624,999.73 |
ANNEX A
AMENDED CREDIT AGREEMENT
(inclusive of Amendments No. 1, 2 and 3 to Credit Agreement)
As Amended pursuant to
Amendment No. 1 to Credit Agreement dated March 31, 2017
Amendment No. 2 to Credit Agreement dated November 22, 2017
Amendment No. 3 to Credit Agreement dated February 14, 2020
ExecutionFinal
Version
$350,000,000
CREDIT AGREEMENT
among
FLOOR AND DECOR OUTLETS OF AMERICA, INC.
as the Borrower,
FDO ACQUISITION CORP.,
as Holdings,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
as Lenders,
UBS AG, STAMFORD BRANCH,
as Administrative Agent and Collateral Agent,
UBS SECURITIES LLC, MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
BARCLAYS BANK PLC, GOLDMAN SACHS BANK USA AND
WELLS FARGO SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
dated as of September 30, 2016
| Table of Contents | ||
| Page | ||
| SECTION 1 Definitions | ||
| 1.1 | Defined Terms. | |
| 1.2 | Other Definitional and Interpretive Provisions. | |
| SECTION 2 Amount and Terms of Commitments | ||
| 2.1 | Initial Term Loans. | |
| 2.2 | Notes. | |
| 2.3 | Procedure for Initial Term Loan Borrowing. | |
| 2.4 | [Reserved]. | |
| 2.5 | Repayment of Loans. | |
| 2.6 | [Reserved]. | |
| 2.7 | [Reserved]. | |
| 2.8 | Incremental Facilities. | |
| 2.9 | Permitted Debt Exchanges. | |
| 2.10 | Extension of Term Loans. | |
| 2.11 | Specified Refinancing Facilities. | |
| SECTION 3 [Reserved] | ||
| SECTION 4 General Provisions Applicable to Loans | ||
| 4.1 | Interest Rates and Payment Dates. | |
| 4.2 | Conversion and Continuation Options. | |
| 4.3 | Minimum Amounts; Maximum Sets. | |
| 4.4 | Optional and Mandatory Prepayments. | |
| 4.5 | Administrative Agent’s Fee; Other Fees. | |
| 4.6 | Computation of Interest and Fees. | |
| 4.7 | Inability to Determine Interest Rate. | |
| 4.8 | Pro Rata Treatment and Payments. | |
| 4.9 | Illegality. | |
| 4.10 | Requirements of Law. | |
| 4.11 | Taxes. | |
| 4.12 | Indemnity. | |
| 4.13 | Certain Rules Relating to the Payment of Additional Amounts. | |
| SECTION 5 Representations and Warranties | ||
| 5.1 | Financial Condition. | |
(i)
| Table of Contents | ||
| (continued) | ||
| Page | ||
| 5.2 | No Change; Solvent. | |
| 5.3 | Corporate Existence; Compliance with Law. | |
| 5.4 | Corporate Power; Authorization; Enforceable Obligations. | |
| 5.5 | No Legal Bar. | |
| 5.6 | No Material Litigation. | |
| 5.7 | No Default. | |
| 5.8 | Ownership of Property; Liens. | |
| 5.9 | Intellectual Property. | |
| 5.10 | Taxes. | |
| 5.11 | Federal Regulations. | |
| 5.12 | ERISA. | |
| 5.12 | ERISA. | 124 |
| 5.13 | Collateral. | |
| 5.14 | Investment Company Act; Other Regulations. | |
| 5.15 | Subsidiaries. | |
| 5.16 | Purpose of Loans. | |
| 5.17 | Environmental Matters. | |
| 5.18 | No Material Misstatements. | |
| 5.19 | Labor Matters. | |
| 5.20 | Anti-Terrorism; Sanctions. | |
| SECTION 6 Conditions Precedent | ||
| 6.1 | Conditions to Initial Extension of Credit. | |
| 6.2 | Conditions to Each Extension of Credit After the Closing Date. | |
| SECTION 7 Affirmative Covenants | ||
| 7.1 | Financial Statements. | |
| 7.2 | Certificates; Other Information. | |
| 7.3 | Payment of Taxes. | |
| 7.4 | Conduct of Business and Maintenance of Existence; Compliance with Contractual Obligations and Requirements of Law. | |
| 7.5 | Maintenance of Property; Insurance. | |
| 7.6 | Inspection of Property; Books and Records; Discussions. | |
| 7.7 | Notices. | |
| 7.8 | Environmental Laws. | |
| 7.9 | After-Acquired Real Property and Fixtures; Subsidiaries. | |
| 7.10 | Use of Proceeds. | |
| 7.11 | Credit Ratings. | |
(ii)
| Table of Contents | ||
| (continued) | ||
| Page | ||
| 7.12 | 143 | |
| 7.13 | Lender Calls. | |
| 7.14 | Post-Closing. | 143 |
| SECTION 8 Negative Covenants | ||
| 8.1 | Limitation on Indebtedness. | |
| 8.2 | Limitation on Restricted Payments. | |
| 8.3 | Limitation on Restrictive Agreements. | |
| 8.4 | Limitation on Sales of Assets and Subsidiary Stock. | |
| 8.5 | Limitations on Transactions with Affiliates. | |
| 8.6 | Limitation on Liens. | |
| 8.7 | Limitation on Fundamental Changes. | |
| 8.8 | Limitation on Amendments. | |
| 8.9 | Limitation on Lines of Business. | |
| 8.10 | Limitations on Activities of Holdings. | |
| SECTION 9 Events of Default | ||
| 9.1 | Events of Default. | |
| 9.2 | Remedies Upon an Event of Default. | |
| SECTION 10 The Agents and the Other Representatives | ||
| 10.1 | Appointment. | |
| 10.2 | The Administrative Agent and Affiliates. | |
| 10.3 | Action by an Agent. | |
| 10.4 | Exculpatory Provisions. | |
| 10.5 | Acknowledgement and Representations by Lenders. | |
| 10.6 | Indemnity; Reimbursement by Lenders. | |
| 10.7 | Right to Request and Act on Instructions. | |
| 10.8 | Collateral Matters. | |
| 10.9 | Successor Agent. | |
| 10.10 | [Reserved]. | |
| 10.11 | Withholding Tax. | |
| 10.12 | Other Representatives. | |
| 10.13 | Administrative Agent May File Proofs of Claim. | |
| 10.14 | Application of Proceeds. | |
(iii)
| Table of Contents | ||
| (continued) | ||
| Page | ||
| SECTION 11 Miscellaneous | ||
| 11.1 | Amendments and Waivers. | |
| 11.2 | Notices. | |
| 11.3 | No Waiver; Cumulative Remedies. | |
| 11.4 | Survival of Representations and Warranties. | |
| 11.5 | Payment of Expenses and Taxes; Indemnity. | |
| 11.6 | Successors and Assigns; Participations and Assignments. | |
| 11.7 | Adjustments; Set-off; Calculations; Computations. | |
| 11.8 | Judgment. | |
| 11.9 | Counterparts. | |
| 11.10 | Severability. | |
| 11.11 | Integration. | |
| 11.12 | Governing Law. | |
| 11.13 | Submission to Jurisdiction; Waivers. | |
| 11.14 | Acknowledgements. | |
| 11.15 | Waiver of Jury Trial. | |
| 11.16 | Confidentiality. | |
| 11.17 | Incremental Indebtedness; Additional Debt. | |
| 11.18 | USA PATRIOT Act Notice. | |
| 11.19 | Electronic Execution of Assignments and Certain Other Documents. | |
| 11.20 | Reinstatement. | |
| 11.21 | Postponement of Subrogation. | |
| 11.22 | 202 | |
| 11.23 | Acknowledgement Regarding Any Supported OFCs. | 203 |
(iv)
| SCHEDULES | ||
| A | -- | Commitments and Addresses |
| 1.1(e) | -- | Existing Liens |
| 1.1(f) | -- | Existing Investments |
| 5.6 | -- | Litigation |
| 5.8 | -- | Real Property |
| 5.9 | -- | Intellectual Property Claims |
| 5.15 | -- | Subsidiaries |
| 5.17 | -- | Environmental Matters |
| 6.1(a) | -- | Collateral Documents |
| 7.14 | -- | Post-Closing |
| 8.1 | -- | Existing Indebtedness |
| 8.5 | -- | Affiliate Transactions |
| EXHIBITS | ||
| A | -- | Form of Note |
| B | -- | Form of Guaranty Agreement |
| C | -- | [Reserved] |
| D | -- | Form of U.S. Tax Compliance Certificate |
| E | -- | Form of Assignment and Acceptance |
| F | -- | Form of Secretary’s Certificate |
| G | -- | Form of Security Agreement |
| H | -- | Form of Solvency Certificate |
| I-1 | -- | Form of Increase Supplement |
| I-2 | -- | Form of Lender Joinder Agreement |
| J | -- | Form of ABL/Term Loan Intercreditor Agreement |
| K | -- | Form of Joinder |
| L | -- | Form of Affiliated Lender Assignment and Assumption |
| M | -- | Form of Acceptance and Prepayment Notice |
| N | -- | Form of Discount Range Prepayment Notice |
| O | -- | Form of Discount Range Prepayment Offer |
| P | -- | Form of Solicited Discounted Prepayment Notice |
| Q | -- | Form of Solicited Discounted Prepayment Offer |
| R | -- | Form of Specified Discount Prepayment Notice |
| S | -- | Form of Specified Discount Prepayment Response |
| T | -- | Form of Compliance Certificate |
(v)
CREDIT AGREEMENT, dated as of September 30, 2016, among FLOOR AND DECOR OUTLETS OF AMERICA, INC., a Delaware corporation (the “Borrower”), FDO Acquisition Corp. (“Holdings”, as hereinafter further defined), the several banks and other financial institutions from time to time party hereto (as further defined in Subsection 1.1, the “Lenders”), and UBS AG, STAMFORD BRANCH, as administrative agent (in such capacity and as further defined in Subsection 1.1, the “Administrative Agent”) for the Lenders hereunder and as collateral agent (in such capacity and as further defined in Subsection 1.1, the “Collateral Agent”) for the Secured Parties (as defined below).
W I T N E S S E T H :
WHEREAS,
the Borrower has requested that the Lenders extend credit in the form
of term loans on the Closing Date (as hereinafter defined) in an aggregate principal amount of $350,000,000, for purposes of financing
the Closing Date Dividend (as hereinafter defined), refinancing term loans under the Existing Credit Agreement, refinancing certain
obligations of the Loan Parties outstanding under the Senior ABL Facility Agreement and to pay related fees, costs and expenses
in connection therewith;
WHEREAS, the Borrower requested that the Lenders extend credit in the form of a new term loan facility in an aggregate amount sufficient to refinance all of its outstanding Initial Term Loans outstanding on the First Amendment Effective Date (as hereinafter defined), such that the original aggregate principal amount of the Initial Term Loan Commitments on the First Amendment Effective Date was $348,250,000, for purposes of and upon the terms and subject to the conditions set forth in the First Amendment and herein.
WHEREAS, the Borrower requested that the Lenders extend credit in the form of a new term loan facility in an aggregate amount sufficient to refinance all of its outstanding Initial Term Loans outstanding on the Second Amendment Effective Date (as hereinafter defined), such that the original aggregate principal amount of the Initial Term Loan Commitments on the Second Amendment Effective Date was $152,499,999.99, for purposes of and upon the terms and subject to the conditions set forth in the Second Amendment and herein.
WHEREAS, the Borrower has requested that the Lenders extend credit in the form of a new term loan facility in an aggregate amount sufficient to refinance all of its outstanding Initial Term Loans outstanding on the Third Amendment Effective Date (as hereinafter defined), such that the original aggregate principal amount of the Initial Term Loan Commitments on the Third Amendment Effective Date is $144,624,999.73 for purposes of and upon the terms and subject to the conditions set forth in the Third Amendment and herein.
WHEREAS, the Lenders are willing to extend term loans on the Closing Date on the terms and conditions set forth herein.
1
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1
Definitions
1.1 Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“ABL Agent”: Wells Fargo Bank, National Association, in its capacity as administrative agent and collateral agent under the ABL Facility Documents, or any successor administrative agent or collateral agent under the ABL Facility Documents.
“ABL Facility Documents”: the “Loan Documents” as defined in the Senior ABL Facility Agreement, as the same may be amended, supplemented, waived, otherwise modified, extended, renewed, refinanced or replaced from time to time.
“ABL Facility Loans”: the loans borrowed under the Senior ABL Facility.
“ABL Priority Collateral”: as defined in the ABL/Term Loan Intercreditor Agreement whether or not the same remains in full force and effect.
“ABL/Term
Loan Intercreditor Agreement”: the Intercreditor Agreement, dated as of the date
hereofClosing
Date, between the Collateral Agent
and the ABL Agent (in its capacity as collateral agent under the ABL Facility Documents), and acknowledged by certain of the Loan
Parties in the form attached hereto as Exhibit J, as the same may be amended, supplemented, waived or otherwise modified
from time to time in accordance with the terms hereof and thereof.
“ABR Loans”: Loans to which the rate of interest applicable is based upon the Alternate Base Rate.
“Accelerated”: as defined in Subsection 9.1(e).
“Acceleration”: as defined in Subsection 9.1(e).
“Acceptable Discount”: as defined in Subsection 4.4(l)(iv)(2).
“Acceptable Prepayment Amount”: as defined in Subsection 4.4(l)(iv)(3).
“Acceptance and Prepayment Notice”: a written notice from the Borrower setting forth the Acceptable Discount pursuant to Subsection 4.4(l)(iv)(2) substantially in the form of Exhibit M.
“Acceptance Date”: as defined in Subsection 4.4(l)(iv)(2).
2
“Acquired Indebtedness”: Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or on the date the acquired Person becomes a Subsidiary.
“Acquisition Indebtedness”: Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger, consolidation or amalgamation).
“Acquisition Transaction”: means the purchase or other acquisition (in one transaction or a series of transactions, including by merger or otherwise) by the Borrower or any Restricted Subsidiary of all or substantially all the property, assets or business of another Person, or assets constituting a business unit, line of business or division of, any Person, or of a majority of the outstanding Capital Stock of any Person (including any Investment which serves to increase the Borrower’s or any Restricted Subsidiary’s respective equity ownership in any joint venture or other Person to an amount in excess (or further in excess) of the majority of the outstanding Capital Stock of such joint venture or other Person).
“Additional Assets”: (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by the Borrower or a Restricted Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by the Borrower or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.
“Additional Incremental Lender”: as defined in Subsection 2.8(b).
“Additional Debt”: as defined in the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement, Pari Passu Intercreditor Agreement or any Other Intercreditor Agreement, as applicable.
3
“Additional Obligations”: senior or subordinated Indebtedness (which Indebtedness may be (x) secured by a Lien ranking pari passu to the Lien securing the First Lien Obligations, (y) secured by a Lien ranking junior to the Lien securing the First Lien Obligations or (z) unsecured), including customary bridge financings, in each case issued or incurred by the Borrower or a Guarantor, the terms of which Indebtedness (i) do not provide for a maturity date or weighted average life to maturity earlier than the Initial Term Loan Maturity Date or shorter than the remaining weighted average life to maturity of the Initial Term Loans, as the case may be (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable), (ii) to the extent such Indebtedness is subordinated, provide for customary payment subordination to the Term Loan Facility Obligations under the Loan Documents as reasonably determined by the Borrower in good faith and (iii) do not provide for any mandatory repayment or redemption from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with such Additional Obligations and the disposition of which was contemplated by any definitive agreement in respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Events or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Initial Term Loans hereunder pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); provided that (a) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Term Loan Facility Obligations, or be guaranteed by any Person other than one or more of the Guarantors, and (b) if secured by Collateral, such Indebtedness (and all related Obligations) shall be subject to the terms of the ABL/Term Loan Intercreditor Agreement (if such Indebtedness and related Obligations constitute First Lien Obligations), any Pari Passu Intercreditor Agreement or Junior Lien Intercreditor Agreement (if such Indebtedness and related Obligations do not constitute First Lien Obligations) or an Other Intercreditor Agreement (if otherwise agreed by the Administrative Agent and the Borrower).
“Additional Obligations Documents”: any document or instrument (including any guarantee, security agreement or mortgage and which may include any or all of the Loan Documents) issued or executed and delivered with respect to any Additional Obligations or Rollover Indebtedness by any Loan Party.
“Additional Specified Refinancing Lender”: as defined in Subsection 2.11(b).
“Adjusted
LIBOR Rate”: with respect to any Borrowing of Eurodollar Loans for any Interest Period, an interest rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1.00%) determined by the Administrative Agent to be equal to the higher of (a)
(i) the LIBOR Rate for such Borrowing of Eurodollar Loans in effect for such Interest Period divided by (ii)
1 minus the Statutory Reserves (if any) for such Borrowing of Eurodollar Loans for such Interest Period and (b)
solely with respect to Initial Term Loans, 1.000.00%.
“Adjustment Date”: the first day of each January, April, July and October of each year, commencing on or after the date of a Qualified IPO.
“Administrative Agent”: as defined in the Preamble hereto and shall include any successor to the Administrative Agent appointed pursuant to Subsection 10.9.
4
“Affected Eurodollar Rate”: as defined in Subsection 4.7.
“Affected Loans”: as defined in Subsection 4.9.
“Affiliate”: as to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Affiliate Transaction”: as defined in Subsection 8.5(a).
“Affiliated Debt Fund”: (i) any Affiliate of any Sponsor that is a bona fide bank debt fund, distressed asset fund, hedge fund, mutual fund, insurance company, financial institution or an investment vehicle that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding, trading or otherwise investing in commercial loans, notes, bonds and similar extensions of credit or securities in the ordinary course and neither Holdings nor any of its Subsidiaries directs or causes the direction of the investment policies of such entity or (ii) any investment fund, vehicle or account that is a Permitted Affiliated Assignee that is not organized or used primarily for the purpose of making equity investments, in the case of each of (i) and (ii), that is not controlled by a Sponsor.
“Affiliated Lender”: any Lender that is a Permitted Affiliated Assignee.
“Affiliated Lender Assignment and Assumption”: as defined in Subsection 11.6(h)(i)(1).
“Agent Default”: an Agent has admitted in writing that it is insolvent or such Agent becomes subject to an Agent-Related Distress Event.
“Agent Fee Letter”: the Agent Fee Letter, dated as of September 14, 2016, between the Borrower and UBS Securities LLC.
“Agent-Related Distress Event”: with respect to any Agent (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that an Agent-Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Agent or any person that directly or indirectly controls such Agent by a Governmental Authority or an instrumentality thereof; provided, further, that the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to an Agent or any person that directly or indirectly controls such Agent under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation) shall not be deemed to result in an Agent-Related Distress Event.
5
“Agents”: the collective reference to the Administrative Agent and the Collateral Agent and “Agent” shall mean any of them.
“Agreement”: this Credit Agreement, as amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time.
“AHYDO Catch-Up Payment” means any payment to avoid the application of Section 163(e)(5) of the Code.
“Alternate Base Rate”: for any day, a fluctuating rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1.00%) equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50%, and (c) the Adjusted LIBOR Rate for an Interest Period of one month beginning on such day (or if such day is not a Business Day, on the immediately preceding Business Day) plus 1.00%. If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) or (c) above, as the case may be, of the preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Effective Rate or the Adjusted LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Effective Rate or the Adjusted LIBOR Rate, respectively.
“Amendment”: as defined in Subsection 8.3(c).
“Applicable Discount”: as defined in Subsection 4.4(l)(iii)(2).
“Applicable
Margin”: in respect of Initial Term Loans (a) initially (i) with respect to ABR Loans, 3.251.00%
per annum and (ii) with respect to Eurodollar Loans, 4.252.00%
per annum and (b) from and after each Adjustment Date,
if the Consolidated Secured Leverage Ratio would be more than 2.00:1.00 as of the last day of the Most Recent Four Quarter Period,
(i) with respect to ABR Loans, 1.25% per annum and (ii) with respect to Eurodollar Loans, 2.25% per annum; provided, for the avoidance
of doubt, if the Consolidated
Secured Leverage Ratio would be equal to or less than 2.00:1.00 as of the last day of the Most Recent Four Quarter Period, (i)
with respect to ABR Loans, 2.75% per annum and (ii) with respect to Eurodollar Loans, 3.75% per annumthe
Applicable Margin shall be set at the margin referenced in clause (a) above.
“Approved Fund”: as defined in Subsection 11.6(b).
6
“Asset
Disposition”: any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other
than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property
or other assets (each referred to for the purposes of this definition as a “disposition”) by the Borrower or
any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction) other
than (i) a disposition to the Borrower or a Restricted Subsidiary, (ii) a disposition in the ordinary course of
business, (iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv)
the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes
receivable arising in the ordinary course of business (including pursuant to factoring arrangements), or the conversion or exchange
of accounts receivable into or for notes receivable, (v) any Restricted Payment Transaction, (vi) a disposition
that is governed by Subsection 8.7, (vii) any Financing Disposition, (viii) any “fee in lieu”
or other disposition of assets to any Governmental Authority that continue in use by the Borrower or any Restricted Subsidiary,
so long as the Borrower or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal
fee, (ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of
the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, (x) any financing
transaction with respect to property built or acquired by the Borrower or any Restricted Subsidiary after the Closing Date, including
any sale/leaseback transaction or asset securitization, (xi) any disposition arising from foreclosure, condemnation, eminent
domain, or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license,
concession or other agreement or necessary or advisable (as determined by the Borrower in good faith) in order to consummate any
acquisition of any Person, business or assets or pursuant to buy/sell arrangements under any joint venture or similar agreement
or arrangement, (xii) any disposition of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary,
(xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to
a Person (other than the Borrower or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom
such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered
into in connection with such acquisition, (xiv) a disposition of not more than 5.00% of the outstanding Capital Stock of
a Foreign Subsidiary that has been approved by the Board of Directors, (xv) any disposition or series of related dispositions
for aggregate consideration not to exceed the greater of (A) $10,000,00027,000,000
and (B) 10.00% of Consolidated
EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are
available, (xvi) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in
the reasonable judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business
of the Borrower and its Subsidiaries taken as a whole, (xvii) any license, sublicense or other grant of rights in or to
any trademark, copyright, patent or other intellectual property, (xviii) any Exempt Sale and Leaseback Transaction, (xix)
the creation or granting of any Lien permitted under this Agreement, (xx) sales, leases, transfers or other dispositions of inventory
of the Borrower or any of its Subsidiaries determined by the management of the Borrower to be no longer useful or necessary in
the operations of the business of the Borrower or such Subsidiary, (xxi) bulk sales or other dispositions of the Inventory not
in the ordinary course of business in connection with store closings, at arm’s length; provided, that such store
closures and related Inventory dispositions shall not exceed (A) in any Fiscal Year of the Parent and its Subsidiaries, 5% of
the number of the Loan Parties’ stores as of the beginning of such Fiscal Year (net of new Store openings) and (B) in the
aggregate from and after the Closing Date, 10% of the number of the Loan Parties’ Stores in existence as of the Closing
Date (net of new Store openings) or (xxii) to the extent constituting a disposition, a Qualified IPO.
7
“Assignee”: as defined in Subsection 11.6(b)(i).
“Assignment and Acceptance”: an Assignment and Acceptance, substantially in the form of Exhibit E hereto.
“Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”: with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank
Products Agreement”: any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury
services, (b) credit card, merchant card, purchasing card or stored value card services (including the processing of payments
and other administrative services with respect thereto), (c) cash management services (including controlled disbursements, automated
clearinghouse transactions, return items, netting, overdrafts, depository, lockbox, stop payment, electronic funds transfer, information
reporting, wire transfer and interstate depository network services), (d) merchant services constituting a line of credit, (e)
[reserved], (f) factoring and (g) supply chain financing services including, without limitation, trade payable services and supplier
accounts receivable purchases..
“Bank Products Obligations”: of any Person means the obligations of such Person pursuant to any Bank Products Agreement.
“Bankruptcy Proceeding”: as defined in Subsection 11.6(h)(iv).
“Base
Rate”: for any day, a rate per annum that is equal to the rate of interest established
by the Administrative Agent as its prime rate from time to time at its Stamford Branch or, if no such rate is then established,
the rate of interest quoted by the Wall Street Journal as the “Prime Rate” or, if the Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve
Statistical Release H.15 (519) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar
rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board
(as reasonably determined by the Administrative Agent).
“Below Threshold Proceeds”: as defined in Subsection 8.4(c).
“Benefit Plan” shall mean any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
8
“Benefited Lender”: as defined in Subsection 11.7(a).
“Board”: the Board of Governors of the Federal Reserve System.
“Board of Directors”: for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body. Unless otherwise provided, “Board of Directors” means the Board of Directors of Holdings or the Borrower, as applicable.
“Borrower”: as defined in the Preamble hereto.
“Borrower
Material”: as defined in SectionSubsection
7.2.
“Borrower Offer of Specified Discount Prepayment”: the offer by the Borrower to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Subsection 4.4(l)(ii).
“Borrower Solicitation of Discount Range Prepayment Offers”: the solicitation by the Borrower of offers for, and the corresponding acceptance by a Lender of a voluntary prepayment by the Borrower of Term Loans at a specified range at a discount to par pursuant to Subsection 4.4(l)(iii).
“Borrower Solicitation of Discounted Prepayment Offers”: the solicitation by the Borrower of offers for, and the subsequent acceptance, if any, by a Lender of a voluntary prepayment by the Borrower of Term Loans at a discount to par pursuant to Subsection 4.4(l)(iv).
“Borrowing”: the borrowing of one Type of Loan of a single Tranche from all the Lenders having Initial Term Loan Commitments or other commitments of the respective Tranche on a given date (or resulting from a conversion or conversions on such date) having, in the case of Eurodollar Loans, the same Interest Period.
“Borrowing Base”: the sum of (1) 92.50% of the net ordinary liquidation value of inventory held by the Borrower and its Subsidiaries, (2) 90.00% of all Receivables of the Borrower and its Subsidiaries, and (3) Unrestricted Cash of the Borrower and its Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month for which internal consolidated financial statements of the Borrower are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
9
“Borrowing Date”: any Business Day specified in a notice delivered pursuant to Subsection 2.3 as a date on which the Borrower requests the Lenders to make Loans hereunder.
“Business Day”: a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close, except that, when used in connection with a Eurodollar Loan, “Business Day” shall mean any Business Day on which dealings in Dollars between banks may be carried on in London, England and New York, New York.
“Capital Expenditures”: for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under leases evidencing Capitalized Lease Obligations) by the Borrower and its Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of the Borrower.
“Capital Stock”: as to any Person, any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation”: an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The Stated Maturity of any Capitalized Lease Obligation shall be the date of the last payment of rent or any other amount due under the related lease.
“Captive Insurance Subsidiary”: any Subsidiary of the Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Equivalents”: any of the following: (a) money, (b) securities issued or fully guaranteed or insured by the United States of America or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’ acceptances of (i) any bank or other institutional lender under this Agreement or the Senior ABL Facility or any affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (f) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g) investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that person is permitted to make in accordance with applicable law.
10
“Change in Law”: as defined in Subsection 4.11(a).
“Change
of Control”: (i) at any time prior to the consummation of a Public Offering (x) the Permitted Holders
shall in the aggregate be the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in
effect on the Closing Date) of (A) so long as Holdings is a Subsidiary of any Parent Entity, shares or units of Voting
Stock having less than 35.00% of the total voting power of all outstanding shares of such Parent Entity (other than a Parent Entity
that is a Subsidiary of another Parent Entity) and (B) if Holdings is not a Subsidiary of any Parent Entity, shares or
units of Voting Stock having less than 35.00% of the total voting power of all outstanding shares of Holdings or (y) any other
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect
on the Closing Date), other than one or more Permitted Holders, (A) so long as Holdings is a Subsidiary of any Parent Entity,
shall be the “beneficial owner” of shares or units of Voting Stock constituting a greater percentage of the total
voting power of all outstanding shares of such Parent Entity than the total voting power of all outstanding shares or units of
Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) held by the Permitted
Holders and (B) if Holdings is not a Subsidiary of any Parent Entity, shall be the “beneficial owner” of shares
or units of Voting Stock having constituting a greater percentage of the total voting power of all outstanding shares of Holdings
than the total voting power of all outstanding shares or units of Voting Stock of Holdings held by the Permitted Holders; (ii)
at any time on or after the consummation of a Public Offering, any “person” or “group” (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date), other than one or more Permitted Holders,
shall be the “beneficial owner” of (x) so long as Holdings is a Subsidiary of any Parent Entity, shares or
units of Voting Stock having more than the greater of (A) 35.00% of the total voting power of all outstanding shares of such Parent
Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (B) the total voting power of all
outstanding shares or units of Voting Stock of such Parent Entity (other than a Parent Entity that is a Subsidiary of another
Parent Entity) held by the Permitted Holders and (y) if Holdings is not a Subsidiary of any Parent Entity, shares or units
of Voting Stock having more than the greater of (A) 35.00% of the total voting power of all outstanding shares of Holdings and
(B) the total voting power of all outstanding shares or units of Voting Stock of Holdings held by the Permitted Holders; (iii)
Holdings shall cease to own, directly or indirectly, 100.00% of the Capital Stock of the Borrower (or any Successor Borrower),
or (iv) a “Change of Control” (or comparable term) as defined in the Senior ABL Facility Agreement relating
to Indebtedness and any unused commitments thereunder in an aggregate principal amount equal to or greater than $25,000,00067,500,000.
Notwithstanding anything to the contrary in the foregoing, the Transactions shall not constitute or give rise to a Change of Control.
“Change of Control Offer”: as defined in Subsection 8.8(a).
“Claim”: as defined in Subsection 11.6(h)(iv).
11
“Closing Date”: the date on which all the conditions precedent set forth in Subsection 6.1 shall be satisfied or waived.
“Closing Date Dividend” shall mean that certain dividend or distribution to be made on or within twelve (12) Business Days after the Closing Date by the Borrower to Borrower’s direct or indirect equity holders (including any payments or adjustments made in connection with the dividend in respect of outstanding options to purchase common stock of Parent).
“Code”: the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”: all assets of the Loan Parties, now owned or hereafter acquired, upon which a Lien is purported to be created by any Security Document.
“Collateral Agent”: as defined in the Preamble hereto, and shall include any successor to the Collateral Agent appointed pursuant to Subsection 10.9.
“Collateral Documents”: collectively, the Security Agreement, the Trademark Security Agreement, control agreements, the Mortgages (if any), each of the mortgages, debentures, charges, collateral assignments, control agreements, security agreements, pledge agreements or other similar agreements (if any) delivered to the Administrative Agent and the Lenders pursuant to this Agreement, the Guaranty, and each of the other agreements, instruments or documents executed by a Loan Party that creates or purports to create a Lien or Guarantee in favor of the Administrative Agent for the benefit of the Secured Parties.
“Collateral Representative”: (i) in respect of the ABL/Term Loan Intercreditor Agreement, the ABL Agent (in its capacity as collateral agent) and the Collateral Agent, and each of their respective successors and assigns in such capacities and (ii) if any Junior Lien Intercreditor Agreement, Pari Passu Intercreditor Agreement or Other Intercreditor Agreement is then in effect, the Person acting as representative for the Collateral Agent and the Secured Parties thereunder for the applicable purpose contemplated by this Agreement and the Security Agreement.
“Commitment”: as to any Lender, such Lender’s Initial Term Loan Commitments and Incremental Commitments, as the context requires.
“Commodities Agreement”: in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.
“Commonly Controlled Entity”: an entity, whether or not incorporated, which is under “common control” with the Borrower within the meaning of Section 4001 of ERISA or is part of a group which includes the Borrower and which is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Sections 414(m) and (o) of the Code.
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“Compliance Certificate”: as defined in Subsection 7.2(a).
“Conduit Lender”: any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument delivered to the Administrative Agent (a copy of which shall be provided by the Administrative Agent to the Borrower on request); provided that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement, including its obligation to fund a Term Loan if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to any provision of this Agreement, including Subsection 4.10, 4.11, 4.12 or 11.5, than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender if such designating Lender had not designated such Conduit Lender hereunder, (b) be deemed to have any Initial Term Loan Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to the Borrower.
“Consolidated
EBITDA”: for any period, the Consolidated Net Income for such period, plus, in each case without duplication,
(x) the following to the extent deducted in calculating such Consolidated Net Income: (i) provision for all taxes
(whether or not paid, estimated or accrued) based on income, profits or capital (including penalties and interest, if any) including
state, franchise, excise and similar taxes and foreign withholding taxes and state taxes in lieu of business fees (including business
license fees) and payroll tax credits, income tax credits and similar tax credits, and including an amount equal to the amount
of tax distributions actually made to the holders of Capital Stock of the Borrower or any Parent Entity in respect of such period
(in each case, to the extent attributable to the operations of the Borrower and its Restricted Subsidiaries), which will be included
as though such amounts had been paid as income taxes directly by the Borrower, (ii) Consolidated Interest Expense, all
items excluded from the definition of Consolidated Interest Expense pursuant to clause (ii) thereof (other than Special Purpose
Financing Expenses), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs
of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not
limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash
charges, losses and expenses, including any write-offs or write-downs; provided that if any such non-cash charge represents
an accrual or reserve for potential cash items in any future four-fiscal quarter period (a) the Borrower may determine not to
add back such non-cash charge in the period for which Consolidated EBITDA is being calculated and (b) to the extent the Borrower
does decide to add back such non-cash charge, the cash payment in respect thereof in such future four-fiscal quarter period will
be subtracted from Consolidated EBITDA for such future four-fiscal quarter period, (vi) reasonable out-of-pocket transaction
fees, expenses or charges (including legal, advisory and brokerage or other financing fees), or, without duplication, any amortization
or write-off thereof related to any transaction that is out of the ordinary course of business including equity offerings (to
the extent the proceeds thereof were intended to be contributed to the equity capital of the Borrower or its Restricted Subsidiaries),
Investments, acquisitions, dispositions, recapitalizations, mergers, option buyouts or Indebtedness permitted to be consummated
or incurred by this Agreement (including any Refinancing Indebtedness in respect thereof) or any amendments, waivers or other
modifications under the agreements relating to such Indebtedness (including
any amendments, waivers or other modifications of this Agreement) or
similar transactions (in each case whether or not consummated or incurred), (vii) the amount of any loss or expense attributable
to non-controlling interests, (viii) all deferred financing costs written off and premiums paid in connection with any
early extinguishment of Hedging Obligations or other derivative instruments, (ix) any management, monitoring, consulting,
transaction and advisory fees (including termination fees) and related indemnities, charges and expenses paid to or accrued to
or on behalf of any Parent Entity or any of the Permitted Holders in each case to the extent permitted hereunder, (x) interest
and investment income, (xi) the amount of loss on any Financing Disposition, (xii) any costs or expenses pursuant
to any management or employee stock option or other equity-related plan, program or arrangement, or other benefit plan, program
or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the
capital of the Borrower or an issuance of Capital Stock of the Borrower (other than Disqualified Stock) and excluded from the
calculation set forth in Subsection 8.2(a)(3), (xiii) all fees, costs and expenses related to the Transactions,
(xiv) non-operating professional fees, costs and expenses, (xv) [reserved], (xvi) expense or charges to the
extent paid or reimbursed by a third party, (xvii) earn-out obligations incurred in connection with any acquisition or
other Investment permitted under this Agreement, (xviii) all charges, costs, expenses, accruals or reserves in connection
with the rollover, acceleration or payout of Capital Stock held by Management Investors and all losses, charges and expenses related
to payments made to holders of options or other derivative Capital Stock in the common equity of the Borrower or any Parent Entity
in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its direct or indirect
parents, which payments are being made to compensate such option holders as though they were equityholders at the time of, and
entitled to share in, such distribution, (xix) all losses, charges and expenses in connection with the pre-opening and
opening of stores, distribution centers and other facilities and operating losses attributable to any store, distribution center
or other facility to the extent such losses, charges or expenses were incurred before or within twelvetwenty-four
(1224)
months after the opening of such store, distribution center or other facility, (xx) [reserved], (xxi) payments in
the nature of compensation or expense reimbursement to independent board members, (xxii) the excess of GAAP rent expense
over actual cash rent paid due to the use of straight line rent for GAAP purposes and (xxiii) business optimization expenses
(including expenses related to consolidation initiatives), relocation and integration expenses, costs, charges, expenses, accruals
and reserves related to cost savings initiatives, strategic initiatives and initiatives aimed at profitability improvement, and
other restructuring costs, charges, expenses, accruals and reserves (which, for the avoidance of doubt, shall include the effect
of inventory optimization programs, consolidation, relocation and closing of stores, distribution centers, warehouses and other
facilities and exiting lines of business, operating expense reductions, personnel relocation, restructuring, redundancy, recruiting,
severance, termination, settlement and judgment, one-time compensation charges, the amount of any signing, retention and completion
bonuses, new systems design and implementation costs, software development costs and curtailments and project startup costs);
provided that the aggregate amount added pursuant to this clause (xxiii) for any period of twelve (12) consecutive fiscal months
shall not exceed the greater of (i) $15,000,000 and (ii) 15% of Consolidated EBITDA (calculated prior to giving effect to any
increase pursuant to this clause (xxiii)),
and (xxiv) charges, costs, expenses or fees associated with the implementation of ASC 606 or any comparable regulation,
plus (y) the amount of net cost
savings, operating expense reductions,
revenue enhancements and
synergies projected by the Borrower in good faith to be realized as the result of actions taken or to be taken on or prior to
the date that is 18twenty-four
(24) months after the ClosingThird
Amendment Effective Date, or 18twenty-
four (24) months after the consummation of any operational change, respectively (which costs savings, operating expense
reductions and synergies shall be reasonably identifiable and factually supportable, certified by a Responsible Officer of the
Borrower and calculated on a pro forma basis as though such 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
(which adjustments may be incremental to pro forma adjustments made pursuant to the proviso to the definition of “Consolidated
First
Lien Leverage Ratio”, “Consolidated Secured Leverage Ratio” or “Consolidated Total Leverage
Ratio”); provided that the aggregate amount added pursuant to this clause (y) for any period of twelvetwenty-four
(1224)
consecutive fiscal months shall not exceed the greater of (i) $15,000,00067,500,000
and (ii) 1525%
of Consolidated EBITDA for
the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available
(calculated prior to giving effect to any increase pursuant to this clause (y)).
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“Consolidated First Lien Indebtedness”: as of any date of determination, (i) an amount equal to the Consolidated Secured Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that in each case is then secured by Liens on property or assets of the Borrower and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) on a pari passu basis with the Term Loan Facility Obligations and obligations under the Senior ABL Facility, minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of the Borrower and its Restricted Subsidiaries.
“Consolidated First Lien Leverage Ratio”: as of any date of determination, the ratio of (i) Consolidated First Lien Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower are available, provided that:
(1) if, since the beginning of such period, the Borrower or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
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(2) if, since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, in the event that the Borrower shall classify Indebtedness Incurred on the date of determination as secured on a pari passu basis with the Term Loan Facility Obligations and obligations under the Senior ABL Facility in part pursuant to clause (k)(1) of the “Permitted Liens” definition in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of Maximum Incremental Facilities Amount and in part pursuant to one or more other clauses of the definition of “Permitted Liens” (other than clause (s)), as provided in clause (x) of the final paragraph of such definition, any calculation of the Consolidated First Lien Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount”, shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition and (y) in the event that the Borrower shall classify Indebtedness Incurred on the date of determination as secured on a pari passu basis with Term Loan Facility Obligations and obligations under the Senior ABL Facility in part pursuant to clause (s) of the “Permitted Liens” definition and in part pursuant to one or more other clause of the definition of “Permitted Liens” (other than clause (k)(1) in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of “Maximum Incremental Facilities Amount”), as provided in clause (y) of the final paragraph of such definition, any calculation of the Consolidated First Lien Leverage Ratio shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Borrower to be taken no later than 18 months after the date of determination.
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“Consolidated Interest Expense”: for any period, the sum, without duplication, of (i) the total interest expense of the Borrower and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Borrower and its Restricted Subsidiaries, including any such interest expense consisting of (A) interest expense attributable to Capitalized Lease Obligations, (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by the Borrower or any Restricted Subsidiary, but only to the extent that such interest is actually paid by the Borrower or any Restricted Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, (F) commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptance financing bridge commitments or other financing fees, (G) movement in the mark-to-market valuation of hedging obligations or (H) interest expense associated with Capital Stock, minus (ii) to the extent otherwise included in such interest expense referred to in clause (i) above, Special Purpose Financing Expenses, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, in each case under clauses (i) through (ii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by the Borrower and its Restricted Subsidiaries with respect to Interest Rate Agreements.
“Consolidated Net Income”: for any period, the net income (loss) of the Borrower and its Restricted Subsidiaries for such period, determined on a Consolidated basis in accordance with GAAP (adjusted to reflect any charge, tax or expense incurred or accrued by Holdings or any Parent Entity during such period attributable to the operations of the Borrower and its Subsidiaries as though such charge, tax or expense had been incurred by the Borrower, to the extent that the Borrower has made or would be entitled under the Loan Documents to make any Restricted Payment or other payment to or for the account of Holdings in respect thereof) and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person if such Person is not the Borrower or a Restricted Subsidiary, except that (A) the Borrower’s or any Restricted Subsidiary’s net income for such period shall be increased by the aggregate amount actually distributed by such Person during such period to the Borrower or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below), to the extent not already included therein, and (B) the Borrower’s or any Restricted Subsidiary’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of the Borrower or any of its Restricted Subsidiaries in such Person,
16
(ii) solely for purposes of determining the amount available for Restricted Payments under Subsection 8.2(a)(3)(A) and Excess Cash Flow, any net income (loss) of any Restricted Subsidiary that is not a Subsidiary Guarantor if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to the Borrower by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Agreement or the other Loan Documents, and (z) restrictions in effect on the Closing Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Closing Date as determined by the Borrower in good faith), except that (A) the Borrower’s equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to the Borrower or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of the Borrower or any of its other Restricted Subsidiaries in such Restricted Subsidiary,
(iii) (x) any net after-tax gain or loss realized upon the sale, abandonment or other disposition of any asset of the Borrower or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined by the Borrower in good faith) and (y) any net after-tax gain or loss realized upon the disposal, abandonment, closure or discontinuation of operations of the Borrower or any Restricted Subsidiary, and any net after-tax income (loss) from disposed, abandoned or discontinued operations (but if such operations are classified as discontinued because they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(iv) any net after-tax extraordinary, unusual or nonrecurring gain, loss or charge,
(v) the cumulative effect of a change in accounting principles,
(vi) any net after-tax income or loss (less all fees, expenses and charges related thereto) attributable to the extinguishment of Indebtedness or Hedging Obligations or other derivative instruments,
(vii) any non-cash gain, loss, expense or charge attributable to the movement in the mark-to-market valuation in respect of Hedge Agreements,
(viii) any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,
17
(ix) any non-cash expenses realized or resulting from stock option plans, employee benefit plans or agreements or post-employment benefit plans or agreements, or grants or sale of limited liability company interests, stock, stock appreciation, stock options, restricted stock, preferred stock or other equity based awards,
(x) any costs or expenses incurred in connection with the payment of dividend equivalent rights to option holders pursuant to any management equity plan, stock option plan or any other management or employee benefit plan or agreement or post-employment benefit plan or agreement will be excluded;
(xi) any non-cash charge, expense or other impact attributable to application of the purchase, fair value or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-downs and write-offs of assets to the extent resulting from such purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP,
(xii) expenses related to the conversion of various employee benefit programs in connection with the Transactions, and non-cash compensation related expenses, and
(xiii) to the extent covered by insurance and actually reimbursed (or the Borrower has determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any amount so added back to the extent not so reimbursed within such 365 day period)), any expenses with respect to liability or casualty events or business interruption.
Notwithstanding the foregoing, for the purpose of Subsection 8.2(a)(3)(A) only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to the Borrower or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by the Borrower to increase the amount of Restricted Payments permitted under Subsection 8.2(a)(3)(C) or (D).
“Consolidated Secured Indebtedness”: as of any date of determination, (i) an amount equal to the Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that in each case is then secured by Liens on property or assets of the Borrower and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby), minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of the Borrower and its Restricted Subsidiaries.
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“Consolidated Secured Leverage Ratio”: as of any date of determination, the ratio of (i) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower are available, provided that:
(1) if, since the beginning of such period, the Borrower or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business, including any such disposition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any such Investment, acquisition or designation, “Purchase”), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided that, in the event that the Borrower shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (k)(1) of the “Permitted Liens” definition in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of Maximum Incremental Facilities Amount and in part pursuant to one or more other clauses of the definition of “Permitted Liens” (other than clause (s)), as provided in clause (x) of the final paragraph of such definition, any calculation of the Consolidated Secured Leverage Ratio, Consolidated First Lien Leverage Ratio or Consolidated Total Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount”, shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition and (y) in the event that the Borrower shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (s) of the “Permitted Liens” definition and in part pursuant to one or more other clause of the definition of “Permitted Liens” (other than clause (k)(1) in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of “Maximum Incremental Facilities Amount”), as provided in clause (y) of the final paragraph of such definition, any calculation of the Consolidated Secured Leverage Ratio, Consolidated First Lien Leverage Ratio or Consolidated Total Leverage Ratio shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.
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For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Borrower to be taken no later than 18 months after the date of determination.
“Consolidated Total Assets”: as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of Parent as at the end of the most recently ended fiscal quarter for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated Total Indebtedness”: as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of the Borrower and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts under funded letters of credit); Capitalized Lease Obligations; and debt obligations evidenced by bonds, debentures, notes or similar instruments, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of the Borrower and its Restricted Subsidiaries.
“Consolidated Total Leverage Ratio”: as of any date of determination, the ratio of (i) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Parent are available, provided that:
(1) if, since the beginning of such period, the Borrower or any Restricted Subsidiary shall have made a Sale (including any Sale occurring in connection with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
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(2) if, since the beginning of such period, the Borrower or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into the Borrower or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by the Borrower or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
provided
that, for purposes of the foregoing calculation, in the event that the Borrower shall classify Indebtedness Incurred on the
date of determination as Incurred in part pursuant to Subsection 8.1(b)(x) (other than by reason of subclause (2) of the
proviso to such clause (x)) and/or in part pursuant to one or more other clauses of Subsection 8.1(b) (as provided in SubsectionsSubsection
8.1(c)(ii)),
Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such other clauses of
Subsection 8.1(b), and shall not give effect to any Discharge of any Indebtedness from the proceeds of any such Indebtedness
being disregarded for purposes of the calculation of the Consolidated Total Leverage Ratio that otherwise would be included in
Consolidated Total Indebtedness.
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Borrower to be taken no later than 18 months after the date of determination.
“Consolidated Working Capital”: at any date, the excess of (a) the sum of all amounts (other than cash, Cash Equivalents and Temporary Cash Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Borrower at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Borrower on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii) all Indebtedness consisting of Loans to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.
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“Consolidation”: the consolidation of the accounts of each of the Restricted Subsidiaries with those of the Borrower in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of the Borrower or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment. The term “Consolidated” has a correlative meaning.
“Contract Consideration”: as defined in the definition of “Excess Cash Flow”.
“Contractual Obligation”: as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Contribution Amounts”: the aggregate amount of capital contributions applied by the Borrower to permit the Incurrence of Contribution Indebtedness pursuant to Subsection 8.1(b)(xi).
“Contribution Indebtedness”: Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by the Borrower or any Restricted Subsidiary) made to the capital of the Borrower or such Restricted Subsidiary after the Closing Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of a Responsible Officer of the Borrower on the date of Incurrence thereof.
“Currency Agreement”: in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Declined Amount”: as defined in Subsection 4.4(h).
“Default”: any of the events specified in Subsection 9.1, whether or not any requirement for the giving of notice (other than, in the case of Subsection 9.1(e), a Default Notice), the lapse of time, or both, or any other condition specified in Subsection 9.1, has been satisfied.
“Default Notice”: as defined in Subsection 9.1(e).
“Deposit Account”: any deposit account (as such term is defined in Article 9 of the UCC).
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“Designated Noncash Consideration”: the Fair Market Value of noncash consideration received by the Borrower or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation.
“Designation Date”: as defined in Subsection 2.10(f).
“Discharge”: the Borrower or any Restricted Subsidiary shall have repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness that is no longer outstanding on the relevant date of determination.
“Discount Prepayment Accepting Lender”: as defined in Subsection 4.4(l)(ii)(2).
“Discount Range”: as defined in Subsection 4.4(l)(iii)(1).
“Discount Range Prepayment Amount”: as defined in Subsection 4.4(l)(iii)(1).
“Discount Range Prepayment Notice”: a written notice of the Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Subsection 4.4(l) substantially in the form of Exhibit N.
“Discount Range Prepayment Offer”: the irrevocable written offer by a Lender, substantially in the form of Exhibit O, submitted in response to an invitation to submit offers following the Administrative Agent’s receipt of a Discount Range Prepayment Notice.
“Discount Range Prepayment Response Date”: as defined in Subsection 4.4(l)(iii)(1).
“Discount Range Proration”: as defined in Subsection 4.4(l)(iii)(3).
“Discounted Prepayment Determination Date”: as defined in Subsection 4.4(l)(iv)(3).
“Discounted Prepayment Effective Date”: in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, or otherwise five Business Days following the receipt by each relevant Lender of notice from the Administrative Agent in accordance with Subsection 4.4(l)(ii), Subsection 4.4(l)(iii) or Subsection 4.4(l)(iv), as applicable unless a shorter period is agreed to between the Borrower and the Administrative Agent.
“Discounted Term Loan Prepayment”: as defined in Subsection 4.4(l)(i).
“Disinterested Directors”: with respect to any Affiliate Transaction, one or more members of the Board of Directors of the Borrower, or one or more members of the Board of Directors of a Parent Entity, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction. A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of the Borrower or any Parent Entity or any options, warrants or other rights in respect of such Capital Stock.
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“Disposition”: as defined in the definition of the term “Asset Disposition” in this Subsection 1.1.
“Disqualified
Lender” shall mean (i) any person identified by the Borrower to the Administrative Agent in writing by name that
is or becomes an operating company competitor of the Borrower and/or any its Subsidiaries, (ii) any person that is identified
by the Borrower to the Lead Arrangers and the Administrative Agent (or its Affiliates) in writing by name on or prior to September
14, 2016the
Third Amendment Effective Date; and (iii)
any affiliate of any person described in clauses (i) or (ii) above that are either (x) reasonably identifiable solely on
the basis of such affiliate’s name or (y) identified in writing by name by the Borrower to the Administrative Agent
from time to time, other than, with respect to this clause (iii), any bank, financial institution or fund that regularly invests
in commercial loans or similar extensions of credit in the ordinary course of business and for which no personnel directly involved
with the relevant person (A) makes investment decisions or (B) has access to non-public information relating to
the Borrower and/or its Subsidiaries.
“Disqualified Stock”: with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition), in whole or in part, in each case on or prior to the Initial Term Loan Maturity Date; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees or other eligible service providers of the Borrower or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.
“Dollars” and “$”: dollars in lawful currency of the United States of America.
“Domestic Subsidiary”: any Restricted Subsidiary of the Borrower other than a Foreign Subsidiary.
“ECF Payment Amount”: as defined in Subsection 4.4(e)(iii)(A).
“ECF Payment Date”: as defined in Subsection 4.4(e)(iii).
“EEA Financial Institution”: (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.
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“EEA Member Country”: any of the member states of the European Union, United Kingdom, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”: 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.
“Engagement Letter”: the Engagement Letter, dated as of September 14, 2016, among the Borrower and the Lead Arrangers.
“Environmental Costs”: any and all costs or expenses (including attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or alleged violation of, noncompliance with or liability under any Environmental Laws. Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind.
“Environmental Laws”: any and all U.S. or foreign, federal, state, provincial, territorial, local or municipal laws, rules, orders, enforceable guidelines and orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any Governmental Authority properly promulgated and having the force and effect of law or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning the management, discharge, release, registration or emissions of Materials of Environmental Concern or protection of human health (as it relates to exposure to Materials of Environmental Concern) or the environment, as have been, or now or at any relevant time hereafter are, in effect.
“Environmental Permits”: any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law.
“ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to time.
“EU Bail-In Legislation Schedule”: EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the Adjusted LIBOR Rate.
“Event of Default”: any of the events specified in Subsection 9.1, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.
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“Excess Cash Flow”: for any period, an amount equal to the excess of:
(a) the sum, without duplication, of
(i) Consolidated Net Income for such period,
(ii) an amount equal to the amount of all non-cash charges to the extent deducted in calculating such Consolidated Net Income and cash receipts to the extent excluded in calculating such Consolidated Net Income (except to the extent such cash receipts are attributable to revenue or other items that would be included in calculating Consolidated Net Income for any prior period),
(iii) decreases in Consolidated Working Capital for such period (other than any such decreases arising (x) from any acquisition or disposition of (a) any business unit, division, line of business or Person or (b) any assets other than in the ordinary course of business (each, an “ECF Acquisition” or “ECF Disposition”, respectively) by the Borrower and its Restricted Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification of any item from short-term to long-term or vice versa),
(iv) an amount equal to the aggregate net non-cash loss on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Disposition”) by the Borrower and its Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent deducted in calculating such Consolidated Net Income,
(v) cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in calculating such Consolidated Net Income, and
(vi) any extraordinary, unusual or nonrecurring cash gain, over (b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in calculating such Consolidated Net Income and cash charges to the extent not deducted in calculating such Consolidated Net Income,
(ii) without duplication of amounts deducted pursuant to clause (xi) below in prior years, the amount of Capital Expenditures either made in cash or accrued during such period (provided that, whether any such Capital Expenditures shall be deducted for the period in which cash payments for such Capital Expenditures have been paid or the period in which such Capital Expenditures have been accrued shall be at the Borrower’s election; provided, further that, in no case shall any accrual of a Capital Expenditure which has previously been deducted give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent period), except to the extent that such Capital Expenditures were financed with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (unless such Indebtedness has been repaid),
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(iii) the aggregate amount of all principal payments, purchases or other retirements of Indebtedness of the Borrower and its Restricted Subsidiaries, except to the extent financed with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Lease Obligations, (B) the amount of any repayment of Term Loans pursuant to Subsection 2.2(b), (C) the amount of a mandatory prepayment of Term Loans pursuant to Subsection 4.4(e)(i) and any mandatory prepayment, repayment or redemption of Pari Passu Indebtedness pursuant to requirements under the agreements governing such Pari Passu Indebtedness similar to the requirements set forth in Subsection 4.4(e)(i), to the extent required due to an Asset Disposition (or any disposition specifically excluded from the definition of the term “Asset Disposition”) that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase (except to the extent financed with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries), but excluding all other payments of Loans made during such period, and (D) the amount of repayment of Term Loans under Subsections 4.4(a) and 4.4(l)), but excluding such payments, purchases or other retirements to the extent such payments, purchases or other retirements reduce the ECF Payment Amount pursuant to Subsection 4.4(e)(iii)),
(iv) an amount equal to the aggregate net non-cash gain on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Disposition”) by the Borrower and its Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent included in calculating such Consolidated Net Income,
(v) increases in Consolidated Working Capital for such period (other than any such increases arising (x) from any ECF Acquisition or ECF Disposition by the Borrower and its Restricted Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification from short-term to long-term or vice versa);
(vi) payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness, to the extent not already deducted in calculating Consolidated Net Income,
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(vii) without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the aggregate amount of cash consideration paid by the Borrower and its Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 to the extent that such Investments were financed with internally generated cash flow of the Borrower and its Restricted Subsidiaries,
(viii) the amount of Restricted Payments (other than Investments) made in cash during such period (on a consolidated basis) by the Borrower and its Restricted Subsidiaries pursuant to Subsection 8.2(b) (other than Subsection 8.2(b)(vi)), to the extent such Restricted Payments were financed with internally generated cash flow of the Borrower and its Restricted Subsidiaries,
(ix) the aggregate amount of expenditures actually made by the Borrower and its Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted or excluded in calculating Consolidated Net Income,
(x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,
(xi) at the Borrower’s election, without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among the Borrower and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period; provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,
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(xii) (a) the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in calculating such Consolidated Net Income for such period and (b) the amount of taxes (including penalties and interest) to be paid in cash or tax reserves set aside or payable (without duplication) within 180 days after the end of such period provided that the amounts described in this clause (b) will not reduce Excess Cash Flow in subsequent periods,
(xiii) cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in calculating such Consolidated Net Income, and
(xiv) any extraordinary, unusual or nonrecurring cash loss or charge (including fees, expenses and charges associated with the Transactions and any acquisition, merger, consolidation or amalgamation after the Closing Date).
“Exchange Act”: the Securities Exchange Act of 1934, as amended from time to time.
“Excluded Contribution”: Net Cash Proceeds, or the Fair Market Value of property or assets, received by the Borrower as capital contributions to the Borrower after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of the Borrower, in each case to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of the Borrower and not previously included in the calculation set forth in Subsection 8.2(a)(3)(B)(x) for purposes of determining whether a Restricted Payment may be made.
“Excluded Information”: as defined in Subsection 4.4(l)(i).
“Excluded Property”: has the meaning set forth in the Security Agreement.
“Excluded Subsidiary”: at any date of determination, any Subsidiary of the Borrower:
(a) that is an Immaterial Subsidiary;
(b) that is prohibited by Requirement of Law or Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof) from Guaranteeing the Term Loan Facility Obligations or if Guaranteeing the Term Loan Facility Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;
(c) with respect to which the Borrower and the Administrative Agent reasonably agree that the burden or cost or other consequences of providing a guarantee of the Term Loan Facility Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
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(d) with respect to which the provision of such guarantee of the Term Loan Facility Obligations would result in material adverse tax consequences to the Borrower or any of its Subsidiaries (as reasonably determined by the Borrower and notified in writing to the Administrative Agent by the Borrower);
(e) that is a Subsidiary of a Foreign Subsidiary;
(f) that is a joint venture or Non-Wholly Owned Subsidiary;
(g) that is an Unrestricted Subsidiary;
(h) that is a Captive Insurance Subsidiary;
(i) that is a Special Purpose Entity;
(j) that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity, or (y) merging with the Borrower or any Parent Entity in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with the Borrower or any Parent Entity within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity; or
(k) that is a not for profit Subsidiary;
provided that, notwithstanding the foregoing, any Subsidiary that Guarantees the payment of the Senior ABL Facility Agreement shall not be an Excluded Subsidiary.
Subject to the proviso in the preceding sentence, any Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of Parent are available shall continue to be deemed an Excluded Subsidiary hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1 with respect to such period. If reasonably requested by the Administrative Agent, the Borrower shall provide to the Administrative Agent a list of all Excluded Subsidiaries promptly following such request.
“Excluded
Taxes”: (a) any Taxes
measured by or imposed upon the net income (however denominated) of any Agent or Lender or its applicable lending office, or any
branch or affiliate thereof, and all franchise Taxes, branch profits Taxes, in each case imposed: (i) by the jurisdiction
under the laws of which such Agent or Lender, applicable lending office, branch or affiliate is organized or is located, or in
which its principal executive office is located, or any nation within which such jurisdiction is located or any political subdivision
thereof; or (ii) by reason of any present
or former connection between the jurisdiction imposing
such Tax and such Agent or Lender, applicable lending office, branch or affiliate other than a connection arising solely from
such Agent or Lender having executed, delivered or performed its obligations under, or received payment under or enforced, this
Agreement or any Notes, (iii) in the case of the Lender, U.S. federal withholding Taxes imposed on amounts payable to or
for the account of such Lender with respect to an applicable interest in the Loan or
Commitment pursuant to a law in effect on the date
on which (a) such Lender acquires such interest in the Loan or
Commitment (other than pursuant to an assignment
request by the Borrower under SectionSubsection
4.13(c))
or (b) such Lender changes its lending office, except in each case to the extent that, pursuant to SectionSubsection
4.11,
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, (iv) Taxes applicable to Lender or Agent’s
failure to compycomply
with SectionSubsection
4.11(b),
(c) and (d), and (v) any withholding Tax imposed by FATCA.
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“Exempt
Sale and Leaseback Transaction”: any Sale and Leaseback Transaction (a) in which the sale or transfer of property
occurs within 180 days of the acquisition of such property by the Borrower or any of its Subsidiaries or (b) that involves
property with a book value of $10,000,000 or lessthe
greater of $27,000,000 and 10% of Consolidated EBITDA or less (for the most recently ended four-fiscal quarter period for which
consolidated financial statements of the Borrower are available) and
is not part of a series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such
amount and entered into with a single Person or group of Persons. For purposes of the foregoing, “Sale and Leaseback Transaction”
means any arrangement with any Person providing for the leasing by the Borrower or any of its Subsidiaries of real or personal
property that has been or is to be sold or transferred by the Borrower or any such Subsidiary to such Person or to any other Person
to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Borrower
or such Subsidiary.
“Existing
Credit Agreement”: the Credit Agreement, dated as of May 1, 2013 among the Borrower, Holdings, the lenders party thereto,
GCI Capital Markets LLC as administrative agent and collateral agent and Golub Capital Markets LLC (f/k/a GCI Capital Markets
LLC) as sole bookrunner and co-lead arranger and MCS Capital Markets LLC, as co-lead arranger and syndication agent, as in effect
as of the date hereofClosing
Date.
“Existing Term Loans”: as defined in Subsection 2.10(a).
“Existing Term Tranche”: as defined in Subsection 2.10(a).
“Extended Term Loans”: as defined in Subsection 2.10(a).
“Extended Term Tranche”: as defined in Subsection 2.10(a).
“Extending Lender”: as defined in Subsection 2.10(b).
“Extension”: as defined in Subsection 2.10(b).
“Extension Amendment”: as defined in Subsection 2.10(c).
“Extension Date”: as defined in Subsection 2.10(d).
“Extension Election”: as defined in Subsection 2.10(b).
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“Extension of Credit”: as to any Lender, the making of an Initial Term Loan (excluding any Supplemental Term Loans being made under the Initial Term Loan Tranche).
“Extension Request”: as defined in Subsection 2.10(a).
“Extension Request Deadline”: as defined in Subsection 2.10(b).
“Extension Series”: all Extended Term Loans that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins and amortization schedule.
“Facility”: each of (a) the Initial Term Loan Facility, (b) Incremental Term Loans of the same Tranche, (c) any Extended Term Loans of the same Extension Series, (d) any Specified Refinancing Term Loans of the same Tranche and (e) any other committed facility hereunder and the Extensions of Credit made thereunder, and collectively the “Facilities”.
“Fair Market Value”: with respect to any asset or property, the fair market value of such asset or property as determined in good faith by senior management of the Borrower or the Board of Directors, whose determination shall be conclusive.
“FATCA”: Sections 1471 through 1474 of the Code as in effect on the Closing Date (and any amended or successor provisions that are substantially comparable), any regulations or other administrative authority promulgated thereunder, and any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor provisions that are substantially comparable) and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention entered into in connection with the implementation of such Sections of the Code.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“Federal District Court”: as defined in Subsection 11.13(a).
“Federal Funds Effective Rate”: for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.
“Financing Disposition”: any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets by the Borrower or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets.
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“FIRREA”: the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.
“First Amendment”: means that certain Amendment No. 1 to Credit Agreement, dated as of March 31, 2017, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“First Amendment Effective Date”: means the date on which all of the conditions contained in Section 4 of the First Amendment have been satisfied or waived.
“First Lien Obligations”: (i) the Term Loan Facility Obligations and (ii) the Additional Obligations, Permitted Incremental Equivalent Debt, Permitted Debt Exchange Notes, Rollover Indebtedness and Refinancing Indebtedness in respect of the Indebtedness described in this clause (ii) (other than any such Additional Obligations, Permitted Incremental Equivalent Debt, Permitted Debt Exchange Notes, Rollover Indebtedness and Refinancing Indebtedness that are unsecured or secured by a Lien ranking junior to the Lien securing the Term Loan Facility Obligations) secured by a first priority security interest in the Term Priority Collateral and a second priority security interest in the ABL Priority Collateral, collectively.
“first priority”: with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is the most senior Lien to which such Collateral is subject (subject to Liens permitted hereunder (including Permitted Liens) applicable to such Collateral which have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document (or, in the case of Collateral constituting Pledged Interests (as defined in the Security Agreement), Permitted Liens of the type described in clauses (a), (k)(4) (other than subclause (z)), (l), (m), (n), (p)(1), (s), (w) and, solely with respect to Permitted Liens described in the foregoing clauses, (o) of the definition thereof)). For purposes of this definition, a Lien purported to be created in any Collateral pursuant to any Security Document will be construed as the “most senior Lien” to which such Collateral is subject, notwithstanding the existence of a Permitted Lien on the Collateral that is pari passu with the Lien on such Collateral, so long as such Permitted Lien is subject to the terms of the ABL/Term Loan Intercreditor Agreement or an Other Intercreditor Agreement.
“Fiscal Year”: any period of twelve (12) consecutive months ending on the last Thursday of any calendar year or any other date of any calendar year designated by the Borrower in accordance with Subsection 7.12, in each case calculated in accordance with the fiscal calendar of Parent.
“Fixed GAAP Date”: the Closing Date, provided that at any time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
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“Fixed GAAP Terms”: (a) the definitions of the terms “Borrowing Base” “Capital Expenditures”, “Capitalized Lease Obligation”, “Consolidated EBITDA”, “Consolidated Interest Expense”, “Consolidated Net Income”, “Consolidated Secured Indebtedness”, “Consolidated First Lien Leverage Ratio”, “Consolidated Secured Leverage Ratio”, “Consolidated Total Assets”, “Consolidated Total Indebtedness”, “Consolidated Total Leverage Ratio”, “Consolidated Working Capital”, “Consolidation”, “Excess Cash Flow”, “Foreign Borrowing Base”, “Inventory” or “Receivables”, (b) all defined terms in this Agreement to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Agreement or the Loan Documents that, at the Borrower’s election, may be specified by the Borrower by written notice to the Administrative Agent from time to time.
“Foreign Borrowing Base”: the sum of (1) 92.50% of the net ordinary liquidation value of inventory held by the Borrower’s Foreign Subsidiaries, (2) 90.00% of all Receivables of the Borrower’s Foreign Subsidiaries, and (3) Unrestricted Cash of the Borrower’s Foreign Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month for which internal consolidated financial statements of the Borrower are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Foreign Pension Plan”: a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which the Borrower or any Restricted Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.
“Foreign Plan”: each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by the Borrower or any of its Restricted Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
“Foreign Subsidiary”: any Subsidiary of the Borrower (a) that is organized under the laws of any jurisdiction outside of the United States of America and any Subsidiary of such Foreign Subsidiary or (b) that is a Foreign Subsidiary Holdco. Any subsidiary of the Borrower which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Holdco”: any Restricted Subsidiary of the Borrower, so long as such Restricted Subsidiary has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof). Any Subsidiary which is a Foreign Subsidiary Holdco that fails to meet the foregoing requirements as of any date of determination shall continue to be deemed a “Foreign Subsidiary Holdco” hereunder until the date that is 60 days following such date (or such later date as the Administrative Agent may reasonably agree).
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“Funded Debt”: all Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of the Borrower or any Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all amounts of such debt required to be paid or prepaid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Term Loans.
“GAAP”: generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession, and subject to the following sentence. If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Borrower may elect by written notice to the Administrative Agent to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP as defined in the first sentence of this definition. All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.
“Governmental Authority”: the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
“Guarantee”: any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guaranty Agreement”:
the Term Loan Guaranty Agreement delivered to the Collateral Agent as of the date hereofClosing
Date, substantially in the form of Exhibit B hereto, as the same may be amended, supplemented, waived or
otherwise modified from time to time.
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“Guarantee Obligation”: as to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any such obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Guarantor Subordinated Obligations”: with respect to a Subsidiary Guarantor, any Indebtedness of such Subsidiary Guarantor (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Subsidiary Guaranty pursuant to a written agreement.
“Guarantors”: the collective reference to Holdings and each Subsidiary Guarantor; and, to the extent the Borrower is a guarantor of Obligations that do not constitute Term Loan Facility Obligations, the Borrower, individually, each a “Guarantor”.
“Hedge Agreements”: collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.
“Hedging Obligations”: as to any Person, the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.
“Holdings”: FDO Acquisition Corp., a Delaware corporation, and any successor in interest thereto.
“Identified Participating Lenders”: as defined in Subsection 4.4(l)(iii)(3).
“Identified Qualifying Lenders”: as defined in Subsection 4.4(l)(iv)(3).
“IFRS”: International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.
36
“Immaterial Subsidiary”: any Subsidiary of the Borrower designated as such in writing by the Borrower to the Administrative Agent that (i) (x) contributed 5.00% or less of total revenues for the Borrower and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower are available, determined on a consolidated basis in accordance with GAAP, and (y) had consolidated assets representing 5.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of the Borrower are available; and (ii) together with all other Immaterial Subsidiaries designated pursuant to the preceding clause (i), (x) contributed 10.00% or less of total revenues for the Borrower and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower are available, determined on a consolidated basis in accordance with GAAP, and (y) had consolidated assets representing 10.00% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of the Borrower are available; provided, however, that no Subsidiary of the Borrower that Guarantees the payment of the Senior ABL Facility shall be an “Immaterial Subsidiary” hereunder. Subject to the proviso in the immediately preceding sentence, any Subsidiary so designated as an Immaterial Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of the Borrower are available shall continue to be deemed an “Immaterial Subsidiary” hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1(a) or 7.1(b) with respect to such period.
“Increase Supplement”: as defined in Subsection 2.8(c).
“Incremental Commitment Amendment”: as defined in Subsection 2.8(d).
“Incremental Commitments”: as defined in Subsection 2.8(a)(ii).
“Incremental Indebtedness”: Indebtedness Incurred by the Borrower pursuant to and in accordance with Subsection 2.8.
“Incremental Lenders”: as defined in Subsection 2.8(b).
“Incremental Loans”: as defined in Subsection 2.8(d).
“Incremental Term Loan”: any Incremental Loan made pursuant to an Incremental Term Loan Commitment.
“Incremental Term Loan Commitments”: as defined in Subsection 2.8(a).
37
“Incur”: issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will not be deemed to be an Incurrence of Indebtedness. Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.
“Indebtedness”: with respect to any Person on any date of determination (without duplication):
(i) the principal of indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(iii) all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed);
(iv) all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;
(v) all Capitalized Lease Obligations of such Person;
(vi) the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of the Borrower other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by senior management of the Borrower, the Board of Directors of the Borrower or the Board of Directors of the issuer of such Capital Stock);
38
(vii) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the Borrower) and (B) the amount of such Indebtedness of such other Persons;
(viii) all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and
(ix) to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time).
The amount of Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided for in this Agreement, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.
“Indemnified Liabilities”: as defined in Subsection 11.5(d).
“Indemnitee”: as defined in Subsection 11.5(d).
“Information”: as defined in Subsection 11.16(a).
“Initial Agreement”: as defined in Subsection 8.3(c).
“Initial Term
Loan”: (a)
from the Closing Date to the First Amendment Effective Date, as defined in Subsection 2.1.;
(b) from and after the First Amendment Effective Date to the Second Amendment Effective Date, as defined in the First Amendment;
(c) from and after the Second Amendment Effective Date to the Third Amendment Effective Date, as defined in the Second Amendment;
and (d) from and after the Third Amendment Effective Date, as defined in the Third Amendment.
“Initial Term
Loan Commitment”: (a)
from the Closing Date to the First Amendment Effective Date, as to any Lender, its obligation to make Initial Term
Loans to the Borrower pursuant to Subsection 2.1(a) in an aggregate amount not to exceed at any one time outstanding the
amount set forth opposite such Lender’s name in Schedule A under the heading “Initial Term Loan Commitment”;
collectively, as to all the Lenders for
such period, the “Initial Term Loan Commitments”. The;
the original aggregate amount of the Initial Term Loan Commitments on the Closing Date is $350,000,000.;
(b) from and after the First Amendment Effective Date to the Second Amendment Effective Date, as to any Lender, its obligation
to make Initial Term Loans to the Borrower pursuant to Section 1(a) of the First Amendment in an aggregate amount not to exceed
at any one time outstanding the amount set forth opposite such Lender’s name in Schedule 2.01(a) to the First Amendment
under the heading “Replacement Term B-1 Loan Commitments”; collectively, as to all the Lenders for such period, the
“Initial Term Loan Commitments”; the original aggregate amount of the Initial Term Loan Commitments on the First Amendment
Effective Date is $348,250,000; (c) from and after the Second Amendment Effective Date to the Third Amendment Effective Date,
as to any Lender, its obligation to make Initial Term Loans to the Borrower pursuant to Section 1(a) of the Second Amendment in
an aggregate amount not to exceed at any one time outstanding the amount set forth opposite such Lender’s name in Schedule
2.01(a) to the Second Amendment under the heading “Replacement Term B-2 Loan Commitments”; collectively, as to all
the Lenders for such period, the “Initial Term Loan Commitments”; the original aggregate amount of the Initial Term
Loan Commitments on the Second Amendment Effective Date is $152,499,999.99; and (d) from and after the Third Amendment Effective
Date, as to any Lender, its obligation to make Initial Term Loans to the Borrower pursuant to Section 1(a) of the Third Amendment
in an aggregate amount not to exceed at any one time outstanding the amount set forth opposite such Lender’s name in Schedule
2.01(a) to the Third Amendment under the heading “Replacement Term B-3 Loan Commitments”; collectively, as to all
the Lenders for such period, the “Initial Term Loan Commitments”; the original aggregate amount of the Initial Term
Loan Commitments on the Third Amendment Effective Date is $144,624,999.73.
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“Initial Term Loan Facility”: the Initial Term Loan Commitments and the Extensions of Credit made thereunder.
“Initial Term Loan Maturity Date”:
September 30, 2023February
14, 2027.
“Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is “insolvent” within the meaning of Section 4245 of ERISA.
“Intellectual Property”: as defined in Subsection 5.9.
“Intercreditor Agreement Supplement”: as defined in Subsection 10.8(a).
“Interest Payment Date”: (a) as to any ABR Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding, and the final maturity date of such Loan, (b) as to any Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest Period, and (c) as to any Eurodollar Loan having an Interest Period longer than three months, (i) each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and (ii) the last day of such Interest Period.
“Interest Period”: with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and
40
(b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower by irrevocable notice to the Administrative Agent not less than three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that would otherwise extend beyond the Maturity Date shall (for all purposes other than Subsection 4.12) end on the Maturity Date;
(iii) 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) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require a scheduled payment of any Eurodollar Loan during an Interest Period for such Eurodollar Loan.
“Interest Rate Agreement”: with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.
“Inventory”: goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.
“Investment”: in any Person by any other Person, any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person. For purposes of the definition of “Unrestricted Subsidiary” and Subsection 8.2 only, (i) “Investment” shall include the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of the Borrower at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) the Borrower’s “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to the Borrower’s equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by the Borrower) at the time of such transfer and (iii) for purposes of Subsection 8.2(a)(3)(C), the amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of such redesignation. Guarantees shall not be deemed to be Investments. The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at the Borrower’s option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment; provided that to the extent that the amount of Restricted Payments outstanding at any time pursuant to Subsection 8.2(a) is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Subsection 8.2(a).
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“Investment Company Act”: the Investment Company Act of 1940, as amended from time to time.
“Investment Grade Rating”: a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any equivalent rating by any other nationally recognized rating agency.
“Investment Grade Securities”: (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Borrower and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
“Joinder” means an agreement, substantially in the form attached hereto as Exhibit K, pursuant to which, among other things, a Person becomes a party to, and bound by the terms of, the Loan Documents in the same capacity and to the same extent as a Guarantor.
“Judgment Conversion Date”: as defined in Subsection 11.8(a).
“Judgment Currency”: as defined in Subsection 11.8(a).
“Junior Capital”: collectively, any Indebtedness of any Parent Entity or the Borrower that (i) is not secured by any asset of any Loan Party or any Restricted Subsidiary, (ii)
42
is expressly subordinated to the prior payment in full of the Term Loan Facility Obligations hereunder on terms consistent with those for senior subordinated high yield debt securities issued by U.S. companies sponsored by one or more of the Permitted Holders (as determined in good faith by the Borrower, which determination shall be conclusive), (iii) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Initial Term Loan Maturity Date (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified Stock) of the Borrower, Capital Stock of any Parent Entity or any other Junior Capital), (iv) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Initial Term Loans and (v) does not require the payment of cash interest until the date that is 91 days after the Initial Term Loan Maturity Date.
“Junior Debt”: any Subordinated Obligations and Guarantor Subordinated Obligations.
“Junior Lien Intercreditor Agreement”: an intercreditor agreement in form and substance reasonably satisfactory to the Borrower, the Collateral Agent and the Collateral Representative of Junior Debt, to be entered into as required by the terms hereof, as amended, supplemented, waived or otherwise modified from time to time.
“LCA Election”: as defined in Subsection 1.2(i).
“LCA Test Date”: as defined in Subsection 1.2(i).
“Lead Arrangers”:
UBS Securities LLC, Merrill Lynch, Pierce Fenner & Smith Incorporated, Barclays Bank PLC,
Goldman Sachs Bank USA and Wells Fargo Securities, LLC.
“Lender Joinder Agreement”: as defined in Subsection 2.8(c).
“Lenders”: the several lenders from time to time parties to this Agreement together with, in the case of any such lender that is a bank or financial institution, any affiliate of any such bank or financial institution through which such bank or financial institution elects, by notice to the Administrative Agent and the Borrower, to make any Loans available to the Borrower, provided that for all purposes of voting or consenting with respect to (a) any amendment, supplementation or modification of any Loan Document, (b) any waiver of any of the requirements of any Loan Document or any Default or Event of Default and its consequences or (c) any other matter as to which a Lender may vote or consent pursuant to Subsection 11.1, the bank or financial institution making such election shall be deemed the “Lender” rather than such affiliate, which shall not be entitled to so vote or consent.
“Liabilities”: collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments, decrees, losses, damages, fees, costs and expenses (including interest, penalties and fees and disbursements of attorneys, accountants, investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third parties or otherwise at any time or from time to time.
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“LIBOR Rate”: with respect each day during each Interest Period pertaining to a Eurodollar Loan, the rate per annum determined by the Administrative Agent to be:
(a) the ICE Benchmark Administration LIBOR Rate or the successor thereto if the ICE Benchmark Administration is no longer making a LIBOR rate available, as published by Reuters (or such other commercially available source providing quotations of ICE LIBOR as may be designated by the Administrative Agent from time to time in its reasonable discretion and as consented to by the Borrower) at approximately 11:00 a.m., London time, two (2) London Banking Days prior to the commencement of such Interest Period, for dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or
(b) if no such page is available, the rate which results from interpolating on a linear basis between: (i) the rate appearing on the ICE Benchmark Administration page (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the Interest Period and (ii) the rate appearing on the ICE Benchmark Administration page (or on any successor or substitute page of such service) for the shortest period (for which that rate is available) which exceeds the Interest Period, each as of approximately 11:00 A.M., London time, two Business Days prior to the commencement of such Interest Period; or
(c) if no such page is available and it is not possible to calculated the interpolated rate pursuant to clause (b) above, the arithmetic mean of the rates (rounded upwards to the nearest 1/100th of 1.00% per annum) as supplied to the Administrative Agent at its request to leading banks in the London interbank market two London Business Days before the first day of such Interest Period for United States Dollar deposits of a duration equal to the duration of such Interest Period.
“LIBOR Successor Rate Conforming Changes”: means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Alternate Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, as determined by the Administrative Agent with the Borrower, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in consultation with the Borrower in connection with the administration of this Agreement).
“Lien”: any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
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“Limited Condition Acquisition”: any acquisition of any assets, business, or Person or any Investment, in either case, permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third-party financing.
“Loan”: each Initial Term Loan, Incremental Term Loan, Extended Term Loan and Specified Refinancing Term Loan; collectively, the “Loans”.
“Loan Documents”: this Agreement, the Notes, the ABL/Term Loan Intercreditor Agreement, the Security Agreement, the Guaranty Agreement, the Trademark Security Agreement, any Pari Passu Intercreditor Agreement (on and after the execution thereof), any Junior Lien Intercreditor Agreement (on and after the execution thereof), each other document designated a “Loan Document” by the Borrower and the Administrative Agent, each Other Intercreditor Agreement (on and after the execution thereof), and any other Security Documents, each as amended, supplemented, waived or otherwise modified from time to time.
“Loan Parties”: Holdings, the Borrower and the Subsidiary Guarantors; individually, a “Loan Party”.
“London Banking Day”: any day on which dealings in dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“Management
Advances”: (1) loans or advances made to directors, management members, officers, employees or consultants of
any Parent Entity, the Borrower or any Restricted Subsidiary (x) in respect of travel, entertainment or moving related
expenses incurred in the ordinary course of business, (y) in respect of moving related expenses incurred in connection
with any closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause
(z)) not exceeding $7,500,00020,250,000
in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection
with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other Guarantees
of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under
Subsection 8.1.
“Management
Guarantees”: guarantees (x) of up to an aggregate principal amount outstanding at any time of $15,000,00067,500,000
of borrowings by Management Investors in connection with their purchase of Management Stock or (y) made
on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of any Parent Entity,
the Borrower or any Restricted Subsidiary (1) in respect of travel, entertainment and moving related expenses incurred
in the ordinary course of business, or (2) in the ordinary course of business and (in the case of this clause (2)) not
exceeding $7,500,00020,250,000
in the aggregate outstanding at any time.
“Management
Indebtedness”: Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate
principal amount outstanding at any time of $15,000,00067,500,000,
and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Capital Stock of the Borrower,
any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) from any Management
Investor, which repurchase or other acquisition of Capital Stock is permitted by Subsection 8.2.
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“Management Investors”: the management members, officers, directors, employees and other members of the management of any Parent Entity, the Borrower or any of their respective Subsidiaries, or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted Holders”, such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by the Borrower, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Entity.
“Management Stock”: Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Material Adverse Effect”: a material adverse effect on (a) the business, operations, property or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the validity or enforceability as to the Loan Parties (taken as a whole) party thereto of the Loan Documents taken as a whole or (c) the rights or remedies of the Agents and the Lenders under the Loan Documents, in each case taken as a whole.
“Material Non-Public Information”: (a) if the Borrower is a public reporting company, material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws, and (b) if the Borrower is not a public reporting company, information that is (i) of the type that would not be publicly available if the Borrower were a public reporting company and (ii) material with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing for purposes of United States Federal and state securities laws.
“Material Subsidiaries”: Restricted Subsidiaries of the Borrower constituting, individually or in the aggregate (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule 1-02 under Regulation S-X.
“Materials of Environmental Concern”: any pollutants, contaminants, hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos, pesticides, herbicides, fungicides and polychlorinated biphenyls.
“Maturity Date”: the Initial Term Loan Maturity Date, for any Extended Term Tranche the “Maturity Date” (or comparable term) set forth in the applicable Extension Amendment, for any Incremental Commitments the “Maturity Date” (or comparable term) set forth in the applicable Incremental Commitment Amendment and for any Specified Refinancing Tranche the “Maturity Date” (or comparable term) set forth in the applicable Specified Refinancing Amendment, as the context requires.
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“Maximum Incremental
Facilities Amount”: at any date of determination, the sum of (i) $100,000,000(x)
the greater of $270,000,000 and 100% of Consolidated EBITDA (for the most recently ended four-fiscal quarter period for which
consolidated financial statements of the Borrower are available) less the aggregate principal amount of Permitted Incremental
Equivalent Debt issued, incurred or otherwise obtained to the extent incurred pursuant to this clause (i)(x) plus,
(y) the aggregate principal amount of voluntary prepayments
of Term Loans to the extent such prepayments are not funded with the proceeds of Indebtedness, plus (ii) an additional
amount if, after giving effect to the Incurrence of such additional amount (or on the date of the initial commitment to lend such
additional amount after giving pro forma effect to the Incurrence of the entire committed amount of such additional amount), (x)
if such Indebtedness is unsecured, the Consolidated Total Leverage Ratio does not exceed 3.50:1.00, (y) if such Indebtedness is
secured on a pari passu basis with the Term Loan Facility Obligations, the Consolidated First Lien Leverage Ratio does not exceed
2.50:1.00, and (z) if such Indebtedness is secured on a junior priority basis to the Term Loan Facility Obligations,
the Consolidated Secured Leverage Ratio shalldoes
not exceed 3.73.50:1.00
(as set forth in an officer’s certificate of a Responsible Officer of the Borrower delivered to the Administrative Agent
at the time of such Incurrence, together with calculations demonstrating compliance with such ratio (it being understood that
(A) if pro forma effect is given to the entire committed amount of any such additional amount on the date of initial borrowing
of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, such committed
amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this
clause, (B) for purposes of calculating the Consolidated Secured Leverage Ratio, any additional amount Incurred pursuant
to clause (ii) of this definition shall be treated as if such amount is Consolidated Secured Indebtedness, regardless of whether
such amount is actually so secured) (C) unless the Borrower elects otherwise, any Incremental Term Loan will be deemed
incurred first pursuant to clause (ii) above to the extent permitted hereunder and (D) the
Borrower shall, in its sole discretion, classify or reclassify Indebtedness Incurred pursuant to clause (i)
above (or any portion thereof) shall
automatically be reclassified as incurred under clause (ii) above at any time after the Incurrence thereof if such
Indebtedness satisfies the requirements of clause (ii) above).
“MFN Provision”: as defined in Subsection 2.8(d).
“Minimum Exchange Tender Condition”: as defined in Subsection 2.9(b).
“Minimum Extension Condition”: as defined in Subsection 2.10(g).
“Moody’s”: Moody’s Investors Service, Inc., and its successors.
“Mortgaged Fee Properties”: the collective reference to each real property owned in fee by the Loan Parties listed on Schedule 5.8 or required to be mortgaged as Collateral pursuant to the requirements of Subsection 7.9, including the land and all buildings, improvements, structures and fixtures now or subsequently located thereon and owned by any such Loan Party; in each case, unless and until such time as the Mortgage on such real property is released in accordance with the terms and provisions hereof and thereof.
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“Mortgages”: each of the mortgages and deeds of trust, or similar security instruments executed and delivered by any Loan Party to the Collateral Agent, in form and substance to be reasonably agreed between the Borrower and the Collateral Agent, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Most Recent Four Quarter Period”: the four-fiscal-quarter period of the Borrower ending on the last day of the most recently completed Fiscal Year or fiscal quarter for which financial statements of the Borrower have been (or have been required to be) delivered under Subsection 7.1(a) or 7.1(b).
“Multiemployer Plan”: a Plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.
“Net Available Cash”: from an Asset Disposition or Recovery Event, an amount equal to the cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or Recovery Event or received in any other non-cash form) therefrom, in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case, as a consequence of, or in respect of, such Asset Disposition or Recovery Event (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Subsection 8.4), (ii) all payments made, and all installment payments required to be made, on any Indebtedness (other than Pari Passu Indebtedness) (x) that is secured by any assets subject to such Asset Disposition or involved in such Recovery Event, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition or Recovery Event, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition or Recovery Event, or to any other Person (other than Parent or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition or subject to such Recovery Event, (iv) any liabilities or obligations associated with the assets disposed of in such Asset Disposition or involved in such Recovery Event and retained, indemnified or insured by the Borrower or any Restricted Subsidiary after such Asset Disposition or Recovery Event, including pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition or Recovery Event, (v) in the case of an Asset Disposition, the amount of any purchase price or similar adjustment (x) claimed by any Person to be owed by the Borrower or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or (y) paid or payable by the Borrower or any Restricted Subsidiary, in either case in respect of such Asset Disposition and (vi) in the case of any Recovery Event, any amount thereof that constitutes or represents reimbursement or compensation for any amount previously paid or to be paid by the Borrower or any of its Subsidiaries.
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“Net Cash Proceeds”: with respect to any issuance or sale of any securities of the Borrower or any Subsidiary by the Borrower or any Subsidiary, or any capital contribution, or any Incurrence of Indebtedness, the cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance, sale, contribution or Incurrence and net of all taxes paid or payable as a result, or in respect, thereof.
“Net Short Lender”: shall mean any Lender that, as a result of its interest in any total return swap, total rate of return swap, credit default swap or other derivative transaction (other than any such total return swap, total rate of return swap, credit default swap or other derivative transaction entered into pursuant to bona fide market making activities), has a Net Short Position with respect to the Loans or Commitments.
“Net Short Position”: shall mean with respect to a Lender, the net position, if any, held by such Lender and that is remaining after deducting any long position that the Lender holds (i.e., a position (whether as an investor, lender or holder of debt obligations, including synthetic positions by way of derivatives such as credit default swaps)) where the Lender is exposed to the credit risk of obligations of the Borrower and other Loan Parties that would constitute “Deliverable Obligations” under a market standard Standard North American Corporate credit default swap transaction documented using the ISDA CDS Definitions (as defined below) referencing any of the Borrower or the other Loan Parties) from any short positions (i.e., a position as described above, but where the Lender is instead protected from the credit risk described above). For purposes of determining whether a Lender has a Net Short Position on any date of determination: (i) derivative transactions with respect to the Loans and Commitments and such transactions that are the functional equivalent thereof shall be counted at the notional amount thereof in Dollars, (ii) notional amounts in other currencies shall be converted to the Dollar equivalent thereof by such Lender in a commercially reasonable manner consistent with generally accepted financial practices and based on the prevailing conversion rate (determined on a mid-market basis) on the date of determination, (iii) derivative transactions in respect of an index that includes any of the Borrower or the other Loan Parties or any instrument issued or Guaranteed by any of the Borrower or the other Loan Parties shall not be deemed to create a short position with respect to the Loans and/or Commitments, so long as (x) such index is not created, designed, administered or requested by such Lender and (y) the Borrower and the other Loan Parties and any instrument issued or Guaranteed by any of the Borrower or the other Loan Parties, collectively, shall represent less than 5% of the components of such index, (iv) derivative transactions that are documented using either the 2014 ISDA Credit Derivatives Definitions or the 2003 ISDA Credit Derivatives Definitions (collectively, the “ISDA CDS Definitions”) shall only be deemed to create a short position with respect to the Loans and/or Commitments if such Lender is a protection buyer or the equivalent thereof for such derivative transaction and (x) the Loans or the Commitments are a “Reference Obligation” under the terms of such derivative transaction (whether specified by name in the related documentation, included as a “Standard Reference Obligation” on the most recent list published by IHS Markit, if “Standard Reference Obligation” is specified as applicable in the relevant documentation or in any other manner), (y) the Loans or the Commitments would be a “Deliverable Obligation” under the terms of such derivative transaction, or (z) any of the Borrower or the other Loan Parties (or its successors) is designated as a “Reference Entity” under the terms of such derivative transactions, and (v) credit derivative transactions or other derivatives transactions not documented using the ISDA CDS Definitions shall be deemed to create a short position with respect to the Loans and/or Commitments if such transactions are functionally equivalent to a transaction that offers the Lender protection in respect of the Loans or the Commitments, or as to the credit quality of any of the Borrower or other Loan Parties other than, in each case, as part of an index so long as (x) such index is not created, designed, administered or requested by such Lender and (y) the Borrower and the other Loan Parties and any instrument issued or Guaranteed by any of the Borrower or the other Loan Parties, collectively, shall represent less than 5% of the components of such index. In connection with any such determination, each Lender shall promptly notify the Administrative Agent in writing that it is a Net Short Lender, or shall otherwise be deemed to have represented and warranted to the Borrower and the Administrative Agent at the time of such determination that it is not a Net Short Lender (it being understood and agreed that the Borrower and the Administrative Agent shall be entitled to rely on each such representation and deemed representation).
49
“New York Courts”: as defined in Subsection 11.13(a).
“New York Supreme Court”: as defined in Subsection 11.13(a).
“Non-Consenting Lender”: as defined in Subsection 11.1(g).
“Non-Excluded Taxes”: (a) all 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 to the extent not otherwise described in (a), Other Taxes.
“Non-Extending Lender”: as defined in Subsection 2.10(e).
“Non-Wholly Owned Subsidiary”: each Subsidiary of the Borrower that is not a Wholly Owned Subsidiary.
“Note”: as defined in Subsection 2.2(a).
“Obligation Currency”: as defined in Subsection 11.8(a).
“Obligations”: with respect to any Indebtedness, any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Borrower or any Restricted Subsidiary whether or not a claim for post-filing interest is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.
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“OFAC”: as defined in Subsection 5.21(b).
“Offered Amount”: as defined in Subsection 4.4(l)(iv)(1).
“Offered Discount”: as defined in Subsection 4.4(l)(iv)(1).
“OID”: as defined in Subsection 2.8(d).
“Organizational Documents”: with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws or operating agreement (or the equivalent governing documents) of such Person.
“Other Intercreditor Agreement”: an intercreditor agreement in form and substance reasonably satisfactory to the Borrower and the Collateral Agent.
“Other Representatives”:
each of UBS Securities LLC, Merrill Lynch, Pierce Fenner & Smith Incorporated, Barclays
Bank PLC, Goldman Sachs Bank USA and Wells Fargo Securities, LLC, in their collective capacity as Joint Bookrunners.
“Other Taxes”: has the meaning in
SectionSubsection
11.5.
“Outstanding Amount”: with respect to the Loans on any date, the principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof occurring on such date.
“Parent”:
FDOFloor
& Decor Holdings, Inc., a Delaware corporation, and any successor in interest thereto.
“Parent Entity”: any of Parent, Holdings, any Other Parent, and any other Person that is a Subsidiary of Parent, Holdings, or any Other Parent and of which Borrower is a Subsidiary. As used herein, “Other Parent” means a Person of which the Borrower becomes a Subsidiary after the Closing Date that is designated by the Borrower as an “Other Parent”; provided that either (x) immediately after the Borrower first becomes a Subsidiary of such Person, more than 50.00% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.00% of the Voting Stock of a Parent Entity of the Borrower immediately prior to the Borrower first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the Borrower first becoming a Subsidiary of such Person. In no event shall the Borrower be deemed to be a “Parent Entity”.
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“Parent Expenses”: (i) costs (including all professional fees and expenses) incurred by any Parent Entity in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Indebtedness of the Borrower or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent Entity in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing) to the extent such intellectual property and associated rights relate to the business or businesses of the Borrower or any Subsidiary thereof, (iii) indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its charter or bylaws or pursuant to written agreements with or for the benefit of any such Person, or obligations in respect of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of any Parent Entity incurred in the ordinary course of business, and (v) fees and expenses incurred by any Parent Entity in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to the Borrower or a Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent Entity shall cause the amount of such expenses to be repaid to the Borrower or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.
“Pari Passu Indebtedness”: Indebtedness with a Lien on the Term Priority Collateral ranking pari passu with the Liens securing the Term Loan Facility Obligations.
“Pari Passu Intercreditor Agreement”: an intercreditor agreement in form and substance reasonably satisfactory to the Borrower, the Collateral Agent and the Collateral Representative of Pari Passu Indebtedness, to be entered into as required by the terms hereof, as amended, supplemented, waived or otherwise modified from time to time.
“Participant”: as defined in Subsection 11.6(c)(i).
“Participant Register”: as defined in Subsection 11.6(b)(v).
“Participating Lender”: as defined in Subsection 4.4(l)(iii)(2).
“Patriot Act”: as defined in Subsection 11.18.
“PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
52
“Permitted Affiliated Assignee”: (a) any Sponsor, (b) each of the Affiliates and investment managers of a Sponsor, (c) any fund or account managed by any of the Persons described in clause (a) or (b) of this definition, (d) any employee benefit plan of any Parent Entity, the Borrower or any of its Restricted Subsidiaries and any person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (e) investment vehicles of Management Investors, but excluding natural persons.
“Permitted Debt Exchange”: as defined in Subsection 2.9(a).
“Permitted Debt Exchange Notes”: as defined in Subsection 2.9(a).
“Permitted Debt Exchange Offer”: as defined in Subsection 2.9(a).
“Permitted Holders”: any of the following: (i) any member of the Sponsor Group; (ii) any of the Management Investors and their respective Affiliates, (iii) any investment fund or vehicle managed, sponsored or advised by any member of the Sponsor Group or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, any member of the Sponsor Group or any Affiliate thereof, or any such investment fund or vehicle; (v) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) of which any of the Persons specified in clause (i), (ii), (iii) or (iv) above is a member (provided that (without giving effect to the existence of such “group” or any other “group”) one or more of such Persons collectively have beneficial ownership, directly or indirectly, of more than 50.00% of the total voting power of the Voting Stock of the Borrower or the Parent Entity held by such “group”), and any other Person that is a member of such “group”; and (vi) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Capital Stock of any Parent Entity or the Borrower. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) constitutes or results in a Change of Control in respect of which the Borrower make a Change of Control Offer pursuant to Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Debt), together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted Incremental Equivalent Debt”: means Indebtedness issued, incurred or otherwise obtained by the Borrower or any other Loan Party in respect of one or more series of senior unsecured notes, senior secured first lien or junior lien notes or subordinated notes (in each case issued in a public offering, Rule 144A or other private placement in lieu of the foregoing (and any Registered Equivalent Notes issued in exchange therefor)), pari passu, junior lien or unsecured loans or secured or unsecured mezzanine Indebtedness that, in each case, if secured, will be secured by Liens on the Collateral on an equal priority basis or a junior priority basis with the Liens on Collateral securing the Term Loan Facility Obligations, and that are issued or made in lieu of Incremental Term Loans; provided that (i) the aggregate principal amount of all Permitted Incremental Equivalent Debt at the time of issuance or incurrence shall not exceed the Maximum Incremental Facilities Amount at such time, (ii) such Permitted Incremental Equivalent Debt shall not be subject to any Guarantee by any Person other than a Loan Party, (iii) in the case of Permitted Incremental Equivalent Debt that is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of any Person other than any asset constituting Collateral, (iv) if such Permitted Incremental Equivalent Debt is secured, such Permitted Incremental Equivalent Debt shall be subject to the ABL/Term Loan Intercreditor Agreement, Pari Passu Intercreditor Agreement, Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, as applicable, (v) if such Permitted Incremental Equivalent Debt is (a) secured on a pari passu basis with the Term Loan Facility Obligations, such Permitted Incremental Equivalent Debt shall have a maturity date and weighted average life to maturity no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial Term Loan Maturity Date or a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loans, as applicable) and (b) unsecured or secured on a junior basis to the Term Loan Facility Obligations, such Permitted Incremental Equivalent Debt shall have a final maturity date at least ninety-one (91) days after the Initial Term Loan Maturity Date of the Initial Term Loans, (vi) such Permitted Incremental Equivalent Debt is on terms and conditions (other than pricing, rate floors, discounts, fees and operational redemption provisions) that are (A) not materially less favorable (taken as a whole and as determined in good faith by the Borrower) to the Borrower than, those applicable to the Initial Term Loans, (B) current market terms and conditions (taken as a whole and as determined in good faith by the Borrower) at the time of incurrence or issuance or (C) otherwise reasonably acceptable to the Administrative Agent; provided, that, if such Permitted Incremental Equivalent Debt is in the form of term loans that are secured on a pari passu basis with the Term Loan Facility Obligations, such Permitted Incremental Equivalent Debt shall be subject to the MFN Provision (as if references therein to Incremental Term Loans were references to Permitted Incremental Equivalent Debt).
53
“Permitted Investment”: an Investment by the Borrower or any Restricted Subsidiary in, or consisting of, any of the following:
(i) a Restricted Subsidiary, the Borrower, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person in contemplation of so becoming a Restricted Subsidiary);
(ii) another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary (and, in each case, any Investment held by such other Person that was not acquired by such Person in contemplation of such merger, consolidation or transfer);
54
(iii) Temporary Cash Investments, Investment Grade Securities or Cash Equivalents;
(iv) receivables owing to the Borrower or any Restricted Subsidiary, if created or acquired in the ordinary course of business;
(v) any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Subsection 8.4;
(vi) securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, the Borrower or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;
(vii) Investments existing or made pursuant to legally binding written commitments in existence on the Closing Date and set forth on Schedule 1.1(f);
(viii) Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Subsection 8.1;
(ix) pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Subsection 8.6;
(x) (1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by the Borrower or any Parent Entity, provided that if such Parent Entity receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent Entity to the Borrower;
(xi) bonds secured by assets leased to and operated by the Borrower or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as the Borrower or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(xii) [reserved];
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(xiii) any Investment to the extent made using Capital Stock of the Borrower (other than Disqualified Stock), Capital Stock of any Parent Entity or Junior Capital as consideration;
(xiv) Management Advances;
(xv) Investments
in Related Businesses in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $35,000,00094,500,000
and 35.00% of Consolidated EBITDA for the most
recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available;
(xvi) any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Subsection 8.5(b) (except transactions described in clauses (i), (ii)(4), (iii), (v), (vi), (ix) and (x) therein), including any Investment pursuant to any transaction described in Subsection 8.5(b)(ii) (whether or not any Person party thereto is at any time an Affiliate of the Borrower);
(xvii) any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to the Borrower or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable;
(xviii) other
Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $35,000,00094,500,000
and 35.00% of Consolidated EBITDA for the most
recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available; and
(xix) additional
Investments so long as, on a pro forma basis, at
the Borrower’s option, the Consolidated Total
Leverage Ratio is less than or equal to either
(x) 3.00:1.00.
or
(y) the Consolidated Total Leverage Ratio in effect immediately prior to such Investment; and
(xx) additional Investments in an amount not to exceed any available Restricted Payment capacity under Subsection 8.2 (provided, that such use shall reduce the applicable Restricted Payment capacity on a dollar-for-dollar basis).
If any Investment pursuant to clause (xv), (xviii) or (xix) above, or Subsection 8.2(b)(vi), as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a Restricted Subsidiary or (B) is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xv), (xviii) or (xix) above, or Subsection 8.2(b)(vi), as applicable.
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“Permitted Liens”:
(a) Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on the Borrower and its Restricted Subsidiaries or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrower or a Subsidiary thereof, as the case may be, in accordance with GAAP;
(b) Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;
(c) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(d) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;
(e) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, declarations, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries, taken as a whole;
(f) Liens existing on, or provided for under written arrangements existing on, the Closing Date and set forth on Schedule 1.1(e), or (in the case of any such Liens securing Indebtedness of the Borrower or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness (other than Indebtedness Incurred under Subsection 8.1(b)(i) and secured under clause (k)(1) of this definition), so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;
(g) (i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Borrower or any Restricted Subsidiary of the Borrower has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;
57
(h) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Subsection 8.1;
(i) Liens arising out of judgments, decrees, orders or awards in respect of which the Borrower or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens
securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (1) Indebtedness Incurred
in compliance with Subsection 8.1(b)(i) pursuant to (a) this Agreement and the other Loan Documents, (b)
the Senior ABL Facility, (c) any Permitted Debt Exchange Notes (and any Refinancing Indebtedness in respect thereof), (d)
any Rollover Indebtedness (and any Refinancing Indebtedness in respect thereof) and (e) any Additional Obligations (and
anyor
Permitted Incremental Equivalent Debt (and in each case, any Refinancing
Indebtedness in respect thereof), provided, that any Liens on Collateral pursuant to subclause (b), (c), (d) or (e) of
this clause (k)(1) shall be subject to the ABL/Term Loan Intercreditor Agreement, any Pari
Passu Intercreditor Agreement, any Junior Lien Intercreditor
Agreement or an Other Intercreditor Agreement, as applicable, (2) Indebtedness Incurred in compliance with clauses (b)(iv),
(b)(v), (b)(vii), (b)(viii) (b)(xviii), (other
than with respect to clause (H) thereof), or clauses (b)(iii)(B) and (C) of Subsection 8.1, (3) any
Indebtedness Incurred in compliance with Subsection 8.1(b)(xiii); provided that any Liens securing such Indebtedness
shall rank junior to the Liens securing the Term Loan Facility Obligations and shall be subject to the Pari
Passu Intercreditor Agreement, Junior Lien Intercreditor
Agreement or an Other Intercreditor Agreement, as applicable, (4) (A) Acquisition Indebtedness Incurred in compliance
with Subsection 8.1(b)(x) or (xi); provided that (x) such Liens are limited to all or part of the
same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect
thereof, or replacements of any thereof) acquired, or of any Person acquired or merged or consolidated with or into the Borrower
or any Restricted Subsidiary, in any transaction to which such Acquisition Indebtedness relates, (y) on the date of the
Incurrence of such Indebtedness after giving effect to such Incurrence, (I) theif
such Indebtedness is secured on a pari passu basis, at the Borrower’s option, the Borrower would have a
Consolidated SecuredFirst
Lien Leverage Ratio would
be equal to or less than 3.7or
equal to (x) 2.50:1.00 or (IIy)
the Consolidated First Lien Leverage Ratio in effect immediately prior to such Indebtedness and (II) if such Indebtedness is secured
on a junior priority basis, at the Borrower’s option, the Borrower would have a Consolidated Secured Leverage Ratio less
than or equal to (x) 3.50:1.00 or (y) the
Consolidated Secured Leverage Ratio would equal or be less than the Consolidated Secured Leverage
Ratioin
effect immediately prior to giving
effect theretosuch
Indebtedness or (z) such Liens rank
junior to the Liens securing the Term Loan Facility Obligations and shall be subject to the ABL/Term Loan
Intercreditor Agreement,
the Pari Passu Intercreditor Agreement,
the Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (B) any Refinancing Indebtedness
Incurred in respect thereof, (5) Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor (limited,
in the case of this clause (k)(5), to Liens on any of the property and assets of any Restricted Subsidiary that is not a Subsidiary
Guarantor or the Capital Stock of such Restricted Subsidiary), or (6) obligations in respect of Management Advances or
Management Guarantees, in each case under the foregoing clauses (1) through (6) including Liens securing any Guarantee of any
thereof;
58
(l) Liens existing on property or assets of a Person at the time such Person becomes a Subsidiary of the Borrower (or at the time the Borrower or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger, consolidation or amalgamation with or into the Borrower or any Restricted Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (l), if a Person other than the Borrower is the Successor Borrower with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of the Borrower, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Borrower;
(m) Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or any joint venture that is not a Subsidiary of the Borrower that secure Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively;
(n) any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(o) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness secured by (other than any Indebtedness described in clause (k)(1) above of this definition), or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;
(p) Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (2) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (3) [reserved], (4) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (5) securing or arising by reason of any netting or set-off arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (6) in favor of the Borrower or any Subsidiary (other than Liens on property or assets of the Borrower or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (7) arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (8) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, or (11) arising in connection with repurchase agreements permitted under Subsection 8.1 on assets that are the subject of such repurchase agreements;
59
(q) other
Liens securing Indebtedness or other obligations that in the aggregate do not exceed at any time outstanding an amount equal to
the greater of $35,000,000135,000,000
and 35.0050.00%
of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the
Borrower are available at the time of Incurrence of such Indebtedness or other obligations;
(r) Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations of, or in favor of, any Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise, Incurred pursuant to clause (b)(ix) of Subsection 8.1;
(s) Liens
securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Indebtedness Incurred in compliance
with Subsection 8.1; provided that on the date of Incurrence of such Indebtedness after giving effect to such Incurrence
(or on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment
to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount, in which case
such committed amount may thereafter be borrowed and reborrowed in whole or in part, from time to time, without further compliance
with this clause), (x)
if such Indebtedness is secured on a pari passu basis, at the Borrower’s option, the Borrower would have a Consolidated
First Lien Leverage Ratio less than or equal to (i) 2.50:1.00 or (ii) the Consolidated First Lien Leverage Ratio in effect immediately
prior to such Indebtedness or (z) if such Indebtedness is secured on a junior priority basis, at the Borrower’s option,
the Borrower would have a Consolidated Secured Leverage Ratio less than or equal to (i) 3.50:1.00 or (ii)
the Consolidated Secured Leverage Ratio shall
not exceed 3.70:1.00in
effect immediately prior to such Indebtedness;
and
(t) Liens
on the Collateral, if such Liens rank junior to the Liens on such Collateral in relation to the Lien securing the Loans and the
Subsidiary Guarantees; provided that such Liens shall be subject to the Junior Lien
Intercreditor Agreement or Other Intercreditor Agreement, as applicable.;
and
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(u) additional Liens in an amount not to exceed any available Restricted Payment capacity under Subsection 8.2 (provided, that such use shall reduce the applicable Restricted Payment capacity on a dollar-for-dollar basis).
For
purposes of determining compliance with this definition, (v) a Lien need not be incurred solely by reference to one category
of Permitted Liens described in this definition but may be incurred under any combination of such categories (including in part
under one such category and in part under any other such category), (w) in the event that a Lien (or any portion thereof)
meets the criteria of one or more of such categories of Permitted Liens, the Borrower shallmay,
in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition
(including
in part under one such clause and in part under another such clause),
(x) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause
(k)(1) above in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of Maximum Incremental Facilities Amount
(giving effect to the Incurrence of such portion of such Indebtedness), the Borrower, in its sole discretion, may classify such
portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (k)(1) above in
respect of Indebtedness Incurred pursuant to clause (ii) of the definition of Maximum Incremental Facilities Amount and the remainder
of the Indebtedness as having been secured pursuant to one or more of the other applicable clauses of this definition (other than
clause (s)), (y) in the event that a portion of Indebtedness secured by a Lien could be classified in part pursuant to
clause (s) above (giving effect to the Incurrence of such portion of Indebtedness), the Borrower, in its sole discretion, may
classify such portion of Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (s) above
and the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition (other
than clause (k)(1) above in respect of Indebtedness Incurred pursuant to clause (ii) of the definition of “Maximum Incremental
Facilities Amount”) and (z) if any Liens securing Indebtedness are Incurred to refinance Liens securing Indebtedness
initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated EBITDA at the time of incurrence,
and such refinancing would cause the percentage of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated
EBITDA on the date of such refinancing, such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded
so long as the principal amount of such Indebtedness secured by such Liens does not exceed the principal amount of such Indebtedness
secured by such Liens being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and
expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
“Permitted Payment”: as defined in Subsection 8.2(b).
“Person”: an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
61
“Plan”: at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Borrower, any Restricted Subsidiary or any Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
“Platform”: Intralinks, SyndTrak Online or any other similar electronic distribution system.
“Pledged Interests”: as defined in the Security Agreement.
“Preferred Stock”: as applied to the Capital Stock of any corporation or company, Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Capital Stock of any other class of such corporation or company.
“Prepayment Date”: as defined in Subsection 4.4(h).
“Public Lender”: as defined in Subsection 7.2.
“Purchase”: as defined in clause (2) of the definition of “Consolidated Secured Leverage Ratio”.
“Purchase Money Obligations”: any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“Qualified IPO”: the issuance by the Borrower or any Parent Entity of its common equity interests or the sale by selling stockholders of common equity interests of the Borrower or any Parent Entity, in either case, in an underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether the offering is primary or secondary) and such equity interests are listed on a nationally-recognized stock exchange in the U.S.
“Qualifying Lender”: as defined in Subsection 4.4(l)(iv)(3).
“Rating Agency”: Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Term Loans publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Borrower which shall be substituted for Moody’s or S&P or both, as the case may be.
“Receivable”: a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.
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“Recovery
Event”: any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding
relating to any asset of the Borrower or any Restricted Subsidiary constituting Collateral giving rise to Net Available Cash to
the Borrower or such Restricted Subsidiary, as the case may be, in excess of $10,000,000the
greater of (A) $27,000,000 and (B) 10.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which
consolidated financial statements of the Borrower are available,
to the extent that such settlement or payment does not constitute reimbursement or compensation for amounts previously paid by
the Borrower or any Restricted Subsidiary in respect of such casualty or condemnation.
“refinance”: refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Agreement shall have a correlative meaning.
“Refinancing Agreement”: as defined in Subsection 8.3(c).
“Refinancing Indebtedness”: Indebtedness that is Incurred to refinance Indebtedness (or unutilized commitments in respect of Indebtedness) Incurred pursuant to this Agreement and the Loan Documents, the Senior ABL Facility and any Indebtedness (or unutilized commitments in respect of Indebtedness) existing on the Closing Date and set forth on Schedule 8.1 or Incurred (or established) in compliance with this Agreement (including Indebtedness of the Borrower that refinances Indebtedness of the other Borrower or any Restricted Subsidiary (to the extent permitted in this Agreement) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided that (1) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness (x) has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or, if shorter, the Maturity Date of the Initial Term Loans), (y) has a weighted average life to maturity at the time such Refinancing Indebtedness is Incurred that is equal to or longer than the remaining weighted average life to maturity of the Indebtedness being refinanced (or, if shorter, the remaining weighted average life to maturity of the Initial Term Loans) and (z) if an Event of Default under Subsection 9.1(a) or (f) is continuing, is subordinated in right of payment to the Term Loan Facility Obligations to the same extent as the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with Subsection 8.1 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness, (3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor that refinances Indebtedness of the Borrower or a Subsidiary Guarantor that could not have been initially Incurred by such Restricted Subsidiary pursuant to Subsection 8.1 or (y) Indebtedness of the Borrower or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary and (4) if the Indebtedness being refinanced constitutes Additional Obligations, Rollover Indebtedness, Permitted Debt Exchange Notes or Term Loan Facility Obligations incurred pursuant to this Agreement and the other Loan Documents (or Refinancing Indebtedness in respect of the foregoing Indebtedness), (w) the Refinancing Indebtedness complies with the requirements of the definition of “Additional Obligations” (other than clause (ii) thereof), (x) if the Indebtedness being refinanced is unsecured and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured and (y) if the Indebtedness being refinanced is secured by a Lien ranking junior to the Liens securing the Term Loan Facility Obligations and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured or secured by a Lien ranking junior to the Liens securing the Term Loan Facility Obligations.
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“Register”: as defined in Subsection 11.6(b)(iv).
“Regulation D”: Regulation D of the Board as in effect from time to time.
“Regulation S-X”: Regulation S-X promulgated by the SEC, as in effect on the Closing Date.
“Regulation T”: Regulation T of the Board as in effect from time to time.
“Regulation U”: Regulation U of the Board as in effect from time to time.
“Regulation X”: Regulation X of the Board as in effect from time to time.
“Reinvestment Period”: as defined in Subsection 8.4(b)(i).
“Related Business”: those businesses in which the Borrower or any of its Subsidiaries is engaged on the Closing Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.
“Related Parties”: with respect to any Person, such Person’s affiliates and the partners, officers, directors, trustees, employees, employees, shareholders, members, attorneys and other advisors, agents and controlling persons of such person and of such person’s affiliates and “Related Party” shall mean any of them.
“Related Taxes”:
(x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value added,
stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar
taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding
imposed by any government or other taxing authority on payments made by any Parent Entity other than to another Parent Entity),
required to be paid by any Parent Entity by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue
of owningowing
stock or other equity interests of any corporation or other entity other than the Borrower, any of its Subsidiaries
or any Parent Entity), or being a holding company parent of the Borrower, any of its Subsidiaries or any Parent Entity or receiving
dividends from or other distributions in respect of the Capital Stock of the Borrower, any of its Subsidiaries or any Parent Entity,
or having guaranteed any obligations of the Borrower or any Subsidiary thereof, or having made any payment in respect of any of
the items for which the Borrower or any of its Subsidiaries is permitted to make payments to any Parent Entity pursuant to Subsection
8.2, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated
rights (including but not limited to receiving or paying royalties for the use thereof) relating to the business or businesses
of the Borrower or any Subsidiary thereof, (y) any taxes attributable to any taxable period (or portion thereof) ending
on or prior to the Closing Date, or to the consummation of any of the Transactions, or to any Parent Entity’s receipt of
(or entitlement to) any payment in connection with the Transactions, including any payment received after the Closing Date pursuant
to any agreement related to the Transactions or (z) so long as the Borrower and its Subsidiaries are members of a group
filing a federal, state, foreign, provincial or local consolidated or combined income tax return with any Parent Entity as the
parent, any relevant federal, state, foreign, provincial or local taxes measured by income for which any Parent Entity is liable
to the extent attributable to the Borrower or its relevant Subsidiaries up to an amount not to exceed, with respect to federal
taxes, the amount of any such taxes that the Borrower and its Subsidiaries would have been required to pay on a separate company
basis, or on a consolidated basis as if the Borrower had filed a consolidated return on behalf of an affiliated group (as defined
in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such
taxes that the Borrower and its relevant Subsidiaries would have been required to pay on a separate company basis, or on a consolidated,
combined, unitary or affiliated basis as if the Borrower had filed a consolidated, combined, unitary or affiliated return on behalf
of an affiliated group (as defined in the applicable state or local tax laws for filing such return) consisting only of the Borrower
and its relevant Subsidiaries. Taxes include all interest, penalties and additions relating thereto.
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“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York for the purpose of recommending a benchmark rate to replace LIBOR in loan agreements similar to this Agreement.
“Reportable
Event”: any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the 30 day notice
period is waived under Section 21, 22, 23, 24, 25, 27 or 28 of PBGC Regulation Section 4043
or any successor regulation thereto.
“Repricing Transaction”: the prepayment, refinancing, substitution or replacement of all or a portion of the Initial Term Loans (including, without limitation, as may be effected through any amendment, waiver or modification to this Agreement relating to the interest rate for, or weighted average yield of, the Initial Term Loans), (a) if the primary purpose of such prepayment, refinancing, substitution, replacement, amendment, waiver or modification is (as reasonably determined by the Borrower in good faith) to refinance the Initial Term Loans at a lower “effective yield” (taking into account, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing, but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the Adjusted LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then Adjusted LIBOR Rate), (b) if the prepayment, refinancing, substitution, replacement, amendment, waiver or modification is effectuated by the incurrence by the Borrower or any Subsidiary of new Indebtedness, such new Indebtedness is first lien secured term loan financing, and (c) if such prepayment, refinancing, substitution, replacement, amendment, waiver or modification results in first lien secured term loan financing having an “effective yield” (as reasonably determined by the Administrative Agent, in consultation with the Borrower, consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing (calculated based on assumed four-year average life and without present value discount), but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the Adjusted LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then applicable Adjusted LIBOR Rate) that is less than the “effective yield” (as reasonably determined by the Administrative Agent, in consultation with the Borrower, on the same basis) of the Initial Term Loans prior to being so prepaid, refinanced, substituted or replaced or subject to such amendment, waiver or modification to this Agreement. Notwithstanding the foregoing, no Repricing Transaction shall be deemed to have occurred in connection with (a) prepayments or repayments financed with internally generated cash flow of or any insurance proceeds received by the Borrower and its Restricted Subsidiaries and (b) (i) a Change of Control, (ii) a Qualified IPO, (iii) an Acquisition Transaction that is either (x) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (y) if permitted by the terms of this Agreement immediately prior to the consummation thereof, would not provide the Borrower and its relevant subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following the consummation thereof, as determined by the Borrower acting in good faith or (iv) an Asset Sale that is either (x) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (y) if permitted by the terms of this Agreement immediately prior to the consummation thereof, would not provide the Borrower and its relevant subsidiaries with adequate capacity under this Agreement following the consummation thereof, as determined by the Borrower acting in good faith.
“Required Lenders”: Lenders the Term Credit Percentages of which aggregate greater than 50.00%.
“Requirement of Law”: as to any Person, the Organizational Documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.
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“Responsible
Officer”: as to any Person, any of the following officers of such Person: (a) the chief executive officer or
the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer, the controller
or the Vice President–Finance (or substantial equivalent) of such Person, (b) any vice president of such Person or,
with respect to financial matters, any assistant treasurer or assistant controller of such Person, in each case who has been designated
in writing to the Administrative Agent or the Collateral Agent as a Responsible Officer by such chief executive officer or president
of such Person or, with respect to financial matters, by such chief financial officer of such Person, (c) with respect
to Subsection 7.7 and without limiting the foregoing, the general counsel of such Person and (d) with respect to
ERISA matters, the seniorchief
human resources officer senior vice president–human resources or other vice
president–human resources (or substantial equivalent) of such Person.
“Restricted Payment”: as defined in Subsection 8.2(a).
“Restricted Payment Transaction”: any Restricted Payment permitted pursuant to Subsection 8.2, any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).
“Restricted Subsidiary”: any Subsidiary of the Borrower other than an Unrestricted Subsidiary.
“Rollover Indebtedness”: Indebtedness of a Loan Party issued to any Lender in lieu of such Lender’s pro rata portion of any repayment of Term Loans made pursuant to Subsection 4.4(a) or (e); so long as (other than in connection with a refinancing in full of the Facilities) such Indebtedness would not have a weighted average life to maturity earlier than the remaining weighted average life to maturity of the Term Loans being repaid.
“S&P”: Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.
“Sale”: as defined in clause (1) of the definition of “Consolidated Secured Leverage Ratio”.
“Sanctioned
Country” means, at any time, a country or territory which is itself the subject or target of any comprehensive
Sanctions (as of the Closing Date, Cuba, Iran,
North Korea, Sudan, Syria, and the Crimea region of Ukraine).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by
OFAC, the U.S. Department of State, or by the United Nations Security Council, the European
Union or any European Union member state, (b) any Person operating, organized or resident in a Sanctioned
Country or (c) any Person owned or controlled by any such Person
or Persons described in the foregoing clauses (a) or (b).
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“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the
U.S. government, including those administered by OFAC or the U.S. Department of State, or (b) the United Nations Security
Council, the European Union, any European Union member state or Her Majesty’s Treasury
of the United Kingdom.
“SEC”: the United States Securities and Exchange Commission.
“Second Amendment”: means that certain Amendment No. 2 to Credit Agreement, dated as of November 22, 2017, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Second Amendment Effective Date”: means the date on which all of the conditions contained in Section 4 of the Second Amendment have been satisfied or waived.
“Secured Parties”: the “Secured Parties” as defined in the Security Agreement.
“Securities Act”: the Securities Act of 1933, as amended from time to time.
“Security
Agreement”: the Term Loan Security Agreement delivered to the Collateral Agent as of the date
hereofClosing
Date, substantially in the form of Exhibit G
hereto, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Security Documents”: the collective reference to each Mortgage related to any Mortgaged Fee Property, the Security Agreement, the Guaranty Agreement, the Trademark Security Agreement and all other similar security documents hereafter delivered to the Collateral Agent granting or perfecting a Lien on any asset or assets of any Person to secure the obligations and liabilities of the Loan Parties hereunder and/or under any of the other Loan Documents or to secure any guarantee of any such obligations and liabilities, including any security documents executed and delivered or caused to be delivered to the Collateral Agent pursuant to Subsection 7.9(a), 7.9(b) or 7.9(c), in each case, as amended, supplemented, waived or otherwise modified from time to time.
“Senior ABL Facility”: the collective reference to the Senior ABL Facility Agreement, any ABL Facility Documents, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures or financing agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility). Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Borrower as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
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“Senior
ABL Facility Agreement”: the Credit Agreement, dated as of the May 1, 2013,
as amended and restated and superseded in its entirety by that certain Amended and Restated Credit Agreement, dated as of September
30, 2016 (as amended, restated, amended and restated
or otherwise modified on or prior to the date hereofThird
Amendment Effective Date), among Holdings, the
Borrower, the lenders and other financial institutions party thereto from time to time and Wells Fargo Bank, National Association,
as administrative agent and collateral agent thereunder, as such agreement may be amended, supplemented, waived or otherwise modified
from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether
in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and
whether provided under the original Senior ABL Facility Agreement or one or more other credit agreements or otherwise, unless
such agreement, instrument or other document expressly provides that it is not intended to be and is not a Senior ABL Facility
Agreement). Any reference to the Senior ABL Facility Agreement hereunder shall be deemed a reference to each Senior ABL Facility
Agreement then in existence.
“Set”: the collective reference to Eurodollar Loans of a single Tranche, the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Eurodollar Loans shall originally have been made on the same day).
“Settlement Service”: as defined in Subsection 11.6(b).
“Single Employer Plan”: any Plan which is covered by Title IV or Section 302 of ERISA or Section 412 of the Code, but which is not a Multiemployer Plan.
“SOFR”: with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) and, in each case, that has been selected or recommended by the Relevant Governmental Body.
“SOFR-Based Rate” means SOFR or Term SOFR.
“Solicited Discount Proration”: as defined in Subsection 4.4(l)(iv)(3).
“Solicited Discounted Prepayment Amount”: as defined in Subsection 4.4(l)(iv)(1).
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“Solicited Discounted Prepayment Notice”: an irrevocable written notice of the Borrower Solicitation of Discounted Prepayment Offers made pursuant to Subsection 4.4(l)(iv) substantially in the form of Exhibit P.
“Solicited Discounted Prepayment Offer”: the irrevocable written offer by each Lender, substantially in the form of Exhibit Q, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.
“Solicited Discounted Prepayment Response Date”: as defined in Subsection 4.4(l)(iv)(1).
“Solvent” and “Solvency”: with respect to the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date means (i) the Fair Value and Present Fair Salable Value of the assets of the Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Borrower and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) the Borrower and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature (all capitalized terms used in this definition (other than “Borrower”, “Closing Date”, “Transactions” and “Subsidiary” which have the meanings set forth in this Agreement) shall have the meaning assigned to such terms in the form of solvency certificate attached hereto as Exhibit H).
“Special Purpose Entity”: (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time), other accounts and /or other receivables, and/or related assets and/or (ii) financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.
“Special Purpose Financing”: any financing or refinancing of assets consisting of or including Receivables of the Borrower or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).
“Special Purpose Financing Expense”: for any period, (a) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.
“Special Purpose Financing Fees”: distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.
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“Special Purpose Financing Undertakings”: representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by the Borrower or any of its Restricted Subsidiaries that the Borrower determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by the Borrower or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or (iii) any Guarantee in respect of customary recourse obligations (as determined in good faith by the Borrower, which determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, including in respect of Liabilities in the event of any involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case commenced by any Special Purpose Subsidiary, under any applicable bankruptcy law, and (y) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by the Borrower or a Restricted Subsidiary that is not a Special Purpose Subsidiary.
“Special Purpose Subsidiary”: any Subsidiary of the Borrower that (a) is engaged solely in (x) the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code as in effect in any jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and /or (ii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by the Borrower.
“Specified Discount”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Prepayment Amount”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Prepayment Notice”: an irrevocable written notice of the Borrower Offer of Specified Discount Prepayment made pursuant to Subsection 4.4(l)(ii) substantially in the form of Exhibit R.
“Specified Discount Prepayment Response”: the written response by each Lender, substantially in the form of Exhibit S, to a Specified Discount Prepayment Notice.
“Specified Discount Prepayment Response Date”: as defined in Subsection 4.4(l)(ii)(1).
“Specified Discount Proration”: as defined in Subsection 4.4(l)(ii)(3).
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“Specified Existing Term Tranche”: as defined in Subsection 2.10(a)(ii).
“Specified Refinancing Amendment”: an amendment to this Agreement effecting the incurrence of such Specified Refinancing Term Loan Facilities in accordance with Subsection 2.11.
“Specified Refinancing Indebtedness: Indebtedness incurred by the Borrower pursuant to and in accordance with Subsection 2.11.
“Specified Refinancing Lenders”: as defined in Subsection 2.11(b).
“Specified Refinancing Term Loan Facilities”: as defined in Subsection 2.11(a).
“Specified Refinancing Term Loans”: as defined in Subsection 2.11(a).
“Specified Refinancing Tranche”: Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loans in respect thereof added to such Tranche pursuant to Subsection 2.8.
“Sponsor Group”: Ares Corporate Opportunities Fund III, L.P, FS Equity Partners VI, L.P. and FS Affiliates VI, L.P. and each of their respective Affiliates, other than the Loan Parties and their respective Subsidiaries.
“Sponsors”: Ares Corporate Opportunities Fund III, L.P., FS Equity Partners VI, L.P. and FS Affiliates VI, L.P.
“Stated Maturity”: with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).
“Statutory Reserves”: for any day as applied to a Eurodollar Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding $1,000,000,000 against “Eurocurrency liabilities” (as such term is used in Regulation D). Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.
“Submitted Amount”: as defined in Subsection 4.4(l)(iii)(1).
“Submitted Discount”: as defined in Subsection 4.4(l)(iii)(1).
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“Subordinated Obligations”: any Indebtedness of the Borrower (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the Term Loan Facility Obligations pursuant to a written agreement.
“Subsection 2.10 Additional Amendment”: as defined in Subsection 2.10(c).
“Subsidiary”: as to any Person, a corporation, partnership, limited liability company or other entity (a) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned by such Person, or (b) the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person and, in the case of this clause (b), which is treated as a consolidated subsidiary for accounting purposes. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor”: (x) each Domestic Subsidiary (other than the Borrower and any Excluded Subsidiary) of the Borrower which executes and delivers a Subsidiary Guaranty pursuant to Subsection 7.9 or otherwise, in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Domestic Subsidiary of the Borrower in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Subsidiary Guaranty in accordance with terms and provisions thereof and (y) each other Subsidiary of the Borrower which the Borrower causes to execute and deliver a Subsidiary Guaranty pursuant to the last sentence of Subsection 7.9(b) or otherwise, in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Subsidiary of the Borrower in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Subsidiary Guaranty in accordance with terms and provisions thereof.
“Subsidiary Guaranty”: the guaranty of the Term Loan Facility Obligations of the Borrower under the Loan Documents provided pursuant to the Guaranty Agreement.
“Successor Borrower”: as defined in Subsection 8.7(a)(i).
“Supplemental Term Loan Commitments”: as defined in Subsection 2.8(a)(ii).
“Supplemental Term Loans”: Term Loans made in respect of Supplemental Term Loan Commitments.
“Taxes”: any and all present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
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“Temporary Cash Investments”: any of the following: (i) any investment in (x) direct obligations of the United States of America, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Borrower or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof, or obligations Guaranteed by the United States of America or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by the Borrower or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (ii) overnight bank deposits, and investments in time deposit accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank or other institutional lender under this Agreement or any Senior ABL Facility or any affiliate thereof or (y) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250,000,000 (or the foreign currency equivalent thereof) and whose long-term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, (iii) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of the Borrower or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of the Borrower or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vii) investment funds investing 95.00% of their assets in securities of the type described in clauses (i) through (vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), (viii) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250,000,000 (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended and (ix) similar investments approved by the Board of Directors in the ordinary course of business.
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“Term Credit Percentage”: as to any Lender at any time, the percentage of the aggregate outstanding Term Loans (if any) of the Lenders and aggregate unused Term Loan Commitments of the Lenders (if any) then constituted by such Lender’s outstanding Term Loans (if any) and such Lender’s unused Term Loan Commitments (if any).
“Term Loan Commitment”: as to any Lender, the aggregate of its Initial Term Loan Commitments, Incremental Term Loan Commitments and Supplemental Term Loan Commitments; collectively as to all Lenders the “Term Loan Commitments”.
“Term Loan Facility Obligations”: obligations of the Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during (or would accrue but for) the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Term Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties under the Loan Documents.
“Term Loans”: the Initial Term Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, as the context requires.
“Term Priority Collateral”: as defined in the ABL/Term Loan Intercreditor Agreement, whether or not the same remains in full force and effect.
“Term SOFR” means the forward-looking term rate for any period that is approximately (as determined by the Administrative Agent”) as long as any of the Interest Period options set forth in the definition of “Interest Period” and that is based on SOFR and that has been selected or recommended by the Relevant Governmental Body, in each case as published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion.
“Third Amendment”: means that certain Amendment No. 3 to Credit Agreement and Amendment No. 1 to Security Agreement, dated as of February 14, 2020, among Holdings, the Borrower, the other Loan Parties party thereto, the Administrative Agent and the Lenders party thereto.
“Third Amendment Effective Date”: means the date on which all of the conditions contained in Section 4 of the Third Amendment have been satisfied or waived.
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“Trade Payables”: with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.
“Trademark
Security Agreement”: the Term Loan Trademark Security Agreement delivered to the Collateral Agent as of the date
hereofClosing
Date, as the same may be amended, supplemented, waived or otherwise modified from time to time.
“Tranche”: with respect to Term Loans or commitments, refers to whether such Term Loans or commitments are (1) Initial Term Loans or Initial Term Loan Commitments, (2) Incremental Loans or Incremental Term Loan Commitments with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8, (3) Extended Term Loans (of the same Extension Series), or (4) Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8.
“Transactions”: collectively, any or all of the following: (a) the Closing Date Dividend, (b) the execution and delivery of the Loan Documents, the creation of the Liens pursuant to the Security Documents and the initial borrowings hereunder, (c) the amendments to or amendment and restatement of the ABL Facility Documents and the borrowings thereunder, and the repayment of Obligations outstanding thereunder immediately prior to the effectiveness of such amendment or amendment and restatement on the Closing Date, (d) repayment of all existing Obligations outstanding under the Existing Credit Agreement with the proceeds of the Initial Term Loans on the Closing Date and (e) the payment of all fees, costs and expenses incurred in connection with the foregoing.
“Transferee”: any Participant or Assignee.
“Type”: the type of Loan determined based on the interest option applicable thereto, with there being two Types of Loans hereunder, namely ABR Loans and Eurodollar Loans.
“UCC”: the Uniform Commercial Code as in effect in the State of New York from time to time.
“United States Person”: any United States person within the meaning of Section 7701(a)(30) of the Code.
“Unrestricted Cash”: at any date of determination, the aggregate amount of cash, Cash Equivalents and Temporary Cash Investments included in the cash accounts that would be listed on the consolidated balance sheet of the Borrower prepared in accordance with GAAP as of the end of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrower are available to the extent such cash is not classified as “restricted” for financial statement purposes (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the ABL/Term Loan Intercreditor Agreement, the Pari Passu Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement governing the application thereof or because they are subject to a Lien securing Indebtedness that is subject to the ABL/Term Loan Intercreditor Agreement, the Pari Passu Intercreditor Agreement, the Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement) excluding, however, the proceeds from any Incurrence of Indebtedness borrowed on the date of such determination that are not (in the good faith judgment of the Borrower) intended to be used for working capital purposes.
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“Unrestricted
Subsidiary”: (i) any Subsidiary of the Borrower that at the time of determination is an Unrestricted Subsidiary,
as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors may designate any Subsidiary of the Borrower (including any newly acquired or newly formed Subsidiary of
the Borrower) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness
of, or owns or holds any Lien on any property of, the Borrower or any other Restricted Subsidiary of the Borrower that is not
a Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to
the Closing Date, or (B) (i) immediately after such designation,
no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be continuing and
(ii) on a pro forma basis, Consolidated Total Leverage Ratio is less than or equal to (x) 3.70:1.00 or (y) Consolidated Total
Leverage Ratio immediately prior to giving effect to such designation. The Board of Directors may designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that (A) such Unrestricted Subsidiary, both
before and immediately after giving effect to such designation, shall be a Wholly Owned Subsidiary of the Borrower, (B)
immediately after such designation, no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be
continuing and (C) on a pro forma basis, Consolidated Total Leverage Ratio is less than or
equal to (x) 3.70:1.00 or (y) Consolidated Total Leverage Ratio immediately prior to giving effect to such designation.
Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly filing with the Administrative
Agent a copy of the resolution of the Borrower’s Board of Directors giving effect to such designation and a certificate
of a Responsible Officer of the Borrower certifying that such designation complied with the foregoing provisions.
“U.S. Tax Compliance Certificate”: as defined in Subsection 4.11(b)(ii)(2).
“Voting Stock”: as to any entity, all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.
“Wholly Owned Subsidiary”: as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other than directors qualifying shares or shares held by nominees.
“Write-Down and Conversion Powers”: 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.
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“Yield”: as
defined in SectionSubsection
2.8(d).
1.2 Other Definitional and Interpretive Provisions. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.
(a) As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to the Borrower and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.
(b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Any reference herein to any Person shall be construed to include such Person’s successors and assigns permitted hereunder. Any reference herein to financial statements of the Borrower shall be construed to include financial statements of the Borrower or any Parent Entity whose financial statements satisfy the Borrower’s reporting obligations under Subsection 7.1.
(c) For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.
(d) [Reserved].
(d) For purposes of determining compliance with any Section of Article VIII, in the event that any Lien, Investment, Indebtedness, Asset Sale, Restricted Payment, transactions with Affiliates, contractual obligation, or prepayment of Indebtedness meets the criteria of one or more of the categories of transactions permitted pursuant to any clause of such Sections, such transaction (or portion thereof) at any time, shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion at such time and the Borrower may reclassify such transaction across such clauses in its sole discretion at any time. Unless the Borrower elects otherwise, compliance with any Section of Article VIII shall be deemed to be first incurred pursuant to a basket or exception based on a financial ratio prior to being applied to a basket or exception based on a fixed Dollar amount.
77
(e) Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).
(f) Any references in this Agreement to “cash and/or Cash Equivalents”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.
(g) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(h) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into. For the avoidance of doubt, if the Borrower has exercised its option under the first sentence of this clause (h), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.
(i) In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:
(i) determining compliance with any provision of this Agreement which requires the calculation of the Consolidated First Lien Leverage Ratio, Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or
(ii) testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA);
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in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of the Borrower are available, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with. For the avoidance of doubt, if the Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of the Borrower or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments, Asset Dispositions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
SECTION 2
Amount and Terms of Commitments
2.1 Initial Term Loans. Subject to the terms and conditions hereof, each Lender holding an Initial Term Loan Commitment severally agrees to make, in Dollars, in a single draw on the Closing Date, one or more term loans (each, an “Initial Term Loan”) to Borrower in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name in Schedule A under the heading “Initial Term Loan Commitment”, as such amount may be adjusted or reduced pursuant to the terms hereof, which Initial Term Loans:
(i) except as hereinafter provided, shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; and
(ii) shall be made by each such Lender in an aggregate principal amount which does not exceed the Initial Term Loan Commitment of such Lender.
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Once repaid, Initial Term Loans incurred hereunder may not be reborrowed. On the Closing Date (after giving effect to the incurrence of Initial Term Loans on such date), the Initial Term Loan Commitment of each Lender shall terminate.
2.2 Notes. (a) The Borrower agrees that, upon the request to the Administrative Agent by any Lender made on or prior to the Closing Date or in connection with any assignment pursuant to Subsection 11.6(b), in order to evidence such Lender’s Loan, the Borrower will execute and deliver to such Lender a promissory note substantially in the form of Exhibit A (each, as amended, supplemented, replaced or otherwise modified from time to time, a “Note”), in each case with appropriate insertions therein as to payee, date and principal amount, payable to such Lender and in a principal amount equal to the unpaid principal amount of the applicable Loans made (or acquired by assignment pursuant to Subsection 11.6(b)) by such Lender to the Borrower. Each Note shall be dated the Closing Date and shall be payable as provided in Subsection 2.2(b) and provide for the payment of interest in accordance with Subsection 4.1.
(b) The Initial Term Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on December 31, 2016 up to and including the Initial Term Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Initial Term Loans then outstanding):
| Date | Amount |
| Each March 31, June 30, September | 0.25% of the aggregate initial |
| 30 and December 31 ending prior to | principal amount of the Initial Term |
| the Initial Term Loan Maturity Date | Loans
on the |
| Amendment Effective Date | |
| Initial Term Loan Maturity Date | all unpaid aggregate principal |
| amounts of any outstanding Initial | |
| Term Loans |
2.3 Procedure for Initial Term Loan Borrowing. The Borrower shall have given the Administrative Agent notice (which notice shall be irrevocable after funding) one business day prior to the Closing Date specifying the amount of the Initial Term Loans to be borrowed. Upon receipt of such notice, the Administrative Agent shall promptly notify each applicable Lender thereof. Each Lender having an Initial Term Loan Commitment will make the amount of its pro rata share of the Initial Term Loan Commitments available to the Administrative Agent, in each case for the account of the Borrower, at the office of the Administrative Agent specified in Subsection 11.2 on the Closing Date in funds immediately available to the Administrative Agent. The Administrative Agent shall credit the account of the Borrower on the books of the Administrative Agent with the aggregate of the amounts made available to the Administrative Agent for the Borrower (at such account or accounts as designated by the Borrower) by the Lenders and in like funds as received by the Administrative Agent.
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2.4 [Reserved].
2.5 Repayment
of Loans. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent in Dollars for the account of
each Lender the then unpaid principal amount of each Initial Term Loan of such Lender made to the Borrower, on the Initial Term
Loan Maturity Date (or such earlier date on which the Initial Term Loans become due and payable pursuant to Section 9).
The Borrower hereby further agrees to pay interest on the unpaid principal amount of such Initial Term Loans from time to time
outstanding from the date hereofClosing
Date until payment in full thereof at the rates per annum, and on the dates, set forth in Subsection 4.1.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing indebtedness of the Borrower to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to Subsection 11.6(b), and a subaccount therein for each Lender, in which shall be recorded (i) the amount of each Loan made hereunder, the Type thereof and each Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable to each applicable Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder and each applicable Lender’s share thereof.
(d) The entries made in the Register and the accounts of each Lender maintained pursuant to Subsection 2.5(c) shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain the Register or any such account, or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
2.6 [Reserved].
2.7 [Reserved].
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2.8 Incremental Facilities. (a) So long as no Event of Default under Subsection 9.1 (a) or (f) exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the “Incremental Term Loan Commitments”), and (ii) to increase the Existing Term Loans by requesting new term loan commitments to be added to a Tranche of Term Loans (the “Supplemental Term Loan Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments”); provided that, (i) the aggregate amount of Incremental Commitments permitted pursuant to this Subsection 2.8 shall not exceed, at the time the respective Incremental Commitment becomes effective (and after giving effect to the Incurrence of Indebtedness in connection therewith and the application of proceeds of any such Indebtedness to refinance other Indebtedness), an amount that could then be Incurred in compliance with Subsection 8.1(b)(i), (ii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause (together with calculations demonstrating compliance with such test) and (iii) if any portion of an Incremental Commitment is to be incurred in reliance on clause (i) of the definition of “Maximum Incremental Facilities Amount”, the Borrower shall have delivered a certificate to the Administrative Agent, certifying the amount of the available basket in such clause to be used for the incurrence of such Incremental Commitment. Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Subsection 2.8 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Subsection 2.8 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Incremental Lender”, and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that if such Additional Incremental Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Incremental Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit I-1 (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan under the applicable Tranche of Term Loans.
(d) Incremental Commitments (other than Supplemental Term Loan Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amendment”) to this Agreement and, as appropriate, the other Loan
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Documents,
executed by the Borrower and each applicable Incremental Lender. An Incremental Commitment Amendment may, without the consent
of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower
and the Administrative Agent, to effect the provisions of this Subsection 2.8; provided, however, that (i)
(A) the Incremental Commitments will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors,
and,
if secured, will be secured on
a pari passu basis by the same Collateral securing the Initial Term Loans (so long as any such Incremental
Commitments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement or an Other Intercreditor Agreement),
(B) if
secured, the Incremental Commitments and any incremental
loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the
Borrower’s option) junior to the Initial Term Loans, (C) no Incremental Commitment Amendment may provide for any
Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not
also secure the Initial Term Loans and (D) so long as any Initial Term Loans are outstanding, no Incremental Commitment
Amendment may provide for any mandatory prepayment from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition
in respect of any assets, business or Person the acquisition of which was financed, all or in part, with Incremental Loans provided
pursuant to such Incremental Commitment Amendment and the disposition of which was contemplated by any definitive agreement in
respect of such acquisition and in a manner not otherwise prohibited by this Agreement) or Recovery Event or from Excess Cash
Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to
be applied to repay the Initial Term Loans pursuant to Subsection 4.4(e), on more than a ratable basis with the Initial
Term Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); (ii) no Lender will
be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date and the weighted average
life to maturity of such Incremental Term Loan Commitments shall be no earlier than or shorter than, as the case may be, the Initial
Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than
an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary
conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide
for an earlier maturity date than the Initial Term Loan Maturity Date or a shorter weighted average life to maturity than the
remaining weighted average life to maturity of the Initial Term Loans, as applicable); (iv) the interest rate margins and
(subject to clause (iii) above) amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall
be determined by the Borrower and the applicable Incremental Lenders; provided that in the event that the applicable interest
rate margins for any term loans Incurred by the Borrower under any Incremental Term Loan Commitment made are higher than the applicable
interest rate margin for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term
Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal
to the applicable interest rate margins for such Incremental Term Loan Commitment minus 50 basis points;
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provided that, such 50 basis points “most favored nation” protection provision shall not apply to (I) an Incremental Term Loan facility that is unsecured, subordinated or secured on a junior lien basis to the Term Loan Facility Obligations, (II) Incremental Term Loans incurred pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount” in an amount up to the greater of $270,000,000 and 100% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available, (III) any Incremental Term Loan facility that is used to fund a permitted Acquisition or permitted Investment or (IV) any Incremental Term Loan facility that matures on or after the second anniversary of the Initial Term Loan Maturity Date (the “MFN Provision”); provided, further that, in determining the applicable interest rate margins (the “Yield”) for the Initial Term Loans and the Incremental Term Loans, (A) original issue discount (“OID”) or upfront fees payable generally to all participating Incremental Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity) (provided that, if the Initial Term Loans are issued in a manner such that all Initial Term Loans were not issued with a uniform amount of OID or upfront fees within the Tranche of Initial Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Initial Term Loans shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the Incremental Term Loans that are not shared with all Additional Incremental Lenders providing such Incremental Term Loans shall be excluded; (C) any amendments to the Applicable Margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such Incremental Term Loans shall also be included in such calculations and (D) if the Incremental Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased by such amount; (v) such Incremental Commitment Amendment may provide (1) for the inclusion, as appropriate, of Additional Incremental Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) class voting and other class protections for any additional credit facilities, (3) for the amendment of the definitions of “Additional Obligations”, “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b), in each case only to extend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Incremental Term Loans, as applicable, and (4) for the amendment of clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Incremental Term Loans; and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower; provided that to the extent such terms and documentation are not consistent with, in the case of Incremental Term Loans, the terms and documentation governing the Initial Term Loans (except to the extent permitted by clauses (iv) or (v) above), they shall be reasonably satisfactory to the Borrower and the Administrative Agent.
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2.9 Permitted Debt Exchanges. (a) Notwithstanding anything to the contrary contained in this Agreement, pursuant to one or more offers (each, a “Permitted Debt Exchange Offer”) made from time to time by the Borrower to all Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) with outstanding Term Loans of a particular Tranche, as selected by the Borrower, the Borrower may from time to time following the Closing Date consummate one or more exchanges of Term Loans of such Tranche for Additional Obligations in the form of notes (such notes, “Permitted Debt Exchange Notes,” and each such exchange a “Permitted Debt Exchange”), so long as the following conditions are satisfied: (i) the aggregate principal amount (calculated on the face amount thereof) of Term Loans exchanged shall be equal to or more than the aggregate principal amount (calculated on the face amount thereof) of Permitted Debt Exchange Notes issued in exchange for such Term Loans, (ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans exchanged by the Borrower pursuant to any Permitted Debt Exchange shall automatically be cancelled and retired by the Borrower on the date of the settlement thereof (and, if requested by the Administrative Agent, any applicable exchanging Lender shall execute and deliver to the Administrative Agent an Assignment and Acceptance, or such other form as may be reasonably requested by the Administrative Agent, in respect thereof pursuant to which the respective Lender assigns its interest in the Term Loans being exchanged pursuant to the Permitted Debt Exchange to the Borrower for immediate cancellation), (iii) if the aggregate principal amount of all Term Loans (calculated on the face amount thereof) tendered for exchange by Lenders in respect of the relevant Permitted Debt Exchange Offer (with no Lender being permitted to tender a principal amount of Term Loans which exceeds the principal amount of the applicable Tranche actually held by it) shall exceed the maximum aggregate principal amount of Term Loans offered to be exchanged by the Borrower pursuant to such Permitted Debt Exchange Offer, then the Borrower shall exchange Term Loans subject to such Permitted Debt Exchange Offer tendered by such Lenders ratably up to such maximum amount based on the respective principal amounts so tendered, (iv) each such Permitted Debt Exchange Offer shall be made on a pro rata basis to the Lenders (other than any Lender that, if requested by the Borrower, is unable to certify that it is either a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (as defined in Rule 501 under the Securities Act)) based on their respective aggregate principal amounts of outstanding Term Loans of the applicable Tranche, (v) all documentation in respect of such Permitted Debt Exchange shall be consistent with the foregoing and all written communications generally directed to the Lenders in connection therewith shall be in form and substance consistent with the foregoing and made in consultation with the Administrative Agent and (vi) any applicable Minimum Exchange Tender Condition shall be satisfied. Notwithstanding anything to the contrary herein, no Lender shall have any obligation to agree to have any of its Loans or Commitments exchanged pursuant to any Permitted Debt Exchange Offer.
(b) With respect to all Permitted Debt Exchanges effected by the Borrower pursuant to this Subsection 2.9, (i) such Permitted Debt Exchanges (and the cancellation of the exchanged Term Loans in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of Subsection 4.4 and (ii) such Permitted Debt Exchange Offer shall be made for not less than $5,000,000 in aggregate principal amount of Term Loans (or such lower principal amount as agreed to by the Administrative Agent in its reasonable discretion); provided that subject to the foregoing clause (ii), the Borrower may at its election specify as a condition (a “Minimum Exchange Tender Condition”) to consummating any such Permitted Debt Exchange that a minimum amount (to be determined and specified in the relevant Permitted Debt Exchange Offer in the Borrower’s discretion) of Term Loans be tendered.
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(c) In connection with each Permitted Debt Exchange, the Borrower shall provide the Administrative Agent at least ten Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and the Borrower and the Administrative Agent, acting reasonably, shall mutually agree to such procedures as may be necessary or advisable to accomplish the purposes of this Subsection 2.9 and without conflict with Subsection 2.9(d); provided that the terms of any Permitted Debt Exchange Offer shall provide that the date by which the relevant Lenders are required to indicate their election to participate in such Permitted Debt Exchange shall be not less than five Business Days following the date on which the Permitted Debt Exchange Offer is made (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion).
(d) The Borrower shall be responsible for compliance with, and hereby agree to comply with, all applicable securities and other laws in connection with each Permitted Debt Exchange, it being understood and agreed that (x) neither the Administrative Agent nor any Lender assumes any responsibility in connection with the Borrower’s compliance with such laws in connection with any Permitted Debt Exchange (other than the Borrower’s reliance on any certificate delivered by a Lender pursuant to Subsection 2.9(a) above for which such Lender shall bear sole responsibility) and (y) each Lender shall be solely responsible for its compliance with any applicable “insider trading” laws and regulations to which such Lender may be subject under the Securities Exchange Act of 1934, as amended.
2.10 Extension of Term Loans. (a) The Borrower may at any time and from time to time request that all or a portion of the Term Loans of one or more Tranches (including any Extended Term Loans) existing at the time of such request (each, an “Existing Term Tranche” and the Term Loans of such Tranche, the “Existing Term Loans”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of any Existing Term Tranche (any such Existing Term Tranche which has been so extended, an “Extended Term Tranche” and the Term Loans of such Tranche, the “Extended Term Loans”) and to provide for other terms consistent with this Subsection 2.10; provided that (i) any such request shall be made by the Borrower to all Lenders with Term Loans with a like maturity date (whether under one or more Tranches) on a pro rata basis (based on the aggregate outstanding principal amount of the applicable Term Loans), and (ii) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower. In order to establish any Extended Term Tranche, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Tranche) (an “Extension Request”) setting forth the proposed terms of the Extended Term Tranche to be established, which terms shall be identical to those applicable to the Existing Term Tranche from which they are to be extended (the “Specified Existing Term Tranche”), except (x) all or any of the final maturity dates of such Extended Term Tranches may be delayed to later dates than the final maturity dates of the Specified Existing Term Tranche, (y) (A) the interest margins with respect to the Extended Term Tranche may be higher or lower than the interest margins for the Specified Existing Term Tranche and/or (B) additional fees may be payable to the Lenders providing such Extended Term Tranche in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case to the extent provided in the applicable Extension Amendment, and (z) amortization with respect to the Extended Term Tranche may be greater or lesser than amortization for the Specified Existing Term Tranche, so long as the Extended Term Tranche does not have a weighted average life to maturity shorter than the remaining weighted average life to maturity at such time of the Specified Existing Term Tranche; provided that, notwithstanding anything to the contrary in this Subsection 2.10 or otherwise, assignments and participations of Extended Term Tranches shall be governed by the same or, at the Borrower’s discretion, more restrictive assignment and participation provisions than the assignment and participation provisions applicable to Initial Term Loans set forth in Subsection 11.6. No Lender shall have any obligation to agree to have any of its Existing Term Loans converted into an Extended Term Tranche pursuant to any Extension Request. Any Extended Term Tranche shall constitute a separate Tranche of Term Loans from the Specified Existing Term Tranches and from any other Existing Term Tranches (together with any other Extended Term Tranches so established on such date).
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(b) The Borrower shall provide the applicable Extension Request at least ten Business Days (or such shorter period as the Administrative Agent may agree in its reasonable discretion) prior to the date on which Lenders under the applicable Existing Term Tranche or Existing Term Tranches are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Specified Existing Term Tranche converted into an Extended Term Tranche shall notify the Administrative Agent (each, an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Specified Existing Term Tranche that it has elected to convert into an Extended Term Tranche. In the event that the aggregate amount of the Specified Existing Term Tranche subject to Extension Elections exceeds the amount of Extended Term Tranches requested pursuant to the Extension Request, the Specified Existing Term Tranches subject to Extension Elections shall be converted to Extended Term Tranches on a pro rata basis based on the amount of Specified Existing Term Tranches included in each such Extension Election. In connection with any extension of Term Loans pursuant to this Subsection 2.10 (each, an “Extension”), the Borrower shall agree to such procedures regarding timing, rounding and other administrative adjustments to ensure reasonable administrative management of the credit facilities hereunder after such Extension, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Subsection 2.10. The Borrower may amend, revoke or replace an Extension Request pursuant to procedures reasonably acceptable to the Administrative Agent at any time prior to the date (the “Extension Request Deadline”) on which Lenders under the applicable Existing Term Tranche are requested to respond to the Extension Request. Any Lender may revoke an Extension Election at any time prior to 5:00 p.m. on the date that is two Business Days prior to the Extension Request Deadline, at which time the Extension Election will become irrevocable (unless otherwise agreed by the Borrower). The revocation of an Extension Election prior to the Extension Request Deadline shall not prejudice any Lender’s right to submit a new Extension Election prior to the Extension Request Deadline.
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(c) Extended Term Tranches shall be established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which may include amendments to (i) provisions related to maturity, interest margins, fees or amortization referenced in clauses (x) through (z) of Subsection 2.10(a), (ii) the definitions of “Additional Obligations”, “Disqualified Stock”, “Junior Capital” and “Refinancing Indebtedness” and Subsection 8.8(b) to amend the maturity date and the weighted average life to maturity requirements, from the Initial Term Loan Maturity Date and remaining weighted average life to maturity of the Initial Term Loans to the extended maturity date and the remaining weighted average life to maturity of such Extended Term Tranche, as applicable and (iii) clause (iii) of the definition of “Additional Obligations” to provide for the applicable mandatory prepayment protections to apply to such Extended Term Tranche, and which, in each case, except to the extent expressly contemplated by the third to last sentence of this Subsection 2.10(c) and notwithstanding anything to the contrary set forth in Subsection 11.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Tranches established thereby) executed by the Loan Parties, the Administrative Agent, and the Extending Lenders. No Extension Amendment shall provide for any Extended Term Tranche in an aggregate principal amount that is less than $5,000,000 (or such lower principal amount as agreed to by the Administrative Agent in its reasonable discretion). Notwithstanding anything to the contrary in this Agreement and without limiting the generality or applicability of Subsection 11.1 to any Subsection 2.10 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Subsection 2.10 Additional Amendment”) to this Agreement and the other Loan Documents; provided that such Subsection 2.10 Additional Amendments do not become effective prior to the time that such Subsection 2.10 Additional Amendments have been consented to (including pursuant to consents applicable to holders of any Extended Term Tranches provided for in any Extension Amendment) by such of the Lenders, Loan Parties and other parties (if any) as may be required in order for such Subsection 2.10 Additional Amendments to become effective in accordance with Subsection 11.1; provided, further, that no Extension Amendment may provide for any Extended Term Tranche to be secured by any Collateral or other assets of any Loan Party that does not also secure the Specified Existing Term Tranche. It is understood and agreed that each Lender has consented for all purposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Loan Documents authorized by this Subsection 2.10 and the arrangements described above in connection therewith except that the foregoing shall not constitute a consent on behalf of any Lender to the terms of any Subsection 2.10 Additional Amendment. In connection with any Extension Amendment, at the request of the Administrative Agent or the Extending Lenders, the Borrower shall deliver an opinion of counsel reasonably acceptable to the Administrative Agent as to the enforceability of such Extension Amendment, this Agreement as amended thereby, and such of the other Loan Documents (if any) as may be amended thereby.
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(d) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Term Tranche is converted to extend the related scheduled maturity date(s) in accordance with clause (a) above (an “Extension Date”), in the case of the Specified Existing Term Tranche of each Extending Lender, the aggregate principal amount of such Specified Existing Term Tranche shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Tranche so converted by such Lender on such date, and such Extended Term Tranches shall be established as a separate Tranche from the Specified Existing Term Tranche and from any other Existing Term Tranches (together with any other Extended Term Tranches so established on such date).
(e) If, in connection with any proposed Extension Amendment, any Lender declines to consent to the applicable extension on the terms and by the deadline set forth in the applicable Extension Request (each such other Lender, a “Non-Extending Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Extending Lender, (i) replace such Non-Extending Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Subsection 11.6 (with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to provide Extended Term Loans on the terms set forth in such Extension Amendment; and provided, further, that all obligations of the Borrower owing to the Non-Extending Lender relating to the Existing Term Loans so assigned shall be paid in full by the assignee Lender (or, at its option, the Borrower) to such Non-Extending Lender concurrently with such Assignment and Acceptance or (ii) if no Event of Default exists under Subsection 9.1(a) or (f), upon notice to the Administrative Agent, prepay the Existing Term Loans, in whole or in part, subject to Subsection 4.12, without premium or penalty. In connection with any such replacement under this Subsection 2.10, if the Non-Extending Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (A) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (B) the date as of which all obligations of the Borrower owing to the Non-Extending Lender relating to the Existing Term Loans so assigned shall be paid in full by the assignee Lender (or, at its option, the Borrower) to such Non-Extending Lender, then such Non-Extending Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date, the Administrative Agent shall record such assignment in the Register and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Extending Lender.
(f) Following any Extension Date, with the written consent of the Borrower, any Non-Extending Lender may elect to have all or a portion of its Existing Term Loans deemed to be an Extended Term Loan under the applicable Extended Term Tranche on any date (each date a “Designation Date”) prior to the maturity date of such Extended Term Tranche; provided that such Lender shall have provided written notice to the Borrower and the Administrative Agent at least 10 Business Days prior to such Designation Date (or such shorter period as the Administrative Agent may agree in its reasonable discretion). Following a Designation Date, the Existing Term Loans held by such Lender so elected to be extended will be deemed to be Extended Term Loans of the applicable Extended Term Tranche, and any Existing Term Loans held by such Lender not elected to be extended, if any, shall continue to be “Existing Term Loans” of the applicable Tranche.
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(g) With respect to all Extensions consummated by the Borrower pursuant to this Subsection 2.10, (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of Subsection 4.4 and (ii) no Extension Request is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Request in the Borrower’s sole discretion and may be waived by the Borrower) of Existing Term Loans of any or all applicable Tranches be extended. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Subsection 2.10 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Request) and hereby waive the requirements of any provision of this Agreement (including Subsections 4.4 and 4.8) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Subsection 2.10.
2.11 Specified Refinancing Facilities. (a) The Borrower may, from time to time, add one or more new term loan facilities (the “Specified Refinancing Term Loan Facilities”) to the Facilities to refinance all or any portion of any Tranche of Term Loans then outstanding under this Agreement; provided that (i) the Specified Refinancing Term Loan Facilities will not be guaranteed by any Subsidiary of the Borrower other than the Subsidiary Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Term Loan Facility Obligations (so long as any such Specified Refinancing Amendments (and related Obligations) are subject to the ABL/Term Loan Intercreditor Agreement, a Pari Passu Intercreditor Agreement, a Junior Lien Intercreditor Agreement or an Other Intercreditor Agreement), (ii) the Specified Refinancing Term Loan Facilities and any term loans drawn thereunder (the “Specified Refinancing Term Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Term Loan Facility Obligations, (iii) no Specified Refinancing Amendment may provide for any Specified Refinancing Term Loan Facility or any Specified Refinancing Term Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Term Loan Facility Obligations, (iv) the Specified Refinancing Term Loan Facilities will have such pricing, amortization (subject to clause (v) below) and optional and mandatory prepayment terms as may be agreed by the Borrower and the applicable Lenders thereof, (v) the maturity date and the weighted average life to maturity of the Specified Term Loan Facilities shall be no earlier than or shorter than, as the case may be, the Maturity Date of the Tranche of Term Loans being refinanced or the remaining weighted average life to maturity at such time of the Term Loans being refinanced, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Maturity Date of the Tranche of Term Loans being refinanced or the remaining weighted average life to maturity at such time of the Term Loans being refinanced, as applicable), (vi) the Net Cash Proceeds of such Specified Refinancing Term Loan Facility shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding Term Loans being so refinanced, in each case pursuant to Subsection 4.4, and (vii) the Specified Refinancing Term Loan Facilities shall not have a principal or commitment amount greater than the Term Loans being refinanced plus the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
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(b) Each request from the Borrower pursuant to this Subsection 2.11 shall set forth the requested amount and proposed terms of the relevant Specified Refinancing Term Loan Facility. The Specified Refinancing Term Loan Facilities (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Specified Refinancing Lender”, and the Additional Specified Refinancing Lenders together with any existing Lender providing Specified Refinancing Term Loan Facilities, the “Specified Refinancing Lenders”); provided that if such Additional Specified Refinancing Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder or an Approved Fund, the consent of the Administrative Agent (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required (it being understood that any such Additional Specified Refinancing Lender that is an Affiliated Lender shall be subject to the provisions of Subsection 11.6(h), mutatis mutandis, to the same extent as if such Specified Refinancing Term Loan Facilities and related Obligations had been obtained by such Lender by way of assignment).
(c) Specified Refinancing Term Loan Facilities shall become facilities under this Agreement pursuant to a Specified Refinancing Amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower and each applicable Specified Refinancing Lender. Any Specified Refinancing Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Subsection 2.11, in each case on terms consistent with this Subsection 2.11.
(d) Any loans made in respect of any such Specified Refinancing Term Loan Facility shall be made by creating a new Tranche. Each Specified Refinancing Term Loan Facility made available pursuant to this Subsection 2.11 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(e) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Specified Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Specified Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary or appropriate to reflect the existence and terms of the Specified Refinancing Term Loan Facilities incurred pursuant thereto (including the addition of such Specified Refinancing Term Loan Facilities as separate “Facilities” and “Tranches” hereunder and treated in a manner consistent with the Term Loan Facility being refinanced, including for purposes of prepayments and voting). Any Specified Refinancing Amendment may, without the consent of any Person other than the Borrower, the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) and the Lenders providing such Specified Refinancing Term Loan Facilities, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Subsection 2.11.
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SECTION 3
[Reserved]
SECTION 4
General Provisions Applicable to Loans
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Adjusted LIBOR Rate determined for such day plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest for each day that it is outstanding at a rate per annum equal to the Alternate Base Rate in effect for such day plus the Applicable Margin in effect for such day.
(c) Upon notice by the Administrative Agent, given at the request of the Required Lenders, following the occurrence and during the continuation of an Event of Default pursuant to Subsection 9.1(a) or (f), the Borrower will pay interest on overdue amounts hereunder at a rate per annum which is (x) in the case of overdue principal, the rate that would otherwise be applicable thereto pursuant to the relevant foregoing provisions of this Subsection 4.1, plus 2.00% and (y) in the case of other amounts (including overdue interest), the rate described in clause (b) of this Subsection 4.1 for ABR Loans accruing interest at the Alternate Base Rate plus 2.00%, in each case from the date of such notice until such overdue amounts are paid in full (as well after as before any judgment relating thereto).
(d) Interest shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant to clause (c) of this Subsection 4.1 shall be payable from time to time on demand.
(e) It is the intention of the parties hereto to comply strictly with applicable usury laws; accordingly, it is stipulated and agreed that the aggregate of all amounts which constitute interest under applicable usury laws, whether contracted for, charged, taken, reserved, or received, in connection with the indebtedness evidenced by this Agreement or any Notes, or any other document relating or referring hereto or thereto, now or hereafter existing, shall never exceed under any circumstance whatsoever the maximum amount of interest allowed by applicable usury laws.
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4.2 Conversion and Continuation Options. (a) Subject to its obligations pursuant to Subsection 4.12(c), the Borrower may elect from time to time to convert outstanding Loans of a given Tranche from Eurodollar Loans to ABR Loans by the Borrower giving the Administrative Agent irrevocable notice of such election prior to 12:00 P.M., New York City time three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to such election. The Borrower may elect from time to time to convert outstanding Term Loans of a given Tranche from ABR Loans to Eurodollar Loans, by the Borrower giving the Administrative Agent irrevocable notice of such election prior to 2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to such election. Any such notice of conversion to Eurodollar Loans shall specify the length of the initial Interest Period or Interest Periods therefor. Upon receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. All or any part of outstanding Eurodollar Loans or ABR Loans may be converted as provided herein, provided that (i) (unless the Required Lenders otherwise consent) no Loan may be converted into a Eurodollar Loan when any Default or Event of Default has occurred and is continuing and, in the case of any Default (other than a Default under Subsection 9.1(f)), the Administrative Agent has given notice to the Borrower that no such conversions may be made and (ii) no Term Loan may be converted into a Eurodollar Loan after the date that is one month prior to the applicable Maturity Date.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the then current Interest Period with respect thereto by the Borrower giving notice to the Administrative Agent of the length of the next Interest Period to be applicable to such Eurodollar Loan, determined in accordance with the applicable provisions of the term “Interest Period” set forth in Subsection 1.1, provided that no Eurodollar Loan may be continued as such (i) (unless the Required Lenders otherwise consent) when any Default or Event of Default has occurred and is continuing and, in the case of any Default (other than a Default under Subsection 9.1(f)), the Administrative Agent has given notice to the Borrower that no such continuations may be made or (ii) after the date that is one month prior to the applicable Maturity Date, and provided, further, that if the Borrower shall fail to give any required notice as described above in this clause (b) or if such continuation is not permitted pursuant to the preceding proviso such Eurodollar Loans shall be automatically converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any such notice of continuation pursuant to this Subsection 4.2(b), the Administrative Agent shall promptly notify each affected Lender thereof.
4.3 Minimum Amounts; Maximum Sets. All borrowings, conversions and continuations of Term Loans hereunder and all selections of Interest Periods hereunder shall be in such amounts and be made pursuant to such elections so that, after giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each Set shall be equal to $1,000,000 or a whole multiple of $250,000 in excess thereof and so that there shall not be more than 20 Sets at any one time outstanding.
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4.4 Optional
and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans, in whole or in part,
subject to Subsection 4.12, without premium or penalty (except as provided in Subsection 4.5(b)), upon notice by
the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days (or such shorter
period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case
of Eurodollar Loans), or prior to 2:00 P.M., New York City time on the date of prepayment (in the case of ABR Loans) (or such
later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify, in the case
of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable
to each, the date and amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans or a combination thereof,
and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice
is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit
facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior
to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent
shall promptly notify each affected Lender thereof. If any such notice is given and not revoked, the amount specified in such
notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan is prepaid other than at the
end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12. Partial prepayments pursuant
to this Subsection 4.4(a) shall be in a minimum amount of $1,000,000 and integral multiples of $500,000 in excess thereof;
provided that, notwithstanding the foregoing, any Term Loan may be prepaid in its entirety. Each prepayment of Initial
Term Loans pursuant to this Subsection 4.4(a) made prior to the date that is six months after the ClosingThird
Amendment Effective Date in an amount equal to the
Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien
secured term loan financing incurred in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection
4.5(b).
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
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(e) Mandatory Prepayment of Term Loans. (i) The Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date, the Borrower or any Restricted Subsidiaries shall Incur Indebtedness for borrowed money (excluding Indebtedness permitted pursuant to Subsection 8.1 other than Specified Refinancing Term Loans), the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans (or, in the case of the incurrence of any Specified Refinancing Term Loans, the Tranche of Term Loans being refinanced) in an amount equal to 100.00% of the Net Cash Proceeds thereof minus the portion of such Net Cash Proceeds applied (to the extent the Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(h), and (iii) the Borrower shall, in accordance with Subsection 4.4(g), prepay the Term Loans no later than the 10th Business Day after the 120th day following the last day of the immediately preceding Fiscal Year (commencing with the first Fiscal Year commencing after the Closing Date) (each, an “ECF Payment Date”), in an amount equal to (A)(1) 50.00% (as may be adjusted pursuant to the last proviso of this clause (iii)) of the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a) and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) prepaid pursuant to Subsection 4.4(a) and Pari Passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, in each case to the extent constituting Pari Passu Indebtedness) pursuant to Subsection 4.4(l) (provided that such deduction for prepayments pursuant to Subsection 4.4(l) shall be limited to the actual cash amount of such prepayment), in each case during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(e) shall be included in Subsections 4.4(e)(iii)(A)(2)(w) or (x)), (y) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (z) below), and (z) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(e)(iii), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (the amount described in this clause (A), the “ECF Payment Amount”) minus (B) the portion of such ECF Payment Amount applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a no more than pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (I) 25.00% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 3.00:1.00 but greater than 2.50:1.00 and (II) 0% if the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 2.50:1.00. Nothing in this Subsection 4.4(e) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(f) [Reserved].
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(g) Subject to the last sentence of Subsection 4.4(h) and Subsection 4.4(k), each prepayment of Term Loans pursuant to Subsection 4.4(e) (other than a prepayment with the proceeds of Specified Refinancing Term Loans) shall be allocated to the Tranches of Term Loans as directed by the Borrower or, absent such direction, pro rata among the Initial Term Loans, the Incremental Term Loans, the Extended Term Loans and the Specified Refinancing Term Loans. Each prepayment of Term Loans pursuant to Subsection 4.4(a) shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity). Each prepayment of Term Loans pursuant to Subsection 4.4(e) shall be applied within each applicable Tranche of Term Loans, first, to the accrued interest on the principal amount of Term Loans being prepaid and, second, to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity). Notwithstanding any other provision of this Subsection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Subsection 4.4(a) or (e), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(h) The Borrower shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(e)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to any other provision of Subsection 4.4(e), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(e)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to any other clause of Subsection 4.4(e), on or before the date specified in such clause, as the case may be (each, a “Prepayment Date”). Subject to the following sentence, once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(h)). Any such notice of prepayment pursuant to Subsection 4.4(e) may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent, on or prior to the specified effective date) if such condition is not satisfied. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount (the “Declined Amount”) so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including any Junior Debt, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
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(i) Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(a), (e) or (l) may not be reborrowed.
(j) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) or (e) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.00%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of Term Loans in accordance with Subsection 4.4(a) or (e) with an amount equal to a portion (up to 100.00%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Subsection 4.4(e) would result in material adverse tax consequences to Parent or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without incurring material adverse tax consequences.
(k) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable, or pursuant to any other credit or letter of credit facility added pursuant to Subsection 2.8 or 11.1(e).
(l) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
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(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “ Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(l); provided that the Borrower shall not initiate any action under this Subsection 4.4(l) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion). Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on Holdings, the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of Holdings, the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holdings, the Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this Subsection 4.4(l) shall be immediately and automatically cancelled.
(ii) Borrower Offer of Specified Discount Prepayment.
(1) The Borrower may from time to time offer to make a Discounted Term Loan Prepayment by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Specified Discount Prepayment Notice; provided that (I) any such offer shall be made available, at the sole discretion of the Borrower, to each Lender or to each Lender with respect to any Tranche on an individual Tranche basis, (II) any such offer shall specify the aggregate Outstanding Amount offered to be prepaid (the “Specified Discount Prepayment Amount”), the Tranches of Term Loans subject to such offer and the specific percentage discount to par value (the “Specified Discount”) of the Outstanding Amount of such Term Loans to be prepaid, (III) the Specified Discount Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $500,000, and (IV) each such offer shall remain outstanding through the Specified Discount Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Specified Discount Prepayment Notice and a form of the Specified Discount Prepayment Response to be completed and returned by each such Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time, on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date designated by the Administrative Agent and approved by the Borrower) (the “Specified Discount Prepayment Response Date”).
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(2) Each relevant Lender receiving such offer shall notify the Administrative Agent (or its delegate) by the Specified Discount Prepayment Response Date whether or not it agrees to accept a prepayment of any of its relevant then outstanding Term Loans at the Specified Discount and, if so (such accepting Lender, a “Discount Prepayment Accepting Lender”), the amount of such Lender’s Outstanding Amount and Tranches of Term Loans to be prepaid at such offered discount. Each acceptance of a Discounted Term Loan Prepayment by a Discount Prepayment Accepting Lender shall be irrevocable. Any Lender whose Specified Discount Prepayment Response is not received by the Administrative Agent by the Specified Discount Prepayment Response Date shall be deemed to have declined to accept the Borrower Offer of Specified Discount Prepayment.
(3) If there is at least one Discount Prepayment Accepting Lender, the Borrower will make prepayment of outstanding Term Loans pursuant to this Subsection 4.4(l)(ii) to each Discount Prepayment Accepting Lender in accordance with the respective Outstanding Amount and Tranches of Term Loans specified in such Lender’s Specified Discount Prepayment Response given pursuant to the foregoing clause (2); provided that, if the aggregate Outstanding Amount of Term Loans accepted for prepayment by all Discount Prepayment Accepting Lenders exceeds the Specified Discount Prepayment Amount, such prepayment shall be made pro rata among the Discount Prepayment Accepting Lenders in accordance with the respective Outstanding Amounts accepted to be prepaid by each such Discount Prepayment Accepting Lender and the Administrative Agent (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Specified Discount Proration”). The Administrative Agent shall promptly, and in any case within three Business Days following the Specified Discount Prepayment Response Date, notify (I) the Borrower of the respective Lenders’ responses to such offer, the Discounted Prepayment Effective Date and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches to be prepaid, (II) each Lender of the Discounted Prepayment Effective Date, and the aggregate Outstanding Amount and the Tranches of all Term Loans to be prepaid at the Specified Discount on such date, and (III) each Discount Prepayment Accepting Lender of the Specified Discount Proration, if any, and confirmation of the Outstanding Amount, Tranche and Type of Term Loans of such Lender to be prepaid at the Specified Discount on such date. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
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(iii) Borrower Solicitation of Discount Range Prepayment Offers.
(1) The Borrower may from time to time solicit Discount Range Prepayment Offers by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Discount Range Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each Lender or to each Lender with respect to any Tranche on an individual Tranche basis, (II) any such notice shall specify the maximum aggregate Outstanding Amount of the relevant Term Loans that the Borrower is willing to prepay at a discount (the “Discount Range Prepayment Amount”), the Tranches of Term Loans subject to such offer and the maximum and minimum percentage discounts to par (the “Discount Range”) of the Outstanding Amount of such Term Loans willing to be prepaid by the Borrower, (III) the Discount Range Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $500,000, and (IV) each such solicitation by the Borrower shall remain outstanding through the Discount Range Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Discount Range Prepayment Notice and a form of the Discount Range Prepayment Offer to be submitted by a responding relevant Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time, on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date as may be designated by the Administrative Agent and approved by the Borrower) (the “Discount Range Prepayment Response Date”). Each relevant Lender’s Discount Range Prepayment Offer shall be irrevocable and shall specify a discount to par within the Discount Range (the “Submitted Discount”) at which such Lender is willing to allow prepayment of any or all of its then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans such Lender is willing to have prepaid at the Submitted Discount (the “Submitted Amount”). Any Lender whose Discount Range Prepayment Offer is not received by the Administrative Agent by the Discount Range Prepayment Response Date shall be deemed to have declined to accept a Discounted Term Loan Prepayment of any of its Term Loans at any discount to their par value within the Discount Range.
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(2) The Administrative Agent shall review all Discount Range Prepayment Offers received by it by the Discount Range Prepayment Response Date and will determine (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) the Applicable Discount and Term Loans to be prepaid at such Applicable Discount in accordance with this Subsection 4.4(l)(iii). The Borrower agrees to accept on the Discount Range Prepayment Response Date all Discount Range Prepayment Offers received by Administrative Agent by the Discount Range Prepayment Response Date, in the order from the Submitted Discount that is the largest discount to par to the Submitted Discount that is the smallest discount to par, up to and including the Submitted Discount that is the smallest discount to par within the Discount Range (such Submitted Discount that is the smallest discount to par being referred to as the “Applicable Discount”) which yields a Discounted Term Loan Prepayment in an aggregate Outstanding Amount equal to the lesser of (I) the Discount Range Prepayment Amount and (II) the sum of all Submitted Amounts. Each Lender that has submitted a Discount Range Prepayment Offer to accept prepayment at a discount to par that is larger than or equal to the Applicable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Submitted Amount (subject to any required proration pursuant to the following Subsection 4.4(l)(iii)(3)) at the Applicable Discount (each such Lender, a “Participating Lender”).
(3) If there is at least one Participating Lender, the Borrower will prepay the respective outstanding Term Loans of each Participating Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Discount Range Prepayment Offer at the Applicable Discount; provided that if the Submitted Amount by all Participating Lenders offered at a discount to par greater than the Applicable Discount exceeds the Discount Range Prepayment Amount, prepayment of the Outstanding Amount of the relevant Term Loans for those Participating Lenders whose Submitted Discount is a discount to par greater than or equal to the Applicable Discount (the “Identified Participating Lenders”) shall be made pro rata among the Identified Participating Lenders in accordance with the Submitted Amount of each such Identified Participating Lender and the Administrative Agent (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Discount Range Proration”). The Administrative Agent shall promptly, and in any case within three Business Days following the Discount Range Prepayment Response Date, notify (w) the Borrower of the respective Lenders’ responses to such solicitation, the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate Outstanding Amount of the Discounted Term Loan Prepayment and the Tranches to be prepaid, (x) each Lender of the Discounted Prepayment Effective Date, the Applicable Discount, and the aggregate Outstanding Amount and Tranches of all Term Loans to be prepaid at the Applicable Discount on such date, (y) each Participating Lender of the aggregate Outstanding Amount and Tranches of such Lender to be prepaid at the Applicable Discount on such date, and (z) if applicable, each Identified Participating Lender of the Discount Range Proration. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
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(iv) Borrower Solicitation of Discounted Prepayment Offers.
(1) The Borrower may from time to time solicit Solicited Discounted Prepayment Offers by providing the Administrative Agent with three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice in the form of a Solicited Discounted Prepayment Notice; provided that (I) any such solicitation shall be extended, at the sole discretion of the Borrower, to each Lender or to each Lender with respect to any Tranche on an individual Tranche basis, (II) any such notice shall specify the maximum aggregate Outstanding Amount of the Term Loans and the Tranches of Term Loans the Borrower is willing to prepay at a discount (the “Solicited Discounted Prepayment Amount”), (III) the Solicited Discounted Prepayment Amount shall be in an aggregate amount not less than $5,000,000 and whole increments of $500,000, and (IV) each such solicitation by the Borrower shall remain outstanding through the Solicited Discounted Prepayment Response Date. The Administrative Agent will promptly provide each relevant Lender with a copy of such Solicited Discounted Prepayment Notice and a form of the Solicited Discounted Prepayment Offer to be submitted by a responding Lender to the Administrative Agent (or its delegate) by no later than 5:00 P.M., New York City time, on the third Business Day after the date of delivery of such notice to the relevant Lenders (or such later date as may be designated by the Administrative Agent and approved by the Borrower) (the “Solicited Discounted Prepayment Response Date”). Each Lender’s Solicited Discounted Prepayment Offer shall (x) be irrevocable, (y) remain outstanding until the Acceptance Date, and (z) specify both a discount to par (the “Offered Discount”) at which such Lender is willing to allow prepayment of its then outstanding Term Loans and the maximum aggregate Outstanding Amount and Tranches of such Term Loans (the “Offered Amount”) such Lender is willing to have prepaid at the Offered Discount. Any Lender whose Solicited Discounted Prepayment Offer is not received by the Administrative Agent by the Solicited Discounted Prepayment Response Date shall be deemed to have declined prepayment of any of its Term Loans at any discount to their par value.
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(2) The Administrative Agent shall promptly provide the Borrower with a copy of all Solicited Discounted Prepayment Offers received by it by the Solicited Discounted Prepayment Response Date. The Borrower shall review all such Solicited Discounted Prepayment Offers and select, at its sole discretion, the smallest of the Offered Discounts specified by the relevant responding Lenders in the Solicited Discounted Prepayment Offers that the Borrower is willing to accept (the “Acceptable Discount”), if any; provided that the Acceptable Discount shall not be an Offered Discount that is larger than the smallest Offered Discount for which the sum of all Offered Amounts affiliated with Offered Discounts that are larger than or equal to such smallest Offered Discount would, if purchased at such smallest Offered Discount, yield an amount at least equal to the Solicited Discounted Prepayment Amount. If the Borrower elects to accept any Offered Discount as the Acceptable Discount, then as soon as practicable after the determination of the Acceptable Discount, but in no event later than by the third Business Day after the date of receipt by the Borrower from the Administrative Agent of a copy of all Solicited Discounted Prepayment Offers pursuant to the first sentence of this clause (2) (the “Acceptance Date”), the Borrower shall submit an Acceptance and Prepayment Notice to the Administrative Agent setting forth the Acceptable Discount. If the Administrative Agent shall fail to receive an Acceptance and Prepayment Notice from the Borrower by the Acceptance Date, the Borrower shall be deemed to have rejected all Solicited Discounted Prepayment Offers.
(3) Based upon the Acceptable Discount and the Solicited Discounted Prepayment Offers received by Administrative Agent by the Solicited Discounted Prepayment Response Date, within three Business Days after receipt of an Acceptance and Prepayment Notice (the “Discounted Prepayment Determination Date”), the Administrative Agent will determine (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) the aggregate Outstanding Amount and the Tranches of Term Loans (the “Acceptable Prepayment Amount”) to be prepaid by the Borrower at the Acceptable Discount in accordance with this Subsection 4.4(l)(iv). If the Borrower elects to accept any Acceptable Discount, then the Borrower agrees to accept all Solicited Discounted Prepayment Offers received by the Administrative Agent by the Solicited Discounted Prepayment Response Date, in the order from largest Offered Discount to smallest Offered Discount, up to and including the Acceptable Discount. Each Lender that has submitted a Solicited Discounted Prepayment Offer to accept prepayment at an Offered Discount that is greater than or equal to the Acceptable Discount shall be deemed to have irrevocably consented to prepayment of Term Loans equal to its Offered Amount (subject to any required proration pursuant to the following sentence) at the Acceptable Discount (each such Lender, a “Qualifying Lender”). The Borrower will prepay outstanding Term Loans pursuant to this Subsection 4.4(l)(iv) to each Qualifying Lender in the aggregate Outstanding Amount and of the Tranches specified in such Lender’s Solicited Discounted Prepayment Offer at the Acceptable Discount; provided that if the aggregate Offered Amount by all Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount exceeds the Solicited Discounted Prepayment Amount, prepayment of the Outstanding Amount of the Term Loans for those Qualifying Lenders whose Offered Discount is greater than or equal to the Acceptable Discount (the “Identified Qualifying Lenders”) shall be made pro rata among the Identified Qualifying Lenders in accordance with the Offered Amount of each such Identified Qualifying Lender and the Administrative Agent (in consultation with the Borrower and subject to rounding requirements of the Administrative Agent made in its reasonable discretion) will calculate such proration (the “Solicited Discount Proration”). On or prior to the Discounted Prepayment Determination Date, the Administrative Agent shall promptly notify (w) the Borrower of the Discounted Prepayment Effective Date and Acceptable Prepayment Amount comprising the Discounted Term Loan Prepayment and the Tranches to be prepaid, (x) each Lender of the Discounted Prepayment Effective Date, the Acceptable Discount, and the Acceptable Prepayment Amount of all Term Loans and the Tranches to be prepaid at the Applicable Discount on such date, (y) each Qualifying Lender of the aggregate Outstanding Amount and the Tranches of such Lender to be prepaid at the Acceptable Discount on such date, and (z) if applicable, each Identified Qualifying Lender of the Solicited Discount Proration. Each determination by the Administrative Agent of the amounts stated in the foregoing notices to the Borrower and Lenders shall be conclusive and binding for all purposes absent manifest error. The payment amount specified in such notice to the Borrower shall be due and payable by the Borrower on the Discounted Prepayment Effective Date in accordance with Subsection 4.4(l)(vi) below (subject to Subsection 4.4(l)(x) below).
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(v) Expenses. In connection with any Discounted Term Loan Prepayment, the Borrower and the Lenders acknowledge and agree that the Administrative Agent may require as a condition to any Discounted Term Loan Prepayment, the payment of reasonable out-of-pocket costs and expenses from the Borrower in connection therewith.
(vi) Payment. If any Term Loan is prepaid in accordance with Subsections 4.4(l)(ii) through (iv) above, the Borrower shall prepay such Term Loans on the Discounted Prepayment Effective Date. The Borrower shall make such prepayment to the Administrative Agent, for the account of the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable, at the Administrative Agent’s office in immediately available funds not later than 11:00 A.M., New York City time, on the Discounted Prepayment Effective Date and all such prepayments shall be applied to the remaining principal installments of the Term Loans in inverse order of maturity. The Term Loans so prepaid shall be accompanied by all accrued and unpaid interest on the par principal amount so prepaid up to, but not including, the Discounted Prepayment Effective Date. Each prepayment of the outstanding Term Loans pursuant to this Subsection 4.4(l) shall be paid to the Discount Prepayment Accepting Lenders, Participating Lenders, or Qualifying Lenders, as applicable. The aggregate Outstanding Amount of the Tranches of the Term Loans outstanding shall be deemed reduced by the full par value of the aggregate Outstanding Amount of the Tranches of Term Loans prepaid on the Discounted Prepayment Effective Date in any Discounted Term Loan Prepayment. The Lenders hereby agree that, in connection with a prepayment of Term Loans pursuant to this Subsection 4.4(l) and notwithstanding anything to the contrary contained in this Agreement, (i) interest in respect of the Term Loans may be made on a non-pro rata basis among the Lenders holding such Term Loans to reflect the payment of accrued interest to certain Lenders as provided in this Subsection 4.4(l)(vi) and (ii) all subsequent prepayments and repayments of the Term Loans (except as otherwise contemplated by this Agreement) shall be made on a pro rata basis among the respective Lenders based upon the then outstanding principal amounts of the Term Loans then held by the respective Lenders after giving effect to any prepayment pursuant to this Subsection 4.4(l) as if made at par. It is also understood and agreed that prepayments pursuant to this Subsection 4.4(l) shall not be subject to Subsection 4.4(a), or, for the avoidance of doubt, Subsection 11.7(a) or the pro rata allocation requirements of Subsection 4.8(a).
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(vii) Other Procedures. To the extent not expressly provided for herein, each Discounted Term Loan Prepayment shall be consummated pursuant to procedures consistent with the provisions in this Subsection 4.4(l), established by the Administrative Agent acting in its reasonable discretion and as reasonably agreed by the Borrower.
(viii) Notice. Notwithstanding anything in any Loan Document to the contrary, for purposes of this Subsection 4.4(l), each notice or other communication required to be delivered or otherwise provided to the Administrative Agent (or its delegate) shall be deemed to have been given upon the Administrative Agent’s (or its delegate’s) actual receipt during normal business hours of such notice or communication; provided that any notice or communication actually received outside of normal business hours shall be deemed to have been given as of the opening of business on the next Business Day.
(ix) Actions of Administrative Agent. The Borrower and the Lenders acknowledges and agrees that the Administrative Agent may perform any and all of its duties under this Subsection 4.4(l) by itself or through any Affiliate of the Administrative Agent and expressly consents to any such delegation of duties by the Administrative Agent to such Affiliate and the performance of such delegated duties by such Affiliate. The exculpatory provisions in this Agreement shall apply to each Affiliate of the Administrative Agent and its respective activities in connection with any Discounted Term Loan Prepayment provided for in this Subsection 4.4(l) as well as to activities of the Administrative Agent in connection with any Discounted Term Loan Prepayment provided for in this Subsection 4.4(l).
(x) Revocation. The Borrower shall have the right, by written notice to the Administrative Agent, to revoke in full (but not in part) its offer to make a Discounted Term Loan Prepayment and rescind the applicable Specified Discount Prepayment Notice, Discount Range Prepayment Notice or Solicited Discounted Prepayment Notice therefor at its discretion at any time on or prior to the applicable Specified Discount Prepayment Response Date (and if such offer is so revoked, any failure by the Borrower to make any prepayment to a Lender pursuant to this Subsection 4.4(l) shall not constitute a Default or Event of Default under Subsection 9.1 or otherwise).
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(xi) No Obligation. This Subsection 4.4(l) shall not (i) require the Borrower to undertake any prepayment pursuant to this Subsection 4.4(l) or (ii) limit or restrict the Borrower from making voluntary prepayments of the Term Loans in accordance with the other provisions of this Agreement.
4.5 Administrative Agent’s Fee; Other Fees. (a) The Borrower agrees to pay to the Administrative Agent the fees as set forth in the Agent Fee Letter on the payment dates set forth therein.
(b) If,
prior to the date that is six months after the ClosingThird
Amendment Effective Date, the Borrower makes an
optional prepayment in full of the Initial Term Loans in an amount equal to the Net Cash Proceeds received by the Borrower or
any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured term loan financing in a Repricing
Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender, a prepayment premium
of 1.00% of the aggregate principal amount of Initial Term Loans being prepaid. If, prior to the date that is six months after
the ClosingThird
Amendment Effective Date, any Lender is replaced
pursuant to Subsection 11.1(g) in connection with any amendment of this Agreement (including in connection with any refinancing
transaction permitted under Subsection 11.6(g) to replace the Initial Term Loans) that results in a Repricing Transaction,
such Lender (and not any Person who replaces such Lender pursuant to Subsection 2.10(e) or 11.1(g)) shall receive
a fee equal to 1.00% of the principal amount of the Initial Term Loans of such Lender assigned to a replacement Lender pursuant
to Subsection 2.10(e) or 11.1(g).
4.6 Computation of Interest and Fees. (a) Interest (other than interest based on the Base Rate) shall be calculated on the basis of a 360-day year for the actual days elapsed; and interest based on the Base Rate shall be calculated on the basis of a 365-day year (or 366- day year, as the case may be) for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the affected Lenders of each determination of an Adjusted LIBOR Rate. Any change in the interest rate on a Term Loan resulting from a change in the Alternate Base Rate or the Statutory Reserves shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the affected Lenders of the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent pursuant to any provision of this Agreement shall be conclusive and binding on the Borrower and each of the Lenders in the absence of manifest error. The Administrative Agent shall, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender a statement showing in reasonable detail the calculations used by the Administrative Agent in determining any interest rate pursuant to Subsection 4.1, excluding any LIBOR Rate which is based upon the Reuters Monitor Money Rates Service page and any ABR Loan which is based upon the Alternate Base Rate.
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4.7 Inability to Determine Interest Rate; Alternate Rate of Interest.
(a) 4.7
Inability to Determine Interest Rate. IfNotwithstanding
anything to the contrary in this Agreement or any other Loan Documents, if,
prior to the first day of any Interest Period, the Administrative Agent shall have determined in
good faith (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, absent
manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders,
a copy to the Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate
and reasonable means do not exist for ascertaining the Adjusted LIBOR
Rate with respect to any Eurodollar Loan for such Interest Period (the “Affected Eurodollar Rate”), the
Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as practicable thereafter.
If such notice is given (a) any Eurodollar Loans the rate of interest applicable to which is based on the Affected Eurodollar
Rate requested to be made on the first day of such Interest Period shall be made as ABR Loans and (b) any Term Loans that were
to have been converted on the first day of such Interest Period to or continued as Eurodollar Loans the rate of interest applicable
to which is based upon the Affected Eurodollar Rate shall be converted to or continued as ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans the rate of interest applicable to which is based upon the
Affected Eurodollar Rate shall be made or continued as such, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans, the rate of interest applicable to which is based upon the Affected Eurodollar Rate.including,
without limitation, because the LIBOR Rate is not available or published on a current basis and such circumstances are unlikely
to be temporary; or
(ii) the administrator of the LIBOR Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Rate shall no longer be made available, or used for determining the interest rate of loans, provided that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide LIBOR after such specific date (such specific date, the “Scheduled Unavailability Date”); or
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(iii) syndicated loans currently being executed, or that include language similar to that contained in this Subsection 4.7, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement solely for the purpose of replacing LIBOR in accordance with this this Subsection 4.7 with (x) one or more SOFR-Based Rates or (y) another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by the Administrative Agent from time to time in its reasonable discretion and may be periodically updated, and provided that such amendment, including the determination of any SOFR-Based Rates or other alternate benchmark rate, shall be made in a manner that is intended to comply with the terms of the Proposed United States Treasury Regulations under Section 1.1001-6 (or any successor United States Treasury Regulations or other official IRS guidance promulgated that supersedes such Proposed United States Treasury Regulations) (the “Adjustment;” and any such proposed rate, a “LIBOR Successor Rate”), and any such amendment shall become effective at 5:00 p.m. on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders (A) in the case of an amendment to replace LIBOR with a rate described in clause (x), object to the Adjustment; or (B) in the case of an amendment to replace LIBOR with a rate described in clause (y), object to such amendment; provided that for the avoidance of doubt, in the case of clause (A), the Required Lenders shall not be entitled to object to any SOFR-Based Rate contained in any such amendment. Such LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.
(b) If no LIBOR Successor Rate has been determined and the circumstances under clause (a) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Loans shall be suspended, (to the extent of the affected Eurodollar Loans or Interest Periods), and (y) the Adjusted LIBOR Rate component shall no longer be utilized in determining the Alternate Bae Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Loans (to the extent of the affected Eurodollar Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of ABR Loans (subject to the foregoing clause (y)) in the amount specified therein.
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(c) Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
(d) In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement; provided that, with respect to any such amendment effected, the Administrative Agent shall post each such amendment implementing such LIBOR Successor Rate Conforming Changes to the Lenders reasonably promptly after such amendment becomes effective.
4.8 Pro Rata Treatment and Payments. (a) Except as expressly otherwise provided herein, each payment (including each prepayment, but excluding payments made pursuant to Subsections 2.8, 2.9, 2.10, 2.11, 4.5(b), 4.9, 4.10, 4.11, 4.12, 4.13(d), 11.1(g) or 11.6) by the Borrower on account of principal of and interest on account of any Loans of a given Tranche (other than (w) payments in respect of any difference in the Applicable Margin, Adjusted LIBOR Rate or Alternate Base Rate in respect of any Tranche, (x) any payments pursuant to Subsection 4.4(e) to the extent declined by any Lender in accordance with Subsection 4.4(h), (y) any payments pursuant to Subsection 4.4(l) which shall be allocated as set forth in Subsection 4.4(l)) and (z) any prepayments pursuant to Subsection 11.6(h)(i)(y)) shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Term Loans of such Tranche then held by the respective Lenders; provided that a Lender may, at its option, and if agreed by the Borrower, exchange such Lender’s portion of a Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment, pursuant to the last sentence of Subsection 4.4(g). All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made on or prior to the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 P.M., New York City time (or such later time as may be agreed by the Administrative Agent in its reasonable discretion)), on the due date thereof to the Administrative Agent for the account of the Lenders holding the relevant Loans, the Lenders, the Administrative Agent, or the Other Representatives, as the case may be, at the Administrative Agent’s office specified in Subsection 11.2, in Dollars in immediately available funds. Payments received by the Administrative Agent after such time shall be deemed to have been received on the next Business Day. The Administrative Agent shall distribute such payments to such Lenders or Other Representatives, as the case may be, if any such payment is received prior to 2:00 P.M., New York City time, on a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall distribute such payment to such Lenders or Other Representatives, as the case may be, on the next succeeding Business Day. If any payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. This Subsection 4.8(a) may be amended in accordance with Subsection 11.1(d) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new Tranches added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable.
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(b) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a borrowing that such Lender will not make the amount that would constitute its share of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower in respect of such borrowing a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent on demand, such amount with interest thereon at a rate equal to the daily average Federal Funds Effective Rate for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this Subsection 4.8(b) shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the Administrative Agent by such Lender within three Business Days of such Borrowing Date, the Administrative Agent shall notify the Borrower of the failure of such Lender to make such amount available to the Administrative Agent and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to ABR Loans hereunder on demand from the Borrower; provided that the foregoing notice and recovery provisions shall not apply to the funding of Initial Term Loans on the Closing Date.
4.9 Illegality. Notwithstanding any other provision herein, if the adoption of or any change in any Requirement of Law or in the interpretation or application thereof in each case occurring after the Closing Date shall make it unlawful for any Lender to make or maintain any Eurodollar Loans as contemplated by this Agreement (“Affected Loans”), (a) such Lender shall promptly give written notice of such circumstances to the Borrower and the Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer exist), (b) the commitment of such Lender hereunder to make Affected Loans, continue Affected Loans as such and convert an ABR Loan to an Affected Loan shall forthwith be cancelled and, until such time as it shall no longer be unlawful for such Lender to make or maintain such Affected Loans, such Lender shall then have a commitment only to make an ABR Loan when an Affected Loan is requested and (c) such Lender’s Loans then outstanding as Affected Loans, if any, shall be converted automatically to ABR Loans on the respective last days of the then current Interest Periods with respect to such Affected Loans or within such earlier period as required by law. If any such conversion or prepayment of an Affected Loan occurs on a day which is not the last day of the then current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts, if any, as may be required pursuant to Subsection 4.12.
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4.10 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof applicable to any Lender, or compliance by any Lender with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority, in each case made subsequent to the Closing Date (or, if later, the date on which such Lender becomes a Lender):
(i) shall
subject such Lender to any Tax of any kind whatsoever with respect to any Eurodollar
Loans made or maintained by it or its obligation to make or maintain Eurodollar
Loans, except for (a)
Taxes described in clauses (ii) through (v) of the definition of Excluded Taxes and (b) Non-Excluded
Taxes, Taxes imposed by FATCA and franchise Taxes or branch profits Taxes, of such Lender
or its applicable lending office, branch profits, or any affiliate thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, loans or other extensions of credit by, or any other acquisition of funds by, any office of such Lender which is not otherwise included in the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender any other condition (excluding Taxes);
and
the result of any of the foregoing is to increase the cost to such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar Loans
or to reduce any amount receivable hereunder in respect thereof, then, in any such case, upon notice to the Borrower from such
Lender, through the Administrative Agent in accordance herewith, the Borrower shall promptly pay such Lender, upon its demand,
any additional amounts necessary to compensate such Lender for such increased cost or reduced amount receivable with respect to
such Eurodollar Loans; provided that, in any such case, the Borrower
may elect to convert the Eurodollar Loans made by such Lender hereunder
to ABR Loans by giving the Administrative Agent at least three Business Days’ (or such shorter period as may be agreed by
the Administrative Agent in its reasonable discretion) notice of such election, in which case the Borrower shall promptly pay
to such Lender, upon demand, without duplication, amounts theretofore required to be paid to such Lender pursuant to this Subsection
4.10(a) and such amounts, if any, as may be required pursuant to Subsection 4.12. If any Lender becomes entitled to
claim any additional amounts pursuant to this Subsection 4.10(a), it shall provide prompt notice thereof to the Borrower,
through the Administrative Agent, certifying (x) that one of the events described in this clause (a) has occurred and describing
in reasonable detail the nature of such event, (y) as to the increased cost or reduced amount resulting from such event
and (z) as to the additional amount demanded by such Lender and a reasonably detailed explanation of the calculation thereof.
Such a certificate as to any additional amounts payable pursuant to this Subsection 4.10(a) submitted by such Lender, through
the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. Notwithstanding anything to the
contrary in this Subsection 4.10(a), the Borrower shall not be required to compensate a Lender pursuant to this Subsection
4.10(a) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower
of such Lender’s intention to claim compensation therefor (except
that, if the Requirement of Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof) or
(ii) for any amounts, if such Lender is applying this provision to the Borrower in a manner that is inconsistent with its
application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly
situated borrowers. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other
amounts payable hereunder.
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(b) If any Lender shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or liquidity or in the interpretation or application thereof or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy or liquidity (whether or not having the force of law) from any Governmental Authority, in each case, made subsequent to the Closing Date, does or shall have the effect of reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of such Lender’s obligations hereunder to a level below that which such Lender or such corporation could have achieved but for such change or compliance (taking into consideration such Lender’s or such corporation’s policies with respect to capital adequacy or liquidity) by an amount deemed by such Lender to be material, then from time to time, within ten Business Days after submission by such Lender to the Borrower (through the Administrative Agent) of a written request therefor certifying (x) that one of the events described in this clause (b) has occurred and describing in reasonable detail the nature of such event, (y) as to the reduction of the rate of return on capital resulting from such event and (z) as to the additional amount or amounts demanded by such Lender or corporation and a reasonably detailed explanation of the calculation thereof, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or corporation for such reduction. Such a certificate as to any additional amounts payable pursuant to this Subsection 4.10(b) submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. Notwithstanding anything to the contrary in this Subsection 4.10(b), the Borrower shall not be required to compensate a Lender pursuant to this Subsection 4.10(b) (i) for any amounts incurred more than six months prior to the date that such Lender notifies the Borrower of such Lender’s intention to claim compensation therefor (except that, if the Requirement of Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof) or (ii) for any amounts, if such Lender is applying this provision to the Borrower in a manner that is inconsistent with its application of “increased cost” or other similar provisions under other syndicated credit agreements to similarly situated borrowers. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
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(c) Notwithstanding anything herein to the contrary, the Dodd Frank Wall Street Reform and Consumer Protection Act, and all requests, rules, regulations, guidelines and directives promulgated thereunder or issued in connection therewith, and all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to have been enacted, adopted or issued, as applicable, subsequent to the Closing Date for all purposes herein.
4.11 Taxes.
(a) Except as provided below in this Subsection 4.11 or as required by law (which, for purposes of this Subsection 4.11,
shall include FATCA), all payments made by or on account of any Loan Party or the Agents under this Agreement and any Notes shall
be made free and clear of, and without deduction or withholding for or on account of any Taxes; provided that if any Non-Excluded
Taxes are required to be withheld from any amounts payable by or on account of any Loan Party to any Agent or any Lender hereunder
or under any Notes, the amounts so payable by the applicable Loan Party shall be increased to the extent necessary to yield to
such Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement; provided, however, that the Loan Parties shall be entitled
to deduct and withhold, and no Loan Party shall be required to indemnify for,
(x)
any Excluded Taxes or (y)
with respect to any Non-Excluded Taxes imposed in connection with the payment of any fees paid under this Agreement unless such
Non-Excluded Taxes are imposed as a result of a change in treaty, law or regulation that occurred after such Agent acquired such
interest in the Loan hereunder, such Lender acquired such interest in the Loan hereunder, including assignment other than pursuant
to SectionSubsection
4.13(c),
if such Agent or Lender is a non-U.S. intermediary or flow-through entity for U.S. federal income tax purposes, after the relevant
beneficiary or member of such Agent or Lender became such a beneficiary or member, if later (any such change, at such time, a
“Change in Law”). Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as possible thereafter
the Borrower shall send to the Administrative Agent for its own account or for the account of the respective Lender or Agent,
as the case may be, a certified copy of an original official receipt received by the Borrower showing payment thereof. If the
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate Governmental Authority in accordance with applicable
law or the Borrower fails to remit to the Administrative Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent, the Lenders and the Agents for any incremental Taxes, interest or penalties
that may become payable by the Administrative Agent or any Lender as a result of any such failure. The agreements in this Subsection
4.11 shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
(b) Each Agent and each Lender that is not a United States Person shall:
(i) (1) on or before the date of any payment by the Borrower under this Agreement or any Notes to, or for the account of, such Agent or Lender, deliver to the Borrower and the Administrative Agent two accurate and complete executed copies of Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (certifying that it is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country) or Forms W-8ECI, or successor applicable form, as the case may be, in each case certifying that it is entitled to receive all payments under this Agreement and any Notes without deduction or withholding of any United States federal withholding taxes;
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(2) deliver to the Borrower and the Administrative Agent two further accurate and complete executed copies of forms or certifications provided in Subsection 4.11(b)(i)(1) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certificate previously delivered by it to the Borrower;
(3) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent; and
(4) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower, to the Borrower and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from, or reduction of, U.S. federal withholding Taxes with respect to payments under this Agreement and any Notes, provided that, in determining the reasonableness of a request under this clause (4), such Lender shall be entitled to consider the cost (to the extent unreimbursed by any Loan Party) which would be imposed on such Lender of complying with such request; or
(ii) in the case of any such Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and is claiming the so-called “portfolio interest exemption”,
(1) represent to the Borrower and the Administrative Agent that it is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;
(2) deliver to the Borrower on or before the date of any payment by the Borrower with a copy to the Administrative Agent, (A) two certificates substantially in the form of Exhibit D-1 or D-2 hereto (any such certificate a “U.S. Tax Compliance Certificate”) and (B) two accurate and complete executed copies of Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, or successor applicable form, certifying to such Lender’s legal entitlement at the date of such form to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes (and shall also deliver to the Borrower and the Administrative Agent two further accurate and complete executed copies of forms or certificates on or before the date it expires or becomes obsolete and after the occurrence of any event requiring a change in the most recently provided form or certificate and, if necessary, obtain any extensions of time reasonably requested by the Borrower or the Administrative Agent for filing and completing such forms or certificates); and
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(3) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower, to the Borrower and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Lender to an exemption from, or reduction of, U.S. withholding Taxes with respect to payments under this Agreement and any Notes, provided that, in determining the reasonableness of a request under this clause (3), such Lender shall be entitled to consider the cost (to the extent unreimbursed by the Borrower) which would be imposed on such Lender of complying with such request; or
(iii) in the case of any such Agent or Lender that is a non-U.S. intermediary or flow-through entity for U.S. federal income tax purposes,
(1) on or before the date of any payment by the Borrower under this Agreement or any Notes to, or for the account of, such Agent or Lender, deliver to the Borrower and the Administrative Agent two accurate and complete executed copies of Internal Revenue Service Forms W-8IMY and, if any beneficiary or member of such Lender is claiming the so-called “portfolio interest exemption”, (I) represent to the Borrower and the Administrative Agent that (A) neither such Lender nor the beneficiary or member of such Lender is a bank within the meaning of Section 881(c)(3)(A) of the Code, (B) the beneficiary or member of such Lender is not a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (C) the beneficiary or member of such Lender is not a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (II) also deliver to the Borrower and the Administrative Agent two U.S. Tax Compliance Certificates substantially in the form of Exhibit D-3 or D-4 certifying to such beneficiary’s or member’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes; and
(A) with respect to each beneficiary or member of such Agent or Lender that is not claiming the so-called “portfolio interest exemption”, also deliver to the Borrower and the Administrative Agent two accurate and complete executed copies of Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable (certifying that such beneficiary or member is a resident of the applicable country within the meaning of the income tax treaty between the United States and that country), Forms W-8ECI or Forms W-9, or successor applicable form, as the case may be, in each case so that each such beneficiary or member is entitled to receive all payments under this Agreement and any Notes without deduction or withholding of any United States federal withholding taxes; and
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(B) with respect to each beneficiary or member of such Lender that is claiming the so-called “portfolio interest exemption”, (I) represent to the Borrower and the Administrative Agent that such beneficiary or member is not (1) a bank within the meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and (II) also deliver to the Borrower and the Administrative Agent two U.S. Tax Compliance Certificates from each beneficiary or member and two accurate and complete executed copies of Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, or successor applicable form, certifying to such beneficiary’s or member’s legal entitlement at the date of such certificate to an exemption from U.S. withholding tax under the provisions of Section 871(h) or Section 881(c) of the Code with respect to payments to be made under this Agreement and any Notes, and (III) also deliver to the Borrower and the Administrative Agent such other forms, documentation or certifications, as the case may be, certifying that it is entitled to an exemption from United States backup withholding tax with respect to payments under this Agreement and any Notes;
(2) deliver to the Borrower and the Administrative Agent two further accurate and complete executed copies of executed copies of forms, certificates or certifications referred to above on or before the date any such form, certificate or certification expires or becomes obsolete, or any beneficiary or member changes, and after the occurrence of any event requiring a change in the most recently provided form, certificate or certification and obtain such extensions of time reasonably requested by the Borrower or the Administrative Agent for filing and completing such forms, certificates or certifications; and
(3) deliver, to the extent legally entitled to do so, upon reasonable request by the Borrower, to the Borrower and the Administrative Agent such other forms as may be reasonably required in order to establish the legal entitlement of such Agent or Lender (or beneficiary or member) to an exemption from, or reduction of, U.S. withholding Taxes with respect to payments under this Agreement and any Notes, provided that in determining the reasonableness of a request under this clause (3) such Agent or Lender shall be entitled to consider the cost (to the extent unreimbursed by the Borrower) which would be imposed on such Agent or Lender (or beneficiary or member) of complying with such request; unless, in any such case, there has been a Change in Law which renders all such forms inapplicable or which would prevent such Agent or such Lender (or such beneficiary or member) from duly completing and delivering any such form with respect to it and such Agent or such Lender so advises the Borrower and the Administrative Agent.
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(c) Each Lender and each Agent, in each case that is a United States Person, shall, on or before the date of any payment by the Borrower under this Agreement or any Notes to such Lender or Agent, deliver to the Borrower and the Administrative Agent two accurate and complete executed copies of Internal Revenue Service Forms W-9, or successor form, certifying that such Lender or Agent is a United States Person and that such Lender or Agent is entitled to complete exemption from United States backup withholding tax.
(d) Notwithstanding the foregoing, if the Administrative Agent is not a United States Person, on or before the date of any payment by the Borrower under this Agreement or any Notes to the Administrative Agent, the Administrative Agent shall:
(i) deliver to the Borrower (A) two accurate and complete executed copies of Internal Revenue Service Forms W-8ECI, or successor applicable form, with respect to any amounts payable to the Administrative Agent for its own account, (B) two accurate and complete executed copies of Internal Revenue Service Forms W-8IMY, or successor applicable form, with respect to any amounts payable to the Administrative Agent for the account of others, certifying that it is a “U.S. branch” and that the payments it receives for the account of others are not effectively connected with the conduct of its trade or business in the United States and that it is using such form as evidence of its agreement with the Borrower to be treated as a U.S. person with respect to such payments (and the Borrower and the Administrative Agent agree to so treat the Administrative Agent as a U.S. person with respect to such payments as contemplated by U.S. Treasury Regulation § 1.1441-1(b)(2)(iv)) or (C) such other forms or certifications as may be sufficient under applicable law to establish that the Administrative Agent is entitled to receive any payment by the Borrower under this Agreement or any Notes (whether for its own account or for the account of others) without deduction or withholding of any United States federal income taxes;
(ii) deliver to the Borrower two further accurate and complete executed copies of forms or certifications provided in Subsection 4.11(d)(i) on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form or certificate previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and completing such forms or certifications as may reasonably be requested by the Borrower or the Administrative Agent;
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unless in any such case (other than with respect to United States backup withholding tax) there has been a Change in Law which renders all such forms inapplicable or which would prevent the Administrative Agent from duly completing and delivering any such form with respect to it and the Administrative Agent so advises the Borrower.
(e) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA, such Lender shall deliver to the Administrative Agent and the Borrower, at the time or times prescribed by law and at such time or times reasonably requested by the Administrative Agent or the Borrower, such documentation prescribed by applicable law and such additional documentation reasonably requested by the Administrative Agent or the Borrower as may be necessary for the Administrative Agent and the Borrower to comply with their respective obligations (including any applicable reporting requirements) under FATCA, to determine whether such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. For the avoidance of doubt, the Borrower and the Administrative Agent shall be permitted to withhold any Taxes imposed by FATCA.
4.12 Indemnity. The Borrower agrees to indemnify each Lender in respect of Extensions of Credit made, or requested to be made, to the Borrower, and to hold each such Lender harmless from any loss or expense which such Lender may sustain or incur (other than through such Lender’s bad faith, gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and nonappealable decision) as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment or conversion of Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a payment or prepayment of Eurodollar Loans or the conversion of Eurodollar Loans on a day which is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the amount so prepaid, or converted, or not so borrowed, converted or continued, for the period from the date of such prepayment or conversion or of such failure to borrow, convert or continue to the last day of the applicable Interest Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest for such Eurodollar Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) which would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. If any Lender becomes entitled to claim any amounts under the indemnity contained in this Subsection 4.12, it shall provide prompt notice thereof to the Borrower, through the Administrative Agent, certifying (x) that one of the events described in clause (a), (b) or (c) has occurred and describing in reasonable detail the nature of such event, (y) as to the loss or expense sustained or incurred by such Lender as a consequence thereof and (z) as to the amount for which such Lender seeks indemnification hereunder and a reasonably detailed explanation of the calculation thereof. Such a certificate as to any indemnification pursuant to this Subsection 4.12 submitted by such Lender, through the Administrative Agent, to the Borrower shall be conclusive in the absence of manifest error. The Borrower shall pay (or cause the relevant Borrower to pay) such Lender the amount shown as due on any such certificate within five Business Days after receipt thereof. This covenant shall survive the termination of this Agreement and the payment of the Term Loans and all other amounts payable hereunder.
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4.13 Certain Rules Relating to the Payment of Additional Amounts. (a) Upon the request, and at the expense of the Borrower, each Lender and Agent to which the Borrower is required to pay any additional amount pursuant to Subsection 4.10 or 4.11, and any Participant in respect of whose participation such payment is required, shall reasonably afford the Borrower the opportunity to contest, and reasonably cooperate with the Borrower in contesting, the imposition of any Non-Excluded Tax giving rise to such payment; provided that (i) such Lender or Agent shall not be required to afford the Borrower the opportunity to so contest unless the Borrower shall have confirmed in writing to such Lender or Agent the Borrower’s obligation to pay such amounts pursuant to this Agreement and (ii) the Borrower shall reimburse such Lender or Agent for its reasonable attorneys’ and accountants’ fees and disbursements incurred in so cooperating with the Borrower in contesting the imposition of such Non-Excluded Tax; provided, however, that notwithstanding the foregoing no Lender or Agent shall be required to afford the Borrower the opportunity to contest, or cooperate with the Borrower in contesting, the imposition of any Non-Excluded Taxes, if such Lender or Agent in its sole discretion in good faith determines that to do so would have an adverse effect on it.
(b) If a Lender changes its applicable lending office (other than (i) pursuant to clause (c) below or (ii) after an Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing) and the effect of such change, as of the date of such change, would be to cause the Borrower to become obligated to pay any additional amount under Subsection 4.10 or 4.11, the Borrower shall not be obligated to pay such additional amount.
(c) If a condition or an event occurs which would, or would upon the passage of time or giving of notice, result in the payment of any additional amount to any Lender or Agent by the Borrower pursuant to Subsection 4.10 or 4.11 or result in Affected Loans or commitments to make Affected Loans being automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, pursuant to Subsection 4.9, such Lender or Agent shall promptly notify the Borrower and the Administrative Agent and shall take such steps as may reasonably be available to it to mitigate the effects of such condition or event (which shall include efforts to rebook the Term Loans held by such Lender at another lending office, or through another branch or an affiliate, of such Lender); provided that such Lender or Agent shall not be required to take any step that, in its reasonable judgment, would be materially disadvantageous to its business or operations or would require it to incur additional costs (unless the Borrower agrees to reimburse such Lender or Agent for the reasonable incremental out-of-pocket costs thereof).
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(d) If the Borrower shall become obligated to pay additional amounts pursuant to Subsection 4.10 or 4.11 and any affected Lender shall not have promptly taken steps necessary to avoid the need for payments under Subsection 4.10 or 4.11 or if Affected Loans or commitments to make Affected Loans are automatically converted to ABR Loans or commitments to make ABR Loans, as the case may be, under Subsection 4.9 and any affected Lender shall not have promptly taken steps necessary to avoid the need for such conversion under Subsection 4.9, the Borrower shall have the right, for so long as such obligation remains, (i) with the assistance of the Administrative Agent to seek one or more substitute Lenders reasonably satisfactory to the Administrative Agent and the Borrower to purchase the affected Term Loan, in whole or in part, at an aggregate price no less than such Term Loan’s principal amount plus accrued interest, and assume the affected obligations under this Agreement, or (ii) so long as no Event of Default under Subsection 9.1(a) or (f) then exists or will exist immediately after giving effect to the respective prepayment, upon notice to the Administrative Agent to prepay the affected Term Loan, in whole or in part, subject to Subsection 4.12, without premium or penalty. In the case of the substitution of a Lender, then, the Borrower, the Administrative Agent, the affected Lender, and any substitute Lender shall execute and deliver an appropriately completed Assignment and Acceptance pursuant to Subsection 11.6(b) to effect the assignment of rights to, and the assumption of obligations by, the substitute Lender; provided that any fees required to be paid by Subsection 11.6(b) in connection with such assignment shall be paid by the Borrower or the substitute Lender. In the case of a prepayment of an affected Term Loan, the amount specified in the notice shall be due and payable on the date specified therein, together with any accrued interest to such date on the amount prepaid. In the case of each of the substitution of a Lender and of the prepayment of an affected Term Loan, the Borrower shall first pay the affected Lender any additional amounts owing under Subsections 4.10 and 4.11 (as well as any commitment fees and other amounts then due and owing to such Lender, including any amounts under this Subsection 4.13) prior to such substitution or prepayment. In the case of the substitution of a Lender pursuant to this Subsection 4.13(d), if the Lender being replaced does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the assignee Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to such replaced Lender relating to the Term Loans and participations so assigned shall be paid in full by the assignee Lender and/or the Borrower to such Lender being replaced, then the Lender being replaced shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Lender.
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(e) If any Agent or any Lender receives a refund directly attributable to Taxes for which the Borrower has made additional payments pursuant to Subsection 4.10(a) or 4.11(a), such Agent or such Lender, as the case may be, shall promptly pay such refund (together with any interest with respect thereto received from the relevant taxing authority, but net of any reasonable cost incurred in connection therewith) to the Borrower; provided, however, that the Borrower agrees promptly to return such refund (together with any interest, penalties or charges with respect thereto due to the relevant taxing authority) (without deduction for any Non-Excluded Taxes) to such Agent or the applicable Lender, as the case may be, upon receipt of a notice that such refund is required to be repaid to the relevant taxing authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will the Agent or any Lender be required to pay any amount to Borrower pursuant to this paragraph (e) the payment of which would place the Agent or Lender in a less favorable net after-Tax position than the Agent or Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Agent or Lender to make available its Tax returns (or related work papers and advice prepared by outside advisors) to the Borrower or to any other Person.
(f) The obligations of any Agent, Lender or Participant under this Subsection 4.13 shall survive the termination of this Agreement and the payment of the Term Loans and all amounts payable hereunder.
SECTION 5
Representations and Warranties
To induce the Administrative Agent and each Lender to make the Extensions of Credit requested to be made by it on the Closing Date and on each other date on which an Extension of Credit is made thereafter, Holdings (solely in respect of Subsections 5.2, 5.3, 5.4 and 5.5) and the Borrower with respect to itself and its Restricted Subsidiaries, hereby represents and warrants, on the Closing Date, in each case after giving effect to the Transactions, and on every other date on which an Extension of Credit is made thereafter to the Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The audited consolidated balance sheet and related statement of operations, equity and cash flows of the Parent for the Fiscal Year ended December 31, 2015, reported on by and accompanied by unqualified reports from Ernst & Young LLP, present fairly, in all material respects, the consolidated financial condition as at such date, and the consolidated statements of operations and consolidated cash flows for the period then ended, of the Parent. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP consistently applied throughout the periods covered thereby (except as approved by a Responsible Officer, and disclosed in any such schedules and notes).
(b) As of the Closing Date, except as set forth in the financial statements referred to in Subsection 5.1(a), there are no liabilities of any Loan Party of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, which would reasonably be expected to result in a Material Adverse Effect.
5.2 No Change; Solvent. Since December 31, 2015, there has been no development or event relating to or affecting any Loan Party which has had or would be reasonably expected to have a Material Adverse Effect (after giving effect to (i) the consummation of the Transactions, (ii) the making of the Extensions of Credit to be made on the Closing Date and the application of the proceeds thereof as contemplated hereby, and (iii) the payment of actual or estimated fees, expenses, financing costs and tax payments related to the Transactions contemplated hereby). As of the Closing Date, after giving effect to the consummation of the Transactions to be consummated on the Closing Date, the Borrower, together with its Subsidiaries on a consolidated basis, is Solvent.
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5.3 Corporate Existence; Compliance with Law. Each of the Loan Parties (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrower), to the extent that the failure to be organized, existing and in good standing would not reasonably be expected to have a Material Adverse Effect, (b) has the legal right to own and operate its property, to lease the property it operates as lessee and to conduct the business in which it is currently engaged, except to the extent that the failure to have such legal right would not be reasonably expected to have a Material Adverse Effect, (c) is duly qualified as a foreign corporation or limited liability company and in good standing under the laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires such qualification, other than in such jurisdictions where the failure to be so qualified and in good standing would not be reasonably expected to have a Material Adverse Effect and (d) is in compliance with all Requirements of Law, except to the extent that the failure to comply therewith would not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a party and, in the case of the Borrower, to obtain Extensions of Credit hereunder, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the Extensions of Credit to it, if any, on the terms and conditions of this Agreement and any Notes. No consent or authorization of, filing with, notice to or other similar act by or in respect of, any Governmental Authority or any other Person is required to be obtained or made by or on behalf of any Loan Party in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents to which it is a party or, in the case of the Borrower, with the Extensions of Credit to it, if any, hereunder, except for (a) consents, authorizations, notices and filings which have been obtained or made prior to the Closing Date, (b) filings to perfect the Liens created by the Security Documents, and (c) consents, authorizations, notices and filings which the failure to obtain or make would not reasonably be expected to have a Material Adverse Effect. This Agreement has been duly executed and delivered by the Borrower, and each other Loan Document to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party. This Agreement constitutes a legal, valid and binding obligation of the Borrower and each other Loan Document to which any Loan Party is a party when executed and delivered will constitute a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
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5.5 No Legal Bar. The execution, delivery and performance of the Loan Documents by any of the Loan Parties, the Extensions of Credit hereunder and the use of the proceeds thereof (a) will not violate any Requirement of Law or Contractual Obligation of such Loan Party in any respect that would reasonably be expected to have a Material Adverse Effect, (b) will not result in, or require the creation or imposition of any Lien (other than Liens securing the Term Loan Facility Obligations or otherwise permitted hereby) on any of its properties or revenues pursuant to any such Requirement of Law or Contractual Obligation and (c) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrower) as would not reasonably be expected to have a Material Adverse Effect.
5.6 No Material Litigation. No litigation, investigation or proceeding of or before any arbitrator or Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against the Borrower or any of its Restricted Subsidiaries or against any of their respective properties or revenues, (a) except as described on Schedule 5.6, which is so pending or threatened at any time on or prior to the Closing Date and relates to any of the Loan Documents or any of the transactions contemplated hereby or thereby or (b) which would be reasonably expected to have a Material Adverse Effect.
5.7 No Default. Neither the Borrower nor any of its Restricted Subsidiaries is in default under or with respect to any of its Contractual Obligations in any respect which would be reasonably expected to have a Material Adverse Effect. As of the Closing Date, no Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its Restricted Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its material real property located in the United States of America, and good title to, or a valid leasehold interest in, all its other material property located in the United States of America, except those for which the failure to have such good title or such leasehold interest would not be reasonably expected to have a Material Adverse Effect, and none of such real or other property is subject to any Lien, except for Liens permitted hereby (including Permitted Liens). Schedule 5.8 sets forth all Mortgaged Fee Properties as of the Closing Date.
5.9 Intellectual Property. The Borrower and each of its Restricted Subsidiaries owns beneficially, or has the legal right to use, all United States and foreign patents, patent applications, trademarks, trademark applications, trade names, copyrights, and rights in know-how and processes necessary for each of them to conduct its business as currently conducted (the “Intellectual Property”) except for those the failure to own or have such legal right to use would not be reasonably expected to have a Material Adverse Effect. Except as provided on Schedule 5.9, no claim has been asserted and is pending by any Person against the Borrower or any of its Restricted Subsidiaries challenging or questioning the use of any such Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does the Borrower know of any such claim, and, to the knowledge of the Borrower, the use of such Intellectual Property by the Borrower and its Restricted Subsidiaries does not infringe on the rights of any Person, except, in each case, for such claims and infringements which in the aggregate, would not be reasonably expected to have a Material Adverse Effect.
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5.10 Taxes.
To the knowledge of the Borrower, (1) the Borrower and each of
its Restricted Subsidiaries has filed or caused to be filed all material tax returns which are required to be filed by it and
has paid (a) all Taxes shown to be due and payable on such returns and (b) all Taxes shown to be due and payable
on any assessments of which it has received notice made against it or any of its property (including the Mortgaged Fee Properties)
and all other Taxes imposed on it or any of its property by any Governmental Authority; and (2) no Tax Liens have been
filed (except for Permitted Liens), and no claim is being asserted in writing, with respect to any such Taxes (in each case other
than in respect of any such (i) Taxes with respect to which the failure to pay, in the aggregate, would not have a Material
Adverse Effect or (ii) Taxes the amount or validity of which are currently being contested in good faith by appropriate
proceedings diligently conducted and with respect to which reserves in conformity with GAAP have been provided on the books of
the Borrower or its Restricted Subsidiaries, as the case may be).
5.11 Federal Regulations. No part of the proceeds of any Extensions of Credit will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board.
5.12 ERISA.
(a) During the five year period prior to each date as of which this representation is made, or deemed made, with respect to any
Plan, none of the following events or conditions, either individually or in the aggregate, has resulted or is reasonably likely
to result in a Material Adverse Effect: (i) a Reportable Event, (ii) any noncompliance with the applicable provisions
of ERISA or the Code, (iii) a termination of a Single Employer Plan (other than a standard termination pursuant to Section
4041(b) of ERISA), (iv) a Lien on the property of the Borrower or its Restricted Subsidiaries in favor of the PBGC or a
Plan, (v) a complete or partial withdrawal from any Multiemployer Plan by the Borrower or any Commonly Controlled Entity,
(vi) the “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section
305 of ERISA) of, or Insolvency of, any Multiemployer Plan or,
(vii) any transaction that
resulted or could reasonably be expected to result in any Liability to the Borrower or any Commonly Controlled Entity under Section
4069 of ERISA or Section 4212(c) of ERISA, (viii) an event or condition which might reasonably be expected to constitute
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Single Employer
Plan, or (ix) the imposition of any Liability under Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Borrower, any Restricted Subsidiary or any Commonly Controlled Entity. During the five year
period prior to each date as of which this representation is made, or deemed made, neither the Borrower nor any ERISA Affiliate
has failed to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) with
respect to any Single Employer Plan.
(b) With respect to any Foreign Plan, none of the following events or conditions exists and is continuing that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect: (i) non-compliance with its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders, (ii) failure to be maintained, where required, in good standing with applicable regulatory authorities, (iii) any obligation of the Borrower or its Restricted Subsidiaries in connection with the termination or partial termination of, or withdrawal from, any Foreign Plan, (iv) any Lien on the property of the Borrower or its Restricted Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan, (v) for each Foreign Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to the extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the valuations last filed with the applicable Governmental Authorities), (vi) any facts that, to the best knowledge of the Borrower or any of its Restricted Subsidiaries, exist that would reasonably be expected to give rise to a dispute and any pending or threatened disputes that, to the best knowledge of the Borrower or any of its Restricted Subsidiaries, would reasonably be expected to result in a material liability to the Borrower or any of its Restricted Subsidiaries concerning the assets of any Foreign Plan (other than individual claims for the payment of benefits), and (vii) failure to make contributions in a timely manner to the extent required by applicable non-U.S. law.
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5.13 Collateral. Upon execution and delivery thereof by the parties thereto, the Guaranty Agreement, the Security Agreement and the Mortgages (if any) will be effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. When (a) all filings, registrations and recordations required under the Security Agreement have been completed, (b) all applicable Instruments, Chattel Paper and Documents (each as described therein) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent or the applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL/Term Loan Intercreditor Agreement, Pari Passu Intercreditor Agreement, Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, (c) all Deposit Accounts and Pledged Interests (each as defined in the Security Agreement) a security interest in which is required to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in the State of New York from time to time) are under the “control” of the Collateral Agent, the Administrative Agent or the applicable Collateral Representative, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL/Term Loan Intercreditor Agreement, Pari Passu Intercreditor Agreement, Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, and (d) the Mortgages (if any) have been duly recorded in the proper recorders’ offices or appropriate public records and the mortgage recording fees and taxes in respect thereof, if any, are paid and compliance is otherwise had with the formal requirements of state or local law applicable to the recording of real property mortgages generally, the security interests and liens granted pursuant to the Security Agreement and the Mortgages shall constitute (to the extent described therein and with respect to the Mortgages, only as relates to the real property security interests and liens granted pursuant thereto) a perfected first priority (in the case of Term Priority Collateral) or second priority (in the case of ABL Priority Collateral), in each case, subject to Permitted Liens, security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (excluding Commercial Tort Claims, as defined in the Security Agreement, other than such Commercial Tort Claims set forth on Schedule 6 thereto (if any)) with respect to such pledgor or mortgagor (as applicable). Notwithstanding any other provision of this Agreement, capitalized terms that are used in this Subsection 5.13 and not defined in this Agreement are so used as defined in the applicable Security Document.
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5.14 Investment Company Act; Other Regulations. Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act. The Borrower is not subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby.
5.15 Subsidiaries. Schedule 5.15 sets forth all the Subsidiaries of the Borrower at the Closing Date (after giving effect to the Transactions), the jurisdiction of their organization and the direct or indirect ownership interest of the Borrower therein.
5.16 Purpose of Loans. The proceeds of the Initial Term Loans borrowed on the Closing Date, together with the proceeds of drawings under the Senior ABL Facility on the Closing Date, shall be used by the Borrower to pay the Closing Date Dividend, to repay all existing term loans outstanding under the Existing Credit Agreement immediately prior to the incurrence of the Initial Term Loans on the Closing Date and to pay certain transaction fees and expenses relating to the foregoing transactions. The proceeds of the Initial Term Loans borrowed on the Third Amendment Effective Date, shall be used by the Borrower to repay in full the outstanding principal amount of all Initial Term Loans outstanding immediately prior to the Third Amendment Effective Date and to pay certain accrued but unpaid interest, transaction fees and expenses relating to the foregoing transactions.
5.17 Environmental Matters. Other than as disclosed on Schedule 5.17 or exceptions to any of the following that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(a) The Borrower and its Restricted Subsidiaries: (i) are, and within the period of all applicable statutes of limitation have been, in compliance with all applicable Environmental Laws; (ii) hold all Environmental Permits (each of which is in full force and effect) required for any of their current operations or for any property owned, leased, or otherwise operated by any of them and reasonably expect to timely obtain without material expense all such Environmental Permits required for planned operations; (iii) are, and within the period of all applicable statutes of limitation have been, in compliance with all of their Environmental Permits; and (iv) believe they will be able to maintain compliance with Environmental Laws and Environmental Permits, including any reasonably foreseeable future requirements thereof.
(b) Materials of Environmental Concern have not been transported, disposed of, emitted, discharged, or otherwise released or threatened to be released, to, at or from any real property presently or formerly owned, leased or operated by the Borrower or any of its Restricted Subsidiaries or at any other location, which would reasonably be expected to (i) give rise to liability or other Environmental Costs of the Borrower or any of its Restricted Subsidiaries under any applicable Environmental Law, or (ii) interfere with the planned or continued operations of the Borrower and its Restricted Subsidiaries, or (iii) impair the fair saleable value of any real property owned by the Borrower or any of its Restricted Subsidiaries that is part of the Collateral.
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(c) There is no judicial, administrative, or arbitral proceeding (including any notice of violation or alleged violation) under any Environmental Law to which the Borrower or any of its Restricted Subsidiaries is, or to the knowledge of the Borrower or any of its Restricted Subsidiaries is reasonably likely to be, named as a party that is pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened.
(d) Neither the Borrower nor any of its Restricted Subsidiaries has received any written request for information, claim alleging liability for Environmental Costs, or been notified that it is a potentially responsible party, under the federal Comprehensive Environmental Response, Compensation, and Liability Act or any similar Environmental Law, or received any other written request for information or for payment of Environmental Costs from any Governmental Authority or third party with respect to any Materials of Environmental Concern.
(e) Neither the Borrower nor any of its Restricted Subsidiaries has entered into or agreed to any consent decree, order, or settlement or other agreement, nor is subject to any judgment, decree, or order or other agreement, in any judicial, administrative, arbitral, or other forum, relating to compliance with or liability under any Environmental Law.
5.18 No Material Misstatements. The written information, reports, financial statements, exhibits and schedules furnished by or on behalf of the Borrower to the Administrative Agent, the Other Representatives and the Lenders on or prior to the Closing Date in connection with the negotiation of any Loan Document or included therein or delivered pursuant thereto, taken as a whole, did not contain as of the Closing Date any material misstatement of fact and did not omit to state as of the Closing Date any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading in their presentation of the Borrower and its Restricted Subsidiaries taken as a whole. It is understood that (a) no representation or warranty is made concerning the forecasts, estimates, pro forma information, projections and statements as to anticipated future performance or conditions, and the assumptions on which they were based or concerning any information of a general economic nature or general information about the Borrower’s and its Subsidiaries’ industry, contained in any such information, reports, financial statements, exhibits or schedules, except that, in the case of such forecasts, estimates, pro forma information, projections and statements, as of the date such forecasts, estimates, pro forma information, projections and statements were generated, (i) such forecasts, estimates, pro forma information, projections and statements were based on the good faith assumptions of the management of the Borrower and (ii) such assumptions were believed by such management to be reasonable and (b) such forecasts, estimates, pro forma information and statements, and the assumptions on which they were based, may or may not prove to be correct.
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5.19 Labor Matters. There are no strikes pending or, to the knowledge of the Borrower, reasonably expected to be commenced against the Borrower or any of its Restricted Subsidiaries which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. The hours worked and payments made to employees of the Borrower and each of its Restricted Subsidiaries have not been in violation of any applicable laws, rules or regulations, except where such violations would not reasonably be expected to have a Material Adverse Effect.
5.20 Anti-Terrorism;
Anti-Corruption; Sanctions. As of the Closing DateFor
the past one year, (a) the Borrower
and,
its Restricted Subsidiaries are,
their officers, directors, and, to the knowledge of the foregoing, employees, and persons acting on behalf thereof have been and
will remain in compliance with
Sanctions
and the Patriot Act, (b)
none of the Borrower and,
its Restricted Subsidiaries is
a person on the list of “Specially Designated Nationals and Blocked Persons”, subject to the limitations and prohibitions
under any other U.S. Department of Treasury’s Office of Foreign Asset Control regulation or executive order (“OFAC”)
or a,
their officers, directors, nor, to the knowledge of the foregoing, employees, or persons acting on behalf thereof is a
Sanctioned Person;
and (c) no part of the
proceeds of the Term Loans will be used by Holdings, the Borrower or any of their respective Subsidiaries, directly or,
knowingly, indirectly, forto
(1) fund or facilitate any activities or business with any Sanctioned Countries or Sanctioned Persons, or otherwise in violation
of Sanctions; and (2) any payments
to any governmental official or employee, political party, official of a political party, candidate for political office or anyone
else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation
of the FCPA.
SECTION 6
Conditions Precedent
6.1 Conditions to Initial Extension of Credit. This Agreement, including the agreement of each Lender to make the initial Extension of Credit requested to be made by it, shall become effective on the date on which the following conditions precedent shall have been satisfied or waived:
(a) Loan Documents. The Administrative Agent shall have received the following Loan Documents, executed and delivered as required below:
(i) this Agreement, executed and delivered by a duly authorized officer of the Borrower;
(ii) the ABL/Term Loan Intercreditor Agreement, executed and delivered by the ABL Agent;
(iii) the Security Agreement, the Guaranty Agreement, Trademark Security Agreement and the other Collateral Documents set forth on Schedule 6.1(a), each as executed and delivered by a duly authorized officer of each Loan Party and the relevant parties thereto together with:
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(A) certificates, if any, representing the Pledged Interests that are certificated equity interests of the Borrower, Subsidiary Guarantors and each of their Restricted Subsidiaries that are not Immaterial Subsidiaries, each accompanied by undated stock powers, membership interest powers or other applicable certificates of transfer executed in blank and, in each case, in original (and not electronic) form;
(B) delivery to the Administrative Agent, in proper form for filing, of Uniform Commercial Code financing statements in the jurisdiction of organization of each Loan Party;
(C) copies of recent Lien, bankruptcy, judgment, copyright, patent and trademark searches in each jurisdiction reasonably requested by the Administrative Agent with respect to each Loan Party, none of which encumber Collateral (other than Liens permitted hereunder); and
(D) a
Perfection Certificate, dated as of the date hereofClosing
Date, executed and delivered by
a duly authorized officer of the Borrower.
(b) Legal Opinion. The Administrative Agent shall have received an executed legal opinion, in form and substance reasonably satisfactory to the Administrative Agent of Proskauer Rose LLP, counsel to the Loan Parties on the Closing Date.
(c) Fees. The Lead Arrangers, the Agents and the Lenders, respectively, shall have received all fees related to the Initial Term Loans funded on the Closing Date and other transaction costs incurred in connection with the Transaction payable to them to the extent due (which may be offset against the proceeds of the Initial Term Loans).
(d) Secretary’s Certificate. The Administrative Agent shall have received a certificate from the Borrower and each other Loan Party, dated the Closing Date, substantially in the form of Exhibit F hereto, with appropriate insertions and attachments of resolutions or other actions, evidence of incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the secretary or any assistant secretary or other authorized representative of such Loan Party.
(e) Good Standing Certificates. The Administrative Agent shall have received good standing certificates for each Loan Party certified by the secretary of state or other proper Governmental Authority of the jurisdiction of organization of such Loan Party, each of which shall be dated not more than 30 days prior to the Closing Date.
(f) Solvency. The Administrative Agent shall have received a certificate of the chief financial officer or treasurer (or other comparable officer) of the Borrower certifying the Solvency, after giving effect to the Transactions, of the Borrower and its Subsidiaries on a consolidated basis in substantially the form of Exhibit H hereto.
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(g) Patriot Act. The Administrative Agent shall have received at least three days prior to the Closing Date all documentation and other information about the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act that has been requested in writing at least 10 days prior to the Closing Date.
(h) Insurance.
The Administrative Agent shall have received certificates of insurance, as required by SectionSubsection
7.5(a),
in form and substance reasonably satisfactory to the Administrative Agent.
(i) Existing Debt. Subject only to the initial funding of the Loans on the Closing Date, all Obligations of the Borrower under the Existing Credit Agreement and the related loan documents shall have been repaid in full and the Administrative Agent shall have received a customary payoff letter with respect to the Existing Credit Agreement and lien terminations and/or releases with respect thereto.
(j) ABL Facility Documents. The ABL Facility Documents shall have been amended or amended and restated in a manner reasonably satisfactory to the Administrative Agent.
(k) Financials.
The Administrative Agent shall have received the audited financial statements described in SectionSubsection
5.1(a),
the unaudited consolidated balance sheet of Parent and its Subsidiaries dated June 30, 2016, and the related consolidated statements
of operations, statements of shareholders’ equity and statements of cash flows of the Borrower and its Subsidiaries for
the fiscal quarter ended on that date.
(l) Closing
Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of the Borrower, dated as
of the Closing Date, confirming satisfaction of the conditions set forth in SectionSubsection
6.1(i)
and SectionSubsection
6.1(o).
(m) No Material Adverse Effect. Since December 31, 2015, there has been no development or event relating to or affecting any Loan Party which has had or would be reasonably expected to have a Material Adverse Effect.
The making of the initial Extensions of Credit by the Lenders hereunder shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Lender that each of the conditions precedent set forth in this Subsection 6.1 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by such Person.
6.2 Conditions to Each Extension of Credit After the Closing Date. The agreement of each Lender to make any Extension of Credit requested to be made by it (including on the Closing Date) is subject to the satisfaction or waiver of the following conditions precedent:
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(a) Notice. With respect to any Loan, the Administrative Agent shall have received a duly executed notice of borrowing.
(b) Representations and Warranties. Each of the representations and warranties made by any Loan Party pursuant to this Agreement or any other Loan Document (or in any amendment, modification or supplement hereto or thereto) to which it is a party, and each of the representations and warranties contained in any certificate furnished at any time by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document shall, except to the extent that they relate to a particular date, be true and correct in all material respects on and as of such date as if made on and as of such date.
(c) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the Extensions of Credit requested to be made on such date.
Each Extension of Credit hereunder shall constitute a representation and warranty by the Borrower as of the date of such borrowing that the conditions contained in this Subsection 6.2 have been satisfied (excluding, for the avoidance of doubt, the initial Extensions of Credit hereunder).
SECTION 7
Affirmative Covenants
The
Borrower hereby agrees that, from and after the Closing Date, and thereafter until payment in full of the Term Loans and all other
Term Loan Facility Obligations then due and owing to any Lender or Agent hereunder, , other
than contingent indemnification obligations for which no claim has been asserted, the Borrower shall and shall cause each of its
Restricted Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent agrees to make and so deliver such copies):
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(a) as soon as available, but in any event not later than the 120th day following the end of each Fiscal Year, a copy of the consolidated balance sheet of the Borrower as at the end of such year and the related consolidated statements of operations and changes in equity and cash flows for such year, setting forth, in each case in comparative form, the figures for and as of the end of the previous year, reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit (provided that such report may contain a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, if such qualification or exception is related solely to (i) an upcoming Maturity Date hereunder or an upcoming “maturity date” under the Senior ABL Facility Agreement or any other Indebtedness or (ii) any potential inability to satisfy any financial covenant included in any Indebtedness of the Borrower or its Subsidiaries on a future date in a future period), by Ernst & Young LLP or other independent certified public accountants of nationally recognized standing (it being agreed that the furnishing of the Borrower’s or any Parent Entity’s annual report on Form 10-K for such year, as filed with the SEC, will satisfy the Borrower’s obligation under this Subsection 7.1(a) with respect to such year including with respect to the requirement that such financial statements be reported on without a “going concern” or like qualification or exception, or qualification arising out of the scope of the audit, so long as the report included in such Form 10-K does not contain any “going concern” or like qualification or exception (other than a “going concern” or like qualification or exception with respect to (i) an upcoming Maturity Date hereunder or an upcoming “maturity date” under the Senior ABL Facility Agreement or (ii) any potential inability to satisfy any financial maintenance covenant included in any Indebtedness of the Borrower or its Subsidiaries on a future date or in a future period);
(b) as
soon as available, but in any event not later than the 45th day (or the 65th day with respect to fiscal
quarter ending September 30, 2016) following the end of each of the first three quarterly periods of each Fiscal Year, the unaudited
consolidated balance sheet of the Borrower as at the end of such quarter and the related unaudited consolidated statements of
operations and changes in cash flows of the Borrower for the portion of
the Fiscal Year through the end of such quarter, setting forth in comparative form the figures for and as of the corresponding
periods of the previous year certified by a Responsible Officer of the Borrower as being fairly stated in all material respects
(subject to normal year-end audit and other adjustments) (it being agreed that the furnishing of the Borrower’s or any Parent
Entity’s quarterly report on Form 10-Q for such quarter, as filed with the SEC, will satisfy the Borrower’s obligations
under this Subsection 7.1(b) with respect to such quarter), commencing with the fiscal quarter ending on or about March
31, 2017, together with a management discussion and analysis report in
the form of the company’s internal system-generated reports;
(c) to the extent applicable, concurrently with any delivery of consolidated financial statements referred to in Subsections 7.1(a) and (b) above, related unaudited condensed consolidating financial statements and appropriate reconciliations reflecting the material adjustments necessary (as determined by the Borrower in good faith) to eliminate the accounts of any Unrestricted Subsidiaries (if any) from such consolidated financial statements; and
(d) all such financial statements delivered pursuant to Subsection 7.1(a) or (b) to (and, in the case of any financial statements delivered pursuant to Subsection 7.1(b) shall be certified by a Responsible Officer of the Borrower to) fairly present in all material respects the financial condition of Parent and its Subsidiaries in conformity with GAAP and to be (and, in the case of any financial statements delivered pursuant to Subsection 7.1(b) shall be certified by a Responsible Officer of the Borrower as being) in reasonable detail and prepared in accordance with GAAP applied consistently throughout the periods reflected therein and with prior periods that began on or after the Closing Date (except as disclosed therein, and except, in the case of any financial statements delivered pursuant to Subsection 7.1(b), for the absence of certain notes).
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Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (c) of this Subsection 7.1 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing the applicable financial statements of any Parent Entity of the Borrower that directly or indirectly owns all of the Capital Stock of the Borrower; provided that, (i) to the extent such information relates to a Parent Entity, such information is accompanied by consolidating information that explains in reasonable detail the differences between the information relating to such Parent Entity, on the one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand (which consolidating information shall be certified by a Responsible Officer of the Borrower as fairly presenting such information unless such consolidating information is contained in the financial statements included in a Form 10-K or 10-Q filed with the SEC), and (ii) to the extent such information is in lieu of information required to be provided under Subsection 7.1(a), the consolidated financial statements included in the materials provided pursuant to the foregoing are accompanied by a report by Ernst & Young LLP or other independent certified public accountants of nationally recognized standing or regional standing reasonably acceptable to the Administrative Agent.
The Borrower hereby
acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided
by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials
on the Platform and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not
wish to receive Material Non-Public Information and who may be engaged in investment and other market-related activities with
respect to the Borrower’s or its Affiliates’ securities. The Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w)
all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not
containing any Material Non-Public Information (although it may be sensitive and proprietary) (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in SectionSubsection
11.16); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent shall
be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Side Information”. Notwithstanding the foregoing, the Borrower shall be under
no obligation to mark any Borrower Materials as “PUBLIC”. Each Loan Party hereby acknowledges and agrees that, unless
the Borrower notifies the Administrative Agent in advance, all financial statements and certificates furnished pursuant to SectionsSubsections
7.1 (a), (b) and (c) above are hereby deemed to be suitable for distribution, and to be made
available, to all Lenders and may be treated by the Administrative Agent and the Lenders as not containing any Material Non-Public
Information.
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7.2 Certificates; Other Information. Furnish to the Administrative Agent for delivery to each Lender (and the Administrative Agent agrees to make and so deliver such copies):
(a) commencing
with the Fiscal Year ending on or about December 31, 2016 (except in the case of clause (iii) below), concurrently with the delivery
of the financial statements and reports referred to in Subsections 7.1(a) and (b), a certificate signed by a Responsible
Officer of the Borrower in substantially the form of Exhibit T or such other form as may be agreed between the Borrower
and the Administrative Agent (a “Compliance Certificate”) (i) stating that, to the best of such Responsible
Officer’s knowledge, each of the Borrower and its Restricted Subsidiaries during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition, contained in this Agreement or the other Loan Documents
to which it is a party to be observed, performed or satisfied by it, and that such Responsible Officer has obtained no knowledge
of any Default or Event of Default, except, in each case, as specified in such certificate, (ii) setting forth a reasonably
detailed calculation of the Consolidated Secured Leverage Ratio and Consolidated EBITDA, each for the Most Recent Four Quarter
Period and (iii) commencing with the Compliance Certificate for the first Fiscal Year commencing after the Closing Date
if (A) delivered with the financial statements required by SectionSubsection
7.1(a), and (B) the Consolidated Secured Leverage Ratio as of the last day of the immediately preceding
Fiscal Year was greater than or equal to 2.50:1.00, setting forth in reasonable detail the amount of (and the calculations required
to establish the amount of) Excess Cash Flow, if any, for the respective Fiscal Year covered by such financial statements;
(b) within five Business Days after the same are filed, copies of all financial statements and periodic reports which the Borrower may file with the SEC or any successor or analogous Governmental Authority;
(c) within five Business Days after the same are filed, copies of all publicly-filed registration statements and any amendments and exhibits thereto, which the Borrower may file with the SEC or any successor analogous Governmental Authority;
(d) not later than the 120th day following the end of each Fiscal Year, a consolidated annual budget for such Fiscal Year in the form customarily prepared by the Borrower (the “Budget”), which Budget will in each case be accompanied by a statement of a Responsible Officer of the Borrower to the effect that the Budget is based on assumptions believed by the Borrower to be reasonable as of the date of delivery thereof;
(e) promptly, such additional financial and other information regarding the business or activity of the Borrower and its Restricted Subsidiaries as any Agent or the Required Lenders through the Administrative Agent may from time to time reasonably request; and
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(f) promptly upon reasonable request from the Administrative Agent calculations of Consolidated EBITDA and other Fixed GAAP Terms as reasonably requested by the Administrative Agent promptly following receipt of a written notice from the Borrower electing to change the Fixed GAAP Date, which calculations shall show the calculations of the respective Fixed GAAP Terms both before and after giving effect to the change in the Fixed GAAP Date and identify the material change(s) in GAAP giving rise to the change in such calculations.
Documents required to be delivered pursuant to Subsection 7.1 or 7.2 may at the Borrower’s option be delivered electronically and, if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s (or any Parent Entity’s) website on the Internet at such website address as the Borrower may specify by written notice to the Administrative Agent from time to time; or (ii) on which such documents are posted on the Borrower’s (or any Parent Entity’s) behalf on an Internet or intranet website to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent). Following the electronic delivery of any such documents by posting such documents to a website in accordance with the preceding sentence (other than the posting by the Borrower of any such documents on any website maintained for or sponsored by the Administrative Agent), the Borrower shall promptly provide the Administrative Agent notice of such delivery (which notice may be by facsimile or electronic mail) and the electronic location at which such documents may be accessed; provided that, in the absence of bad faith, the failure to provide such prompt notice shall not constitute a Default hereunder.
7.3 Payment of Taxes. Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings diligently conducted and reserves in conformity with GAAP with respect thereto have been provided on the books of the Borrower or any of its Restricted Subsidiaries, as the case may be, or except to the extent that failure to do so, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence; Compliance with Contractual Obligations and Requirements of Law. Preserve, renew and keep in full force and effect its existence and take all reasonable action to maintain all rights, privileges and franchises necessary or desirable in the normal conduct of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, except as otherwise permitted pursuant to Subsection 8.4 or 8.7; provided that the Borrower and its Restricted Subsidiaries shall not be required to maintain any such rights, privileges or franchises and the Borrower’s Subsidiaries shall not be required to maintain such existence, if the failure to do so would not reasonably be expected to have a Material Adverse Effect; and comply with all Contractual Obligations and Requirements of Law except to the extent that failure to comply therewith, in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
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7.5 Maintenance of Property; Insurance. (a) (i) Keep all property necessary in the business of the Borrower and its Restricted Subsidiaries, taken as a whole, in good working order and condition, except where failure to do so would not reasonably be expected to have a Material Adverse Effect; (ii) use commercially reasonable efforts to maintain with financially sound and reputable insurance companies (or any Captive Insurance Subsidiary) insurance on, or self-insure, all property material to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, in at least such amounts and against at least such risks (but including in any event public liability and business interruption) as are usually insured against in the same general area by companies engaged in the same or a similar business; (iii) furnish to the Administrative Agent, upon written request, information in reasonable detail as to the insurance carried; (iv) use commercially reasonable efforts to maintain property and liability policies that provide that in the event of any cancellation thereof during the term of the policy, either by the insured or by the insurance company, the insurance company shall provide to the secured party prompt notice thereof, or in the case of cancellation for non-payment of premium, 10 days prior written notice thereof; (v) in the event of any material change in any of the property or liability policies referenced in the preceding clause (iv), use commercially reasonable efforts to provide the Administrative Agent with at least 30 days prior written notice thereof; and (vi) use commercially reasonable efforts to ensure that, subject to the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement at all times, the Collateral Agent or the applicable Collateral Representative, in accordance with the applicable ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, for the benefit of the Secured Parties, shall be named as an additional insured with respect to liability policies maintained by the Borrower and each Subsidiary Guarantor and the Collateral Agent or the applicable Collateral Representative, in accordance with the applicable ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, for the benefit of the Secured Parties, shall be named as loss payee with respect to the property insurance maintained by the Borrower and each Subsidiary Guarantor; provided that, unless an Event of Default shall have occurred and be continuing, (A) the Collateral Agent shall turn over to the Borrower any amounts received by it as an additional insured or loss payee under any property insurance maintained by the Borrower and its Subsidiaries, (B) the Collateral Agent agrees that the Borrower and/or the applicable Subsidiary shall have the sole right to adjust or settle any claims under such insurance and (C) all proceeds from a Recovery Event shall be paid to the Borrower.
(b) With respect to each property of the Loan Parties subject to a Mortgage:
(i) If any portion of any such property is located in an area identified as a special flood hazard area by the Federal Emergency Management Agency or other applicable agency, such Loan Party shall maintain or cause to be maintained, flood insurance to the extent required by, and in compliance with, applicable law.
(ii) The applicable Loan Party promptly shall comply with and conform to (i) all provisions of each such insurance policy, and (ii) all requirements of the insurers applicable to such party or to such property or to the use, manner of use, occupancy, possession, operation, maintenance, alteration or repair of such property, except for such non-compliance or non-conformity as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(iii) If the Borrower or any Subsidiary Guarantor is in default of its obligations to insure or deliver any such prepaid policy or policies, the result of which would reasonably be expected to have a Material Adverse Effect, then the Administrative Agent, at its option upon 10 days’ prior written notice to the Borrower, may effect such insurance from year to year at rates substantially similar to the rate at which the Borrower or any Restricted Subsidiary had insured such property, and pay the premium or premiums therefor, and the Borrower shall pay to the Administrative Agent on demand such premium or premiums so paid by the Administrative Agent with interest from the time of payment at a rate per annum equal to 2.00%.
(iv) If such property, or any part thereof, shall be destroyed or damaged and the reasonably estimated cost thereof would exceed $7,500,000, the Borrower shall give prompt notice thereof to the Administrative Agent. All insurance proceeds paid or payable in connection with any damage or casualty to any property shall be applied in the manner specified in the proviso to Subsection 7.5(a).
7.6 Inspection of Property; Books and Records; Discussions. In the case of the Borrower, keep proper books and records in a manner to allow financial statements to be prepared in conformity with GAAP consistently applied in respect of all material financial transactions and matters involving the material assets and business of the Borrower and its Restricted Subsidiaries, taken as a whole; and permit representatives of the Administrative Agent to visit and inspect any of its properties and examine and, to the extent reasonable, make abstracts from any of its books and records and to discuss the business, operations, properties and financial and other condition of the Borrower and its Restricted Subsidiaries with officers of the Borrower and its Restricted Subsidiaries and with its independent certified public accountants (subject to such accountant’s policies and procedures), in each case at any reasonable time, upon reasonable notice; provided that representatives of the Borrower may be present during any such visits, discussions and inspections. Notwithstanding anything to the contrary in Subsection 7.2(d) or in this Subsection 7.6, (a) neither the Borrower nor any Restricted Subsidiary will be required to disclose, or permit the inspection or discussion of, any document, information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure to the Administrative Agent or the Lenders (or their respective representatives) is prohibited by Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product and (b) unless an Event of Default has occurred and is continuing, there shall be no more than one such visit and inspection (taken as a whole) per calendar year.
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7.7 Notices. Promptly after a Responsible Officer of the Borrower has actual knowledge thereof or receipt of such document or notice, as applicable, give notice to the Administrative Agent for delivery to each Lender of (and in any event, with respect to clause (e) below, within thirty days, after a Responsible Officer of the Borrower obtains actual knowledge thereof or receipt of such document or notice, as applicable):
(a) the occurrence of any Default or Event of Default;
(b) any event of default under any Contractual Obligation of the Borrower or any of its Restricted Subsidiaries, other than as previously disclosed in writing to the Lenders, which would reasonably be expected to have a Material Adverse Effect;
(c) the
occurrence of (i) any default or event of default under the Senior ABL Facility Agreement or (ii) any payment default
under any Additional Obligations Documents or under any agreement or document governing other Indebtedness, in each case relating
to Indebtedness in an aggregate principal amount equal to or greater than $25,000,00067,500,000;
(d) any litigation, investigation or proceeding affecting the Borrower or any of its Restricted Subsidiaries that would reasonably be expected to have a Material Adverse Effect;
(e) (i) the occurrence or expected occurrence of any Reportable Event (or similar event) with respect to any Single Employer Plan (or Foreign Plan), a failure to make any required contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the creation of any Lien on the property of the Borrower or its Restricted Subsidiaries in favor of the PBGC, a Plan or a Foreign Plan or any withdrawal from, or the full or partial termination, “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or Insolvency of, any Multiemployer Plan or Foreign Plan; or (ii) the institution of proceedings or the taking of any other formal action by the PBGC or the Borrower or any of its Restricted Subsidiaries or any Commonly Controlled Entity or any Multiemployer Plan which would reasonably be expected to result in the withdrawal from, or the termination, or Insolvency of, any Single Employer Plan, Multiemployer Plan or Foreign Plan; provided, however, that no such notice will be required under clause (i) or (ii) above unless the event giving rise to such notice, when aggregated with all other such events under clause (i) or (ii) above, would be reasonably expected to result in a Material Adverse Effect;
(f) (i) any release or discharge by the Borrower or any of its Restricted Subsidiaries of any Materials of Environmental Concern required to be reported under applicable Environmental Laws to any Governmental Authority, unless the Borrower reasonably determines that the total Environmental Costs arising out of such release or discharge would not reasonably be expected to have a Material Adverse Effect, (ii) any condition, circumstance, occurrence or event not previously disclosed in writing to the Administrative Agent that would reasonably be expected to result in liability or expense under applicable Environmental Laws, unless the Borrower reasonably determines that the total Environmental Costs arising out of such condition, circumstance, occurrence or event would not reasonably be expected to have a Material Adverse Effect, or would not reasonably be expected to result in the imposition of any lien or other material restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by the Borrower or any of its Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect, and (iii) any proposed action to be taken by the Borrower or any of its Restricted Subsidiaries that would reasonably be expected to subject the Borrower or any of its Restricted Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless the Borrower reasonably determines that the total Environmental Costs arising out of such proposed action would not reasonably be expected to have a Material Adverse Effect; and
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(g) any loss, damage, or destruction to a significant portion of the Collateral, whether or not covered by insurance.
Each notice pursuant to this Subsection 7.7 shall be accompanied by a statement of a Responsible Officer of the Borrower (and, if applicable, the relevant Commonly Controlled Entity or Restricted Subsidiary) setting forth details of the occurrence referred to therein and stating what action the Borrower (or, if applicable, the relevant Commonly Controlled Entity or Restricted Subsidiary) proposes to take with respect thereto.
7.8 Environmental Laws. (a) (i) Comply substantially with, and require substantial compliance by all tenants, subtenants, contractors, and invitees with, all applicable Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees obtain, comply substantially with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to any property leased or subleased from, or operated by the Borrower or its Restricted Subsidiaries. For purposes of this Subsection 7.8(a), noncompliance shall not constitute a breach of this covenant, provided that, upon learning of any actual or suspected noncompliance, the Borrower and any such affected Restricted Subsidiary shall promptly undertake and diligently pursue reasonable efforts, if any, to achieve compliance, and provided, further, that in any case such noncompliance would not reasonably be expected to have a Material Adverse Effect.
(b) Promptly comply, in all material respects, with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) as to which the failure to comply would not reasonably be expected to result in a Material Adverse Effect or (ii) as to which: (x) appropriate reserves have been established in accordance with GAAP; (y) an appeal or other appropriate contest is or has been timely and properly taken and is being diligently pursued in good faith; and (z) if the effectiveness of such order or directive has not been stayed, the failure to comply with such order or directive during the pendency of such appeal or contest would not reasonably be expected to have a Material Adverse Effect.
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(c) Except to the extent that failure to do so, in the aggregate, would not reasonably be expected to have a Material Adverse Effect, (i) conduct, or have conducted on its behalf, any investigation, study, sampling, or testing any real property at which the Borrower or its Restricted Subsidiaries operate as required by Environmental Laws, and (ii) respond, or cause a third party to respond, to any release, threatened release, or discharge of Materials of Environmental Concern at, on, or under any real property at which the Borrower or its Restricted Subsidiaries operate as required by Environmental Laws.
7.9 After-Acquired
Real Property and Fixtures; Subsidiaries. (a) With respect to any owned real property or fixtures thereon located in the United
States of America, in each case with a purchase price or a Fair Market Value at the time of acquisition of at least $7,500,00020,250,000
(excluding any real property subject to Indebtedness pursuant to Subsection 8.1(b)(xviii)), in which any Loan Party
acquires ownership rights at any time after the Closing Date (or owned by any Subsidiary that becomes a Loan Party (other than
Holdings) after the Closing Date), promptly grant to the Collateral Agent for the benefit of the Secured Parties, a Lien of record
on all such owned real property and fixtures pursuant to a Mortgage or otherwise, upon terms reasonably satisfactory in form and
substance to the Collateral Agent and in accordance with any applicable requirements of any Governmental Authority (including
any required appraisals of such property under FIRREA and flood determinations under Regulation H of the Board); provided
that (i) nothing in this Subsection 7.9 shall defer or impair the attachment or perfection of any security interest
in any Collateral covered by any of the Security Documents which would attach or be perfected pursuant to the terms thereof without
action by the Borrower or any of its Restricted Subsidiaries or any other Person and (ii) no such Lien shall be required
to be granted as contemplated by this Subsection 7.9 on any owned real property or fixtures the acquisition of which is,
or is to be, within 180 days of such acquisition, financed or refinanced, in whole or in part through the incurrence of Indebtedness,
until such Indebtedness is repaid in full (and not refinanced) or, as the case may be, the Borrower determines not to proceed
with such financing or refinancing. In connection with any such grant to the Collateral Agent, for the benefit of the Secured
Parties, of a Lien of record on any such real property pursuant to a Mortgage or otherwise in accordance with this Subsection
7.9, the Borrower or such Restricted Subsidiary shall deliver or cause to be delivered to the Collateral Agent corresponding
UCC fixture filings and any surveys, appraisals (including any required appraisals of such property under FIRREA), title insurance
policies, local law enforceability legal opinions and other documents in connection with such grant of such Lien obtained by it
in connection with the acquisition of such ownership rights in such real property or as the Collateral Agent shall reasonably
request (in light of the value of such real property and the cost and availability of such UCC fixture filings, surveys, appraisals,
title insurance policies, local law enforceability legal opinions and other documents and whether the delivery of such UCC fixture
filings, surveys, appraisals, title insurance policies, legal opinions and other documents would be customary in connection with
such grant of such Lien in similar circumstances) and Phase I environmental assessment reports, if available.
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(b) With respect to any Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary) (i) created or acquired subsequent to the Closing Date by the Borrower or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (other than an Excluded Subsidiary), (ii) being designated as a Restricted Subsidiary, (iii) ceasing to be an Immaterial Subsidiary, a Foreign Subsidiary Holdco or other Excluded Subsidiary as provided in the applicable definition thereof after the expiry of any applicable period referred to in such definition or (iv) that becomes a Domestic Subsidiary as a result of a transaction pursuant to, and permitted by, Subsection 8.2 or 8.7 (other than an Excluded Subsidiary), promptly notify the Administrative Agent of such occurrence and, if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is required to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (as and to the extent provided in the Security Agreement) in 100% of the Capital Stock of such new Domestic Subsidiary owned directly by the Borrower or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (other than Excluded Subsidiaries) to execute and deliver a Joinder pursuant to Section 3.6 of the Security Agreement, (ii) deliver to the Collateral Agent or the applicable Collateral Representative, in accordance with the applicable ABL/Term Loan Intercreditor Agreement, Pari Passu Intercreditor Agreement, Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, the certificates (if any) representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the parent of such new Domestic Subsidiary, and (iii) cause such new Domestic Subsidiary (A) to become a party to the Security Documents and (B) to take all actions reasonably deemed by the Collateral Agent to be necessary or advisable to cause the Lien created by the Security Agreement in such new Domestic Subsidiary’s Collateral to be duly perfected in accordance with all applicable Requirements of Law (as and to the extent provided in the Security Agreement), including the filing of financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent. In addition, the Borrower may cause any Subsidiary that is not required to become a Subsidiary Guarantor to become a Subsidiary Guarantor by executing and delivering a Subsidiary Guaranty.
(c) With respect to any Foreign Subsidiary or Domestic Subsidiary that is a Non-Wholly Owned Subsidiary created or acquired subsequent to the Closing Date by the Borrower or any of its Domestic Subsidiaries that are Wholly Owned Subsidiaries (in each case, other than any Excluded Subsidiary), the Capital Stock of which is owned directly by the Borrower or a Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary), promptly notify the Administrative Agent of such occurrence and if the Administrative Agent or the Required Lenders so request, promptly (i) cause the Loan Party that is required to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest (as and to the extent provided in the Security Agreement) in the Capital Stock of such new Subsidiary that is directly owned by the Borrower or any Domestic Subsidiary that is a Wholly Owned Subsidiary (other than an Excluded Subsidiary) to execute and deliver a Joinder pursuant to Section 3.6 of the Security Agreement and (ii) to the extent reasonably deemed advisable by the Collateral Agent or the applicable Collateral Representative, in accordance with the applicable ABL/Term Loan Intercreditor Agreement, Pari Passu Intercreditor Agreement, Junior Lien Intercreditor Agreement or Other Intercreditor Agreement, deliver to the applicable agent the certificates, if any, representing such Capital Stock, together with undated stock powers, executed and delivered in blank by a duly authorized officer of the relevant parent of such new Subsidiary and take such other action as may be reasonably deemed by the Collateral Agent to be necessary or desirable to perfect the Collateral Agent’s security interest therein (in each case as and to the extent required by the Security Agreement); provided that in either case in no event shall (i) more than 65.00% of each series of voting Capital Stock of any new first-tier Foreign Subsidiary be required to be so pledged (for the avoidance of doubt, 100% of each series of the non-voting Capital Stock of any new first-tier Foreign Subsidiary shall be required to be pledged) and (ii) any Capital Stock of any second-tier or lower Foreign Subsidiary be required to be pledged.
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(d) At its own expense, execute, acknowledge and deliver, or cause the execution, acknowledgement and delivery of, and thereafter register, file or record in an appropriate governmental office, any document or instrument reasonably deemed by the Collateral Agent to be necessary or desirable for the creation, perfection and priority and the continuation of the validity, perfection and priority of the foregoing Liens or any other Liens created pursuant to the Security Documents (to the extent the Collateral Agent determines, in its reasonable discretion, that such action is required to ensure the perfection or the enforceability as against third parties of its security interest in such Collateral) in each case in accordance with, and to the extent required by, the Security Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, (A) the foregoing requirements shall be subject to the terms of the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement and, in the event of any conflict with such terms, the terms of the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, shall control, (B) no security interest or lien is or will be granted pursuant to any Loan Document or otherwise in any right, title or interest of any of Holdings or any of its Subsidiaries in, and “Collateral” shall not include, any Excluded Property, (C) no Loan Party or any Affiliate thereof shall be required to take any action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (D) to the extent not perfected by UCC filings or perfected automatically, no Loan Party shall be required to take any actions in order to perfect any security interests granted with respect to any assets specifically requiring perfection through control (excluding Capital Stock required to be delivered pursuant to Subsections 7.9(b) and (c) above), and (E) nothing in this Subsection 7.9 shall require that any Subsidiary grant a Lien with respect to any property or assets in which such Subsidiary acquires ownership rights to the extent that the Borrower and the Administrative Agent reasonably determine in writing that the costs or other consequences to Holdings or any of its Subsidiaries of the granting of such a Lien is excessive in view of the benefits that would be obtained by the Secured Parties.
7.10 Use of Proceeds. Use the proceeds of the Term Loans only for the purposes set forth in Subsection 5.16.
7.11 Credit Ratings. Use commercially reasonable efforts to maintain at all times a credit rating by the Rating Agencies in respect of the Initial Term Loans and a corporate rating by S&P and a corporate family rating by Moody’s for the Borrower, in each case, with no requirement to maintain any specific minimum rating.
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7.12 Accounting Changes. The Borrower will, for financial reporting purposes, cause the Borrower’s and each of its Subsidiaries’ Fiscal Years to end on the last Thursday of each calendar year; provided that the Borrower may, upon written notice to the Administrative Agent, change the financial reporting convention specified above to cause the Borrower’s and each of its Subsidiaries’ Fiscal Years to end on any other date reasonably acceptable to the Administrative Agent, in which case the Borrower and the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting.
7.13 Lender Calls. The Borrower shall hold one update call per calendar year (which call shall take place on such date reasonably agreed to between the Borrower and the Administrative Agent, but no earlier than ten Business Days after annual financial statements and the budget were required to be delivered pursuant to Subsection 7.1(a) and Subsection 7.2(d), respectively) with a Responsible Officer of the Borrower and such other members of senior management of the Borrower as the Borrower deems appropriate (with such other details to be reasonably agreed between the Borrower and the Administrative Agent) and the Lenders and their respective representatives and advisors to discuss the state of the Borrower’s business, including, but not limited to, recent performance, cash and liquidity management, operational activities, current business and market conditions and material performance changes.
7.14 Post-Closing. Take all necessary actions to satisfy the items described on Schedule 7.14 within the applicable period of time specified in such Schedule (or such longer period as the Administrative Agent may agree in its reasonable discretion).
SECTION 8
Negative Covenants
The Borrower and (solely with respect to Subsection 8.10) Holdings hereby agree that, from and after the Closing Date, until payment in full of the Term Loans and all other Term Loan Facility Obligations then due and owing to any Lender or any Agent hereunder:
8.1 Limitation on Indebtedness. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, Incur any Indebtedness.
(b) Notwithstanding the foregoing Subsection 8.1(a), the Borrower and its Restricted Subsidiaries may Incur the following Indebtedness:
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(i) (I)
Indebtedness Incurred by the Borrower and the Guarantors pursuant to this Agreement and the other Loan Documents (including Incremental
Term Loans, Permitted
Incremental Equivalent Debt, Extended Term Loans, Specified Refinancing Term Loans), Permitted Debt Exchange Notes,
Additional Obligations, Rollover Indebtedness and Refinancing Indebtedness in each case thereof, plus, without duplication of
incremental amounts included in the definition of “Refinancing Indebtedness”, the aggregate amount of all fees, underwriting
discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with
such refinancing and (II) Indebtedness incurred pursuant to the Senior ABL Facility and any Refinancing Indebtedness in
respect thereof; provided that the maximum principal amount for all such Indebtedness Incurred pursuant to this clause
(II) shall not, at any time outstanding, exceed the sum of (A) the greater of (x) $300,000,000500,000,000
and (y) the Borrowing Base less the aggregate principal amount of Indebtedness Incurred by Special Purposes
Entities that are Domestic Subsidiaries and then outstanding pursuant to SectionSubsection
8.1(b)(ix), plus (B) without duplication of incremental amounts included in the definition
of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness, the aggregate amount of fees,
underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection
with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness represented by (A) [reserved], (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Subsection 8.1(b)(iii);
(iv) Purchase
Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided
that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock
of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $25,000,00067,500,000
and 25.00% of Consolidated EBITDA for the most recently ended fiscal quarter for which consolidated financial statements
of the Borrower are available;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Borrower or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1);
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(vii) Indebtedness of the Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness
of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar
instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including
those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes),
(B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations,
provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations,
entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) in respect
of industrial revenue bonds or other tax advantaged financings issued through a Governmental Authority, (F) the financing
of insurance premiums in the ordinary course of business, (G) take-or-pay obligations under supply arrangements incurred
in the ordinary course of business, (H) netting, overdraft protection and other arrangements arising under standard business
terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility
or arrangement, (I) Junior Capital in an amount not to exceed $50,000,000135,000,000
in the aggregate at any one time outstanding, or (J) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse, and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness
of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection
with, any acquisition of assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of
any Person with or into the Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated
with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition,
merger, consolidation or amalgamation); provided that on the date of such acquisition, merger, consolidation or amalgamation,
after giving effect thereto, (1)(x) if such Indebtedness is unsecured, at
the Borrower’s option, the Borrower would have a Consolidated Total Leverage Ratio equal
to or less than 3.7or
equal to (x) 3.50:1.00 or (y)
the Consolidated Total Leverage Ratio in effect immediately prior to such Indebtedness, (y) if such Indebtedness
is secured on a pari passu orbasis,
at the Borrower’s option, the Borrower would have a Consolidated First Lien Leverage Ratio less than or equal to (x) 2.50:1.00
or (y) the Consolidated Frist Lien Leverage Ratio in effect immediately prior to such Indebtedness, (z) if such Indebtedness is
secured on a junior priority basis,
at the Borrower’s option, the Borrower would have a Consolidated Secured Leverage Ratio equal
to or less than 3.7or
equal to (x) 3.50:1.00 or
(y) the Consolidated Secured Leverage Ratio in effect immediately prior to such Indebtedness, (2) if secured
by a Lien on a pari passu or junior priority basis on the Collateral, the Borrower shall have caused to be executed a customary
intercreditor agreement, (3) the maturity date and the weighted average life to maturity of such Indebtedness shall be
no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life
to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life
to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into
or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial Term
Loan Maturity Date or a shorter weighted average life to maturity than the remaining weighted average life to maturity of the
Initial Term Loans, as applicable) and (4) the interest rate margins (subject to clause (3) above) and amortization schedule
applicable such Indebtedness shall be determined by the Borrower and the applicable lenders; provided that in the event
that the Yield for any term loans Incurred under this clause (x) and secured on a pari passu basis by the Collateral is
higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term
Loans shall be increased to the extent necessary so that the Yield for the Initial Term Loans is equal to the Yield for such Indebtedness
minus 50 basis points; provided, further, that the aggregate principal amount of Indebtedness of which the primary
obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding on this clause (x) shall not exceed, at
the time of incurrence thereof and after giving pro forma effect thereto, the greater of $50,000,000135,000,000
and 50.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available. If, at the Borrower’s option, on the date of the initial borrowing of
such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect
is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed
and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness
with respect to any such Indebtedness;
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(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) additional
Indebtedness so long as, on a pro forma basis, (x)
if such Indebtedness is unsecured, the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 3.50:1.00,
(y) if such Indebtedness is secured on a pari passu basis, the Borrower would have a Consolidated First Lien Leverage Ratio
equal to or less than 2.50:1.00, (z) if such Indebtedness is secured on a junior priority basis, the Borrower would have a
Consolidated Secured Leverage Ratio would beequal
to or less than or equal to 3.73.50:1.00;
provided, that the aggregate principal amount of Indebtedness of which the primary obligor or a guarantor is a Restricted
Subsidiary that is not a Loan Party outstanding on this clause (xxii)
shall not exceed, at the time of incurrence thereof and after giving pro forma effect thereto, the greater of $50,000,000135,000,000
and 50.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available;
(xiii) Indebtedness
of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount
equal to the greater of $60,000,000162,000,000
and 60.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available;
(xiv) Indebtedness
of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including
Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Borrower or any
Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding
not exceeding an amount equal to the greater of $25,000,00067,500,000
and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available;
(xv) Indebtedness
of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $20,000,00054,000,000
and (y) an amount equal to (A) the Foreign Borrowing Base less (B) the aggregate principal
amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to
clause (ix) of this paragraph (b) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause
(xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid
interest) Incurred or payable in connection with such refinancing;
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(xvi) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate principal
amount of Indebtedness incurred or guaranteed pursuant to this clause (xvi) shall not exceed, in the aggregate, the greater of
(i) $7,500,00020,250,000
and (ii) 7.50% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available; and
(xvii) without
duplication, all premiums (if any, including tender premiums), defeasance costs, interest (including post petition interest),
fees, expenses and charges and additional or contingent interest on obligations described in clauses (ii) through (xvi) of this
Subsection 8.1.;
(xviii) Indebtedness of the Borrower or any Restricted Subsidiary Incurred in connection with entering into mortgages or deeds of trust or similar security instruments on real property, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $81,000,000 and 30.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available; and
(xix) additional Indebtedness in an amount not to exceed any available Restricted Payment capacity under Subsection 8.2 (provided, that such use shall reduce the applicable Restricted Payment capacity on a dollar-for-dollar basis).
(c) For
purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant
to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or
of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien
or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be
disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument
or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness Incurred pursuant
to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b),
the Borrower, in its sole discretion, shallmay
classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the
clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); (iii)
[reserved]; (iv) the amount of Indebtedness issued at a price that
is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance
with GAAP; (v) the principal amount of Indebtedness outstanding under any subclause of Subsection 8.1(b), including
for purposes of any determination of the “Maximum Incremental Facilities Amount”, shall be determined after giving
effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; and (vi) if any
Indebtedness is Incurred to refinance Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage
of Consolidated EBITDA at the time of Incurrence, and such refinancing would cause the percentage of Consolidated EBITDA restriction
to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated
EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not
exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts,
premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
Notwithstanding anything herein to the contrary, Indebtedness Incurred by the Borrower on the Closing Date under this Agreement
of the Senior ABL Facility Agreement shall be classified as Incurred under paragraph (b)(i) of this covenant.
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(d) For purposes of determining compliance with any dollar denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (z) the dollar equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to this Agreement or any Senior ABL Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Borrower’s option, (A) the Closing Date, (B) any date on which any of the respective commitments under this Agreement or the applicable Senior ABL Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
8.2 Limitation on Restricted Payments. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary, directly or indirectly, to (i) declare or pay any dividend or make any distribution on or in respect of its Capital Stock (including any such payment in connection with any merger, consolidation or amalgamation to which the Borrower is a party) except (x) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock) and (y) dividends or distributions payable to the Borrower or any Restricted Subsidiary (and, in the case of any such Restricted Subsidiary making such dividend or distribution, to other holders of its Capital Stock on no more than a pro rata basis, measured by value), (ii) purchase, redeem, retire or otherwise acquire for value any Capital Stock of the Borrower held by Persons other than the Borrower or a Restricted Subsidiary (other than any acquisition of Capital Stock deemed to occur upon the exercise of options if such Capital Stock represents a portion of the exercise price thereof), (iii) voluntarily purchase, repurchase, redeem, defease or otherwise voluntarily acquire or retire for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment, any Junior Debt (other than a purchase, repurchase, redemption, defeasance or other acquisition or retirement for value in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value), or (iv) make any Investment (other than a Permitted Investment) in any Person (any such dividend, distribution, purchase, repurchase, redemption, defeasance, other acquisition or retirement or Investment being herein referred to as a “Restricted Payment”), if at the time the Borrower or such Restricted Subsidiary makes such Restricted Payment after giving effect thereto:
148
(1) except
in the case of an Investment, an Event of Default under Subsection 9.1(a) or,
(c), (e),(f), (h),
(i), (j), (k) or another Event of Default known to the Borrower, shall have occurred and be continuing (or
would result therefrom) (provided
that this clause (1) shall not apply to amounts incurred pursuant to clauses (A) and (C) of clause (3) below);
(2) [reserved]; or
(3) the aggregate amount of such Restricted Payment and all other Restricted Payments (the amount so expended, if other than in cash, to be as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a resolution of the Board of Directors) declared or made subsequent to the Closing Date and then outstanding would exceed, without duplication, the sum of:
(A) the greater of (i) $135,000,000 and (ii) 50% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available;
(B) (A)
50.00% of the Consolidated Net Income accrued during the period (treated as one accounting period) beginning
on July 1, 2016 to the end of the most recent fiscal quarter ending prior to the date of such Restricted Payment for which consolidated
financial statements of the Borrower are available (provided that, Consolidated Net Income for such period shall never
be less than zero);
(C) (B) the
aggregate Net Cash Proceeds and the fair value (as determined in good faith by the Borrower) of property or assets received (x)
by the Borrower as capital contributions to the Borrower after the Closing Date or from the issuance or sale (other than to a
Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock) after the Closing Date (other than Excluded Contributions
and Contribution Amounts) or (y) by the Borrower or any Restricted Subsidiary from the Incurrence by the Borrower or any
Restricted Subsidiary after the Closing Date of Indebtedness that shall have been converted into or exchanged for Capital Stock
of the Borrower (other than Disqualified Stock) or Capital Stock of any Parent Entity, plus the amount of any cash and the fair
value (as determined in good faith by the Borrower) of any property or assets, received by the Borrower or any Restricted Subsidiary
upon such conversion or exchange;
(D) (C)
(i) the aggregate amount of cash and the fair value (as determined in good faith by the Borrower) of any property
or assets received (x) from dividends, distributions, interest payments, return of capital, repayments of Investments or
other transfers of assets to the Borrower or any Restricted Subsidiary from any Unrestricted Subsidiary, including dividends or
other distributions related to dividends or other distributions made pursuant to Subsection 8.2(b)(ix) and (y) from
the sale (other than to Holdings, the Borrower or any Restricted Subsidiary) of the Capital Stock of an Unrestricted Subsidiary,
plus (ii) the aggregate amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary
(valued in each case as provided in the definition of “Investment”); and
(E) (D)
in the case of any disposition or repayment of any Investment constituting a Restricted Payment (without duplication
of any amount deducted in calculating the amount of Investments at any time outstanding included in the amount of Restricted Payments),
the aggregate amount of cash and the fair value (as determined in good faith by the Borrower) of any property or assets received
by the Borrower or a Restricted Subsidiary with respect to all such dispositions and repayments.;
and
149
(F) any Below Threshold Proceeds.
(b) The provisions of Subsection 8.2(a) do not prohibit any of the following (each, a “Permitted Payment”):
(i) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Capital Stock of the Borrower or any Junior Debt made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the issuance or sale of, Capital Stock of the Borrower (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary) or a capital contribution to the Borrower, in each case other than Excluded Contributions and Contribution Amounts; provided, that the Net Cash Proceeds from such issuance, sale or capital contribution shall be excluded in subsequent calculations under Subsection 8.2(a)(3)(B);
(ii) any dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof, as applicable, if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with this Subsection 8.2;
(iii) Investments or other Restricted Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions;
(iv) loans,
advances, dividends or distributions by the Borrower to any Parent Entity to permit any Parent Entity to repurchase or otherwise
acquire its Capital Stock (including any options, warrants or other rights in respect thereof), or payments by the Borrower to
repurchase or otherwise acquire Capital Stock of any Parent Entity or the Borrower (including any options, warrants or other rights
in respect thereof), in each case from Management Investors (including any repurchase or acquisition by reason of the Borrower
or any Parent Entity retaining any Capital Stock, option, warrant or other right in respect of tax withholding obligations, and
any related payment in respect of any such obligation), such payments, loans, advances, dividends or distributions not to exceed
an amount (net of repayments of any such loans or advances) equal to (x)(1) $12,500,000,
plus (2) $the
greater of $33,750,000 and 12.5% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available, plus (2) $37,500,000 plus (3) $12,500,000 multiplied by the
number of calendar years that have commenced since the Closing Date, plus (y) the Net Cash Proceeds received by the Borrower
since the Closing Date from, or as a capital contribution from, the issuance or sale to Management Investors of Capital Stock
(including any options, warrants or other rights in respect thereof), to the extent such Net Cash Proceeds are not included in
any calculation under Subsection 8.2(a)(3)(B)(x), plus (z) the cash proceeds of key man life insurance policies
received by the Borrower or any Restricted Subsidiary (or by any Parent Entity and contributed to the Borrower) since the Closing
Date to the extent such cash proceeds are not included in any calculation under Subsection 8.2(a)(3)(A); provided
that any cancellation of Indebtedness owing to the Borrower or any Restricted Subsidiary by any Management Investor in connection
with any repurchase or other acquisition of Capital Stock (including any options, warrants or other rights in respect thereof)
from any Management Investor shall not constitute a Restricted Payment for purposes of this covenant or any other provision of
this Agreement;
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(v) the payment by the Borrower of, or loans, advances, dividends or distributions by the Borrower to any Parent Entity to pay, dividends on the common stock, equity or units of the Borrower or any Parent Entity following a public offering of such common stock, equity or units in an amount not to exceed in any Fiscal Year, 6.00% of the aggregate gross proceeds received by the Borrower (whether directly, or indirectly through a contribution to common equity capital) in or from such public offering;
(vi) Restricted
Payments (including loans or advances) in an aggregate amount outstanding at any time, not to exceed an amount (net of repayments
of any such loans or advances) equal to the sum of (x) the greater of (i)
$30,000,00081,000,000
and 30.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available, plus (y) the aggregate of all Declined Amounts;
(vii) loans, advances, dividends or distributions to any Parent Entity or other payments by the Borrower or any Restricted Subsidiary (A) to satisfy or permit any Parent Entity to satisfy indemnification and expense reimbursement obligations under any applicable shareholders or management agreement, or (B) to pay or permit any Parent Entity to pay (but without duplication) any Parent Expenses or any Related Taxes;
(viii) payments by the Borrower, or loans, advances, dividends or distributions by the Borrower to any Parent Entity to make payments, to holders of Capital Stock of the Borrower or any Parent Entity in lieu of issuance of fractional shares of such Capital Stock;
(ix) dividends or other distributions of, or Investments paid for or made with, Capital Stock, Indebtedness or other securities of Unrestricted Subsidiaries;
(x) the Closing Date Dividend;
(xi) [reserved];so
long as no Default or Event of Default shall have occurred and be continuing or would result from any such action, as applicable,
any dividend or other distribution or payment for purposes of making AHYDO Catch-Up Payments related to Indebtedness of the Loan
Parties, their Subsidiaries, and their Affiliates;
(xii) distributions or payments of Special Purpose Financing Fees;
(xiii) the declaration and payment of dividends to holders of any class or series of Disqualified Stock, or of any Preferred Stock of a Restricted Subsidiary, Incurred in accordance with the terms of Subsection 8.1;
(xiv) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of any Junior Debt (v) made by exchange for, or out of the proceeds of the Incurrence of, (1) Refinancing Indebtedness Incurred in compliance with Subsection 8.1 or (2) new Indebtedness of the Borrower, or a Restricted Subsidiary, as the case may be, Incurred in compliance with Subsection 8.1, so long as such new Indebtedness satisfies all requirements for “Refinancing Indebtedness” set forth in the definition thereof applicable to a refinancing of such Junior Debt, (w) from Net Available Cash or an equivalent amount to the extent permitted by Subsection 8.4, (x) from Declined Amounts, (y) following the occurrence of a Change of Control (or other similar event described therein as a “change of control”), but only if the Borrower shall have complied with Subsection 8.8(a) prior to purchasing, redeeming, repurchasing, defeasing, acquiring or retiring such Junior Debt or (z) constituting Acquired Indebtedness;
151
(xv) Investments
in Unrestricted Subsidiaries in an aggregate amount outstanding at any time not exceeding an amount equal to the greater of $35,000,00094,500,000
and 35.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available; and
(xvi) any
Restricted Payment; provided that on a pro forma basis after giving effect to such Restricted Payment the Consolidated
Total Leverage Ratio would be equal to or less than 2.752.00:1.00.
provided that (A) in the case of Subsections 8.2(b)(ii), (v) and (viii), the net amount of any such Permitted Payment shall be included in subsequent calculations of the amount of Restricted Payments, (B) in all cases other than pursuant to clause (A) immediately above, the net amount of any such Permitted Payment shall be excluded in subsequent calculations of the amount of Restricted Payments and (C) solely with respect to Subsection 8.2(b)(vi) and (xvi), no Event of Default under Subsection 9.1(a), (c), (e), (f), (h), (i), (j) or (k) or other Event of Default known to the Borrower shall have occurred and be continuing at the time of any such Permitted Payment after giving effect thereto. The Borrower, in its sole discretion, may classify any Investment or other Restricted Payment as being made in part under one of the clauses or subclauses of this Subsection 8.2(b) (or, in the case of any Investment, the clauses or subclauses of Permitted Investments) and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses). The Borrower in its sole discretion may utilize amounts permitted under Subsection 8.2(b)(xiv)(u) in whole or in part to make Investments.
8.3 Limitation on Restrictive Agreements. The Borrower will not, and will not permit any Restricted Subsidiary to, create or otherwise cause to exist or become effective any consensual encumbrance or restriction on (i) the ability of the Borrower or any of its Restricted Subsidiaries (other than any Foreign Subsidiaries or any Excluded Subsidiaries) to create, incur, assume or suffer to exist any Lien in favor of the Lenders in respect of obligations and liabilities under this Agreement or any other Loan Documents upon any of its property, assets or revenues constituting Term Priority Collateral as and to the extent contemplated by this Agreement and the other Loan Documents, whether now owned or hereafter acquired or (ii) the ability of any Restricted Subsidiary to (x) pay dividends or make any other distributions on its Capital Stock or pay any Indebtedness or other obligations owed to the Borrower, (y) make any loans or advances to the Borrower or (z) transfer any of its property or assets to the Borrower (provided that dividend or liquidation priority between classes of Capital Stock, or subordination of any obligation (including the application of any remedy bars thereto) to any other obligation, will not be deemed to constitute such an encumbrance or restriction), except any encumbrance or restriction:
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(a) pursuant
to any agreement or instrument in effect at or entered into on the Closing Date, this Agreement, the other Loan Documents, the
ABL Facility Documents, the ABL/Term Loan Intercreditor Agreement and, on and after the execution and delivery thereof, any Pari
Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Other Intercreditor Agreement, any
Intercreditor Agreement Supplement, any Permitted Debt Exchange Notes (and any related documents) and, any
Additional Obligations Documents and
the documentation with respect to Permitted Incremental Equivalent Debt;
(b) pursuant to any agreement or instrument of a Person, or relating to Indebtedness or Capital Stock of a Person, which Person is acquired by or merged, consolidated or amalgamated with or into the Borrower or any Restricted Subsidiary, or which agreement or instrument is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets from such Person or any other transaction entered into in connection with any such acquisition, merger, consolidation or amalgamation, as in effect at the time of such acquisition, merger, consolidation, amalgamation or transaction (except to the extent that such Indebtedness was incurred to finance, or otherwise in connection with, such acquisition, merger, consolidation, amalgamation or transaction); provided that for purposes of this Subsection 8.3(b), if a Person other than a Borrower is the Successor Borrower with respect thereto, any Subsidiary thereof or agreement or instrument of such Person or any such Subsidiary shall be deemed acquired or assumed, as the case may be, by the Borrower or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Borrower;
(c) pursuant to any agreement or instrument (a “Refinancing Agreement”) effecting a refinancing of Indebtedness Incurred or outstanding pursuant or relating to, or that otherwise extends, renews, refunds, refinances or replaces, any agreement or instrument referred to in Subsection 8.3(a) or (b) or this Subsection 8.3(c) (an “Initial Agreement”) or that is, or is contained in, any amendment, supplement or other modification to an Initial Agreement or Refinancing Agreement (an “Amendment”); provided, however, that the encumbrances and restrictions contained in any such Refinancing Agreement or Amendment taken as a whole are not materially less favorable to the Lenders than encumbrances and restrictions contained in the Initial Agreement or Initial Agreements to which such Refinancing Agreement or Amendment relates (as determined in good faith by the Borrower);
(d) (i) pursuant to any agreement or instrument that restricts in a customary manner the assignment or transfer thereof, or the subletting, assignment or transfer of any property or asset subject thereto, (ii) by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Restricted Subsidiary not otherwise prohibited by this Agreement, (iii) contained in mortgages, pledges or other security agreements securing Indebtedness or other obligations of the Borrower or a Restricted Subsidiary to the extent restricting the transfer of the property or assets subject thereto, (iv) pursuant to customary provisions restricting dispositions of real property interests set forth in any reciprocal easement agreements of the Borrower or any Restricted Subsidiary, (v) pursuant to Purchase Money Obligations that impose encumbrances or restrictions on the property or assets so acquired, (vi) on cash or other deposits or net worth or inventory imposed by customers or suppliers under agreements entered into in the ordinary course of business, (vii) pursuant to customary provisions contained in agreements and instruments entered into in the ordinary course of business (including but not limited to leases and licenses) or in joint venture and other similar agreements or in shareholder, partnership, limited liability company and other similar agreements in respect of non-wholly owned Restricted Subsidiaries, (viii) that arises or is agreed to in the ordinary course of business and does not detract from the value of property or assets of the Borrower or any Restricted Subsidiary in any manner material to the Borrower or such Restricted Subsidiary, or (ix) pursuant to Hedging Obligations or Bank Products Obligations;
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(e) with respect to any agreement for the direct or indirect disposition of Capital Stock of any Person, property or assets, imposing restrictions with respect to such Person, Capital Stock, property or assets pending the closing of such disposition;
(f) by reason of any applicable law, rule, regulation or order, or required by any regulatory authority having jurisdiction over the Borrower or any Restricted Subsidiary or any of their businesses, including any such law, rule, regulation, order or requirement applicable in connection with such Restricted Subsidiary’s status (or the status of any Subsidiary of such Restricted Subsidiary) as a Captive Insurance Subsidiary;
(g) pursuant to any agreement or instrument (i) relating to any Indebtedness permitted to be Incurred subsequent to the Closing Date pursuant to Subsection 8.1 (x) if the encumbrances and restrictions contained in any such agreement or instrument taken as a whole are not materially less favorable to the Lenders than the encumbrances and restrictions contained in the Initial Agreements (as determined in good faith by the Borrower), or (y) if such encumbrance or restriction is not materially more disadvantageous to the Lenders than is customary in comparable financings (as determined in good faith by the Borrower) and either (1) the Borrower determines in good faith that such encumbrance or restriction will not materially affect the Borrower’s ability to create and maintain the Liens on the Term Priority Collateral pursuant to the Security Documents and make principal or interest payments on the Term Loans or (2) such encumbrance or restriction applies only if a default occurs in respect of a payment or financial covenant relating to such Indebtedness, (ii) relating to any sale of receivables by or Indebtedness of a Foreign Subsidiary or (iii) relating to Indebtedness of or a Financing Disposition by or to or in favor of any Special Purpose Entity;
(h) pursuant to any agreement relating to intercreditor arrangements and related rights and obligations, to or by which the Lenders and/or the Administrative Agent, the Collateral Agent or any other agent, trustee or representative on their behalf may be party or bound at any time or from time to time, and any agreement providing that in the event that a Lien is granted for the benefit of the Lenders another Person shall also receive a Lien, which Lien is permitted by Subsection 8.6; or
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(i) pursuant to any agreement governing or relating to Indebtedness and/or other obligations and liabilities secured by a Lien permitted by Subsection 8.6 (in which case any restriction shall only be effective against the assets subject to such Lien, except as may be otherwise permitted under this Subsection 8.3).
8.4 Limitation on Sales of Assets and Subsidiary Stock. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, make any Asset Disposition unless:
(i) the
Borrower or such Restricted Subsidiary receives consideration (including by way of relief from, or by any other Person assuming
responsibility for, any liabilities, contingent or otherwise) at the time of such Asset Disposition at least equal to the fair
market value of the shares and assets subject to such Asset Disposition, as such fair market value (on the date a legally binding
commitment for such Asset Disposition was entered into) may be determined (and shall be determined, to the extent such Asset Disposition
or any series of related Asset Dispositions involves aggregate consideration in excess of $25,000,000the
greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available) in good faith by the Borrower, whose determination shall be
conclusive (including as to the value of all noncash consideration);
(ii) in
the case of any Asset Disposition (or series of related Asset Dispositions) having a fair market value (on the date a legally
binding commitment for such Asset Disposition was entered into) of $25,000,000 or morein
excess of the greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period
for which consolidated financial statements of the Borrower are available, at least 75.00% of the consideration
therefor (excluding, in the case of an Asset Disposition (or series of related Asset Dispositions), any consideration by way of
relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, that are not Indebtedness)
received by the Borrower or such Restricted Subsidiary is in the form of cash; and
(iii) to the extent required by Subsection 8.4(b), an amount equal to 100.00% of the Net Available Cash from such Asset Disposition is applied by the Borrower (or any Restricted Subsidiary, as the case may be) as provided therein.
(b) In the event that on or after the Closing Date the Borrower or any Restricted Subsidiary shall make an Asset Disposition or a Recovery Event in respect of Collateral shall occur, subject to Subsection 8.4(a), an amount equal to 100.00% of the Net Available Cash from such Asset Disposition or Recovery Event shall be applied by the Borrower (or any Restricted Subsidiary, as the case may be) as follows:
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(i) first, either (x) if the Borrower or such Restricted Subsidiary elects, to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute ABL Priority Collateral, to purchase, redeem, repay or prepay, to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, Indebtedness under the Senior ABL Facility or (in the case of letters of credit, bankers’ acceptances or other similar instruments issued thereunder) cash collateralize any such Indebtedness within the time period required by such Indebtedness after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash or (y) to the extent the Borrower or such Restricted Subsidiary elects (by delivery of an officer’s certificate by a Responsible Officer to the Administrative Agent) to invest in Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary) with an amount equal to Net Available Cash received by the Borrower or another Restricted Subsidiary within (a) 365 days after the later of the date of such Asset Disposition or Recovery Event, as the case may be, and the date of receipt of such Net Available Cash (such period the “Reinvestment Period”) or, (b) if such investment in Additional Assets is a project authorized by the Board of Directors that will take longer than such 365 days to complete and is subject to a binding written commitment entered into during the Reinvestment Period, an additional 180 days after the last day of the Reinvestment Period (it being understood and agreed that if no such investment is made within the Reinvestment Period as extended by this clause (b), the Borrower shall make the prepayments required by Subsection 8.4(b)(ii) on the earlier to occur of (I) the last day of such Reinvestment Period as extended by this clause (b) and (II) the date the Borrower elects not to pursue such investment);
(ii) second, (1) if no application of Net Available Cash election is made pursuant to preceding clause (i) with respect to such Asset Disposition or Recovery Event or (2) if such election is made to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsection 8.4(b)(i), within ten Business Days after the end of the Reinvestment Period specified in clause (i) above (as extended pursuant to clause (y) of such clause (i)) (x) to the extent such Asset Disposition or Recovery Event is an Asset Disposition or Recovery Event of assets that constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing the relevant Indebtedness described in clause (B) below subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof any Pari Passu Indebtedness on a pro rata basis with the Term Loans and (y) to the extent such Asset Disposition is an Asset Disposition of assets that do not constitute Collateral, to purchase, redeem, repay, prepay, make an offer to prepay or repurchase, or deliver a notice of redemption, in accordance with Subsection 4.4(e)(i) (subject to Subsection 4.4(h)) or the agreements or instruments governing any relevant Indebtedness permitted under Subsection 8.1 (subject to any provision under such agreement or instrument analogous to Subsection 4.4(h)), as applicable, (A) the Term Loans and (B) to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof, any other Indebtedness (other than Indebtedness subordinated in right of payment to the Term Loan Facility Obligations) on a pro rata basis with the Term Loans; and
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(iii) third, to the extent of the balance of such Net Available Cash or equivalent amount after application in accordance with Subsections 8.4(b)(i) and (ii) above, to fund (to the extent consistent with any other applicable provision of this Agreement) any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of Junior Debt);
provided, however, that in connection with any prepayment, repayment, purchase or redemption of Indebtedness pursuant to clause (ii) above, the Borrower or such Restricted Subsidiary will retire such Indebtedness and will cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, purchased or redeemed; provided, further, that the Borrower (or any Restricted Subsidiary, as the case may be) may elect to invest in Additional Assets prior to receiving the Net Available Cash attributable to any given Asset Disposition (provided that, such investment shall be made no earlier than the earliest of notice of the relevant Asset Disposition to the Administrative Agent, execution of a definitive agreement for the relevant Asset Disposition, and consummation of the relevant Asset Disposition) and deem the amount so invested to be applied pursuant to and in accordance with Subsection 8.4(b)(i) above with respect to such Asset Disposition.
(c) Notwithstanding
the foregoing provisions of this Subsection 8.4, the Borrower and its Restricted Subsidiaries shall not be required to
apply any Net Available Cash or equivalent amount in accordance with this Subsection 8.4 except to the extent that (x)
the aggregate Net Available Cash from all Asset Dispositions and Recovery Events in respect of Collateral
or equivalent amount that is not applied in accordance with this Subsection 8.4 exceeds $20,000,00054,000,000
(any amounts below such threshold, the “Below Threshold Proceeds”), in which case the Borrower and
its Subsidiaries shall apply all such Net Available Cash from such Asset Dispositions and Recovery Events or equivalent amount
in accordance with Subsection 8.4(b) or (y) the terms of any Pari Passu Indebtedness
would require Net Available Cash or the equivalent amount from such Asset Disposition and Recovery Events to be applied to purchase,
redeem, repay or prepay such Indebtedness prior to reaching such $20,000,000 threshold.(iii).
(d) For
the purposes of Subsection 8.4(a)(ii), the following are deemed to be cash: (1) Temporary Cash Investments and Cash
Equivalents, (2) the assumption of Indebtedness of the Borrower (other than Disqualified Stock of the Borrower) or any
Restricted Subsidiary and the release of the Borrower or such Restricted Subsidiary from all liability on payment of the principal
amount of such Indebtedness in connection with such Asset Disposition, (3) Indebtedness of any Restricted Subsidiary that
is no longer a Restricted Subsidiary as a result of such Asset Disposition, to the extent that the Borrower and each other Restricted
Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Asset
Disposition, (4) securities received by the Borrower or any Restricted Subsidiary from the transferee that are converted
by the Borrower or such Restricted Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of
the Borrower or any Restricted Subsidiary, (6) Additional Assets, and (7) any Designated Noncash Consideration received
by the Borrower or any of its Restricted Subsidiaries in an Asset Disposition having an aggregate Fair Market Value, taken together
with all other Designated Noncash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any
time outstanding equal to the greater of $35,000,00094,500,000
and 35.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available (with the Fair Market Value of each item of Designated Noncash Consideration
being measured on the date a legally binding commitment for such Asset Disposition (or, if later, for the payment of such item)
was entered into and without giving effect to subsequent changes in value).
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(e) In connection with any Asset Disposition permitted under this Subsection 8.4 or a Disposition that is excluded from the definition of “Asset Disposition”, the Administrative Agent shall, and the Lenders hereby authorize the Administrative Agent to, execute such releases of Liens and take such other actions as the Borrower may reasonably request in connection with the foregoing.
8.5 Limitations
on Transactions with Affiliates. (a) The Borrower will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of related transactions (including the purchase, sale, lease or exchange
of any property or the rendering of any service) with any Affiliate of the Borrower (an “Affiliate Transaction”)
involving aggregate consideration in excess of $10,000,000the
greater of $27,000,000 and 10.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available, unless (i) the terms of such Affiliate Transaction are not
materially less favorable to the Borrower or such Restricted Subsidiary, as the case may be, than those that could be obtained
at the time in a transaction with a Person who is not such an Affiliate and (ii) if such Affiliate Transaction involves aggregate
consideration in excess of $25,000,000the
greater of $67,500,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated
financial statements of the Borrower are available, the terms of such Affiliate Transaction have been approved
by a majority of the Board of Directors. For purposes of this Subsection 8.5(a), any Affiliate Transaction shall be deemed
to have satisfied the requirements set forth in this Subsection 8.5(a) if (x) such Affiliate Transaction is approved
by a majority of the Disinterested Directors or (y) in the event there are no Disinterested Directors, a fairness opinion
is provided by a nationally recognized appraisal or investment banking firm with respect to such Affiliate Transaction.
(b) The provisions of Subsection 8.5(a) will not apply to:
(i) any Restricted Payment Transaction,
(ii) (1)
the entering into, maintaining or performance of any employment or,
consulting or
other similar service contract, collective bargaining agreement, benefit plan, program or arrangement, related
trust agreement or any other similar arrangement for or with any current or former management member, employee, officer or director
or consultant of or to the Borrower, any Restricted Subsidiary or any Parent Entity heretofore or hereafter entered into in the
ordinary course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other
similar plans, programs or arrangements, (2) payments, compensation, performance of indemnification or contribution obligations,
the making or cancellation of loans in the ordinary course of business to any such management members, employees, officers, directors
or consultants, (3) any issuance, grant or award of stock, options, other equity related interests or other securities,
to any such management members, employees, officers, directors or consultants, (4) the payment of reasonable fees to directors
of the Borrower or any of its Subsidiaries or any Parent Entity (as determined in good faith by the Borrower, such Subsidiary
or such Parent Entity), or (5) Management Advances and payments in respect thereof (or in reimbursement of any expenses
referred to in the definition of such term),
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(iii) any transaction between or among any of the Borrower, one or more Restricted Subsidiaries, or one or more Special Purpose Entities,
(iv) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 8.5, and any payments made pursuant thereto,
(v) any transaction in the ordinary course of business on terms that are fair to the Borrower and its Restricted Subsidiaries in the reasonable determination of the Board of Directors or senior management of the Borrower, or are not materially less favorable to the Borrower or the relevant Restricted Subsidiary than those that could be obtained at the time in a transaction with a Person who is not an Affiliate of the Borrower,
(vi) any transaction in the ordinary course of business, or approved by a majority of the Board of Directors, between the Borrower or any Restricted Subsidiary and any Affiliate of the Borrower controlled by the Borrower that is a joint venture or similar entity,
(vii) payments to any Sponsor or any member of the Sponsor Group (x) for any management, consulting or advisory services, or in respect of financing, underwriting or placement services or in respect of other investment banking activities (if any), (y) in connection with any acquisition, disposition, merger, recapitalization or similar transactions, which payments are approved by a majority of the Board of Directors in good faith, and (z) of all out-of-pocket expenses incurred in connection with such services or activities,
(viii) the Transactions, all transactions in connection therewith (including but not limited to the financing thereof), and all fees and expenses paid or payable in connection with the Transactions, including the fees and out-of-pocket expenses of the Sponsors and their respective Affiliates,
(ix) any issuance or sale of Capital Stock (other than Disqualified Stock) of the Borrower or Junior Capital or any capital contribution to the Borrower,
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(x) any investment by any member of the Sponsor Group in securities of the Borrower or any of its Restricted Subsidiaries (and payment of out-of-pocket expenses incurred by any member of the Sponsor Group in connection therewith) so long as such securities are being offered generally to other investors (other than members of the Sponsor Group) on the same or more favorable terms, and
(xi) intercompany transactions undertaken in good faith (as determined by a Responsible Officer of the Borrower in good faith) for the purpose of improving the consolidated tax efficiency of Holdings and its Subsidiaries and not for the purpose of circumventing any covenant set forth herein.
8.6 Limitation on Liens. (a) The Borrower shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, create or permit to exist any Lien on any of its property or assets (including Capital Stock of any other Person), whether owned on the Closing Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens.
8.7 Limitation on Fundamental Changes. (a) The Borrower will not consolidate with or merge with or into, or convey, lease or otherwise transfer all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the “Successor Borrower”) will be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Borrower will expressly assume all the obligations of the Borrower under this Agreement and the Loan Documents to which it is a party by executing and delivering to the Administrative Agent a joinder or one or more other documents or instruments in form reasonably satisfactory to the Administrative Agent;
(ii) immediately after giving effect to such transaction (and treating any Indebtedness that becomes an obligation of the Successor Borrower or any Restricted Subsidiary as a result of such transaction as having been Incurred by the Successor Borrower or such Restricted Subsidiary at the time of such transaction), no Default will have occurred and be continuing;
(iii) immediately
after giving effect to such transaction, either (A) on a pro forma basis,
the
Consolidated Total Leverage Ratio is less than or equal to (x) 3.70:1.00 or (y) the
Consolidated Total Leverage Ratio immediately prior to giving effect to such transaction;
(iv) each Subsidiary Guarantor (other than (x) any Subsidiary Guarantor that will be released from its obligations under its Subsidiary Guaranty in connection with such transaction and (y) any party to any such consolidation or merger) shall have delivered a joinder or other document or instrument in form reasonably satisfactory to the Administrative Agent, confirming its Subsidiary Guaranty (other than any Subsidiary Guaranty that will be discharged or terminated in connection with such transaction);
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(v) each Subsidiary Guarantor (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Security Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have by a supplement to the Guaranty Agreement or another document or instrument affirmed that its obligations thereunder shall apply to its Guarantee as reaffirmed pursuant to clause (iv) above;
(vi) each mortgagor of a Mortgaged Fee Property (other than (x) any Subsidiary that will be released from its grant or pledge of Collateral under the Security Agreement in connection with such transaction and (y) any party to any such consolidation or merger) shall have affirmed that its obligations under the applicable Mortgage shall apply to its Guarantee as reaffirmed pursuant to clause (iv); and
(vii) the Borrower will have delivered to the Administrative Agent a certificate signed by a Responsible Officer and a legal opinion, each to the effect that such consolidation, merger or transfer complies with the provisions described in this Subsection 8.7(a), provided that (x) in giving such opinion such counsel may rely on such certificate of a Responsible Officer as to compliance with the foregoing clause (ii) and (iii) of this Subsection 8.7(a) and as to any matters of fact, and (y) no such legal opinion will be required for a consolidation, merger or transfer described in Subsection 8.7(d).
(b) Any Indebtedness that becomes an obligation of the Borrower (or, if applicable, any Successor Borrower with respect thereto) or any Restricted Subsidiary (or that is deemed to be Incurred by any Restricted Subsidiary that becomes a Restricted Subsidiary) as a result of any such transaction undertaken in compliance with this Subsection 8.7, and any Refinancing Indebtedness with respect thereto, shall be deemed to have been Incurred in compliance with Subsection 8.1.
(c) Upon any transaction involving the Borrower in accordance with Subsection 8.7(a) in which the Borrower is not the Successor Borrower, the Successor Borrower will succeed to, and be substituted for, and may exercise every right and power of, the Borrower under the Loan Documents, and thereafter the predecessor Borrower shall be relieved of all obligations and covenants under the Loan Documents, except that the predecessor Borrower in the case of a lease of all or substantially all its assets will not be released from the obligation to pay the principal of and interest on the Term Loans.
(d) Clause (ii) of Subsection 8.7(a) will not apply to any transaction in which the Borrower consolidates or merges with or into or transfers all or substantially all its properties and assets to (x) an Affiliate incorporated or organized for the purpose of reincorporating or reorganizing the Borrower in another jurisdiction or changing its legal structure to a corporation or other entity or (y) a Restricted Subsidiary so long as all assets of the Borrower and its Restricted Subsidiaries immediately prior to such transaction (other than Capital Stock of such Restricted Subsidiary) are owned by such Restricted Subsidiary and its Restricted Subsidiaries immediately after the consummation thereof. Subsection 8.7(a) will not apply to any transaction in which any Restricted Subsidiary consolidates with, merges into or transfers all or part of its assets to the Borrower.
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8.8 Change of Control; Limitation on Amendments. The Borrower shall not and shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) In the event of the occurrence of a Change of Control, repurchase or repay any Indebtedness then outstanding pursuant to any Junior Debt or any portion thereof, unless the Borrower shall have, at its option, (i) made payment in full of the Loans and any other amounts then due and owing to any Lender or the Administrative Agent hereunder and under any Note or (ii) made an offer (a “Change of Control Offer”) to pay the Term Loans and any amounts then due and owing to each Lender and the Administrative Agent hereunder and under any Note and shall have made payment in full thereof to each such Lender or the Administrative Agent which has accepted such offer. Upon the Borrower making payment in full of the Loans as provided in clause (i) of this Subsection 8.8(a), or making a Change of Control Offer in accordance with clause (ii) of this Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Debt), any Event of Default arising under Subsection 9.1(k) by reason of such Change of Control shall be deemed not to have occurred or be continuing.
(b) if an Event of Default under Subsection 9.1(a) or (f) is continuing, amend, supplement, waive or otherwise modify any of the provisions of any indenture, instrument or agreement evidencing Subordinated Obligations or Guarantor Subordinated Obligations in a manner that (i) changes the subordination provisions of such Indebtedness or (ii) shortens the maturity date of such Indebtedness to a date prior to the Initial Term Loan Maturity Date or provides for a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loans; provided that, notwithstanding the foregoing, the provisions of this Subsection 8.8(b) shall not restrict or prohibit any refinancing of Indebtedness (in whole or in part) permitted pursuant to Subsection 8.1.
(c) Amend, supplement, waive or otherwise modify the terms of any Permitted Debt Exchange Notes, any Additional Obligations or any Refinancing Indebtedness in respect of the foregoing or any indenture or agreement pursuant to which such Permitted Debt Exchange Notes, Additional Obligations or Refinancing Indebtedness have been issued or incurred in any manner inconsistent with the requirements of the definition of “Refinancing Indebtedness”, assuming for purposes of this Subsection 8.8(c) that such amendment, supplement, waiver or modification, mutatis mutandis, is a refinancing of such Additional Obligations, Permitted Debt Exchange Notes or Refinancing Indebtedness, as applicable.
(d) Amend or modify in any manner materially adverse to the Lenders or the Administrative Agent, or grant any waiver or release under or terminate in any manner (if such granting or termination shall be materially adverse to the Lenders), the articles or certificate of incorporation (or similar document), by-laws, limited liability company operating agreement, partnership agreement or other organizational documents of any Loan Party.
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8.9 Limitation
on Lines of Business. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly,
enter into any business, either directly or through any Restricted Subsidiary, except for thoseany
businesses or
business activity of the same general type as those in which the Borrower and its Restricted Subsidiaries are engaged
in on the Closing Date or which are reasonably related thereto and any business relatedsimilar,
corollary, related, incidental or complementary business or business activities or a reasonable extension, development or expansion
thereof or ancillary thereto.
8.10 Limitations
on Activities of Holdings. (a) Holdings will not create, incur, assume or permit to exist any Lien (other than Permitted
Liens) on any of the Capital Stock issued by the Borrower other than the Liens created under (i) this Agreement and the other
Loan Documents, (ii) the Senior ABL Facility, (iii) any Permitted Debt Exchange Notes (and any Refinancing Indebtedness
in respect thereof), (iv) any Rollover Indebtedness (and any Refinancing Indebtedness in respect thereof) and,
(v) any Additional Obligations (and any Refinancing Indebtedness in respect thereof) and,
(vi) any Permitted Incremental Equivalent Debt (and any Refinancing Indebtedness in respect thereof) and (vii)
non-consensual Liens arising by operation of law, (b) Holdings shall do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence; provided that so long as no Event of Default exists
or would result therefrom, Holdings may merge with any other person and (c) Holdings will otherwise maintain its passive
holding company status; provided that notwithstanding the foregoing, Holdings shall be permitted to (1) be a borrower,
issuer, guarantor or other obligor of any Indebtedness permitted under this Agreement, (2) grant liens in connection with
the foregoing except as prevented by clause (a) above, (3) guarantee the obligations of the Borrower and its Subsidiaries,
(4) hold any cash or property (including any cash and property received in connection with Restricted Payments made by
the Borrower, but excluding the Capital Stock of any Person other than the Borrower), (5) participate in tax, accounting
and another administrative matters as a member or parent of the consolidated group and (6) take all other actions permitted
or required under (i) this Agreement and the other Loan Documents, (ii) the ABL Facility Documents, (iii)
any Permitted Debt Exchange Notes (and any Refinancing Indebtedness in respect thereof), (iv) any Rollover Indebtedness
(and any Refinancing Indebtedness in respect thereof) and (v) any
Additional Obligations (and
any Refinancing Indebtedness in respect thereof) and (vi) any Permitted Incremental Equivalent Debt (and any Refinancing
Indebtedness in respect thereof), including taking actions incidental to the consummation of the Transactions, the making of Restricted
Payments, and other activities incidental to compliance with applicable laws and legal, tax and accounting matters related thereto
and activities relating to employees; provided, further, that notwithstanding the foregoing or any other restriction
in this Agreement, Holdings may enter into a merger or consolidation with any other Parent Entity, or may liquidate, wind up or
dissolve itself, in connection with a restructuring whereby Holdings will directly own 100.00% of the Capital Stock of the Borrower.
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SECTION 9
Events of Default
9.1 Events of Default. Any of the following from and after the Closing Date shall constitute an event of default:
(a) The Borrower shall fail to pay any principal of any Term Loan when due in accordance with the terms hereof (whether at stated maturity, by mandatory prepayment or otherwise); or the Borrower shall fail to pay any interest on any Term Loan, or any other amount payable hereunder, within five Business Days after any such interest or other amount becomes due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document (or in any amendment, modification or supplement hereto or thereto) or which is contained in any certificate furnished at any time by or on behalf of any Loan Party pursuant to this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made, and shall have continued unremedied for a period of 30 days thereafter; or
(c) Any Loan Party shall default in the payment, observance or performance of any term, covenant or agreement contained in Section 8; or
(d) Any Loan Party shall default in the observance or performance of any other agreement contained in this Agreement or any other Loan Document (other than as provided in clauses (a) through (c) of this Subsection 9.1), and such default shall continue unremedied for a period of 30 days after the date on which written notice thereof shall have been given to the Borrower by the Administrative Agent or the Required Lenders; or
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(e) Any
Loan Party or any of its Restricted Subsidiaries shall (i) default in (x) any payment of principal of or interest
on any Indebtedness (excluding Indebtedness hereunder) in excess of $25,000,00067,500,000
beyond the period of grace, if any, or (y) in the payment of any Guarantee Obligation in respect of Indebtedness
in excess of $25,000,00067,500,000,
beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness or Guarantee Obligation
was created; (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness
(excluding the Term Loans) or Guarantee Obligation in respect of Indebtedness referred to in clause (i) above or contained in
any instrument or agreement evidencing, securing or relating thereto (other than a default in the observance of any financial
maintenance covenant, or a failure to provide notice of a default or an event of default under such instrument or agreement),
or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice or lapse of time
if required, such Indebtedness to become due prior to its stated maturity or such Guarantee Obligation to become payable (an “Acceleration”;
and the term “Accelerated” shall have a correlative meaning), and such time shall have lapsed and, if any notice
(a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event of
default before notice of Acceleration may be delivered, such Default Notice shall have been given and (in the case of the preceding
clause (i) or (ii)) such default, event or condition shall not have been remedied or waived by or on behalf of the holder or holders
of such Indebtedness or Guarantee Obligation (provided that the preceding clause (ii) shall not apply to (x) secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness,
if such sale or transfer is permitted hereunder or,
(y) any termination event or equivalent event pursuant to the terms of any Hedging Agreement or
(z) any default of a type covered by the subsequent clause (iii)); or (iii) in the case of any Indebtedness
or Guarantee Obligations in respect of Indebtedness referred to in clause (i) above containing or otherwise requiring observance
or compliance with any financial maintenance covenant, default in the observance of or compliance with such financial maintenance
covenant such that such Indebtedness or Guarantee Obligation shall have been Accelerated and such Acceleration shall not have
been rescinded; or
(f) If (i) the Borrower or any Material Subsidiary of the Borrower shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary of the Borrower that is not a Loan Party), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or the Borrower or any Material Subsidiary of the Borrower shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against the Borrower or any Material Subsidiary of the Borrower any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) there shall be commenced against the Borrower or any Material Subsidiary of the Borrower any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days from the entry thereof; or (iv) the Borrower or any Material Subsidiary of the Borrower shall be generally unable to, or shall admit in writing its general inability to, pay its debts as they become due; or
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(g) (i)
Any failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower, any Restricted Subsidiary or any Commonly Controlled Entity, (ii) any Person shall engage in any “prohibited
transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment
of a trustee is in the reasonable opinion of the Administrative Agent likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than a standard
termination pursuant to Section 4041(b) of ERISA or (v) either of the Borrower or any Commonly Controlled Entity shall,
or in the reasonably opinion of the Administrative Agent is reasonably likely to, incur any liability in connection with a withdrawal
from, or the Insolvency of, a Multiemployer Plan; and in each case in clauses (iiii)
through (v) above, such event or condition, together with all other such events or conditions, if any, would be reasonably expected
to result in a Material Adverse Effect; or
(h) One
or more judgments or decrees shall be entered against the Borrower or any of its Restricted Subsidiaries involving in the aggregate
at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior to or within 60
days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful) of $25,000,00067,500,000
or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof; or
(i) (i) The Security Agreement shall, or any other Security Document covering a significant portion of the Collateral shall (at any time after its execution, delivery and effectiveness) cease for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof), or any Loan Party which is a party to any such Security Document shall so assert in writing or (ii) the Lien created by any of the Security Documents shall cease to be perfected and enforceable in accordance with its terms or of the same effect as to perfection and priority purported to be created thereby with respect to any significant portion of the Term Priority Collateral (other than in connection with any termination of such Lien in respect of any Collateral as permitted hereby or by any Security Document) and such failure of such Lien to be perfected and enforceable with such priority shall have continued unremedied for a period of 20 days; or
(j) Any Loan Party shall assert in writing that the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement (after execution and delivery thereof) or any Other Intercreditor Agreement (after execution and delivery thereof) shall have ceased for any reason to be in full force and effect (other than pursuant to the terms hereof or thereof) or shall knowingly contest, or knowingly support any other Person in any action that seeks to contest, the validity or effectiveness of any such intercreditor agreement (other than pursuant to the terms hereof or thereof); or
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(k) Subject to the Borrower’s option to make a payment in full of all of the Loans, or to make a Change of Control Offer, each in accordance with Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to any Junior Debt), a Change of Control shall have occurred.
provided that, notwithstanding the foregoing, (I) no Secured Party may assert the occurrence or continuance of a Default or Event of Default with respect to any action, occurrence or event that occurred at least two (2) years prior to such assertion so long as such action, occurrence or event was disclosed to the Lenders at least two (2) years prior to such assertion and (II) any cure period for any actual or alleged Default or Event of Default may be extended or stayed by a court of competent jurisdiction to the extent such actual or alleged Default or Event of Default is the subject of litigation.
9.2 Remedies Upon an Event of Default. (a) If any Event of Default occurs and is continuing, then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or (ii) of Subsection 9.1(f) with respect to the Borrower, automatically the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement shall immediately become due and payable, and (B) if such event is any other Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, declare the Term Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement to be due and payable forthwith, whereupon the same shall immediately become due and payable.
(b) Except as expressly provided above in this Section 9, to the maximum extent permitted by applicable law, presentment, demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10
The Agents and the Other Representatives
10.1 Appointment. (a) Each Lender hereby irrevocably designates and appoints the Agents as the agents of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes each Agent, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to or required of such Agent by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Agents and the Other Representatives shall not have any duties or responsibilities, except, in the case of the Administrative Agent and the Collateral Agent, those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against any Agent or the Other Representatives.
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(b) Each of the Agents may perform any of their respective duties under this Agreement, the other Loan Documents and any other instruments and agreements referred to herein or therein by or through its respective officers, directors, agents, employees or affiliates, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent (it being understood and agreed, for avoidance of doubt and without limiting the generality of the foregoing, that the Administrative Agent and the Collateral Agent may perform any of their respective duties under the Security Documents by or through one or more of their respective affiliates). Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent.
(c) Except for Subsections 10.5, 10.8(a), (b), (c) and (e) and (to the extent of the Borrower’s rights thereunder and the conditions included therein) 10.9, the provisions of this Section 10 are solely for the benefit of the Agents and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.
10.2 The Administrative Agent and Affiliates. Each person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each person serving as an Agent hereunder in its individual capacity. Such person and its affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if such person were not an Agent hereunder and without any duty to account therefor to the Lenders.
10.3 Action by an Agent. In performing its functions and duties under this Agreement, each Agent shall act solely as an agent for the Lenders and, as applicable, the other Secured Parties, and no Agent assumes any (and shall not be deemed to have assumed any) relationship of agency or trust with or for the Borrower or any of its Subsidiaries. Each Agent may execute any of its duties under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact (including the Collateral Agent in the case of the Administrative Agent), and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact or counsel selected by it with reasonable care.
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10.4 Exculpatory Provisions. (a) No Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent:
(i) shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that such Agent shall not be required to take any action that, in its judgment or the judgment of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Requirement of Law; and
(iii) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the person serving as such Agent or any of its affiliates in any capacity.
(b) No Agent shall be liable for any action taken or not taken by it (x) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Subsection 9.2 or Subsection 11.1, as applicable) or (y) in the absence of its own bad faith, gross negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until notice describing such Default is given to such Agent by the Borrower or a Lender.
(c) No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the Security Documents or (v) the satisfaction of any condition set forth in Section 6 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term as used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.
(d) Each party to this Agreement acknowledges and agrees that the Administrative Agent may use an outside service provider for the tracking of all UCC financing statements required to be filed pursuant to the Loan Documents and notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof, and that any such service provider will be deemed to be acting at the request and on behalf of the Borrower and the other Loan Parties. No Agent shall be liable for any action taken or not taken by any such service provider.
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10.5 Acknowledgement and Representations by Lenders. Each Lender expressly acknowledges that none of the Agents or the Other Representatives nor any of their officers, directors, employees, agents, attorneys-in-fact or affiliates has made any representations or warranties to it and that no act by any Agent or any Other Representative hereafter taken, including any review of the affairs of the Borrower or any other Loan Party, shall be deemed to constitute any representation or warranty by such Agent or such Other Representative to any Lender. Each Lender further represents and warrants to the Agents, the Other Representatives and each of the Loan Parties that it has had the opportunity to review each document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof. Each Lender represents to the Agents, the Other Representatives and each of the Loan Parties that, independently and without reliance upon any Agent, the Other Representatives or any other Lender, and based on such documents and information as it has deemed appropriate, it has made and will make, its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of Holdings and the Borrower and the other Loan Parties, it has made its own decision to make its Loans hereunder and enter into this Agreement and it will make its own decisions in taking or not taking any action under this Agreement and the other Loan Documents and, except as expressly provided in this Agreement, neither the Agents nor any Other Representative shall have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter. Each Lender (other than, in the case of clause (i), an Affiliated Lender, any Parent Entity or any Unrestricted Subsidiary) represents to each other party hereto that (i) it is a bank, savings and loan association or other similar savings institution, insurance company, investment fund or company or other financial institution which makes or acquires commercial loans in the ordinary course of its business and that it is participating hereunder as a Lender for such commercial purposes and (ii) it has the knowledge and experience to be and is capable of evaluating the merits and risks of being a Lender hereunder. Each Lender acknowledges and agrees to comply with the provisions of Subsection 11.6 applicable to the Lenders hereunder.
10.6 Indemnity; Reimbursement by Lenders. (a) To the extent that the Borrower or any other Loan Party for any reason fails to indefeasibly pay any amount required under Subsection 11.5 to be paid by it to the Administrative Agent (or any sub-agent thereof) or the Collateral Agent (or any sub-agent thereof), or any Related Party of any of the foregoing, each Lender severally agrees to pay ratably according to their respective Term Credit Percentages in effect on the date on which the applicable unreimbursed expense or indemnity payment is sought under this Subsection 10.6 such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or the Collateral Agent (or any sub-agent thereof), or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), the Collateral Agent (or any sub-agent thereof), in connection with such capacity. The obligations of the Lenders under this Subsection 10.6 are subject to the provisions of Subsection 4.8.
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(b) Any Agent shall be fully justified in failing or refusing to take any action hereunder and under any other Loan Document (except actions expressly required to be taken by it hereunder or under the Loan Documents) unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
(c) All amounts due under this Subsection 10.6 shall be payable not later than three Business Days after demand therefor. The agreements in this Subsection 10.6 shall survive the payment of the Loans and all other amounts payable hereunder.
10.7 Right to Request and Act on Instructions.
(a) Each Agent may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents an Agent is permitted or desires to take or to grant, and if such instructions are promptly requested, the requesting Agent shall be absolutely entitled as between itself and the Lenders to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Lender for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against any Agent as a result of an Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of the Required Lenders (or all or such other portion of the Lenders as shall be prescribed by this Agreement) and, notwithstanding the instructions of the Required Lenders (or such other applicable portion of the Lenders), an Agent shall have no obligation to any Lender to take any action if it believes, in good faith, that such action would violate applicable law or exposes an Agent to any liability for which it has not received satisfactory indemnification in accordance with the provisions of Subsection 10.6.
(b) Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall be entitled to rely upon the advice of any such counsel, accountants or experts and shall not be liable for any action taken or not taken by it in accordance with such advice.
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10.8 Collateral Matters. (a) Each Lender authorizes and directs the Administrative Agent and the Collateral Agent to enter into (x) the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any Other Intercreditor Agreement for the benefit of the Lenders and the other Secured Parties, (y) any amendments or waivers of or supplements to or other modifications to the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement and any Other Intercreditor Agreement or other intercreditor agreements in connection with the incurrence by any Loan Party or any Subsidiary thereof of Additional Debt (each an “Intercreditor Agreement Supplement”) to permit such Additional Debt to be secured by a valid, perfected lien (with such priority as may be designated by the Borrower or relevant Subsidiary, to the extent such priority is permitted by the Loan Documents) and (z) any Incremental Commitment Amendment as provided in Subsection 2.8, any Increase Supplement as provided in Subsection 2.8, any Lender Joinder Agreement as provided in Subsection 2.8, any agreement required in connection with a Permitted Debt Exchange Offer pursuant to Subsection 2.9, any Extension Amendment as provided in Subsection 2.10 and any Specified Refinancing Amendment as provided in Subsection 2.11. Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Administrative Agent, Collateral Agent or the Required Lenders in accordance with the provisions of this Agreement, the Security Documents, the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Other Intercreditor Agreement, any Intercreditor Agreement Supplement, any Incremental Commitment Amendment, any Increase Supplement, any Lender Joinder Agreement or any agreement required in connection with a Permitted Debt Exchange Offer or any Extension Amendment or any Specified Refinancing Amendment and the exercise by the Agents or the Required Lenders of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all of the Lenders. The Collateral Agent is hereby authorized on behalf of all of the Lenders, without the necessity of any notice to or further consent from any Lender, from time to time, to take any action with respect to any applicable Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to and with the priority required by the Security Documents subject to Permitted Liens. Each Lender agrees that it will not have any right individually to enforce or seek to enforce any Security Document or to realize upon any Collateral for the Loans unless instructed to do so by the Collateral Agent, it being understood and agreed that such rights and remedies may be exercised only by the Collateral Agent. The Collateral Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
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(b) The Lenders hereby authorize each Agent, in each case at its option and in its discretion, (A) to release any Lien granted to or held by such Agent upon any Collateral (i) upon termination of the Initial Term Loan Commitments and payment and satisfaction of all of the Term Loan Facility Obligations under the Loan Documents, at any time arising under or in respect of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby that are then due and unpaid, (ii) to the extent permitted by this Agreement, constituting property being sold or otherwise disposed of (to Persons other than a Loan Party) upon the sale or other disposition thereof, (iii) to the extent permitted by this Agreement, owned by any Subsidiary Guarantor that becomes an Excluded Subsidiary or ceases to be a Restricted Subsidiary of the Borrower or constituting Capital Stock or other equity interests of an Excluded Subsidiary, (iv) if approved, authorized or ratified in writing by the Required Lenders (or such greater amount, to the extent required by Subsection 11.1) or (v) as otherwise may be expressly provided in the relevant Security Documents, (B) at the written request of the Borrower to subordinate any Lien on any Excluded Property or any other property granted to or held by such Agent, as the case may be under any Loan Document to the holder of any Permitted Lien and (C) to the extent permitted by this Agreement, to release any Subsidiary Guarantor from its Obligations under any Loan Documents to which it is a party if such Person ceases to be a Restricted Subsidiary of the Borrower or becomes an Excluded Subsidiary. Upon request by any Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing any Agent’s authority to release particular types or items of Collateral pursuant to this Subsection 10.8.
(c) The Lenders hereby authorize the Administrative Agent and the Collateral Agent, as the case may be, in each case at its option and in its discretion, to enter into any amendment, amendment and restatement, restatement, waiver, supplement or modification, and to make or consent to any filings or to take any other actions, in each case as contemplated by Subsection 11.17. Upon request by any Agent, at any time, the Required Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement will confirm in writing the Administrative Agent’s and the Collateral Agent’s authority under this Subsection 10.8(c).
(d) No Agent shall have any obligation whatsoever to the Lenders to assure that the Collateral exists or is owned by Holdings, the Borrower or any of its Restricted Subsidiaries or is cared for, protected or insured or that the Liens granted to any Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Agents in this Subsection 10.8 or in any of the Security Documents, it being understood and agreed by the Lenders that in respect of the Collateral, or any act, omission or event related thereto, each Agent may act in any manner it may deem appropriate, in its sole discretion, given such Agent’s own interest in the Collateral as a Lender and that no Agent shall have any duty or liability whatsoever to the Lenders, except for its bad faith, gross negligence or willful misconduct.
(e) Notwithstanding any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated, waived, supplemented or modified as contemplated by and in accordance with either Subsection 11.1 or 11.17, as applicable, with the written consent of the Agent party thereto and the Loan Party party thereto.
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(f) The Collateral Agent may, and hereby does, appoint the Administrative Agent as its agent for the purposes of holding any Collateral and/or perfecting the Collateral Agent’s security interest therein and for the purpose of taking such other action with respect to the Collateral as such Agents may from time to time agree.
10.9 Successor
Agent. (i) the Administrative Agent or the Collateral Agent may be removed by the Borrower or the Required Lenders
if the Administrative Agent, the Collateral Agent or a controlling affiliate of the Administrative Agent or the Collateral Agent
is subject to an Agent Default and (ii) the Administrative Agent and the Collateral Agent may resign as Administrative
Agent or Collateral Agent, respectively, in each case upon 10 days’ notice to the Administrative Agent, the Collateral Agent,
the Lenders and the Borrower, as applicable (the “Resignation Effective Date”). If the Administrative Agent
or the Collateral Agent shall be removed by the Borrower or the Required Lenders pursuant to clause (i) above or if the Administrative
Agent or the Collateral Agent shall resign as Administrative Agent or Collateral Agent, as applicable, under this Agreement and
the other Loan Documents, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
such successor agent shall be subject to approval by the Borrower; provided that such approval by the Borrower in connection
with the appointment of any successor Administrative Agent shall only be required so long as no Event of Default under Subsection
9.1(a) or (f) has occurred and is continuing; provided further, that the Borrower shall not unreasonably withhold
its approval of any successor Administrative Agent if such successor is a commercial bank with a consolidated combined capital
and surplus of at least $5,000,000,000. Upon the successful appointment of a successor agent, such successor agent shall succeed
to the rights, powers and duties of the Administrative Agent or the Collateral Agent, as applicable, and the term “Administrative
Agent” or “Collateral Agent”, as applicable, shall mean such successor agent effective upon such
appointment and approval. Whether or not a successor agent has been appointed, such resignation shall become effective in accordance
with such notice on the Resignation Effective Date. After any retiring Agent’s resignation or removal as Agent, the provisions
of this SectionSubsection
10 (including this Subsection 10.9) shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement and the other Loan Documents. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower
and such successor.
10.10 [Reserved].
10.11 Withholding Tax. To the extent required by any applicable law, each Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax, and in no event shall such Agent be required to be responsible for or pay any additional amount with respect to any such withholding. If the Internal Revenue Service or any other Governmental Authority asserts a claim that any Agent did not properly withhold tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify such Agent of a change in circumstances which rendered the exemption from or reduction of withholding tax ineffective or for any other reason, without limiting the provisions of Subsection 4.11(a) or 4.12, such Lender shall indemnify such Agent fully for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including any penalties or interest and together with any expenses incurred and shall make payable in respect thereof within 30 days after demand therefor. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Subsection 10.11. The agreements in this Subsection 10.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender and the repayment, satisfaction or discharge of all other Term Loan Facility Obligations.
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10.12 Other Representatives. None of the entities identified as Joint Bookrunners pursuant to the definition of Other Representative contained herein, shall have any duties or responsibilities hereunder or under any other Loan Document in its capacity as such. Without limiting the foregoing, no Other Representative shall have nor be deemed to have a fiduciary relationship with any Lender. At any time that any Lender serving as an Other Representative shall have transferred to any other Person (other than any of its affiliates) all of its interests in the Loans, such Lender shall be deemed to have concurrently resigned as such Other Representative.
10.13 Administrative Agent May File Proofs of Claim. In case of the pendency of any Bankruptcy Proceeding or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) is hereby authorized by the Lenders, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Subsections 4.5 and 11.5) allowed in such judicial proceeding;
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Subsections 4.5 and 11.5.
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10.14 Application of Proceeds. The Lenders, the Administrative Agent and the Collateral Agent agree, as among such parties, as follows: subject to the terms of the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement, any Other Intercreditor Agreement or any Intercreditor Agreement Supplement, after the occurrence and during the continuance of an Event of Default, all amounts collected or received by the Administrative Agent, the Collateral Agent or any Lender on account of amounts then due and outstanding under any of the Loan Documents (the “Collection Amounts”) shall, except as otherwise expressly provided herein, be applied as follows: first, to pay all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees to the extent provided herein) due and owing hereunder of the Administrative Agent and the Collateral Agent in connection with enforcing the rights of the Agents and the Lenders under the Loan Documents (including all expenses of sale or other realization of or in respect of the Collateral and any sums advanced to the Collateral Agent or to preserve its security interest in the Collateral), second, to pay all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees to the extent provided herein) due and owing hereunder of each of the Lenders in connection with enforcing such Lender’s rights under the Loan Documents, third, to pay interest on Loans then outstanding, fourth, to pay principal of Loans then outstanding and obligations under Interest Rate Agreements, Currency Agreements, Commodities Agreements and Bank Products Agreements permitted hereunder and secured by the Security Agreement, ratably among the applicable Secured Parties in proportion to the respective amounts described in this clause “fourth” payable to them, and fifth, to pay the surplus, if any, to whomever may be lawfully entitled to receive such surplus. To the extent any amounts available for distribution pursuant to clause “third” or “fourth” above are insufficient to pay all obligations described therein in full, such moneys shall be allocated pro rata among the applicable Secured Parties in proportion to the respective amounts described in the applicable clause at such time. This Subsection 10.14 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendment) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.8, 2.10 and 2.11, as applicable.
10.15 ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) of one or more Benefit Plans in connection with the Loans or the Commitments
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(ii) the prohibited transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable so as to exempt from the prohibitions of Section 406 of ERISA and Section 4975 of the Code such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, the Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto).
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SECTION 11
Miscellaneous
11.1 Amendments and Waivers. (a) Neither this Agreement nor any other Loan Document, nor any terms hereof or thereof, may be amended, supplemented, modified or waived except in accordance with the provisions of this Subsection 11.1. The Required Lenders may, or, with the written consent of the Required Lenders, the Administrative Agent may, from time to time, (x) enter into with the respective Loan Parties hereto or thereto, as the case may be, written amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of adding any provisions to this Agreement or to the other Loan Documents or changing, in any manner the rights or obligations of the Lenders or the Loan Parties hereunder or thereunder or (y) waive at any Loan Party’s request, on such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in such instrument, any of the requirements of this Agreement or the other Loan Documents or any Default or Event of Default and its consequences; provided, however, that amendments pursuant to Subsections 11.1(d) and (f) may be effected without the consent of the Required Lenders to the extent provided therein; provided further, that no such waiver and no such amendment, supplement or modification shall:
(i) (A)
reduce or forgive the amount or extend the scheduled date of maturity of any Loan or of any scheduled installment thereof (including
extending any Maturity Date)
(provided that this clause (A) shall not include any waiver, amendment or other modification of any mandatory prepayment),
(B) reduce the stated rate of any interest, commission or fee payable hereunder (other than as a result of any waiver of
the applicability of any post-default increase in interest rates), (C) extend the scheduled date of any payment of any
Lender’s Loans, (provided
that this clause (C) shall not include any waiver, amendment or other modification of any mandatory prepayment),
(D) increase the Commitment of such Lender (other than with respect to any Commitment increase pursuant to Subsection
2.8 in respect of which such Lender has agreed to be an Incremental Lender or increase of Commitments with respect to Specified
Refinancing Term Loans that such Lender has agreed to provide as a Specified Refinancing Lender pursuant to a Specified Refinancing
Amendment entered into pursuant to Subsection 2.11); it being understood that no amendment, supplement, modification or
waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default,
mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Lender,
or (E) change the currency in which any Loan is payable, in each case without the consent of each Lender directly and adversely
affected thereby (it being understood that amendments or supplements to, or waivers or modifications of any conditions precedent,
representations, warranties, covenants, Defaults or Events of Default or of a mandatory repayment of the Loans of all Lenders
shall not constitute an extension of the scheduled date of maturity, any scheduled installment, or the scheduled date of payment
of the Loans of any Lender);
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(ii) amend, modify or waive any provision of this Subsection 11.1(a) or reduce the percentage specified in the definition of “Required Lenders,” or consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents (other than pursuant to Subsection 8.7 or 11.6(a)), in each case without the written consent of all the Lenders;
(iii) release Guarantors accounting for all or substantially all of the value of the Guarantee of the Obligations pursuant to the Guaranty Agreement, or, in the aggregate (in a single transaction or a series of related transactions), all or substantially all of the Collateral without the consent of all of the Lenders, except as expressly permitted hereby or by any Security Document;
(iv) require any Lender to make Loans having an Interest Period of longer than six months or shorter than one month without the consent of such Lender;
(v) amend,
modify or waive any provision of SectionSubsection
10 or any other provision that may adversely affect the rights and duties of the Agents without the written
consent of such Agents; or
(vi) amend,
modify or waive any provision of Subsection 10.1(a), 10.4 or 10.12 without the written consent of any Other
Representative directly and adversely affected thereby; or
(vii) amend,
modify or waive the order of application of payments set forth in Subsection 4.8(a) without the consent of each Lender directly
and adversely affected thereby;
provided further
that, notwithstanding and in addition to the foregoing, and in addition to Liens, the Collateral Agent is authorized to release
pursuant to Subsection 10.8(b), the Collateral Agent may, in its discretion, release the Lien on Collateral valued in the
aggregate not in excess of $10,000,00027,000,000
in any Fiscal Year without the consent of any Lender.
(b) Any waiver and any amendment, supplement or modification pursuant to this Subsection 11.1 shall apply to each of the Lenders and shall be binding upon the Loan Parties, the Lenders, the Agents and all future holders of the Loans. In the case of any waiver, each of the Loan Parties, the Lenders and the Agents shall be restored to their former position and rights hereunder and under the other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any right consequent thereon.
(c) [Reserved].Notwithstanding
any provision herein to the contrary, no Net Short Lender shall have any right to vote its interest as a Lender and each Net Short
Lender shall be deemed to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting
with respect to such matter by Lenders who are not Net Short Lenders.
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(d) Notwithstanding
any provision herein to the contrary, this Agreement and the other Loan Documents may be amended (i) to cure any ambiguity,
mistake, omission, defect, or inconsistency with the consent of the Borrower and the Administrative Agent, (ii) in accordance
with Subsection 2.8 to incorporate the terms of any Incremental Commitments with the written consent of the Borrower and
Lenders providing such Incremental Commitments, (iii) in accordance with Subsection 2.10 to effectuate an Extension
with the written consent of the Borrower and the Extending Lenders, (iv) in accordance with Subsection 2.11 to incorporate
the terms of any Specified Refinancing Term Loan Facilities with the written consent of the Borrower and the applicable Specified
Refinancing Lenders, (v) in accordance with Subsection 7.12, to change the financial reporting convention and (vi)
with the consent of the Borrower and the Administrative Agent (in each case such consent not to be unreasonably withheld, conditioned
or delayed), in the event any mandatory prepayment or redemption provision in respect of the Net Cash Proceeds of Asset Dispositions
or Recovery Events or from Excess Cash Flow included or to be included in any Incremental Commitment Amendment or any Indebtedness
constituting Additional Obligations or Permitted
Incremental Equivalent Debt or that would constitute Additional Obligations or
Permitted Incremental Equivalent Debt would result in Incremental Term Loans or,
Additional Obligations or
Permitted Incremental Equivalent Debt, as applicable, being prepaid or redeemed on a more than ratable basis with
the Term Loans in respect of the Net Cash Proceeds from any such Asset Disposition or Recovery Event or Excess Cash Flow prepayment
to the extent such Net Cash Proceeds or Excess Cash Flow are required to be applied to repay Term Loans hereunder pursuant to
Subsection 4.4(e), to provide for mandatory prepayments of the Initial Term Loans such that, after giving effect thereto,
the prepayments made in respect of such Incremental Term Loans or,
Additional Obligations or
Permitted Incremental Equivalent Debt, as applicable, are not on more than a ratable basis. Without limiting the
generality of the foregoing, any provision of this Agreement and the other Loan Documents, including Subsection 4.4, 4.8
or 10.14 hereof, may be amended as set forth in the immediately preceding sentence pursuant to any Incremental Commitment
Amendment, any Extension Amendment or any Specified Refinancing Amendment, as the case may be, to provide for non-pro rata borrowings
and payments of any amounts hereunder as between any Tranches, including the Term Loans, any Incremental Commitments or Incremental
Loans, any Extended Term Tranche and any Specified Refinancing Tranche, or to provide for the inclusion, as appropriate, of the
Lenders of any Extended Term Tranche, Specified Refinancing Tranche or Incremental Commitments or Incremental Loans in any required
vote or action of the Required Lenders or of the Lenders of each Tranche hereunder. The Administrative Agent hereby agrees (if
requested by the Borrower) to execute any amendment referred to in this clause (d) or an acknowledgement thereof.
(e) Notwithstanding any provision herein to the contrary, this Agreement may be amended (or deemed amended) or amended and restated with the written consent of the Required Lenders, the Administrative Agent and the Borrower (x) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the existing Facilities and the accrued interest and fees in respect thereof, (y) to include, as appropriate, the Lenders holding such credit facilities in any required vote or action of the Required Lenders or of the Lenders of each Facility hereunder and (z) to provide class protection for any additional credit facilities.
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(f) Notwithstanding
any provision herein to the contrary, any Security Document may be amended (or amended and restated), restated, waived, supplemented
or modified as contemplated by Subsection 11.17 with the written consent of the Agent party thereto and the Loan Party
party thereto.
(g) If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement and/or any other Loan Document as contemplated by Subsection 11.1(a), the consent of each Lender or each affected Lender, as applicable, is required and the consent of the Required Lenders at such time is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained (each such Lender, a “Non-Consenting Lender”) then the Borrower may, on notice to the Administrative Agent and the Non-Consenting Lender, (A) replace such Non-Consenting Lender by causing such Lender to (and such Lender shall be obligated to) assign pursuant to Subsection 11.6 (with the assignment fee and any other costs and expenses to be paid by the Borrower in such instance) all of its rights and obligations under this Agreement to one or more assignees; provided that neither the Administrative Agent nor any Lender shall have any obligation to the Borrower to find a replacement Lender; provided, further, that the applicable assignee shall have agreed to the applicable change, waiver, discharge or termination of this Agreement and/or the other Loan Documents; and provided, further, that all obligations of the Borrower owing to the Non-Consenting Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender (or, at the Borrower’s option, by the Borrower) to such Non-Consenting Lender concurrently with such Assignment and Acceptance or (B) so long as no Event of Default under Subsection 9.1(a) or (f) then exists or will exist immediately after giving effect to the respective prepayment, prepay the Loans and, at the Borrower’s option, terminate the Commitments of such Non-Consenting Lender, in whole or in part, subject to Subsections 4.5(b) and 4.12, without premium or penalty. In connection with any such replacement under this Subsection 11.1(g), if the Non-Consenting Lender does not execute and deliver to the Administrative Agent a duly completed Assignment and Acceptance and/or any other documentation necessary to reflect such replacement by the later of (a) the date on which the replacement Lender executes and delivers such Assignment and Acceptance and/or such other documentation and (b) the date as of which all obligations of the Borrower owing to the Non-Consenting Lender relating to the Loans and participations so assigned shall be paid in full by the assignee Lender to such Non-Consenting Lender, then such Non-Consenting Lender shall be deemed to have executed and delivered such Assignment and Acceptance and/or such other documentation as of such date and the Borrower shall be entitled (but not obligated) to execute and deliver such Assignment and Acceptance and/or such other documentation on behalf of such Non-Consenting Lender, and the Administrative Agent shall record such assignment in the Register.
11.2 Notices. (a) All notices, requests, and demands to or upon the respective parties hereto to be effective shall be in writing (including telecopy or electronic mail), and, unless otherwise expressly provided herein, shall be deemed to have been duly given or made when delivered by hand, or three days after being deposited in the mail, postage prepaid, or, in the case of telecopy or electronic mail notice, when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day) or, in the case of delivery by a nationally recognized overnight courier, when received, addressed as follows in the case of the Borrower, the Administrative Agent and the Collateral Agent, and as set forth in Schedule A in the case of the other parties hereto, or to such other address as may be hereafter notified by the respective parties hereto and any future holders of the Loans:
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| Borrower: | Floor and Decor Outlets of America, Inc. |
| 2500 Windy Ridge Parkway, SE | |
| Attention: Trevor Lang | |
| Telephone: (770) 421-3717 | |
| Email: TLang@flooranddecor.com | |
| With copies (which shall not constitute | c/o Kirkland & Ellis LLP |
| notice) to: | 555 South Flower Street |
| Los Angeles, CA | |
| Attention: | |
| Nemecek, P.C. | |
| Facsimile: ( | |
| Telephone: ( | |
| Email: | |
| and (which shall not constitute notice): | |
| c/o Kirkland & Ellis LLP | |
| 555 California Street | |
| San Francisco, CA 94104 | |
| Attention: Katie Taylor | |
| Facsimile: (415) 439-1424 | |
| Telephone: (415) 439-1500 | |
| Email: katie.taylor@kirkland.com |
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| The Administrative Agent/the Collateral | UBS AG, Stamford Branch |
| Agent: | Attention: Structured Finance Processing |
| 600 Washington Blvd., 9th Floor | |
| Stamford, CT 06901 | |
| Facsimile: (203) 719-3888 | |
| Telephone: (203) 719-4319 | |
| Email: Agency-UBSAmericas@ubs.com | |
| With copies (which shall not constitute | Latham & Watkins LLP |
| notice) to: | 885 Third Avenue |
| New York, NY 10022 | |
| Attention: Jesse Sheff | |
| Facsimile: 212.751.4864 | |
| Telephone: 212.906.4524 | |
| Email: jesse.sheff@lw.com |
provided that any notice, request or demand to or upon the Administrative Agent or the Lenders pursuant to Subsection 4.2, 4.4 or 4.8 shall not be effective until received.
(b) Without in any way limiting the obligation of any Loan Party and its Subsidiaries to confirm in writing any telephonic notice permitted to be given hereunder, the Administrative Agent may prior to receipt of written confirmation act without liability upon the basis of such telephonic notice, believed by the Administrative Agent in good faith to be from a Responsible Officer of a Loan Party.
(c) Loan Documents may be transmitted and/or signed by facsimile or other electronic means (e.g., a “pdf” or “tiff”). The effectiveness of any such documents and signatures shall, subject to applicable law, have the same force and effect as manually signed originals and shall be binding on each Loan Party, each Agent and each Lender. The Administrative Agent may also require that any such documents and signatures be confirmed by a manually signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any facsimile or other electronic document or signature.
(d) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including electronic mail and Internet or intranet websites). Unless the Administrative Agent otherwise prescribes (with the Borrower’s consent), (i) notices and other communications sent to an e-mail address shall be deemed to have been duly made or given when delivered, provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been delivered at the opening of business on the next Business Day, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the posting thereof.
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(e) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANT THE ACCURACY OR COMPLETENESS OF MATERIALS AND/OR INFORMATION PROVIDED BY OR ON BEHALF OF THE BORROWER HEREUNDER OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.
(f) Any party to this Agreement may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent.
(g) All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any Agent, any Lender or any Loan Party, any right, remedy, power or privilege hereunder or under the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All representations and warranties made hereunder and in the other Loan Documents (or in any amendment, modification or supplement hereto or thereto) and in any certificate delivered pursuant hereto or such other Loan Documents shall survive the execution and delivery of this Agreement and the making of the Loans hereunder.
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11.5 Payment
of Expenses and Taxes; Indemnity. The Borrower agrees (a) to pay or reimburse the Agents and the Other Representatives
for (1) all their reasonable and documented out-of-pocket costs and expenses incurred in connection with (i) the
syndication of the Facilities and the development, preparation, execution and delivery of, and any amendment, supplement or modification
to, this Agreement and the other Loan Documents and any other documents prepared in connection herewith or therewith, (ii)
the consummation and administration of the transactions (including the syndication of the Initial Term Loan Commitments) contemplated
hereby and thereby and (iii) efforts to monitor the Loans and verify, protect, evaluate, assess, appraise, collect, sell,
liquidate or otherwise dispose of any of the Collateral, and (2) the reasonable and documented fees and disbursements of
Latham & Watkins LLP, in its capacity as counsel to the Agents and Other Representatives, and such other special or local
counsel, consultants, advisors, appraisers and auditors whose retention (other than during the continuance of an Event of Default)
is approved by the Borrower, (b) to pay or reimburse each Lender, each Lead Arranger and the Agents for all their reasonable
and documented out-of-pocket costs and expenses incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Loan Documents and any other documents prepared in connection herewith or therewith, including the fees
and disbursements of counsel to the Agents (limited to one firm of counsel in each appropriate jurisdiction, in each case for
the Agents), (c) to pay, indemnify, or reimburse each Lender, each Lead Arranger and the Agents for, and hold each Lender,
each Lead Arranger and the Agents harmless from, any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, any stamp, documentary, excise and other similar taxes, if any, which may be payable
or determined to be payable in connection with the execution, delivery or enforcement of, or consummation or administration of
any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement, the other Loan Documents and any such other documents (all such items collectively, “Other
Taxes”), and (d) to pay, indemnify or reimburse each Lender, each Lead Arranger, each Agent (and any sub-agent
thereof) and each Related Party of any of the foregoing Persons (each, an “Indemnitee”) for, and hold each
Indemnitee harmless from and against, any and all other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever (in the case of fees and disbursements of counsel, limited
to one firm of counsel for all Indemnitees and, if necessary, one firm of local counsel in each appropriate jurisdiction, in each
case for all Indemnitees (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such
conflict informs the Borrower of such conflict and thereafter, after receipt of the Borrower’s consent (which shall not
be unreasonably withheld), retains its own counsel, of another firm of counsel for such affected Indemnitee)) arising out of,
relating to, or in connection with (i) the execution, delivery, enforcement, performance and administration of this Agreement,
the other Loan Documents and any such other documents, including any of the foregoing relating to the use of proceeds of the Loans,
(ii) the violation of, noncompliance with or liability under, any Environmental Law applicable to the operations of the
Borrower or any of its Restricted Subsidiaries or any of the property of the Borrower or any of its Restricted Subsidiaries or
any other property at which Materials of Environmental Concern generated by the Borrower or any of its Restricted Subsidiaries
was managed, released, or discharged, or (iii) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or any Loan Party
and regardless of whether any Indemnitee is a party thereto (all the foregoing in this clause (d), collectively, the “Indemnified
Liabilities”), provided that the Borrower shall not have any obligation hereunder to any Lead Arranger, any Other
Representative, any Agent (or any sub-agent thereof) or any Lender (or any Related Party of any such Lead Arranger, Other Representative,
Agent (or any sub-agent thereof) or Lender ) with respect to Indemnified Liabilities arising from (i) the gross negligence,
bad faith or willful misconduct of any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender (or
any Related Party of any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender), as the case may
be, as determined by a court of competent jurisdiction in a final and non-appealable decision, (ii) a material breach of
the Loan Documents by any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender (or any Related
Party of any such Lead Arranger, Other Representative, Agent (or any sub-agent thereof) or Lender), as the case may be, as determined
by a court of competent jurisdiction in a final and non-appealable decision or (iii) claims against such Indemnitee or
any Related Party brought by any other Indemnitee that do not involve claims against any Lead Arranger or Agent in its capacity
as such. Neither the Borrower nor any Indemnitee shall be liable for any indirect, special, punitive or consequential damages
hereunder; provided that nothing contained in this sentence shall limit the Borrower’s indemnity or reimbursement
obligations under this Subsection 11.5 to the extent such indirect, special, punitive or consequential damages are included
in any third-party claim in connection with which such Indemnitee is entitled to indemnification hereunder. All amounts due under
this Subsection 11.5 shall be payable not later than 30 days after written demand therefor. Statements reflecting amounts
payable by the Loan Parties pursuant to this Subsection 11.5 shall be submitted to the address of the Borrower set forth in Subsection
11.2, or to such other Person or address as may be hereafter designated by the Borrower in a notice to the Administrative
Agent. Notwithstanding the foregoing, except as provided in SubsectionsSubsection
11.5(b) and (c)
above, Borrower shall not have any obligation under this Subsection 11.5 to any Indemnitee with respect to any tax,
levy, impost, duty, charge, fee, deduction or withholding imposed, levied, collected, withheld or assessed by any Governmental
AuthorityTax, other
than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. The agreements in this Subsection
11.5 shall survive repayment of the Loans and all other amounts payable hereunder.
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11.6 Successors and Assigns; Participations and Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) other than in accordance with Subsection 8.7, Borrower shall not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with Subsection 2.10(e), Subsection 4.13(d), Subsection 11.1(g) or this Subsection 11.6.
(b) (i) Subject to the conditions set forth in Subsection 11.6(b)(ii) below, any Lender other than a Conduit Lender may, in the ordinary course of business and in accordance with applicable law, assign (other than to a Disqualified Lender that has been identified as such by the Borrower to the Administrative Agent or any natural person) to one or more assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including its Commitments and/or Loans, pursuant to an Assignment and Acceptance) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of:
(A) the
Borrower; provided, that the Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10
Business Days after having received notice thereof; provided, further, that no consent of the Borrower
shall be required for an assignment (x) of Term Loans to a Lender, an Affiliate of a Lender, or an Approved Fund (as defined
below); provided, that if any Lender assigns all or a portion of its rights and obligations with respect to the Term Loans
under this Agreement to one of its Affiliates in connection with or in contemplation of the sale or other disposition of its interest
in such Affiliate, the Borrower’s prior written consent shall be required for such assignment, and, (y) if an Event
of Default under Subsection 9.1(a) or (f) with respect to the Borrower has occurred and is continuing, to any other
Person; and
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(B) the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); provided that no consent of the Administrative Agent shall be required for an assignment to a Lender or an Affiliate of a Lender or an Approved Fund.
(i) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall be in an amount of an integral multiple of $1,000,000 unless the Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Borrower shall be required if an Event of Default under Subsection 9.1(a) or (f) with respect to the Borrower has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500 (unless waived by the Administrative Agent in any given case); provided that for concurrent assignments to two or more Approved Funds such assignment fee shall only be required to be paid once in respect of and at the time of such assignments;
(C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire;
(D) any assignment of Incremental Commitments or Loans to an Affiliated Lender shall also be subject to the requirements of Subsections 11.6(h) and (i); and
(E) any Term Loans acquired by Holdings, the Borrower or any Restricted Subsidiary shall be retired and cancelled promptly upon acquisition thereof.
For the purposes of this Subsection 11.6, the term “Approved Fund” has the following meaning: “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. Notwithstanding the foregoing, no Lender shall be permitted to make assignments under this Agreement to any Disqualified Lender and any such assignment shall be void ab initio, except to the extent the Borrower has consented to such assignment in writing (in which case such Lender will not be considered a Disqualified Lender solely for that particular assignment).
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(ii) Subject to acceptance and recording thereof pursuant to clause (b)(iv) below, from and after the effective date specified in each Assignment and Acceptance the Assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and bound by any related obligations under) Subsections 4.10, 4.11, 4.12, 4.13 and 11.5, and bound by its continuing obligations under Subsection 11.16). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with Subsection 2.10(e), Subsection 4.13(d), Subsection 11.1(g) or this Subsection 11.6 shall, to the extent it would comply with Subsection 11.6(c), be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (c) of this Subsection 11.6 (and any attempted assignment, transfer or participation which does not comply with this Subsection 11.6 shall be null and void).
(iii) The Borrower hereby designates the Administrative Agent, and the Administrative Agent agrees, to serve as the Borrower’s agent, solely for purposes of this Subsection 11.6, to maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Initial Term Loan Commitments or Incremental Commitments of, and interest and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower (and, solely with respect to entries applicable to such Lender, any Lender), at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding anything herein to the contrary, any assignment by a Lender to a Disqualified Lender shall be deemed to be not effective and the Register shall be modified to reflect a reversal of such assignment, and the Borrower shall be entitled to pursue any remedy available to them (whether at law or in equity, including specific performance to unwind such assignment) against the Lender and such Disqualified Lender. In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender or otherwise have any responsibility or liability for monitoring the list of Disqualified Lenders or enforcing the Borrower’s or any Lender’s compliance with the terms of any of the provisions set forth herein with respect to Disqualified Lenders. Notwithstanding the foregoing, in no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any Lender is an Affiliated Lender nor shall the Administrative Agent be obligated to monitor the aggregate amount of Term Loans or Incremental Term Loans held by Affiliated Lenders. Upon request by the Administrative Agent, the Borrower shall use commercially reasonable efforts to (i) promptly (and in any case, not less than five Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Subsection 11.1) provide to the Administrative Agent, a list of, to the Borrower’s knowledge, all Affiliated Lenders holding Term Loans or Incremental Term Loans at the time of such notice and (ii) not less than three Business Days (or shorter period as agreed to by the Administrative Agent) prior to the proposed effective date of any amendment, consent or waiver pursuant to Subsection 11.1, provide to the Administrative Agent, a list of, to the Borrower’s knowledge, all Affiliated Debt Funds holding Term Loans or Incremental Term Loans at the time of such notice.
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(iv) Each Lender that sells a participation shall, acting for itself and, solely for this purpose, as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary (x) to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or (y) for the Borrower to enforce its rights hereunder. The entries in the Participant Register shall be conclusive absent manifest error, and a Lender shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender (unless such assignment is being made in accordance with Subsection 2.10(e), Subsection 4.13(d) or Subsection 11.1(g), in which case the effectiveness of such Assignment and Acceptance shall not require execution by the assigning Lender) and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder), the processing and recordation fee referred to in this Subsection 11.6(b) and any written consent to such assignment required by this Subsection 11.6(b), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this clause (vi).
(vi) On or prior to the effective date of any assignment pursuant to this Subsection 11.6(b), the assigning Lender shall surrender to the Administrative Agent any outstanding Notes held by it evidencing the Loans which are being assigned. Any Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower marked “cancelled”.
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Notwithstanding the foregoing provisions of this Subsection 11.6(b) or any other provision of this Agreement, if the Borrower shall have consented thereto in writing in its sole discretion, the Administrative Agent shall have the right, but not the obligation, to effectuate assignments of Loans, Incremental Commitments and Initial Term Loan Commitments via an electronic settlement system acceptable to Administrative Agent and the Borrower as designated in writing from time to time to the Lenders by Administrative Agent (the “Settlement Service”). At any time when the Administrative Agent elects, in its sole discretion, to implement such Settlement Service, each such assignment shall be effected by the assigning Lender and proposed Assignee pursuant to the procedures then in effect under the Settlement Service, which procedures shall be subject to the prior written approval of the Borrower and shall be consistent with the other provisions of this Subsection 11.6(b). Each assigning Lender and proposed Assignee shall comply with the requirements of the Settlement Service in connection with effecting any assignment of Loans, Incremental Commitments and Initial Term Loan Commitments pursuant to the Settlement Service. Assignments and assumptions of Loans, Incremental Commitments and Initial Term Loan Commitments shall be effected by the provisions otherwise set forth herein until the Administrative Agent notifies the Lenders of the Settlement Service as set forth herein.
Furthermore, no Assignee, which as of the date of any assignment to it pursuant to this Subsection 11.6(b) would be entitled to receive any greater payment under Subsection 4.10, 4.11, 4.12 or 11.5 than the assigning Lender would have been entitled to receive with respect to any withholding tax imposed as of the date of such assignment, with respect to the rights assigned shall notwithstanding anything to the contrary in this Agreement be entitled to receive such greater payments unless the assignment was made after an Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing or the Borrower has expressly consented in writing to waive the benefit of this provision at the time of such assignment.
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(c) (i) Any Lender other than a Conduit Lender may, in the ordinary course of its business and in accordance with applicable law, without the consent of the Borrower or the Administrative Agent, sell participations (other than to any Disqualified Lender or a natural person) to one or more banks or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Initial Term Loan Commitments, Incremental Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, (D) the Borrower, the Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (E) in the case of any participation to a Permitted Affiliated Assignee, such participation shall be governed by the provisions of Subsection 11.6(h)(ii) to the same extent as if each reference therein to an assignment of a Loan were to a participation of a Loan and the references to Affiliated Lender were to such Permitted Affiliated Assignee in its capacity as a participant. Any agreement pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, supplement, modification or waiver of any provision of this Agreement; provided that such agreement may provide that such Lender will not, without the consent of the Participant, agree to any amendment, supplement, modification or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to clause (i) or (iii) of the second proviso to the second sentence of Subsection 11.1(a) and (2) directly affects such Participant. Subject to Subsection 11.6(c)(ii), the Borrower agrees that each Participant shall be entitled to the benefits of (and shall have the related obligations under) Subsections 4.10, 4.11, 4.12, 4.13 and 11.5 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Subsection 11.6(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Subsection 11.7(b) as though it were a Lender, provided that such Participant shall be subject to Subsection 11.7(a) as though it were a Lender. Notwithstanding the foregoing, no Lender shall be permitted to sell participations under this Agreement to any Disqualified Lender and any such participation shall be deemed to be not effective, except to the extent the Borrower has consented to such participation in writing (in which case such Lender will not be considered a Disqualified Lender solely for that particular participation). Any attempted participation which does not comply with Subsection 11.6 shall be deemed to be not effective.
(ii) No Loan Party shall be obligated to make any greater payment under Subsection 4.10, 4.11, 4.12 or 11.5 than it would have been obligated to make in the absence of any participation, unless the sale of such participation is made with the prior written consent of the Borrower and the Borrower expressly waives the benefit of this provision at the time of such participation. Any Participant that is not incorporated under the laws of the United States of America or a state thereof shall not be entitled to the benefits of Subsection 4.11 unless such Participant complies with Subsection 4.11(b) and provides the forms and certificates referenced therein to the Lender that granted such participation.
(d) Any Lender, without the consent of the Borrower or the Administrative Agent, may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or central bank of a member state of the European Union, and this Subsection 11.6 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute (by foreclosure or otherwise) any such pledgee or Assignee for such Lender as a party hereto.
(e) No assignment or participation made or purported to be made to any Assignee or Participant shall be effective without the prior written consent of the Borrower if it would require the Borrower to make any filing with any Governmental Authority or qualify any Loan or Note under the laws of any jurisdiction, and the Borrower shall be entitled to request and receive such information and assurances as it may reasonably request from any Lender or any Assignee or Participant to determine whether any such filing or qualification is required or whether any assignment or participation is otherwise in accordance with applicable law.
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(f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it may have funded hereunder to its designating Lender without the consent of the Borrower or the Administrative Agent and without regard to the limitations set forth in Subsection 11.6(b). The Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any domestic or foreign bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state, federal or provincial bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance. Each such indemnifying Lender shall pay in full any claim received from the Borrower pursuant to this Subsection 11.6(f) within 30 Business Days of receipt of a certificate from a Responsible Officer of the Borrower specifying in reasonable detail the cause and amount of the loss, cost, damage or expense in respect of which the claim is being asserted, which certificate shall be conclusive absent manifest error. Without limiting the indemnification obligations of any indemnifying Lender pursuant to this Subsection 11.6(f), in the event that the indemnifying Lender fails timely to compensate the Borrower for such claim, any Loans held by the relevant Conduit Lender shall, if requested by the Borrower, be assigned promptly to the Lender that administers the Conduit Lender and the designation of such Conduit Lender shall be void.
(g) If the Borrower wishes to replace the Loans under any Facility with ones having different terms, it shall have the option, with the consent of the Administrative Agent and subject to at least three Business Days’ (or such shorter period as agreed to by the Administrative Agent in its reasonable discretion) advance notice to the Lenders under such Facility, instead of prepaying the Loans to be replaced, to (i) require the Lenders under such Facility to assign such Loans to the Administrative Agent or its designees and (ii) amend the terms thereof in accordance with Subsection 11.1. Pursuant to any such assignment, all Loans to be replaced shall be purchased at par (allocated among the Lenders under such Facility in the same manner as would be required if such Loans were being optionally prepaid by the Borrower), accompanied by payment of any accrued interest and fees thereon and any amounts owing pursuant to Subsection 4.12. By receiving such purchase price, the Lenders under such Facility shall automatically be deemed to have assigned the Loans under such Facility pursuant to the terms of the form of the Assignment and Acceptance, the Administrative Agent shall record such assignment in the Register and accordingly no other action by such Lenders shall be required in connection therewith. The provisions of this clause (g) are intended to facilitate the maintenance of the perfection and priority of existing security interests in the Collateral during any such replacement.
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(h) (i) Notwithstanding anything to the contrary contained herein, (x) any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Loans or Commitments to any Parent Entity, the Borrower, any Subsidiary or an Affiliated Lender and (y) any Parent Entity, the Borrower and any Subsidiary may, from time to time, purchase or prepay Loans, in each case, on a non-pro rata basis through (1) Dutch auction procedures open to all applicable Lenders on a pro rata basis in accordance with customary procedures to be agreed between the Borrower and the Administrative Agent (or other applicable agent managing such auction); provided that (A) any such Dutch auction by the Borrower or its Subsidiaries shall be made in accordance with Subsection 4.4(l) and (B) any such Dutch auction by any Parent Entity shall be made on terms substantially similar to Subsection 4.4(l) or on other terms to be agreed between such Parent Entity and the Administrative Agent (or other applicable agent managing such auction) or (2) open market purchases; provided further that:
(1) such Affiliated Lender and such other Lender shall execute and deliver to the Administrative Agent an assignment agreement substantially in the form of Exhibit L hereto (an “Affiliated Lender Assignment and Assumption”) and the Administrative Agent shall record such assignment in the Register;
(2) at the time of such assignment after giving effect to such assignment, the aggregate principal amount of all Term Loans held (or participated in) by Affiliated Lenders that are not Affiliated Debt Funds shall not exceed 25.00% of the aggregate principal amount of all Term Loans outstanding under this Agreement;
(3) any such Term Loans acquired by (x) Holdings, the Borrower or a Restricted Subsidiary shall be retired or cancelled promptly upon the acquisition thereof and (y) an Affiliated Lender may, with the consent of the Borrower, be contributed to the Borrower, whether through a Parent Entity or otherwise, and exchanged for debt or equity securities of the Borrower or such Parent Entity that are otherwise permitted to be issued at such time pursuant to the terms of this Agreement, so long as any Term Loans so acquired by the Borrower shall be retired and cancelled promptly upon the acquisition thereof;
(4) [reserved]; and
(5) each Lender making such assignment to, or taking such assignment from, such Affiliated Lender acknowledges and agrees that in connection with such assignment, (1) such Affiliated Lender then may have, and later may come into possession of Excluded Information, (2) such Lender has independently and, without reliance on the Affiliated Lender, Holdings, the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to enter into such assignment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of Holdings, the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against Holdings, the Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender entering into such an assignment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders.
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(ii) Notwithstanding anything to the contrary in this Agreement, no Affiliated Lender that is not an Affiliated Debt Fund shall have any right to (A) attend (including by telephone) any meeting or discussions (or portion thereof) among the Administrative Agent or any Lender to which representatives of the Loan Parties are not invited, (B) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and/or one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives or (C) receive advice of counsel to the Administrative Agent, the Collateral Agent or any other Lender or challenge their attorney client privilege.
(iii) Notwithstanding anything in Subsection 11.1 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders, all affected Lenders or all Lenders have (A) consented (or not consented) to any amendment or waiver of any provision of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to any Loan Document, or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, an Affiliated Lender that is not an Affiliated Debt Fund shall be deemed to have voted its interest as a Lender without discretion in the same proportion as the allocation of voting with respect to such matter by Lenders who are not such Affiliated Lenders; provided that (I) to the extent Lenders are being compensated by the Borrower for consenting to an amendment, modification, waiver or any other action, each Affiliated Lender who has been deemed to have voted its Loans in accordance with this Subsection 11.6(h)(iii) shall be entitled to be compensated on the same basis as each consenting Lender as if it had voted all of its Loans in favor of the applicable amendment, modification, waiver or other action); (II) no amendment, modification, waiver, consent or other action with respect to any Loan Document shall deprive such Affiliated Lender of its ratable share of any payments of Loans of any class to which such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent; and (III) that such Affiliated Lender shall have the right to approve any amendment, modification, waiver or consent that (x) disproportionately and adversely affects such Affiliated Lender in its capacity as a Lender or affects such Affiliated Lender differently in its capacity as a Lender than other Lenders or (y) is of the type described in Subsections 11.1(a)(i) through (xi) (other than subclauses (v) and (vi)); and in furtherance of the foregoing, (x) the Affiliated Lender agrees to execute and deliver to the Administrative Agent any instrument reasonably requested by the Administrative Agent to evidence the voting of its interest as a Lender in accordance with the provisions of this Subsection 11.6(h)(iii); provided that if the Affiliated Lender fails to promptly execute such instrument such failure shall in no way prejudice any of the Administrative Agent’s rights under this Subsection 11.6(h)(iii) and (y) the Administrative Agent is hereby appointed (such appointment being coupled with an interest) by such Affiliated Lender as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Subsection 11.6(h)(iii).
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(iv) Each Affiliated Lender that is not an Affiliated Debt Fund, solely in its capacity as a Lender, hereby agrees, and each Affiliated Lender Assignment and Assumption agreement shall provide a confirmation that, if any of Holdings, the Borrower or any Restricted Subsidiary shall be subject to any voluntary or involuntary bankruptcy, reorganization, insolvency or liquidation proceeding (each, a “Bankruptcy Proceeding”), (i) such Affiliated Lender shall not take any step or action in such Bankruptcy Proceeding to object to, impede, or delay the exercise of any right or the taking of any action by the Administrative Agent (or the taking of any action by a third party that is supported by the Administrative Agent) in relation to such Affiliated Lender’s claim with respect to its Term Loans (“Claim”) (including objecting to any debtor in possession financing, use of cash collateral, grant of adequate protection, sale or disposition, compromise, or plan of reorganization) so long as such Affiliated Lender in its capacity as a Lender is treated in connection with such exercise or action on the same or better terms as the other Lenders and (ii) with respect to any matter requiring the vote of Lenders during the pendency of a Bankruptcy Proceeding (including voting on any plan of reorganization), the Term Loans held by such Affiliated Lender (and any Claim with respect thereto) shall be deemed to be voted in accordance with Subsection 11.6(h)(iii) above so long as such Affiliate Lender in its capacity as a Lender is treated in connection with the exercise of such right or taking of such action on the same or better terms as the other Lenders. For the avoidance of doubt, the Lenders and each Affiliated Lender that is not an Affiliated Debt Fund agree and acknowledge that the provisions set forth in this Subsection 11.6(h)(iv) and the related provisions set forth in each Affiliated Lender Assignment and Assumption constitute a “subordination agreement” as such term is contemplated by, and utilized in, Section 510(a) of the United States Bankruptcy Code, and, as such, it is their intention that this Subsection 11.6(h)(iv) would be enforceable for all purposes in any case where Holdings, the Borrower or any Restricted Subsidiary has filed for protection under any law relating to bankruptcy, insolvency or reorganization or relief of debtors applicable to Holdings, the Borrower or such Restricted Subsidiary, as applicable. Each Affiliated Lender that is not an Affiliated Debt Fund hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender (solely in respect of Loans, Commitments and participations therein and not in respect of any other claim or status such Affiliated Lender may otherwise have), from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this Subsection 11.6(h)(iv).
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(i) Notwithstanding anything to the contrary in this Agreement, Subsection 11.1 or the definition of “Required Lenders” (x) with respect to any assignment or participation to or by an Affiliated Debt Fund, such assignment or participation shall be made pursuant to an open market purchase and (y) for purposes of determining whether the Required Lenders have (i) consented (or not consented) to any amendment, supplement, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent, Collateral Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, all Term Loans held by Affiliated Debt Funds may not account for more than 50.0% of the Term Loans of consenting Lenders included in determining whether the Required Lenders have consented to any action pursuant to Subsection 11.1.
(j) Notwithstanding the foregoing provisions of this Subsection 11.6, nothing in this Subsection 11.6 is intended to or should be construed to limit the Borrower’s right to prepay the Loans as provided hereunder, including under Subsection 4.4.
11.7 Adjustments; Set-off; Calculations; Computations. (a) If any Lender (a “Benefited Lender”) shall at any time receive any payment of all or part of its Loans, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Subsection 9.1(f), or otherwise (except pursuant to Subsection 2.8, 2.9, 2.10, 2.11, 4.4, 4.5(b), 4.9, 4.10, 4.11, 4.12, 4.13(d), 11.1(g) or 11.6)), in a greater proportion than any such payment to or collateral received by any other Lender, if any, in respect of such other Lender’s Loans owing to it, or interest thereon, such Benefited Lender shall purchase for cash from the other Lenders an interest (by participation, assignment or otherwise) in such portion of each such other Lender’s Loans owing to it, or shall provide such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefited Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior notice to the Borrower, any such notice being expressly waived by the Borrower to the extent permitted by applicable law, upon the occurrence of an Event of Default under Subsection 9.1(a) to set-off and appropriate and apply against any amount then due and payable under Subsection 9.1(a) by the Borrower any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or agency thereof to or for the credit or the account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such set-off and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such set-off and application.
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11.8 Judgment. (a) If, for the purpose of obtaining or enforcing judgment against any Loan Party in any court in any jurisdiction, it becomes necessary to convert into any other currency (such other currency being hereinafter in this Subsection 11.8 referred to as the “Judgment Currency”) an amount due under any Loan Document in any currency (the “Obligation Currency”) other than the Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day immediately preceding the date of actual payment of the amount due, in the case of any proceeding in the courts of any other jurisdiction that will give effect to such conversion being made on such date, or the date on which the judgment is given, in the case of any proceeding in the courts of any other jurisdiction (the applicable date as of which such conversion is made pursuant to this Subsection 11.8 being hereinafter in this Subsection 11.8 referred to as the “Judgment Conversion Date”).
(b) If, in the case of any proceeding in the court of any jurisdiction referred to in Subsection 11.8(a), there is a change in the rate of exchange prevailing between the Judgment Conversion Date and the date of actual receipt for value of the amount due, the applicable Loan Party shall pay such additional amount (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount actually received in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of the Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion Date. Any amount due from any Loan Party under this Subsection 11.8(b) shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of any of the Loan Documents.
(c) The term “rate of exchange” in this Subsection 11.8 means the rate of exchange at which the Administrative Agent, on the relevant date at or about 12:00 noon, New York City time, would be prepared to sell, in accordance with its normal course foreign currency exchange practices, the Obligation Currency against the Judgment Currency.
11.9 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement in any number of separate counterparts (including by telecopy and other electronic transmission), and all of such counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Agreement signed by all the parties shall be delivered to the Borrower and the Administrative Agent.
11.10 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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11.11 Integration. This Agreement and the other Loan Documents represent the entire agreement of each of the Loan Parties party hereto and thereto, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by any of the Loan Parties party hereto, the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents, as applicable.
11.12 Governing Law. THIS AGREEMENT AND ANY NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND ANY NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
11.13 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this Agreement and the other Loan Documents to which it is a party to the exclusive general jurisdiction of the Supreme Court of the State of New York for the County of New York (the “New York Supreme Court”), and the United States District Court for the Southern District of New York (the “Federal District Court,” and together with the New York Supreme Court, the “New York Courts”) and appellate courts from either of them; provided that nothing in this Agreement shall be deemed or operate to preclude (i) any Agent from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Term Loan Facility Obligations (in which case any party shall be entitled to assert any claim or defense, including any claim or defense that this Subsection 11.13 would otherwise require to be asserted in a legal action or proceeding in a New York Court), or to enforce a judgment or other court order in favor of the Administrative Agent or the Collateral Agent, (ii) any party from bringing any legal action or proceeding in any jurisdiction for the recognition and enforcement of any judgment, (iii) if all such New York Courts decline jurisdiction over any Person, or decline (or in the case of the Federal District Court, lack) jurisdiction over any subject matter of such action or proceeding, a legal action or proceeding may be brought with respect thereto in another court having jurisdiction and (iv) in the event a legal action or proceeding is brought against any party hereto or involving any of its assets or property in another court (without any collusive assistance by such party or any of its Subsidiaries or Affiliates), such party from asserting a claim or defense (including any claim or defense that this Subsection 11.13(a) would otherwise require to be asserted in a legal proceeding in a New York Court) in any such action or proceeding;
(b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum and agrees not to plead or claim the same;
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(c) agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the Borrower, the applicable Lender or the Administrative Agent, as the case may be, at the address specified in Subsection 11.2 or at such other address of which the Administrative Agent, any such Lender and the Borrower shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or (subject to clause (a) above) shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Subsection 11.13 any consequential or punitive damages.
11.14 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents;
(b) neither any Agent nor any Other Representative or Lender has any fiduciary relationship with or duty to the Borrower arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Administrative Agent and Lenders, on the one hand, and the Borrower, on the other hand, in connection herewith or therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby and thereby among the Lenders or among the Borrower and the Lenders.
11.15 Waiver of Jury Trial. THE BORROWER, THE AGENTS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY NOTES OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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11.16 Confidentiality. (a) Each Agent and each Lender agrees to keep confidential any information (“Information”) (a) provided to it by or on behalf of Holdings or the Borrower or any of their respective Subsidiaries pursuant to or in connection with the Loan Documents or (b) obtained by such Lender based on a review of the books and records of Holdings or the Borrower or any of their respective Subsidiaries; provided that nothing herein shall prevent any Lender from disclosing any such Information (i) to any Agent, any Other Representative or any other Lender, (ii) to any Transferee, or prospective Transferee or any creditor or any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations which agrees to comply with the provisions of this Subsection 11.16 pursuant to a written instrument (or electronically recorded agreement from any Person listed above in this clause (ii), in respect to any electronic Information (whether posted or otherwise distributed on any Platform)) for the benefit of the Borrower (it being understood that each relevant Lender shall be solely responsible for obtaining such instrument (or such electronically recorded agreement)), (iii) to its Affiliates and the employees, officers, partners, directors, agents, attorneys, accountants and other professional advisors of it and its Affiliates, provided that such Lender shall inform each such Person of the agreement under this Subsection 11.16 and take reasonable actions to cause compliance by any such Person referred to in this clause (iii) with this agreement (including, where appropriate, to cause any such Person to acknowledge its agreement to be bound by the agreement under this Subsection 11.16); provided, further, that no disclosure will be made to any Lender’s Affiliates or any of their respective officers, directors, partners, members, employees, legal counsel, independent auditors and other experts or agents that are engaged as principals primarily in private equity, mezzanine financing or venture capital other than senior employees, on a need to know basis, who are required, in accordance with industry regulations or such Lender’s internal policies and procedures to act in a supervisory capacity and such Lender’s internal legal, compliance, risk management, credit or investment committee members, (iv) upon the request or demand of any Governmental Authority having jurisdiction over such Lender or its affiliates or to the extent required in response to any order of any court or other Governmental Authority or as shall otherwise be required pursuant to any Requirement of Law, provided that, other than with respect to any disclosure to any bank regulatory authority, such Lender shall, unless prohibited by any Requirement of Law, notify the Borrower of any disclosure pursuant to this clause (iv) as far in advance as is reasonably practicable under such circumstances, (v) which has been publicly disclosed other than in breach of this Agreement, (vi) in connection with the exercise of any remedy hereunder, under any Loan Document or under any Interest Rate Agreement, (vii) in connection with periodic regulatory examinations and reviews conducted by the National Association of Insurance Commissioners or any Governmental Authority having jurisdiction over such Lender or its affiliates (to the extent applicable), (viii) in connection with any litigation to which such Lender (or, with respect to any Interest Rate Agreement, any Affiliate of any Lender party thereto) may be a party subject to the proviso in clause (iv) above, and (ix) if, prior to such Information having been so provided or obtained, such Information was already in an Agent’s or a Lender’s possession on a non-confidential basis without a duty of confidentiality to the Borrower being violated. Notwithstanding any other provision of this Agreement, any other Loan Document or any Assignment and Acceptance, the provisions of this Subsection 11.16 shall survive with respect to each Agent and Lender until the second anniversary of such Agent or Lender ceasing to be an Agent or a Lender, respectively; provided that in no case shall any Agent or Lender cease to be obligated pursuant to this Subsection 11.16 prior to the third anniversary of the Closing Date.
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(b) Each Lender acknowledges that any such information referred to in Subsection 11.16(a), and any information (including requests for waivers and amendments) furnished by the Borrower or the Administrative Agent pursuant to or in connection with this Agreement and the other Loan Documents, may include material non-public information concerning the Borrower, the other Loan Parties and their respective Affiliates or their respective securities. Each Lender represents and confirms that such Lender has developed compliance procedures regarding the use of material non-public information; that such Lender will handle such material non-public information in accordance with those procedures and applicable law, including United States federal and state securities laws; and that such Lender has identified to the Administrative Agent a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law.
11.17 Incremental Indebtedness; Additional Debt. In connection with the Incurrence by any Loan Party or any Subsidiary thereof of any Incremental Indebtedness, Specified Refinancing Indebtedness or Additional Debt, each of the Administrative Agent and the Collateral Agent agree to execute and deliver the ABL/Term Loan Intercreditor Agreement, any Pari Passu Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement or any Intercreditor Agreement Supplement and amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, any Security Document (including but not limited to any Mortgages and UCC fixture filings), and to make or consent to any filings or take any other actions in connection therewith, as may be reasonably deemed by the Borrower to be necessary or reasonably desirable for any Lien on the assets of any Loan Party permitted to secure such Incremental Indebtedness, Specified Refinancing Indebtedness or Additional Debt to become a valid, perfected lien (with such priority as may be designated by the relevant Loan Party or Subsidiary, to the extent such priority is permitted by the Loan Documents) pursuant to the Security Document being so amended, amended and restated, restated, waived, supplemented or otherwise modified or otherwise.
11.18 USA PATRIOT Act Notice. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub.L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”), it is required to obtain, verify, and record information that identifies each Loan Party, which information includes the name of each Loan Party and other information that will allow such Lender to identify each Loan Party in accordance with the Patriot Act, and each Loan Party agrees to provide such information from time to time to any Lender.
11.19 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance or Affiliated Lender Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures 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.
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11.20 Reinstatement. This Agreement shall remain in full force and effect and continue to be effective should any petition or other proceeding be filed by or against any Loan Party for liquidation or reorganization, should any Loan Party become insolvent or make an assignment for the benefit of any creditor or creditors or should an interim receiver, receiver, receiver and manager or trustee be appointed for all or any significant part of any Loan Party’s assets, and shall continue to be effective or to be reinstated, as the case may be, if at any time payment and performance of the obligations of the Borrower under the Loan Documents, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the obligations, whether as a fraudulent preference, reviewable transaction or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the obligations of the Borrower hereunder shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
11.21 Postponement of Subrogation. The Borrower agrees that it will not exercise any rights which it may acquire by way of rights of subrogation under this Agreement, by any payments made hereunder or otherwise, until the prior payment in full in cash of all of the obligations hereunder and under any other Loan Document. Any amount paid to the Borrower on account of any such subrogation rights prior to the payment in full in cash of all of the obligations hereunder and under any other Loan Document shall be held in trust for the benefit of the applicable Secured Parties and shall immediately be paid to the Administrative Agent for the benefit of the applicable Secured Parties and credited and applied against the obligations of the Borrower, whether matured or unmatured, in such order as the Administrative Agent shall elect.
11.22 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
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11.23 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any swap or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Subsection 11.23, the following terms have the following meanings:
“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.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
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“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.
“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).
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed, all as of the date first written above.
[Signature
PAge To
TErm
LOan CRedit
AGreement]
Exhibit 10.2
Execution Version
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT AND AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY AGREEMENT, dated as of February 14, 2020 (this “Amendment”), is entered into by and among FDO ACQUISITION CORP., a Delaware corporation (“Borrower Holdco”), FLOOR AND DECOR OUTLETS OF AMERICA, INC., a Delaware corporation (the “Lead Borrower”), FD SALES COMPANY LLC, a Delaware limited liability company (“FD Sales” and, collectively with Borrower Holdco and the Lead Borrower, the “Companies” and each, a “Company”), WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent and collateral agent (in such capacities, the “Agent”) and each of the Lenders party hereto.
PRELIMINARY STATEMENTS:
WHEREAS, the Companies, the Agent, the Lenders (other than the New Lender (as defined below)) (the “Existing Lenders”) and the other parties thereto entered into (i) that certain Amended and Restated Credit Agreement, dated as of September 30, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement” and, as further amended pursuant to this Amendment, the “Amended Credit Agreement”) and (ii) that certain Amended and Restated Security Agreement, dated as of September 30, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Security Agreement” and, as further amended pursuant to this Amendment, the “Amended Security Agreement”); capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement or the Amended Security Agreement, as the context may require and unless the context otherwise requires, each reference to “Lender” or “Lenders” herein shall be deemed to include the New Lender;
WHEREAS, the Borrowers have requested that the Agent and the Existing Lenders agree (i) to amend the Existing Credit Agreement to, among other things, increase the Aggregate Revolving Commitments, (ii) that the new lender identified as such on the signature page hereto (the “New Lender”) join the Amended Credit Agreement as a Lender and (iii) amend certain other provisions of the Existing Credit Agreement and the Existing Security Agreement, upon the terms and subject to the conditions set forth therein;
WHEREAS, each Lender has agreed, upon the terms and subject to the conditions set forth herein, to the increase in the Aggregate Revolving Commitments and the Companies, the Lenders party hereto and the Agent have agreed to amend the Existing Credit Agreement and the Existing Security Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby agree as follows:
SECTION 1. Amendments to Existing Credit Agreement.
(a)
The Existing Credit Agreement is, effective as of the First Amendment Effective Date and subject to the satisfaction of
the conditions precedent set forth in Section 5, hereby amended and restated to (i) delete the stricken text (indicated textually
in the same manner as the following example: stricken text) and (ii) 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 Amended Credit Agreement attached as Annex A hereto.
(b) Schedule 2.01 to the Existing Credit Agreement is, effective as of the First Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 5, hereby amended by deleting such schedule in its entirety and insert in lieu thereof the schedule attached as Annex B hereto.
SECTION 2. Amendment to Existing Security Agreement. Section 1.01 of the Existing Security Agreement is, effective as of the First Amendment Effective Date and subject to the satisfaction of the conditions precedent set forth in Section 5, amended by amending clause (c) of the definition of “Excluded Property” in its entirety to read:
“(c) any fee interest in owned real property (including Fixtures related thereto) (x) if the fair market value of such fee interest is less than $20,250,000 individually or (y) that is subject to Indebtedness permitted pursuant to Section 7.01(z) of the Credit Agreement.”
SECTION 3. New Lender.
(a) Joinder. New Lender hereby:
(i) acknowledges and agrees that it has received and reviewed a copy of the Existing Credit Agreement, this Amendment, the Revolving Note (if any) to be issued to it, the Security Documents, and each of the other Loan Documents and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.04 of the Credit Agreement, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Amendment and to become a Lender;
(ii) joins in the execution of, and becomes a party to the Amended Credit Agreement, the Security Documents and each of the other Loan Documents to which the Lenders are a party as a Lender thereunder;
(iii) assumes and agrees to perform all applicable duties and obligations of a Lender or other Credit Party, as applicable, under the Amended Credit Agreement, the Security Documents and each of the other Loan Documents to which the Lenders are a party; and
(iv) agrees that it, has in connection with entering this Amendment, and in the future, will, independently and without reliance upon the Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, make and continue to make its own credit decisions in taking or not taking action under the Loan Documents.
(b) Representations and Warranties.
(i) New Lender hereby represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to become a Lender under the Amended Credit Agreement, (ii) it has, independently and without reliance upon the Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment and to become a Lender under the Amended Credit Agreement, (iii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Amended Credit Agreement, duly completed and executed by such New Lender; (iv) from and after the date hereof, is shall be bound by the provisions of the Amended Credit Agreement as a Lender thereunder; and (v) it is sophisticated with respect to decisions to becoming a Lender hereunder.
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(ii) New Lender represents and warrants that it has provided its notice address on the signature pages attached hereto and agrees that, subject to any updates to such information as may be provided to Agent and Lead Borrower from time to time, (i) the Loan Parties may rely on this representation and warranty as to the correctness of such address, and (ii) notwithstanding anything to the contrary contained in the Loan Documents, to the extent the Amended Credit Agreement or other Loan Documents require the Loan Parties to deliver any notices to, or correspond or communicate with, the such Lender, such address may be used for any such notices, correspondence or communications.
SECTION 4. Reference to and Effect on the Loan Documents.
(a) This Amendment shall constitute a Loan Document for purposes of the Amended Credit Agreement and the other Loan Documents, and on and after the First Amendment Effective Date, (i) each reference in the Amended Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Credit Agreement, shall mean and be a reference to the Amended Credit Agreement and (ii) each reference in the Amended Security Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring to the Existing Security Agreement, and each reference in the other Loan Documents to “the Security Agreement”, “thereunder”, “thereof” or words of like import referring to the Existing Security Agreement, shall mean and be a reference to the Amended Security Agreement.
(b) The Existing Credit Agreement and the Existing Security Agreement, as specifically amended by this Amendment, and the other Loan Documents are, and shall continue to be, in full force and effect, and are hereby in all respects ratified and confirmed. The parties hereto hereby acknowledge and confirm that the Revolving Commitments and any Revolving Loans and all obligations related thereto are, and continue to be, subject to the Intercreditor Agreement.
(c) Except as expressly provided herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Agent under the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement, Amended Security Agreement or any other Loan Document, nor shall it constitute a waiver of any provision of the Existing Credit Agreement, Amended Credit Agreement, Existing Security Agreement, Amended Security Agreement or any Loan Document.
(d) Each of the Guarantors hereby consents to the amendments to the Existing Credit Agreement and the Existing Security Agreement effected hereby, and hereby confirms, acknowledges and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of such Guarantor contained in any of the Loan Documents to which it is a party are, and shall remain, in full force and effect and are hereby ratified and confirmed in all respects. Nothing in this Amendment is intended, or shall be construed, to constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection, priority or continuation of the security interests in, security titles to or other Liens on any Collateral for the Obligations. Each of the Companies hereby confirms, acknowledges and agrees that (i) the pledge and security interest in the Collateral granted by it pursuant to the Security Documents (including the Existing Security Agreement as amended by this Amendment) to which it is a party shall continue in full force and effect and (ii) such pledge and security interest in the Collateral granted by it pursuant to such Security Documents shall continue to secure the Obligations purported to be secured thereby, as amended or otherwise affected hereby.
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SECTION 5. Conditions to Effectiveness. This Amendment shall become effective as of the date (the “First Amendment Effective Date”) on which the following conditions shall have been satisfied (or waived):
(a) Execution. The Agent shall have received counterparts of this Amendment and the First Amendment Fee Letter, each in form and substance reasonably acceptable to the Agent, executed by the Companies and, with respect to this Amendment, the Lenders.
(b) Notes. The Agent shall have received a Revolving Note executed by the Borrowers in favor of each Lender requesting a Revolving Note (if any); provided that any such Revolving Notes may be delivered to the Agent as a facsimile or other electronic image scan transmission (e.g., “pdf” or “tif” via email) for purposes of satisfying this condition, to be followed promptly following the First Amendment Effective Date with delivery of the originals to Agent.
(c) Fees and Expenses. The Lead Borrower shall have paid all reasonable, documented and invoiced out-of-pocket expenses of the Agent (including the reasonable fees, disbursements and other charges of Choate Hall & Stewart LLP, counsel to the Agent) incurred in connection with the preparation and negotiation of this Amendment and the related documents.
(d) Interest and Fees on Existing Credit Extensions. The Lead Borrower shall have paid any accrued and unpaid interest and fees on the existing Credit Extensions through the First Amendment Effective Date, together with all fees required to be paid on the First Amendment Effective Date (including pursuant to the First Amendment Fee Letter).
(e) Committed Loan Notice and Disbursement Letter. The Agent shall have received any required Committed Loan Notice of any Revolving Loans to be borrowed on the First Amendment Effective Date pursuant to Section 2.02 of the Existing Credit Agreement and a disbursement authorization letter with respect to such proceeds of the Revolving Loans to be borrowed on the First Amendment Effective Date.
(f) Officer’s Certificate. The Agent shall have received a certificate, dated the First Amendment Effective Date and signed by a Responsible Officer of the Lead Borrower, certifying on behalf of each Loan Party that (i) the representations and warranties made by the Loan Parties in Section 6 hereof are true and correct on the First Amendment Effective Date and (ii) as of the First Amendment Effective Date and immediately after giving effect to the transactions contemplated by this Amendment, no Default or Event of Default shall have occurred and be continuing.
(g) Legal Opinion. The Agent shall have received a customary written opinion, dated as of the First Amendment Effective Date, of Kirkland & Ellis LLP, in its capacity as special counsel for the Loan Parties, in form and substance reasonably acceptable to the Agent.
4
(h) Secretary’s Certificate and Good Standing Certificates. The Agent shall have received (i) a certificate from the Lead Borrower and each other Loan Party, dated as of the First Amendment Effective Date, in form and substance reasonably acceptable to the Agent, executed by a Responsible Officer and the secretary or any assistant secretary or other authorized representative of such Loan Party, with appropriate insertions and attachments of resolutions or other actions, evidence of incumbency and the signature of authorized signatories and Organization Documents, which shall include a true and complete copy of resolutions or written consents of the shareholders or board of directors or other governing body of each Loan Party, as the case may be, authorizing the execution, delivery and performance of this Amendment and (ii) good standing certificates for each Loan Party certified by the secretary of state or other proper Governmental Authority of the jurisdiction of organization of such Loan Party.
(i) Amendment to Term Loan Documents. The Amendment to the Term Loan Agreement and the Security Agreement (as defined in the Term Loan Agreement) shall have been executed substantially simultaneously with this Amendment and the Agent shall have received a duly executed copy.
(j) Searches. The Agent shall have received results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances.
(k) Borrowing Base Certificate. The Agent shall have received a Borrowing Base Certificate dated the First Amendment Effective Date and giving effect to the transactions contemplated to occur on the First Amendment Effective Date, in form and substance reasonably acceptable to the Agent, and executed by a Responsible Officer of the Lead Borrower.
(l) KYC. The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
SECTION 6. Representations and Warranties. Each of the Companies hereby represents and warrants to the Agent that:
(a) on and as of the First Amendment Effective Date (i) it has all requisite corporate or limited liability company power and authority and all requisite governmental licenses, authorizations, consents and approvals to enter into and perform its obligations under this Amendment, the Amended Credit Agreement and the Amended Security Agreement, and (ii) this Amendment has been duly authorized, executed and delivered by it;
(b) this Amendment, the Amended Credit Agreement and the Amended Security Agreement constitute legal, valid and binding obligations of such entity, enforceable against it in accordance with their respective terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law); and
(c) each of the representations and warranties made by any Loan Party set forth in Article V of the Amended Credit Agreement or in any other Loan Document are true and correct in all material respects on and as of the First Amendment Effective Date, except (i) to the extent such representations and warranties specifically refer to an earlier date, in which case they were true and correct as of such earlier date, and (ii) in the case of any representation and warranty qualified by materiality, it is true and correct in all respects.
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SECTION 7. Execution in Counterparts. This Amendment may be executed by one or more of the parties to this Amendment in any number of separate counterparts (including by telecopy and other electronic transmission), and all of such counterparts taken together shall be deemed to constitute one and the same instrument. A copy of this Amendment signed by all the parties shall be delivered to the Lead Borrower and the Agent. The words “execution,” “signed,” “signature,” and words of like import in this Amendment, any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) shall be deemed to include electronic signatures 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.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
SECTION 9. WAIVER OF RIGHT OF TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first written above.
| FLOOR AND DECOR OUTLETS OF AMERICA, INC., | |||
| a Delaware corporation | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
| FDO ACQUISITION CORP., | |||
| a Delaware corporation | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
| FD SALES COMPANY LLC, | |||
| a Delaware limited liability company | |||
| By: | /s/ Trevor Lang | ||
| Name: | Trevor Lang | ||
| Title: | Chief Financial Officer | ||
[Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement and
Amendment No. 1 to Amended and Restated Security Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, | |||
| as Agent and Lender | |||
| By: | /s/ Michael Watson | ||
| Name: | Michael Watson | ||
| Title: | Authorized Signatory | ||
[Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement and
Amendment No. 1 to Amended and Restated Security Agreement]
| BANK OF AMERICA, N.A., as Lender | |||
| By: | /s/ Matthew Potter | ||
| Name: | Matthew Potter | ||
| Title: | Senior Vice President | ||
[Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement and
Amendment No. 1 to Amended and Restated Security Agreement]
| Regions Bank, as Lender | |||
| By: | /s/ Daniel Wells | ||
| Name: | Daniel Wells | ||
| Title: | Director | ||
[Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement and
Amendment No. 1 to Amended and Restated Security Agreement]
| BMO Harris Bank, N.A., as New Lender and Lender | |||
| By: | /s/ Kara Goodwin | ||
| Name: | Kara Goodwin | ||
| Title: | Managing Director | ||
| Address: | |
| 115 S. LaSalle St | |
| Chicago, IL 60603 | |
| Floor 20W | |
| Attention: Joe Basa | |
| Phone: 312-765-1580 | |
| E-mail: joseph.basa@bmo.com |
[Signature Page to Amendment No. 1 to Amended and Restated Credit Agreement and
Amendment No. 1 to Amended and Restated Security Agreement]
ANNEX A
AMENDED CREDIT AGREEMENT
ANNEX B
SCHEDULE 2.01
Commitments and Applicable Percentages
| Lender | Revolving Commitment | Applicable Percentage | ||||||
| Wells Fargo Bank, National Association | $ | 180,000,000.00 | 45.000000000 | % | ||||
| Bank of America, N.A. | $ | 115,000,000.00 | 28.750000000 | % | ||||
| Regions Bank | $ | 45,000,000.00 | 11.250000000 | % | ||||
| BMO Harris Bank, N.A. | $ | 60,000,000.00 | 15.000000000 | % | ||||
| Total: | $ | 400,000,000.00 | 100.000000000 | % | ||||
Execution
VersionAs Amended pursuant to Amendment No. 1 to
Credit Agreement and Amendment No. 1 to Security Agreement dated February 14, 2020
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 30, 2016
among
FLOOR AND DECOR OUTLETS OF AMERICA, INC.,
as the Lead Borrower,
the other Borrowers Named Herein,
the Guarantors Named Herein,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent and Swing Line Lender,
the Lenders Party Hereto,
BANK OF AMERICA, N.A.,
as Syndication Agent
and
WELLS FARGO BANK, NATIONAL ASSOCIATION, and
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
BANK OF AMERICA, N.A.
As Joint Lead Arrangers and Joint Bookrunners
Table of Contents
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| Table of Contents | |||
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ii
| Table of Contents | |||
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iii
Table of Contents
| Page | |||
iv
| Table of Contents | |||
| Page | |||
| ARTICLE I DEFINITIONS AND ACCOUNTING TERMS | 1 | ||
| 1.01 | Defined Terms | 1 | |
| 1.02 | Other Interpretive Provisions | 63 | |
| 1.03 | Accounting Terms Generally | 64 | |
| 1.04 | Rounding | 64 | |
| 1.05 | Times of Day | 65 | |
| 1.06 | Letter of Credit Amounts | 65 | |
| 1.07 | Currency Equivalents Generally | 65 | |
| 1.08 | Divisions | 65 | |
| 1.09 | LIBOR Replacement | 65 | |
| ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS | 66 | ||
| 2.01 | Loans; Reserves | 66 | |
| 2.02 | Borrowings, Conversions and Continuations of Committed Revolving Loans | 67 | |
| 2.03 | Letters of Credit | 69 | |
| 2.04 | Swing Line Loans | 76 | |
| 2.05 | Prepayments | 79 | |
| 2.06 | Termination or Reduction of Commitments | 80 | |
| 2.07 | Repayment of Loans | 81 | |
| 2.08 | Interest | 81 | |
| 2.09 | Fees | 82 | |
| 2.10 | Computation of Interest and Fees | 82 | |
| 2.11 | Evidence of Debt | 82 | |
| 2.12 | Payments Generally; Agent’s Clawback | 83 | |
| 2.13 | Sharing of Payments by Lenders | 84 | |
| 2.14 | Settlement Amongst Lenders | 85 | |
| 2.15 | Uncommitted Increase | 86 | |
| 2.16 | Extensions of Revolving Commitments | 88 | |
| ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY; APPOINTMENT OF LEAD BORROWER | 89 | ||
| 3.01 | Taxes | 89 | |
| 3.02 | Illegality | 91 | |
| 3.03 | Inability to Determine Rates | 92 | |
| 3.04 | Increased Costs; Reserves on LIBO Rate Loans | 92 | |
| 3.05 | Compensation for Losses | 93 | |
| 3.06 | Mitigation Obligations; Replacement of Lenders | 94 | |
| 3.07 | Survival | 95 | |
| 3.08 | Designation of Lead Borrower as Borrowers’ Agent | 95 | |
| ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 95 | ||
| 4.01 | Conditions of Initial Credit Extension | 95 | |
| 4.02 | Conditions to all Credit Extensions | 98 | |
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| ARTICLE V REPRESENTATIONS AND WARRANTIES | 99 | ||
| 5.01 | Organization; Powers | 99 | |
| 5.02 | Authorization | 99 | |
| 5.03 | Enforceability | 100 | |
| 5.04 | Governmental Approvals | 100 | |
| 5.05 | Reserved | 100 | |
| 5.06 | Financial Statements | 100 | |
| 5.07 | Title to Properties; Possession Under Leases | 101 | |
| 5.08 | Subsidiaries; Equity Interests | 101 | |
| 5.09 | Litigation; Compliance with Laws | 102 | |
| 5.10 | Federal Reserve Regulations | 102 | |
| 5.11 | Investment Company Act | 102 | |
| 5.12 | Use of Proceeds | 103 | |
| 5.13 | Tax Returns | 103 | |
| 5.14 | No Material Misstatements | 103 | |
| 5.15 | Employee Benefit Plans | 104 | |
| 5.16 | Environmental Matters | 104 | |
| 5.17 | Security Documents | 105 | |
| 5.18 | Location of Real Estate and Leased Premises | 105 | |
| 5.19 | Solvency | 106 | |
| 5.20 | No Material Adverse Effect | 106 | |
| 5.21 | Insurance | 106 | |
| 5.22 | USA PATRIOT Act; OFAC | 106 | |
| 5.23 | Intellectual Property; Licenses, Etc. | 107 | |
| 5.24 | No Default | 107 | |
| 5.25 | Labor Matters | 107 | |
| 5.26 | Deposit Accounts; Credit Card Arrangements | 108 | |
| ARTICLE VI AFFIRMATIVE COVENANTS | 108 | ||
| 6.01 | Existence; Businesses and Properties | 108 | |
| 6.02 | Insurance | 109 | |
| 6.03 | Taxes | 110 | |
| 6.04 | Financial Statements, Reports, etc. Furnish to the Agent: | 110 | |
| 6.05 | Litigation and Other Notices | 114 | |
| 6.06 | Compliance with Laws | 115 | |
| 6.07 | Maintaining Records; Access to Properties and Inspections; Appraisals | 115 | |
| 6.08 | Use of Proceeds | 117 | |
| 6.09 | Compliance with Environmental Laws | 117 | |
| 6.10 | Further Assurances; Additional Security | 117 | |
| 6.11 | Cash Management | 119 | |
| 6.12 | Fiscal Year; Accounting | 121 | |
| 6.13 | Lender Calls | 122 | |
| 6.14 | Deposit Accounts; Credit Card Processors | 122 | |
| 6.15 | Post-Closing Matters | 122 | |
| ARTICLE VII NEGATIVE COVENANTS | 122 | ||
| 7.01 | Indebtedness | 123 | |
| 7.02 | Liens | 127 | |
| 7.03 | [Reserved] | 131 | |
| 7.04 | Investments, Loans and Advances | 131 | |
| 7.05 | Mergers, Consolidations, Sales of Assets and Acquisitions | 134 | |
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| 7.06 | Restricted Payments | 136 | |
| 7.07 | Transactions with Affiliates | 139 | |
| 7.08 | Business of Borrower Holdco and its Subsidiaries | 140 | |
| 7.09 | Limitation on Payments and Modifications of Indebtedness; | ||
| Modifications of Certificate of Incorporation, By Laws and Certain Other Agreements; etc. | 140 | ||
| 7.10 | Financial Performance Covenant | 142 | |
| ARTICLE VIIA BORROWER HOLDCO COVENANT | 143 | ||
| ARTICLE VIII EVENTS OF DEFAULT | 143 | ||
| 8.01 | Events of Default | 143 | |
| 8.02 | Right to Cure | 147 | |
| 8.03 | Remedies Upon Events of Default | 147 | |
| 8.04 | Application of Funds | 148 | |
| ARTICLE IX THE AGENT | 149 | ||
| 9.01 | Appointment and Authority | 149 | |
| 9.02 | Rights as a Lender | 150 | |
| 9.03 | Exculpatory Provisions | 150 | |
| 9.04 | Reliance by Agent | 151 | |
| 9.05 | Delegation of Duties | 151 | |
| 9.06 | Resignation of Agent | 151 | |
| 9.07 | Non-Reliance on Agent, and Other Lenders | 152 | |
| 9.08 | No Other Duties, Etc. | 152 | |
| 9.09 | Agent May File Proofs of Claim | 152 | |
| 9.10 | Collateral and Guaranty Matters | 153 | |
| 9.11 | Notice of Transfer | 154 | |
| 9.12 | Reports and Financial Statements | 154 | |
| 9.13 | Agency for Perfection | 155 | |
| 9.14 | Indemnification of Agent | 155 | |
| 9.15 | Relation among Lenders | 155 | |
| 9.16 | Defaulting Lenders | 155 | |
| 9.17 | Syndication Agent; and Co-Lead Arrangers | 156 | |
| ARTICLE X MISCELLANEOUS | 157 | ||
| 10.01 | Amendments, Etc. | 157 | |
| 10.02 | Notices; Effectiveness; Electronic Communications | 158 | |
| 10.03 | No Waiver; Cumulative Remedies | 161 | |
| 10.04 | Expenses; Indemnity; Damage Waiver | 161 | |
| 10.05 | Payments Set Aside | 162 | |
| 10.06 | Successors and Assigns | 163 | |
| 10.07 | Treatment of Certain Information; Confidentiality | 167 | |
| 10.08 | Right of Setoff | 167 | |
| 10.09 | Interest Rate Limitation | 168 | |
| 10.10 | Counterparts; Integration; Effectiveness | 168 | |
| 10.11 | Survival | 168 | |
| 10.12 | Severability | 169 | |
| 10.13 | Replacement of Lenders | 169 | |
| 10.14 | Governing Law; Jurisdiction; Etc. | 169 | |
| 10.15 | Waiver of Jury Trial | 170 | |
iii
| 10.16 | No Advisory or Fiduciary Responsibility | 171 | |
| 10.17 | USA PATRIOT Act Notice | 171 | |
| 10.18 | Foreign Asset Control Regulations | 171 | |
| 10.19 | Time of the Essence | 171 | |
| 10.20 | Press Releases | 172 | |
| 10.21 | Additional Waivers | 172 | |
| 10.22 | No Strict Construction | 174 | |
| 10.23 | Attachments | 174 | |
| 10.24 | Keepwell | 174 | |
| 10.25 | Acknowledgement and Consent to Bail-In of EEA Financing Institutions | 174 | |
| 10.26 | Acknowledgement Regarding Any Supported QFCs | 175 | |
| 10.27 | Amendment and Restatement | 176 | |
iv
| SCHEDULES | |||
| 1.01 | Borrowers | ||
| 1.02 | Guarantors | ||
| 1.03 | Prohibited Countries | ||
| 1.04 | Existing Letters of Credit | ||
| 2.01 | Commitments and Applicable Percentages | ||
| 5.01 | Loan Parties Organizational Information | ||
| 5.04 | Governmental Approvals | ||
| 5.06 | Material Indebtedness | ||
| 5.08 | Subsidiaries; Other Equity Investments; Equity Interests in the Borrower | ||
| 5.09 | Litigation | ||
| 5.13 | Taxes | ||
| 5.16 | Environmental Matters | ||
| 5.18 | Owned Real Estate | ||
| 5.21 | Insurance | ||
| 5.24 | Material Contracts | ||
| 5.26(a) | DDAs | ||
| 5.26(b) | Credit Card Arrangements | ||
| 6.04 | Financial and Collateral Reporting | ||
| 7.01 | Existing Indebtedness | ||
| 7.02 | Existing Liens | ||
| 7.04 | Existing Investments | ||
| 7.07 | Transactions with Affiliates | ||
| 10.02 | Agent’s Office; Certain Addresses for Notices | ||
| EXHIBITS | |||
| Form of | |||
| A | Committed Loan Notice | ||
| B | Swing Line Loan Notice | ||
| C-1 | Revolving Note | ||
| C-2 | Swing Line Note | ||
| D | Compliance Certificate | ||
| E | Assignment and Assumption | ||
| F | Borrowing Base Certificate | ||
| G | Credit Card Notification | ||
| H | DDA Notification | ||
| I | Form of Joinder | ||
v
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT
(“(as amended,
restated, amended and restated, supplemented, waived or otherwise modified from time to time, the “Agreement”)
is entered into as of September 30, 2016, among FLOOR AND DECOR OUTLETS OF AMERICA, INC., a Delaware corporation (the “Lead
Borrower”), the Persons named on Schedule 1.01 hereto (as such schedule may be updated from time to time), jointly and
severally (collectively with the Lead Borrower, the “Borrowers”), FDO ACQUISITION CORP., a Delaware corporation
(“Borrower Holdco”), and each of the other Persons named on Schedule 1.02 hereto jointly and severally (collectively
with Borrower Holdco, the “Guarantors”), each lender from time to time party hereto (collectively, the “Lenders”
and each individually, a “Lender”) and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Collateral
Agent, and Swing Line Lender. This Agreement amends, restates, consolidates and supersedes in its entirety the Credit Agreement,
dated as of May 1, 2013 (as amended by the First Amendment to Credit Agreement, dated as of July 2, 2014, and as further amended
by the Second Amendment to Credit Agreement, dated as of April 15, 2016), among the Lead Borrower, Borrower Holdco, Wells Fargo
Bank, National Association, as administrative agent, collateral agent and L/C issuer, Wells Fargo Bank, National Association, as
term loan agent and the lenders from time to time party thereto (the “Existing Credit Agreement”).
On the date
hereofClosing Date, the Borrowers are
repayingrepaid the Term Loan (as defined
in the Existing Credit Agreement) in full, together with all interest, fees and expenses payable in connection therewith under
the Existing Credit Agreement.
In connection with
such repayment and certain other Transactions (as defined herein) to occurthat
occurred on the date hereofClosing
Date, the Borrowers have requested that the Lenders agree to (a) amend
and restate the Existing Credit Agreement as set forth herein, and (b) in connection therewith, provide a revolving credit facility
to the Borrowers, and the Lenders have indicated their willingness to do so on
the terms and conditions set forth herein.
WHEREAS, the Borrowers have requested that the Lenders increase the Aggregate Revolving Commitments as of the First Amendment Effective Date to $400,000,000, for purposes of and upon the terms and subject to the conditions set forth in the First Amendment (as hereinafter defined) and herein.
The applicable Lenders have indicated their willingness to lend and the L/C Issuer has indicated its willingness to issue Letters of Credit, in each case on the terms and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
“Accelerated“Accelerated
Monthly Borrowing Base Delivery Event” means at the election of the Agent, the failure of the Borrowers to maintain Availability
at least equal to seventy five percent (75%) of the Loan Cap for any five (5) consecutive Business Days. For purposes of this Agreement,
the occurrence of an Accelerated Monthly Borrowing Base Delivery Event shall be deemed continuing at the Agent’s
option until Availability has exceeded seventy five percent (75%) of the Loan Cap for twenty (20) consecutive calendar days, in
which case an Accelerated Monthly Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this
Agreement. The termination of an Accelerated Monthly Borrowing Base Delivery Event as provided herein shall in no way limit, waive
or delay the occurrence of a subsequent Accelerated Monthly Borrowing Base Delivery Event in the event that the conditions set
forth in this definition again arise.
“Accelerated
Weekly Borrowing Base Delivery Event” means either (a) the occurrence and continuance of any Designated
Event of Default, or (b) at the election of the Agent, the failure of the Borrowers to maintain Availability at least equal to
twelve and one-half percent (12.5%) of the Loan Cap for any three (3five
(5) consecutive Business Days. For purposes of this Agreement, the occurrence of an Accelerated Weekly
Borrowing Base Delivery Event shall be deemed continuing at the Agent’s option (i) until such Designated Event
of Default is waived
or is no longer continuing, and/or (ii) if the Accelerated Weekly
Borrowing Base Delivery Event arises as a result of the Borrowers’ failure to achieve Availability as required
hereunder, until Availability has exceeded twelve and one-half percent (12.5%) of the Loan Cap for thirty
(30twenty
(20) consecutive calendar days, in which case an Accelerated Weekly
Borrowing Base Delivery Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination
of an Accelerated Weekly
Borrowing Base Delivery Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent
Accelerated Weekly
Borrowing Base Delivery Event in the event that the conditions set forth in this definition again arise.
“Acceptable Document of Title” means, with respect to any Inventory, a tangible, negotiable bill of lading or other Document (as defined in the UCC) that (a) is issued by a common carrier which is not an Affiliate of the Approved Foreign Vendor or any Loan Party which is in actual possession of such Inventory, (b) is issued to the order of a Loan Party or, if so requested by the Agent, to the order of the Agent, (c) names the Agent as a notify party and bears a conspicuous notation on its face of the Agent’s security interest therein, (d) is not subject to any Lien (other than in favor of: (i) the Agent, (ii) the Term Loan Agent to the extent subject to the Intercreditor Agreement, and (iii) Permitted Encumbrances which are junior in priority to the Liens in favor of the Agent and for which the Agent shall have established Reserves in its Permitted Discretion), and (e) is on terms otherwise reasonably acceptable to the Agent.
“Acceptable Transport Document” means, with respect to any Inventory, a tangible, non-negotiable bill of lading or sea waybill that (a) is issued by a common carrier which is not an Affiliate of the Approved Foreign Vendor or any Loan Party which is in actual possession of such Inventory, (b) names a Borrower (or, at its request, the Agent) as consignee, (c) names the Agent as a notify party and bears a conspicuous notation on its face of the Agent’s security interest therein, (d) is not subject to any Lien (other than in favor of: (i) the Agent, (ii) the Term Loan Agent to the extent subject to the Intercreditor Agreement, and (iii) Permitted Encumbrances which are junior in priority to the Liens in favor of the Agent and for which the Agent shall have established Reserves in its Permitted Discretion), (e) either (i) contains an express waiver from the consignor / shipper of its right to alter the named consignee and its right of stoppage in transit, or (ii) for which the consignor / shipper thereunder shall have entered a Customs Broker/Carrier Agreement with the Agent which contains an express waiver from such consignor / shipper of its right to alter the named consignee and its right of stoppage in transit, and (f) is on terms otherwise reasonably acceptable to the Agent.
“Accommodation Payment” has the
meaning specified in Section 10.21(d).10.21(d).
“Account” means “accounts” as defined in the UCC, and also means a right to payment of a monetary obligation, whether or not earned by performance, (a) for property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of, (b) for services rendered or to be rendered, (c) for a policy of insurance issued or to be issued, (d) for a secondary obligation incurred or to be incurred, or (e) arising out of the use of a credit or charge card or information contained on or for use with the card.
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“ACH” means automated clearing house transfers.
“Acquisition” means, with respect to any Person (a) a purchase or other acquisition of a Controlling interest in the Equity Interests of any other Person, (b) a purchase or other acquisition of all or substantially all of the assets or properties of another Person or of any business unit of another Person, (c) a merger or consolidation of such Person with any other Person or any other transaction or series of transactions resulting in the acquisition of all or substantially all of the assets or a Controlling interest in the Equity Interests of any Person or (d) any acquisition of any Store locations of any Person, in each case, in any transaction or group of transactions which are part of a common plan.
“Acquisition Indebtedness” means Indebtedness of (A) the Borrowers or any of their Subsidiaries incurred to finance or refinance, or otherwise incurred in connection with, any acquisition of any assets (including Equity Interests), business or person, or any merger, consolidation or amalgamation of any person with or into the Borrowers or any of their Subsidiaries, or (B) any person that is acquired by or merged or consolidated with or into the Borrowers or any of their Subsidiaries (including Indebtedness thereof incurred in connection with any such acquisition, merger, consolidation or amalgamation).
“Act” has the meaning specified
in Section 10.1710.17.
“Additional Assets” (i) any property or assets that replace the property or assets that are the subject of a Disposition; (ii) any property or assets (other than Indebtedness and Equity Interests) used or to be used by the Lead Borrower or a Subsidiary Loan Party or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; or (iii) the Equity Interests of a Person that is engaged in a Related Business and becomes a Subsidiary as a result of the acquisition of such Equity Interests by the Lead Borrower or another Subsidiary Loan Party.
“Additional Commitment Lender”
has the meaning specified in Section 2.15(a)(iii)2.15(a)(iii).
“Additional Obligations”
means senior or subordinated Indebtedness (which Indebtedness may be (x) secured by a Lien ranking pari passu to the Lien
securing the Term Loan Obligations, (y) secured by a Lien ranking junior to the Lien securing the Term Loan Obligations
or (z) unsecured), including customary bridge financings, in each case issued or incurred by any Loan Party in compliance
with Section 7.01.7.01.
“Adjusted LIBO Rate” means:
(a) (a) for
any Interest Period with respect to any LIBO Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next
1/100 of one percent) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate; and
(b) (b) for
any interest rate calculation with respect to any Base Rate Loan, an interest rate per annum (rounded upwards, if necessary, to
the next 1/100 of one percent) equal to (i) the LIBO Rate for an Interest Period commencing on the date of such calculation and
ending on the date that is thirty (30) days thereafter multiplied by (ii) the Statutory Reserve Rate.
The Adjusted LIBO Rate will be adjusted automatically as of the effective date of any change in the Statutory Reserve Rate.
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“Adjustment Date” means the first day of each Fiscal Month, commencing October 28, 2016.
“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Agent.
“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.
“Agent” means Wells Fargo in its capacity as Administrative Agent and Collateral Agent under any of the Loan Documents, or any successor thereto.
“Agent Parties” has the meaning
specified in Section 10.02(c)10.02(c).
“Agent’s Office” means the Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as the Agent may from time to time notify the Lead Borrower and the Lenders.
“Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders. As of the Closing Date, the Aggregate Revolving Commitments are $200,000,000. As of the First Amendment Effective Date, the Aggregate Revolving Commitments are $400,000,000.
“Agreement” has the meaning specified in the preamble.
“AHYDO Catch-Up Payment” means any payment to avoid the application of Section 163(e)(5) of the Code.
“Allocable Amount” has the meaning
specified in Section 10.21(d)10.21(d).
“Annual Financial Statements” has
the meaning specified in Section 6.04(a)6.04(a).
“Applicable Lenders” means the Required Lenders, all affected Lenders, or all Lenders, as the context may require.
“Applicable Margin”
means:
(a) From (i)
with respect to LIBO Rate Loans and after the Closing Date until the first
Adjustment Date, the percentages set forth in Level ILetter
of the pricing grid below; and
(b) From
and after the first Adjustment Date and on each Adjustment Date thereafter, the Applicable Margin shall be determined from the
following pricing grid based upon the Average Daily AvailabilityCredit
Fees for the most recent Fiscal Month ended immediately preceding such Adjustment Date;
provided, however, notwithstanding anything to
the contrary set forth herein, upon the occurrenceStandby
Letters of an EventCredit,
1.25% per annum, (ii) with respect to Base Rate Loans, 0.25% per annum and (iii) with respect to Letter of Default
under Sections 8.01(b), (c) or (i)
or if an Event of Default arises based on a breach of Section 6.04(a), (b),
(c) or (h), the Agent may, and at the direction
of the Required Lenders shall, immediately increase the Applicable Margin to that set forth in Level II (even if the Average Daily
Availability requirementsCredit Fees for
a different Level have been met) and interest shall accrue at the Default Rate; provided
further if the foregoing financial statements or any Borrowing Base Certificates are at any time restated
or otherwise revised (including as a result of an audit) or if the information set forth in such financial statements or any Borrowing
Base Certificates otherwise
proves to be false or incorrect such that the Applicable Margin would have been higher than was otherwise in effect during any
period, without constituting a waiver of any Default or Event of Default arising as a result thereof, interest due under this Agreement
shall be immediately recalculated at such higher rate for any applicable periods and shall be due and payable on demand.Commercial
Letters of Credit, 0.75%.
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“Applicable
Percentage” means, the percentage of the Aggregate Revolving Commitments represented by such Lender’s
Revolving Commitment. If the commitments of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 8.038.03
or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender shall be
determined based on the Applicable Percentage of such Revolving Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage of each Lender is
set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
“Appraisal Percentage” means ninety-two and one-half percent (92.5%) during the months of December, January, February and March, and (ii) ninety percent (90%) at all other times.
“Appraised Value” means, with respect to Eligible Inventory, the appraised orderly liquidation value, net of costs and expenses to be incurred in connection with any such liquidation, which value is expressed as a percentage of Cost of Eligible Inventory as set forth in the inventory stock ledger of the Lead Borrower, which value shall be determined from time to time by the most recent appraisal undertaken by an independent appraiser engaged by the Agent.
“Approved Foreign Vendor” means a Foreign Vendor which (a) is not located in any country listed on Schedule 1.03 or any such other countries that are referred to in the Trading with the Enemy Act (or similar Laws) as in effect from time to time, (b) has received timely payment or performance of all obligations owed to by the Loan Parties, (c) has not asserted and no event has occurred for which it has a right to assert any reclamation, repossession, diversion, stoppage in transit, Lien or title retention rights in respect of such Inventory, and (d) if so reasonably requested by the Agent, has entered into and is in full compliance with the terms of a Foreign Vendor Agreement.
“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.
“Arrangers” means, collectively,
Wells Fargo and Merrill Lynch, Pierce, Fenner & Smith Incorporated,Bank
of America, N.A., in their capacity as joint lead arrangers and joint book managers.
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“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by Section 10.06(b)10.06(b)),
and accepted by the Agent, in substantially the form of Exhibit E or any other form approved by the Agent.
“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the Fiscal Year ended December 31, 2015, and the related consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Year of the Parent and its Subsidiaries, including the notes thereto.
“Availability” means, as of any date of determination thereof by the Agent, the result, if a positive number, of:
(a) (a) the
Loan Cap
minus
(b) (b) the
Total Outstandings.
In calculating Availability at any time
and for any purpose under this Agreement, the Lead Borrower shall certify to the Agent that all accounts payable and Taxes are
being paid on a timely basis as provided in Section 5.13 and Section
6.035.13 and Section 6.03.
“Availability Period”
means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Revolving Commitments pursuant to Section 2.06(a)2.06(a),
and (c) the date of termination of the commitment of each Revolving Lender to make Committed Revolving Loans and of the obligation
of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.038.03.
“Availability Reserves” means, without duplication of any other Reserves or items to the extent such items are otherwise addressed or excluded through eligibility criteria, such reserves as the Agent from time to time determines in its Permitted Discretion as being appropriate (i) to reflect the impediments to the Agent’s ability to realize upon the Collateral, (ii) to reflect claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the Collateral, (iii) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of the Borrowing Base, or (iv) to reflect that a Default or an Event of Default then exists. Without limiting the generality of the foregoing, Availability Reserves may include, in the Agent’s Permitted Discretion, (but are not limited to) reserves based on: (a) rent; (b) customs duties, and other costs to release Inventory which is being imported into the United States; (c) outstanding Taxes and other governmental charges, including, without limitation, ad valorem, real estate, personal property, sales, claims of the PBGC and other Taxes which may have priority over the interests of the Agent in the Collateral; (d) salaries, wages and benefits due to employees of any Borrower, (e) Customer Credit Liabilities, (f) Customer Deposits, (g) reserves for reasonably anticipated changes in the Appraised Value of Eligible Inventory between appraisals, (h) warehousemen’s or bailee’s charges and other Permitted Encumbrances which may have priority over the interests of the Agent in the Collateral, (i) amounts due to vendors on account of consigned goods, (j) Cash Management Reserves, (k) Bank Products Reserves, and (l) collection handling, agent and other fees, together with any claims or other charge backs, incurred in connection with receivables that are assigned in connection with the CIT Deferred Purchase Factoring Agreement.
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“Average Daily Availability” means the average daily Availability for the immediately preceding Fiscal Month.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Bank Products” means any services of facilities provided to any Loan Party by any Credit Party or any of their respective Affiliates including, without limitation, on account of (a) Swap Contracts, (b) merchant services constituting a line of credit, (c) Factored Receivables, and (d) supply chain finance services including, without limitation, trade payable services and supplier accounts receivable purchases (but, in each case, only to the extent that the applicable Lender, other than Wells Fargo, furnishing such services or facilities notifies the Agent and the Lead Borrower in writing that such services or facilities are to be deemed Bank Products hereunder).
“Bank Products Reserves” means such reserves (i) as the Agent from time to time determines in its discretion as being appropriate to reflect the liabilities and obligations of the Loan Parties with respect to Bank Products then provided or outstanding and (ii) Supply Chain Finance Reserves.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%), (b) the Adjusted LIBO Rate plus one percent (1.00%), or (c) the rate of interest in effect for such day as publicly announced from time to time by Wells Fargo as its “prime rate.” The “prime rate” is a rate set by Wells Fargo based upon various factors including Wells Fargo’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Wells Fargo shall take effect at the opening of business on the day specified in the public announcement of such change.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Blocked Account”
has the meaning provided in Section 6.11(a)(ii).
“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Agent and the Lead Borrower giving due consideration to (i) any selection or recommendation of a replacement 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 rate of interest as a replacement to LIBOR for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the LIBO Rate with an Unadjusted Benchmark Replacement for each applicable Interest Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the Lead Borrower 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 the LIBO Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body 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 the LIBO Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated syndicated credit facilities at such time.
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“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 “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the Agent decides, in consultation with the Lead Borrower, may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent decides, in consultation with the Lead Borrower, is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Date” means the earlier to occur of the following events with respect to the LIBO Rate: (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” 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 the LIBO Rate permanently or indefinitely ceases to provide the LIBO Rate; or (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBO Rate: (1) a public statement or publication of information by or on behalf of the administrator of the LIBO Rate announcing that such administrator has ceased or will cease to provide the LIBO Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate; (2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBO Rate, a resolution authority with jurisdiction over the administrator for the LIBO Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBO Rate, which states that the administrator of the LIBO Rate has ceased or will cease to provide the Benchmark permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBO Rate; or (3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBO Rate announcing that the LIBO Rate is no longer representative.
“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Agent or the Required Lenders, as applicable, by notice to the Borrower, the Agent (in the case of such notice by the Required Lenders) and the Lenders.
“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBO Rate and solely to the extent that the LIBO Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder in accordance with Section 1.09 and (y) ending at the time that a Benchmark Replacement has replaced the LIBO Rate for all purposes hereunder pursuant to Section 1.09.
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“Blocked Account Agreement” means with respect to an account established by a Loan Party, an agreement, in form and substance reasonably satisfactory to the Agent, establishing control (as defined in the UCC) of such account by the Agent and whereby the bank maintaining such account agrees, upon the occurrence and during the continuance of a Cash Dominion Event, to comply only with the instructions originated by the Agent without the further consent of any Loan Party.
“Blocked Account Bank” means each bank with whom deposit accounts are maintained in which any funds of any of the Loan Parties from one or more DDAs are concentrated and with whom a Blocked Account Agreement has been, or is required to be, executed in accordance with the terms hereof.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower Holdco” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning
specified in Section 6.046.04.
“Borrowers” has the meaning specified in the introductory paragraph hereto.
“Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.
“Borrowing Base”, at any time of calculation, an amount equal to:
(a) (a) the
face amount of Eligible Credit Card Receivables multiplied by the Credit Card Advance Rate;
plus
(b) (b) the
Cost of Eligible Inventory, net of Inventory Reserves, multiplied by the product of Appraisal Percentage multiplied by the
Appraised Value of Eligible Inventory; provided, however, that, Inventory constituting Eligible In-Transit
Inventory shall be in an amount no greater than twenty-five percent (25%) of Eligible On-Hand Inventory during
the months of December, January, February and March, and twenty percent (20%) of Eligible On- Hand Inventory at all other
times;
plus
(c) (c) eighty-five
percent (85%) multiplied by the face amount of Eligible Trade Receivables (net of Receivables Reserves applicable thereto);
plus
(d) (d) 100%
of all Eligible Cash on Hand, provided that Eligible Cash on Hand included in the Borrowing Base may not be withdrawn
from the deposit account at Agent, thereby reducing the Borrowing Base, unless and until (i) no Cash Dominion Event exists
and is continuing, and (ii) the Lead Borrower furnishes the Agent with (A) notice of such intended withdrawal and (B) a
Borrowing Base Certificate as of the date of such proposed withdrawal reflecting that, after giving effect to such
withdrawal, no Overadvance exists or would result from such withdrawal;
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plus
(e) 100% of the amount for which the Eligible Letter Of Credit must be honored after giving effect to any draws against same;
minus
the then amount of all Availability Reserves.
“Borrowing Base Certificate” means a certificate substantially in the form of Exhibit F hereto (with such changes therein as may be reasonably required by the Agent to reflect the components of and reserves against the Borrowing Base as provided for hereunder from time to time), executed and certified as accurate and complete by a Responsible Officer of the Lead Borrower which shall include appropriate exhibits, schedules, supporting documentation, and additional reports as reasonably requested by the Agent.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Agent’s Office is located and, if such day relates to any LIBO Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank market.
“Capital Expenditures” shall mean, for any person in respect of any period, the aggregate of all expenditures incurred by such person during such period that, in accordance with GAAP, are or should be included in “additions to property, plant or equipment” or similar items reflected in the statement of cash flows of such person; provided, however, that Capital Expenditures for Borrower Holdco and its Subsidiaries shall not include:
(a) expenditures to the extent they are made with (i) Equity Interests of the Parent or (ii) proceeds of the issuance of Equity Interests of, or a cash capital contribution to, the Lead Borrower after the Closing Date;
(b) expenditures with proceeds of insurance settlements, condemnation awards and other settlements in respect of lost, destroyed, damaged or condemned assets, equipment or other property to the extent such expenditures are made to replace or repair such lost, destroyed, damaged or condemned assets, equipment or other property or otherwise to acquire, maintain, develop, construct, improve, upgrade or repair assets or properties used or useful in the business of Borrower Holdco and its Subsidiaries within one hundred eighty (180) days of receipt of such proceeds (or, to the extent such proceeds are committed to be used for such purpose pursuant to a binding written agreement during such one hundred (180) day period, expenditures made with such proceeds within two hundred seventy (270) days of receipt thereof);
(c) expenditures that are accounted for as capital expenditures of such person and that actually are paid for in cash by a third party (excluding Borrower Holdco, the Borrowers and any other Subsidiary) which cash payment by such third party may be made directly or may be made as a cash reimbursement to a Loan Party, and for which none of Borrower Holdco, the Borrowers or any other Subsidiary has provided or is required to provide or incur, directly or
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indirectly, any consideration or obligation to such third party or any other person (whether before, during or after such period);
(d) the purchase price of equipment purchased during such period to the extent the consideration therefor consists of any combination of (i) used or surplus equipment traded in at the time of such purchase and (ii) the proceeds of a concurrent sale of used or surplus equipment, in each case, in the ordinary course of business;
(e) Investments in respect of a Permitted Business Acquisition; or
(f) the purchase of an asset made within one hundred eighty (180) days of the sale of any asset (to the extent such asset sale is permitted hereunder) to the extent such new asset is purchased with the proceeds of such sale (or, to the extent such proceeds are committed to be used for such purpose pursuant to a binding written agreement during such one hundred eighty (180) day period, purchases made with such proceeds within two hundred seventy (270) days of receipt thereof).
“Capital Lease Obligations” means, with respect to any Person for any period, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as liabilities on a balance sheet of such Person under GAAP and the amount of which obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Captive Insurance Subsidiary” means any Subsidiary of a Borrower that is subject to regulation as an insurance company (or any Subsidiary thereof).
“Cash Collateralize”
has the meaning specified in Section 2.03(g).2.03(g).
Derivatives of such term have corresponding meanings.
“Cash Dominion Event”
means either (i) the occurrence and continuance of any Designated Event of Default, or (ii) if, at any time, Excess
Testing Availability is less than ten percent (10%) of the Loan Cap for three (3five
(5) consecutive Business Days. For purposes of this Agreement, the occurrence of a Cash Dominion Event shall be deemed
continuing at the Agent’s option (i) until such Designated Event of Default is waived
or is no longer continuing, and/or (ii) if the Cash Dominion Event arises as a result of the Borrowers’ failure
to achieve Excess Testing Availability as required hereunder,
until Excess Testing Availability has exceeded ten percent
(10%) of the Loan Cap for twenty (20) consecutive days, in which case a Cash Dominion Event shall no longer be deemed to be continuing
for purposes of this Agreement. The termination of a Cash Dominion Event as provided herein shall in no way limit, waive or delay
the occurrence of a subsequent Cash Dominion Event in the event that the conditions set forth in this definition again arise.
“Cash Management Reserves” means such reserves as the Agent, from time to time, determines in its Permitted Discretion as being appropriate to reflect the reasonably anticipated liabilities and obligations of the Loan Parties with respect to Cash Management Services then provided or outstanding.
“Cash Management Services” means any cash management services or facilities provided to any Loan Party by any Credit Party or any of their respective Affiliates, including, without limitation: (a) ACH transactions, (b) controlled disbursement services, treasury, depository, overdraft, and electronic funds transfer services, (c) credit or debit cards, (d) credit card processing services, and (e) purchase cards.
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“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 or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, however, for the purposes of this Agreement: (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means
(i) at any time prior to the consummation of a Public Offering, (x) the Permitted Holders shall in the aggregate be the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) of
(A) so long as Borrower Holdco is a Subsidiary of any Parent Entity, shares or units of Voting Stock having less than 35.00%
of the total voting power of all outstanding shares of such Parent Entity (other than a Parent Entity that is a Subsidiary of another
Parent Entity) and (B) if Borrower Holdco is not a Subsidiary of any Parent Entity, shares or units of Voting Stock having
less than 35.00% of the total voting power of all outstanding shares of Borrower Holdco, or (y) any other “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date),
other than one or more Permitted Holders, (A) so long as Borrower Holdco is a Subsidiary of any Parent Entity, shall be
the “beneficial owner” of shares or units of Voting Stock constituting a greater percentage of the total voting power
of all outstanding shares of such Parent Entity than the total voting power of all outstanding shares or units of Voting Stock
of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) held by the Permitted Holders
and (B) if Borrower Holdco is not a Subsidiary of any Parent Entity, shall be the “beneficial owner” of shares
or units of Voting Stock having constituting a greater percentage of the total voting power of all outstanding shares of Borrower
Holdco than the total voting power of all outstanding shares or units of Voting Stock of Borrower Holdco held by the Permitted
Holders, (ii) at any time on or after the consummation of a Public Offering, any “person” or “group”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date), other than one or more
Permitted Holders, shall be the “beneficial owner” of (x) so long as Borrower Holdco is a Subsidiary of any
Parent Entity, shares or units of Voting Stock having more than the greater of (A) 35.00% of the total voting power of all
outstanding shares of such Parent Entity (other than a Parent Entity that is a Subsidiary of another Parent Entity) and (B)
the total voting power of all outstanding shares or units of Voting Stock of such Parent Entity (other than a Parent Entity that
is a Subsidiary of another Parent Entity) held by the Permitted Holders and (y) if Borrower Holdco is not a Subsidiary of
any Parent Entity, shares or units of Voting Stock having more than the greater of (A) 35.00% of the total voting power
of all outstanding shares of Borrower Holdco and (B) the total voting power of all outstanding shares or units of Voting Stock
of Borrower Holdco held by the Permitted Holders; (iii) Borrower Holdco shall cease to own, directly or indirectly, 100.00%
of the capital stock of the Borrowers, or (iv) a “Change of Control” (or comparable term) as defined
in the Term Loan Agreement relating to Indebtedness and any unused commitments thereunder in an aggregate principal amount equal
to or greater than $2550,000,000.
Notwithstanding anything to the contrary in the foregoing, the Transactions shall not constitute or give rise to a Change of Control.
“CIT Deferred Purchase Factoring Agreement” means that certain Deferred Purchase Factoring Agreement dated as of March 28, 2014, among the Lead Borrower and The CIT Group/Commercial Services, Inc. (“CIT”).
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“Closing Date” means
the first date all the conditions precedent in Section 4.014.01
are satisfied or waived in accordance with Section 10.0110.01.
“Closing Date Dividend”
has the meaning specified in Section 7.06(f).7.06(f).
“Code” means the Internal Revenue Code of 1986, and the regulations promulgated thereunder, as amended and in effect.
“Collateral” means any and all “Collateral” as defined in any applicable Security Document and all other property that is or is intended under the terms of the Security Documents to be subject to Liens in favor of the Agent.
“Collateral Access Agreement” means an agreement reasonably satisfactory in form and substance to the Agent executed by (a) a bailee or other Person in possession of Collateral, or (b) any landlord of Real Estate leased by any Loan Party.
“Collateral and Guaranty Requirements”
means to cause any such Person (a) to (i) become a Loan Party by executing and delivering to the Agent a Joinder to this Agreement
or a Joinder to the Facility Guaranty or such other documents as the Agent shall deem appropriate for such purpose, (ii) grant
a Lien to the Agent on such Person’s assets of the same type that constitute Collateral to secure the Obligations, and (iii)
deliver to the Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a)4.01(a)
and, if reasonably requested by Agent, favorable opinions of counsel to such Person (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the documentation referred to in clause (a)), and (b) if any Equity Interests
or Indebtedness of such Person are owned by or on behalf of any Loan Party, to pledge such Equity Interests and promissory notes
evidencing such Indebtedness, in each case in form, content and scope reasonably satisfactory to the Agent in accordance with the
provisions of the Security Agreement. In no event shall compliance with these requirements waive or be deemed a waiver or Consent
to any transaction giving rise to the need to comply with these requirements if such transaction was not otherwise expressly permitted
by this Agreement or constitute or be deemed to constitute, with respect to any Subsidiary, an approval of such Person as a Borrower
or permit the inclusion of any acquired assets in the computation of the Borrowing Base.
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by a Loan Party in the ordinary course of business of such Loan Party.
“Commercial Letter of Credit Agreement” means the Commercial Letter of Credit Agreement relating to the issuance of a Commercial Letter of Credit in the form from time to time in use by the L/C Issuer.
“Commitment” means, as to each Lender, such Lender’s Revolving Commitment.
“Commitment Increase”
has the meaning specified in Section 2.15(a)(i)2.15(a)(i).
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“Committed Loan Notice”
means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Committed Revolving Loans from one Type to the other, or
(c) a continuation of LIBO Rate Loans, pursuant to Section 2.022.02,
which, if in writing, shall be substantially in the form of Exhibit A.
“Committed Revolving Loan”
has the meaning specified in Section 2.012.01.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Commonly Controlled Entity” means an entity, whether or not incorporated, which is under “common control” with a Loan Party within the meaning of Section 4001 of ERISA or is part of a group which includes a Loan Party and which is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Sections 414(m) and (o) of the Code.
“Compliance Certificate” means a certificate substantially in the form of Exhibit D.
“Concentration Account”
has the meaning provided in Section 6.11(c)6.11(c).
“Confidential Information”
has the meaning specified in Section 10.0710.07.
“Confirmation Agreement” means that certain Confirmation and Ratification of Ancillary Loan Documents dated as of the Closing Date among the Loan Parties and the Agent, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced.
“Consent” means actual
consent given by a Lender from whom such consent is sought; or the passage of ten (10) Business Days from receipt of written notice
to a Lender from the Agent of a proposed course of action to be followed by the Agent without such Lender’s giving the Agent
written notice of that Lender’s objection to such course of action; provided, however, with respect to any
modifications or consents addressed in Sections 10.01(a) through
(k)10.01(a) through (k),
in each case, with respect to the Loans owed to any particular Lender, such Lender shall be deemed to have rejected the request
for its consent after the passage of such ten (10) Business Day period if it has not provided its actual consent for same.
“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.
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“Consolidated
EBITDA” means, for any period, the Consolidated Net Income for such period, plus, in each case without
duplication, (x) the following to the extent deducted in calculating such Consolidated Net Income: (i) provision for
all taxes (whether or not paid, estimated or accrued) based on income, profits or capital (including penalties and interest,
if any) including state, franchise, excise and similar taxes and foreign withholding taxes and state taxes in lieu of
business fees (including business license fees) and payroll tax credits, income tax credits and similar tax credits, and
including an amount equal to the amount of tax distributions actually made to the holders of capital stock of the Borrowers
or any Parent Entity in respect of such period (in each case, to the extent attributable to the operations of the Borrowers
and their respective Subsidiaries), which will be included as though such amounts had been paid as income taxes directly by
the Lead Borrower, (ii) Consolidated Interest Charges, all items excluded from the definition of Consolidated Interest
Charges pursuant to clause (ii) thereof and to the extent not reflected in Consolidated Interest Charges, costs of surety
bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not limited to
amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash charges, losses
and expenses, including any write-offs or write-downs; provided that if any such non-cash charge represents an accrual or
reserve for potential cash items in any future four-fiscal quarter period (a) the Lead Borrower may determine not to add back
such non-cash charge in the period for which Consolidated EBITDA is being calculated and (b) to the extent the Lead Borrower
does decide to add back such non-cash charge, the cash payment in respect thereof in such future four-fiscal quarter period
will be subtracted from Consolidated EBITDA for such future four-fiscal quarter period, (vi) reasonable out-of-pocket
transaction fees, expenses or charges (including legal, advisory and brokerage or other financing fees), or, without
duplication, any amortization or write-off thereof, related to any transaction that is out of the ordinary course of business
including equity offerings (to the extent the proceeds thereof were intended to be contributed to the equity capital of the
Lead Borrower or its Subsidiaries), Investments, acquisitions, dispositions, recapitalizations, mergers, option buyouts or
Indebtedness permitted to be consummated or incurred by this Agreement (including any Permitted Refinancing in respect
thereof) or any amendments, waivers or other modifications under the agreements relating to such Indebtedness (including
any amendments, waivers or other modifications of this Agreement) or similar transactions (in each case whether or
not consummated or incurred), (vii) the amount of any loss or expense attributable to non-controlling interests, (viii) all
deferred financing costs written off and premiums paid in connection with any early extinguishment of Swap Obligations or
other derivative instruments, (ix) any management, monitoring, consulting, transaction and advisory fees (including
termination fees) and related indemnities, charges and expenses paid to or accrued to or on behalf of any Parent Entity or
any of the Permitted Holders in each case to the extent permitted hereunder, (x) interest and investment income, (xi)
[reserved], (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan,
program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement,
to the extent funded with cash proceeds contributed to the capital of the Borrowers or an issuance of capital stock of the
Borrowers (other than Disqualified Stock), (xiii) all fees, costs and expenses related to the Transactions, (xiv)
non-operating professional fees, costs and expenses, (xv) [reserved], (xvi) expense or charges to the extent paid or
reimbursed by a third party, (xvii) earn-out obligations incurred in connection with any acquisition or other Investment
permitted under this Agreement, (xviii) all charges, costs, expenses, accruals or reserves in connection with the rollover,
acceleration or payout of capital stock held by Management Investors and all losses, charges and expenses related to payments
made to holders of options or other derivative capital stock in the common equity of the Lead Borrower or any Parent Entity
in connection with, or as a result of, any distribution being made to equityholders of such Person or any of its direct or
indirect parents, which payments are being made to compensate such option holders as though they were equityholders at the
time of, and entitled to share in, such distribution, (xix) all losses, charges and expenses in connection with the
pre-opening and opening of stores, distribution centers and other facilities and operating losses attributable to any store,
distribution center or other facility to the extent such losses, charges or expenses were incurred before or within twelve
(12) months after the opening of such store, distribution center or other facility, (xx) [reserved], (xxi) payments in the
nature of compensation or expense reimbursement to independent board members, (xxii) the excess of GAAP rent expense over
actual cash rent paid due to the use of straight line rent for GAAP purposes and (xxiii)
business optimization expenses (including expenses related to consolidation initiatives), relocation and integration
expenses, costs, charges, expenses, accruals and reserves related to cost savings initiatives, strategic initiatives and
initiatives aimed at profitability improvement, and other restructuring costs, charges, expenses, accruals and reserves
(which, for the avoidance of doubt, shall include the effect of inventory optimization programs, consolidation, relocation
and closing of stores, distribution centers, warehouses and other facilities and exiting lines of business, operating expense
reductions, personnel relocation, restructuring, redundancy, recruiting, severance, termination, settlement and judgment,
one-time compensation charges, the amount of any signing, retention and completion bonuses, new systems design and
implementation costs, software development costs and curtailments and project startup costs); provided that the aggregate
amount added pursuant to this clause (xxiii) for any period of twelve (12) consecutive Fiscal Months shall not exceed the
greater of (i) $1540,000,000
and (ii) 1520%
of Consolidated EBITDA for the most recently ended four Fiscal
Quarter period for which Required Financial Statements have been provided as required hereunder (calculated prior
to giving effect to any increase pursuant to this clause (xxiii)),))
and (xxiv) charges, costs, expenses or fees associated with the implementation of ASC 606 or any comparable
regulation, plus (y) the amount of net cost savings, operating expense reductions,
revenue enhancements and synergies projected by the Lead Borrower in good faith to be realized as the result of
actions taken or to be taken on or prior to the date that is eighteen
(18) months after the ClosingFirst
Amendment Effective Date, or eighteen
(18) months after the consummation of any
operational change, respectively (which costs savings, operating expense reductions and synergies shall be reasonably
identifiable and factually supportable, certified by a Responsible Officer of the Lead Borrower and calculated on a pro forma
basis as though such 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 (which adjustments may be
incremental to pro forma adjustments made pursuant to the proviso to the definition of “Consolidated
First Lien leverage Ratio”, “Secured Leverage Ratio” or “Total Leverage Ratio”);
provided that the aggregate amount added pursuant to this clause (y) for any period of twelve (12) consecutive Fiscal Months
shall not exceed the greater of (i) $1525,000,000
and (ii) 1520%
of Consolidated EBITDA for the most recently ended four Fiscal
Quarter period for which Required Financial Statements have been provided as required hereunder (calculated prior
to giving effect to any increase pursuant to this clause (y)).
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“Consolidated First Lien Indebtedness”: as of any date of determination, an amount equal to (i) Consolidated Secured Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that is secured by Liens on property or assets of the Loan Parties and their Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) on a pari passu basis with the Obligations and the Term Loan Obligations under the Term Loan Agreement, minus (ii) Unrestricted Cash of the Borrowers and their Subsidiaries.
“Consolidated First Lien Leverage Ratio” means as of any date of determination, the ratio of (i) Consolidated First Lien Indebtedness as at such date (after giving effect to any incurrence or discharge of Indebtedness on such date) to (ii) Consolidated EBITDA for the period of the most recent four consecutive Fiscal Quarters ending prior to the date of such determination for which Required Financial Statements have been provided as required hereunder, provided that:
(1) if, since the beginning of such period, any Loan Party or any Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period, any Loan Party or any Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and
(3) if, since the beginning of such period, any Person became a Subsidiary or was merged or consolidated with or into any Borrower or any Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by any Borrower or a Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Lead Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Lead Borrower to be taken no later than 18 months after the date of determination.
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“Consolidated Fixed Charge Coverage Ratio” means, on any date, the ratio of (a) (i) Consolidated EBITDA for the most recent period of twelve (12) consecutive Fiscal Months for which Required Financial Statements have been provided as required hereunder minus (ii) non-financed Capital Expenditures of Borrower Holdco and its Subsidiaries during such period (it being understood that Capital Expenditures funded with proceeds of Committed Revolving Loans shall not be deemed to be “financed” for the purpose of this clause (ii)) minus (iii) taxes of Borrower Holdco and its Subsidiaries based on income that are paid in cash during such period (including tax distributions paid in cash during such period) to (b) Consolidated Fixed Charges for such period.
“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the following for such period:
(a) (a) Consolidated
Interest Charges paid or payable currently in cash;
(b) (b) scheduled
principal amortization payments of Indebtedness for borrowed money of Borrower Holdco and its Subsidiaries, including payments
in respect of Capitalized Lease Obligations, but excluding payments of intercompany Indebtedness; and
(c) (c) Restricted
Payments made pursuant to Section 7.067.06
(other than pursuant to clauses (a) (other than Restricted Payments to Borrower Holdco), (c), (f) and (p) thereof),
in each case paid or payable currently in cash.
“Consolidated Interest Charges” means, with respect to Borrower Holdco and its Subsidiaries for any period, the sum, without duplication, of (i) the total interest expense of the Borrower Holdco and its Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of the Borrower Holdco and its Subsidiaries, including any such interest expense consisting of (A) interest expense attributable to Capital Lease Obligations, (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by Borrower Holdco or any Subsidiary, but only to the extent that such interest is actually paid by the Borrower Holdco or any Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, (F) commissions, discounts and other fees and charges owed with respect to letters of credit, bankers’ acceptance financing bridge commitments or other financing fees, (G) movement in the mark-to-market valuation of hedging obligations or (H) interest expense associated with Equity Interests, minus (ii) to the extent otherwise included in such interest expense referred to in clause (i) above, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, in each case under clauses (i) through (ii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by the Borrower Holdco and its Subsidiaries with respect to interest rate Swap Contracts.
“Consolidated Net Income” means, for any period, the net income (loss) of the Borrowers and their Subsidiaries for such period, determined on a Consolidated basis in accordance with GAAP (adjusted to reflect any charge, tax or expense incurred or accrued by Borrower Holdco or any Parent Entity during such period attributable to the operations of the Borrowers and their respective Subsidiaries as though such charge, tax or expense had been incurred by the Borrowers, to the extent that the Borrowers have made or would be entitled under the Loan Documents to make any Restricted Payment or other payment to or for the account of Borrower Holdco in respect thereof) and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:
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(i) (i) any
net income (loss) of any Person if such Person is not a Borrower or a Subsidiary, except that (A) such Borrower’s
or any Subsidiary’s net income for such period shall be increased by the aggregate amount actually distributed by such Person
during such period to such Borrower or a Subsidiary as a dividend or other distribution, to the extent not already included therein,
and (B) any Borrower’s or any Subsidiary’s equity in the net loss of such Person shall be included to the extent
of the aggregate Investment of such Borrower or any of its Subsidiaries in such Person,
(ii) (ii) [reserved],
(iii) (iii) (x)
any net after-tax gain or loss realized upon the sale, abandonment or other disposition of any asset of the Borrowers or any Subsidiary
(including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course
of business (as determined by the Lead Borrower in good faith) and (y) any net after-tax gain or loss realized upon the
disposal, abandonment, closure or discontinuation of operations of the Borrowers or any Subsidiary, and any net after-tax income
(loss) from disposed, abandoned or discontinued operations (but if such operations are classified as discontinued because they
are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of),
(iv) (iv) any
net after-tax extraordinary, unusual or nonrecurring gain, loss or charge,
(v) (v) the
cumulative effect of a change in accounting principles,
(vi) (vi) any
net after-tax income or loss (less all fees, expenses and charges related thereto) attributable to the extinguishment of Indebtedness
or Swap Obligations or other derivative instruments,
(vii) (vii) any
non-cash gain, loss, expense or charge attributable to the movement in the mark-to-market valuation in respect of Swap Contracts,
(viii) (viii) any
unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency
other than the functional currency of such Person,
(ix) (ix) any
non-cash expenses realized or resulting from stock option plans, employee benefit plans or agreements or post-employment benefit
plans or agreements, or grants or sale of limited liability company interests, stock, stock appreciation, stock options, restricted
stock, preferred stock or other equity based awards,
(x) (x) any
costs or expenses incurred in connection with the payment of dividend equivalent rights to option holders pursuant to any management
equity plan, stock option plan or any other management or employee benefit plan or agreement or post-employment benefit plan or
agreement will be excluded;
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(xi) (xi) any
non-cash charge, expense or other impact attributable to application of the purchase, fair value or recapitalization method of
accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from
the write-downs and write-offs of assets to the extent resulting from such purchase or recapitalization accounting adjustments),
non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value
accounting required by the applicable standard under GAAP,
(xii) (xii) expenses
related to the conversion of various employee benefit programs in connection with the Transactions, and non-cash compensation related
expenses, and
(xiii) (xiii) to
the extent covered by insurance and actually reimbursed (or the Lead Borrower has determined that there exists reasonable evidence
that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180
days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated
Net Income for any amount so added back to the extent not so reimbursed within such 365 day period)), any expenses with respect
to liability or casualty events or business interruption.
“Consolidated Total Assets” means, as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of Borrower Holdco as at the end of the most recently ended fiscal quarter for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).
“Consolidated Secured Indebtedness” means, as of any date of determination, an amount equal to (i) the Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that is secured by Liens on property or assets of the Loan Parties and their Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) minus (ii) Unrestricted Cash of the Borrowers and their Subsidiaries.
“Consolidated Total Indebtedness” means, as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of the Borrowers and their Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including purchase money Indebtedness and unreimbursed outstanding drawn amounts under funded letters of credit; Capital Lease Obligations; and debt obligations evidenced by bonds, debentures, notes or similar instruments, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Swap Obligations) minus (ii) Unrestricted Cash of the Borrowers and their Subsidiaries.
“Contractual Obligation” means, as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Contribution Indebtedness” means Indebtedness of any Borrower or any Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by any Borrower or any Subsidiary) made to the capital of such Borrower or such Subsidiary after the Closing Date (whether through the issuance or sale of Equity Interests or otherwise); provided that such Contribution Indebtedness (a) is incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of a Responsible Officer of the Lead Borrower on the date of incurrence thereof.
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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Cost” means the lower of cost or market value of Inventory, based upon the Borrowers’ accounting practices, known to the Agent, which practices are in effect on the Closing Date or with any changes permitted hereunder as such calculated cost is determined from invoices received by the Borrowers, the Borrowers’ purchase journals or the Borrowers’ stock ledger.
“Covenant Compliance Event” means Excess Testing Availability at any time is less than or equal to ten percent (10%) of the Loan Cap. For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing at the Agent’s option until Excess Testing Availability has exceeded ten percent (10%) of the Loan Cap for twenty (20) consecutive calendar days, in which case a Covenant Compliance Event shall no longer be deemed to be continuing for purposes of this Agreement. The termination of a Covenant Compliance Event as provided herein shall in no way limit, waive or delay the occurrence of a subsequent Covenant Compliance Event in the event that the conditions set forth in this definition again arise.
“Credit Card Advance Rate” means 90%.
“Credit Card Issuer” means any person (other than a Borrower or other Loan Party) who issues or whose members issue credit cards, including, without limitation, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International, Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American Express Travel Related Services Company, Inc., and Novus Services, Inc. and other issuers approved by the Agent in its reasonable discretion.
“Credit Card Processor” means any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to any Borrower’s sales transactions involving credit card or debit card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
“Credit Card Receivables” means each “Account” (as defined in the UCC) together with all income, payments and proceeds thereof, owed by a Credit Card Issuer or Credit Card Processor to a Loan Party resulting from charges by a customer of a Loan Party on credit or debit cards issued by such issuer in connection with the sale of goods by a Loan Party, or services performed by a Loan Party, in each case in the ordinary course of its business.
“Credit Card Notifications” has
the meaning specified in Section 6.11(a)(i)6.11(a)(i).
“Credit Extensions” mean each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
“Credit Party” or “Credit Parties” means (a) individually, (i) each Lender and its Affiliates, (ii) the Agent, (iii) each L/C Issuer, (iv) each Arranger, (v) any other Person to whom Obligations under this Agreement and other Loan Documents are owing, and (vi) the successors and assigns of each of the foregoing, and (b) collectively, all of the foregoing.
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“Credit Party Expenses” means, without limitation, (a) all reasonable and documented out-of-pocket expenses incurred by the Agent and its respective Affiliates, in connection with this Agreement and the other Loan Documents, including without limitation (i) the reasonable fees, charges and disbursements of (A) counsel for the Agent, (B) outside consultants for the Agent, (C) appraisers, (D) commercial finance examinations, and (E) all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Obligations, (ii) in connection with (A) the syndication of the credit facilities provided for herein, (B) the preparation, negotiation, administration, management, execution and delivery of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (C) the enforcement or protection of their rights in connection with this Agreement or the Loan Documents or efforts to preserve, protect, collect, or enforce the Collateral, or (D) any workout, restructuring or negotiations in respect of any Obligations, and (b) with respect to the L/C Issuer, and its Affiliates, all reasonable out-of-pocket expenses incurred in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder; and (c) all customary and reasonable and invoiced fees and charges (as adjusted from time to time) of Agent with respect to the disbursement of funds (or the receipt of funds) to or for the account of Loan Parties (whether by wire transfer or otherwise), together with any reasonable out-of-pocket costs and expenses incurred in connection therewith; and (d) all reasonable and documented out-of-pocket expenses incurred by the Credit Parties who are not the Agent or the L/C Issuer, after the occurrence and during the continuance of an Event of Default, provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel (plus any local counsel) representing the Agent and one counsel representing all other Credit Parties (absent a conflict of interest in which case the Credit Parties may engage and be reimbursed for additional counsel).
“Cure Amount” has the meaning specified
in Section 8.028.02.
“Cure Right” has the meaning specified
in Section 8.028.02.
“Customer Credit Liabilities” means at any time, the aggregate remaining value at such time of (a) outstanding gift certificates and gift cards of the Borrowers entitling the holder thereof to use all or a portion of the certificate or gift card to pay all or a portion of the purchase price for any Inventory, (b) outstanding merchandise credits of the Borrowers, and (c) liabilities in connection with frequent shopping programs of the Borrowers.
“Customer Deposits” means at any time, the aggregate amount at such time of (a) deposits made by customers with respect to the purchase of goods or the performance of services and (b) layaway obligations of the Borrowers.
“Customs Broker/Carrier Agreement” means an agreement in form and substance satisfactory to the Agent among a Borrower, a customs broker, freight forwarder, consolidator or carrier, and the Agent.
“DDA” means each checking, savings or other demand deposit account maintained by any of the Loan Parties. All funds in each DDA shall be conclusively presumed to be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA.
“DDA Notification” has the meaning
specified in Section 6.11(a)(iii)6.11(a)(ii).
“Debtor Relief Laws” means the Bankruptcy Code of the United States, 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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“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin, if any, applicable to Base Rate Loans, plus (iii) 2% per annum; provided, however, that with respect to a LIBO Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin for Standby Letters of Credit or Commercial Letters of Credit, as applicable, plus 2% per annum.
“Defaulting Lender” means any Revolving Lender that (a) has failed to fund any portion of the Committed Revolving Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within three (3) Business Days of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Agent or any other Revolving Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, (c) has failed or refused to abide by any of its obligations under this Agreement, or (d) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
“Designated Event of Default”
means any Event of Default under (a) Section 8.01(a)8.01(a)
(solely with respect to the accuracy of any Borrowing Base Certificate), 8.01(b)8.01(b),
8.01(c)8.01(c),
8.01(d)8.01(d)
(solely with respect to failure to comply with Section 6.04(h)6.04(h),
6.11 or 7.10)6.11
or 7.10) or 8.01(i)8.01(i),
or (b) Section 8.01(d)8.01(d)
(solely with respect to failure to comply with Section 6.04(a)6.04(a),
(b)(b)
or (c)(c)
at any time a Covenant Compliance Event has occurred and is continuing or failure to comply with Section 6.04(a),6.04(a),
(b) or (c) for the most recent reporting period immediately prior to the occurrence of a Covenant Compliance Event).
“Designated Non-Cash Consideration” means the fair market value of non-cash consideration received in connection with a Disposition pursuant to Section 7.05(i) that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Lead Borrower in form and substance reasonably acceptable to the Agent, setting forth the basis of such valuation, which amount will be reduced by the fair market value of the portion of the non-cash consideration converted to cash or cash equivalents within one hundred and eighty (180) days following the consummation of the applicable Disposition.
“Disinterested Director” means, with respect to any Person and transaction, a member of the board of directors of such Person who does not have any material direct or indirect financial interest in or with respect to such transaction. A member of any such board of directors shall not be deemed to have such a financial interest by reason of such member’s holding Equity Interests of such Person or any options, warrants or other rights in respect of such Equity Interests.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (whether in one transaction or in a series of transactions, and including any sale and leaseback transaction and any sale, transfer, license or other disposition) of any property (including, without limitation, any Equity Interests) by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
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“Disqualified Institution”
means (i) any person identified by the Lead Borrower to the Agent in writing by name that is or becomes an operating company competitor
of the Lead Borrower and/or any its Subsidiaries, (ii) any person that is identified by the Lead Borrower to the Agent in writing
by name on or prior to the ClosingFirst
Amendment Effective Date; and (iii) any Affiliate of any person described in clauses (i) or (ii) above that are either
(x) reasonably identifiable solely on the basis of such Affiliate’s name or (y) identified in writing by name by the Lead
Borrower to the Agent from time to time, other than, with respect to this clause (iii), any bank, financial institution or fund
that regularly invests in commercial loans or similar extensions of credit in the ordinary course of business and for which no
personnel directly involved with the relevant Person (A) makes investment decisions or (B) has access to non-public information
relating to the Lead Borrower and/or its Subsidiaries; provided, that the Agent shall not have any duty to verify whether
such potential assignee or participant is a Disqualified Institution, nor shall the Agent incur any liability as a result of an
assignment or the granting of a participation to any Disqualified Institution. Any such written notice shall become effective two
Business Days after delivery to the Agent, and shall not apply retroactively to disqualify the transfer of an interest in the Loans
and Commitments in accordance that was effective prior to the effective date of such notice.
“Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests), in whole or in part, on or prior to the date that is ninety-one (91) days after the date on which the Loans and all other Obligations (other than Obligations in respect of Bank Products, Cash Management Services and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted) are paid in full; provided, however, that (i) only the portion of such Equity Interests which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock and (ii) with respect to any Equity Interests issued to any employee or to any plan for the benefit of employees of the Lead Borrower or its Subsidiaries or by any such plan to such employees or other eligible service providers, such Equity Interest shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Lead Borrower or one of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, resignation, death or disability and if any class of Equity Interest of such Person that by its terms authorizes such Person to satisfy its obligations thereunder by delivery of an Equity Interest that is not Disqualified Stock, such Equity Interests shall not be deemed to be Disqualified Stock. Notwithstanding the preceding sentence, any Equity Interest that would constitute Disqualified Stock solely because the holders thereof have the right to require a Loan Party to repurchase such Equity Interest upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Lead Borrower and its Subsidiaries may become obligated to pay upon maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock or portion thereof, plus accrued dividends.
“Dollars” and “$” mean lawful money of the United States.
“Domestic Subsidiary” means any Subsidiary of a Borrower other than a Foreign Subsidiary.
“Early Opt-in Election” means the occurrence of: (i) a determination by the Agent or (ii) a notification by the Required Lenders to the Agent (with a copy to the Borrower) that the Required Lenders have determined that U.S. dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in Section 1.09, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace LIBOR, and (i) the election by the Agent, in consultation with the Borrower, or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written notice of such election to the Lead Borrower and the Lenders or by the Required Lenders of written notice of such election to the Agent.
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“EEA Financial Institution” means: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, United Kingdom, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means (a) a Lender or any of its Affiliates; (b) in the case of an assignment of a Revolving Commitment, a bank, insurance company, or company engaged in the business of making commercial loans, which Person, together with its Affiliates, has a combined capital and surplus in excess of $250,000,000; (c) an Approved Fund; (d) any Person to whom a Credit Party assigns its rights and obligations under this Agreement as part of an assignment and transfer of such Credit Party’s rights in and to a material portion of such Credit Party’s portfolio of asset based credit facilities, and (e) any other Person (other than a natural person) approved by (i) the Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless an Event of Default has occurred and is continuing, the Lead Borrower (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include (A) a Loan Party or any of the Loan Parties’ Affiliates or Subsidiaries or (B) any Disqualified Institution.
“Eligible Cash on Hand”
means cash or Permitted Cash Equivalent Investments owned by a Borrower, which are (a) available for use by a Borrower, without
condition or restriction (other than in favor of Agent), (b) free and clear of any pledge or other Lien (other than (i) in favor
of Agent, (ii) Liens permitted pursuant to Section 7.02(c)7.02(c)
hereof, and (iii) in favor of the securities intermediary or depository bank where the investment account or deposit account referred
to below is maintained for its customary fees and charges), (c) subject to the first priority perfected security interest of Agent
(subject to the Liens of the securities intermediary or depository bank where the investment account or deposit account referred
to below is maintained for its customary fees and charges), (d) in an investment account or deposit account specifically and solely
used for purposes of holding such cash or Permitted Cash Equivalent Investments and which account is subject to a Blocked Account
Agreement, and (e) for which Agent shall have received a certificate from the Lead Borrower evidencing the amount of such cash
or cash equivalents held in such investment account as of the applicable date of the calculation.
“Eligible Credit Card Receivables” means at the time of any determination thereof, each Credit Card Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Credit Card Receivable (i) has been earned by performance and represents the bona fide amounts due to a Borrower from a Credit Card Issuer or Credit Card Processor, and in each case originated in the ordinary course of business of such Borrower, and (ii) in each case is acceptable to the Agent in its Permitted Discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (j) below. Without limiting the foregoing, to qualify as an Eligible Credit Card Receivable, such Credit Card Receivable shall indicate no Person other than a Borrower as payee or remittance party. In determining the amount to be so included, the face amount of such Credit Card Receivable shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Borrower may be obligated to rebate to a customer, a Credit Card Issuer or Credit Card Processor pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Credit Card Receivable but not yet applied by the Loan Parties to reduce the amount of such Credit Card Receivable. Except as otherwise agreed by the Agent, any Credit Card Receivable included within any of the following categories shall not constitute an Eligible Credit Card Receivable:
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(a) (a) Credit
Card Receivables which do not constitute a “payment intangible” (as defined in the UCC);
(b) (b) Credit
Card Receivables that have been outstanding for more than six (6) Business Days from the date of sale;
(c) (c) Credit
Card Receivables (i) that are not subject to a perfected first priority and exclusive Lien in favor of the Agent, or (ii) with
respect to which a Borrower does not have good, valid and marketable title thereto, free and clear of any Lien (in each case, other
than (1) Liens granted to the Agent pursuant to the Security Documents, (2) Liens granted to the Term Loan Agent pursuant to the
Term Loan Documents, Liens securing any Pari Passu Indebtedness (as defined in the Term Loan Agreement as in effect on the date
hereofFirst Amendment Effective Date) and,
in each case, are subject to the Intercreditor Agreement, (3) Liens permitted under Section 7.02(c)7.02(c)
for which the Agent has established Reserves and (4) Permitted Encumbrances which are junior in priority to the Liens in favor
of the Agent for which the Agent has established Reserves in its Permitted Discretion);
(d) (d) Credit
Card Receivables which are disputed, are with recourse, or with respect to which a claim, counterclaim, offset or chargeback has
been asserted (to the extent of such claim, counterclaim, offset or chargeback);
(e) (e) Credit
Card Receivables as to which the Credit Card Issuer or Credit Card Processor has the right under certain circumstances to require
a Loan Party to repurchase the Credit Card Receivables from such Credit Card Issuer or Credit Card Processor;
(f) (f) Credit
Card Receivables due from Credit Card Issuer or Credit Card Processor of the applicable credit card which is the subject of any
bankruptcy or insolvency proceedings;
(g) (g) Credit
Card Receivables which are not a valid, legally enforceable obligation of the applicable Credit Card Issuer or Credit Card Processor
with respect thereto;
(h) (h) Credit
Card Receivables which do not conform to all representations, warranties or other provisions in the Loan Documents relating to
Credit Card Receivables;
(i) (i) Credit
Card Receivables which are evidenced by “chattel paper” or an “instrument” of any kind unless, to the extent
required under the Security Agreement, such “chattel paper” or “instrument” is in the possession of the
Agent, and to the extent necessary or appropriate, endorsed to the Agent; or
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(j) (j) Credit
Card Receivables which the Agent determines in its Permitted Discretion to be uncertain of collection or which do not meet such
other reasonable eligibility criteria for Credit Card Receivables as the Agent may determine in its Permitted Discretion.
“Eligible In-Transit Inventory” means, as of any date of determination thereof, without duplication of other Eligible Inventory, items of In-Transit Inventory deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Borrowing Base which will, subject to the proviso, include the In-Transit Inventory which meets each of the following criteria:
(a) which has been shipped from a foreign port (FOB shipping point) for receipt by a Borrower, but which has not yet been delivered to such Borrower, which In-Transit Inventory has been in transit for sixty (60) days or less from the date of shipment of such Inventory;
(b) for which the purchase order is in the name of a Borrower and title and risk of loss has passed to such Borrower;
(c) for which an Acceptable Document of Title or Acceptable Transport Document has been issued, and in each case as to which the Agent has control (as defined in the UCC) over the documents of title which evidence ownership of the subject Inventory (such as, if requested by the Agent, by the delivery of a Customs Broker/Carrier Agreement);
(d) which is insured to the reasonable satisfaction of the Agent (including, without limitation, marine cargo insurance);
(e) the Foreign Vendor with respect to such In-Transit Inventory is an Approved Foreign Vendor; and
(f) which otherwise would constitute Eligible Inventory;
provided that the Agent may, in its Permitted Discretion, exclude any particular Inventory from the definition of “Eligible In-Transit Inventory” in the event the Agent reasonably determines that such Inventory is subject to any Person’s right of reclamation, repudiation, stoppage in transit or any event has occurred or is reasonably anticipated by the Agent to arise which may otherwise adversely impact the ability of the Agent to realize upon such Inventory.
“Eligible Inventory” means, as of the date of determination thereof, without duplication, (i) Eligible In-Transit Inventory, and (ii) items of Inventory of a Borrower that are finished goods, merchantable and readily saleable to the public in the ordinary course of the Borrowers’ business and deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Borrowing Base, except as otherwise agreed by the Agent, (A) complies with each of the representations and warranties respecting Inventory made by the Borrowers in the Loan Documents, and (B) is not excluded as ineligible by virtue of one or more of the criteria set forth below. Except as otherwise agreed by the Agent, in its discretion, the following items of Inventory shall not be included in Eligible Inventory:
(a) Inventory that is not solely owned by a Borrower or a Borrower does not have good and valid title thereto;
(b) Inventory that is leased by or is on consignment to a Borrower or which is consigned by a Borrower to a Person which is not a Loan Party;
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(c) Inventory (other than Eligible In-Transit Inventory) that is not located in the United States of America (excluding territories or possessions of the United States);
(d) Inventory that is not located at a location that is owned or leased by a Borrower, except (i) Inventory in transit between such owned or leased locations or locations which meet the criteria set forth in clause (ii) below, or (ii) to the extent that the Borrowers have furnished the Agent with (A) any UCC financing statements or other documents that the Agent may determine to be necessary to perfect its security interest in such Inventory at such location, and (B) a Collateral Access Agreement executed by the Person owning any such location on terms reasonably acceptable to the Agent, or, with respect to Inventory located at third party-operated warehouses located in the United States of America (excluding territories or possessions of the United States) where the Loan Parties’ obligations to such third party operator are subject to a use and occupancy arrangement under which there is a monthly fee charged for such usage, to the extent, the Borrowers have used commercially reasonable efforts to deliver any such Collateral Access Agreements and are unable to do so, and the Agent has implemented Reserves for such location in its Permitted Discretion (which, for the avoidance of doubt, shall consist of two (2) months of rent and shall consist of three (3) months for all other usage amounts due to such third party operator, plus all unpaid rent or usage fees due and payable at the time such Reserve is established;
(e) Inventory that is located: (i) in a distribution center or warehouse leased by a Borrower unless the applicable lessor has delivered to the Agent a Collateral Access Agreement or, to the extent the Borrowers have used commercially reasonable efforts to deliver any such Collateral Access Agreements and are unable to do so, the Agent has implemented Reserves for such location in the amount of two (2) months’ rent, plus all unpaid rent fees due and payable at the time such Reserve is established, or (ii) at any leased location in a Landlord Lien State unless the applicable lessor has delivered to the Agent a Collateral Access Agreement or the Agent has implemented Reserves for such location;
(f) Inventory that is comprised of goods which (i) are damaged, defective, “seconds,” or otherwise unmerchantable, (ii) are to be returned to the vendor, (iii) are obsolete or slow moving (i.e. beyond what was recognized on the most recent appraisal delivered to the Agent hereunder), or custom items, work in process, raw materials, or that constitute samples, spare parts, promotional, marketing, labels, bags and other packaging and shipping materials or supplies used or consumed in a Borrower’s business, (iv) are seasonal in nature and which have been packed away for sale in the subsequent season, (v) are not in compliance with all standards imposed by any Governmental Authority having regulatory authority over such Inventory, its use or sale, or (vi) are bill and hold goods;
(g) Inventory
that is not subject to a perfected first priority and exclusive Lien in favor of the Agent (other than (1) Liens granted to the
Agent pursuant to the Security Documents, (2) Liens granted to the Term Loan Agent pursuant to the Term Loan Documents, Liens securing
any Pari Passu Indebtedness (as defined in the Term Loan Agreement as in effect on the date hereofFirst
Amendment Effective Date) and, in each case, are subject to the Intercreditor Agreement, (3) Liens permitted under Section
7.02(c)7.02(c)
for which the Agent has established Reserves and (4) Permitted Encumbrances which are junior in priority to the Liens in favor
of the Agent for which the Agent has established Reserves in its Permitted Discretion);
(h) Inventory
that is not insured in compliance with the provisions of Section 6.026.02 hereof;
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(i) to the extent not reserved for as a customer deposit, Inventory that has been sold but not yet delivered or as to which a Borrower has accepted a deposit;
(j) Inventory that is subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party from which any Borrower or any of its Subsidiaries has received notice of a dispute in respect of any such agreement; or
(k) Inventory acquired in a Permitted Business Acquisition or which is not of the type usually sold in the ordinary course of the Borrowers’ business, unless and until the Agent has completed or received (A) an appraisal of such Inventory from appraisers satisfactory to the Agent and establishes an advance rate therefor and Inventory Reserves (if applicable) therefor, and otherwise agrees that such Inventory shall be deemed Eligible Inventory, and (B) such other due diligence as the Agent may require, all of the results of the foregoing to be reasonably satisfactory to the Agent; provided that (1) as long as the Lead Borrower reasonably cooperates with the Agent in connection with the completion of such due diligence and all other eligibility criteria are satisfied with respect to such Inventory, seventy-five percent (75%) of the Cost of such Inventory shall be deemed Eligible Inventory pending the completion of such due diligence, and (2) as long as the Lead Borrower reasonably cooperates with the Agent in connection with the completion of such due diligence, if such due diligence is not completed within ninety (90) days after the date of the Permitted Business Acquisition, as long as all other eligibility criteria are satisfied with respect to such Inventory, 100% of the Cost of such Inventory shall be deemed Eligible Inventory until such time as the due diligence shall be completed.
“Eligible Letter of Credit” means an irrevocable standby letter of credit issued by a bank organized within the United States and reasonably acceptable to Agent which shall:
(a) be in the physical possession Agent;
(b) be for the account of a Borrower and name the Agent as beneficiary;
(c) have an initial term of not less than one hundred and twenty (120) days, automatically renewable for consecutive periods of not less than one hundred eighty (180) days each, and have a final expiry of no sooner than thirty (30) days after the Maturity Date, or otherwise acceptable to the Agent;
(d) provide for multiple draws, or otherwise acceptable to the Agent; and
(e) otherwise be in form and substance and have terms and conditions reasonably acceptable to the Agent as determined in the Agent’s reasonable discretion.
“Eligible On-Hand Inventory” means all Eligible Inventory other than Eligible In-Transit Inventory.
“Eligible Trade Receivables” means Accounts deemed by the Agent in its Permitted Discretion to be eligible for inclusion in the calculation of the Borrowing Base arising from the sale of the Borrowers’ Inventory (other than those consisting of Credit Card Receivables) that satisfies the following criteria at the time of creation and continues to meet the same at the time of such determination: such Account (i) has been earned by performance and represents the bona fide amounts due to a Borrower from an account debtor, and in each case originated in the ordinary course of business of such Borrower, and (ii) in each case is acceptable to the Agent in its Permitted Discretion, and is not ineligible for inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through (v) below. Without limiting the foregoing, to qualify as an Eligible Trade Receivable, an Account shall indicate no Person other than a Borrower as payee or remittance party. In determining the amount to be so included, the face amount of an Account shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, finance charges or other allowances (including any amount that a Borrower may be obligated to rebate to a customer pursuant to the terms of any agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account but not yet applied by the Borrowers to reduce the amount of such Eligible Trade Receivable. Except as otherwise agreed by the Agent, any Account included within any of the following categories shall not constitute an Eligible Trade Receivable:
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(a) Accounts that are not evidenced by an invoice;
(b) Accounts that have been outstanding for more than ninety (90) days from the date of sale or more than sixty (60) days past the due date;
(c) Accounts due from any account debtor which is obligated on any accounts described in clause (b), above.
(d) from and after the time when Eligible Trade Receivables first equal the greater of $5,000,000 and five percent (5%) of the Borrowing Base, the aggregate amount of Accounts owed by an account debtor and/or its Affiliates exceed such percentage as may be established by the Agent in its Permitted Discretion from time to time for any account debtor (but the portion of the Accounts not in excess of the applicable percentages may be deemed Eligible Trade Receivables, in the Agent’s Permitted Discretion);
(e) Accounts
(i) that are not subject to a perfected first priority and exclusive Lien in favor of the Agent, (ii) with respect to which a Borrower
does not have good, valid and marketable title thereto, free and clear of any Lien (other than (1) Liens granted to the Agent pursuant
to the Security Documents, (2) Liens granted to the Term Loan Agent pursuant to the Term Loan Documents, Liens securing any Pari
Passu Indebtedness (as defined in the Term Loan Agreement as in effect on the date hereofFirst
Amendment Effective Date) and, in each case, are subject to the Intercreditor Agreement, (3) Liens permitted under Section
7.02(c)7.02(c)
for which the Agent has established Reserves and (4) Permitted Encumbrances which are junior in priority to the Liens in favor
of the Agent for which the Agent has established Reserves in its Permitted Discretion), or (iii) that have been sold to CIT, or
on which CIT has a Lien, pursuant to the terms of the CIT Deferred Purchase Factoring Agreement;
(f) Accounts which are disputed or with respect to which a claim, counterclaim, offset or chargeback has been asserted, but only to the extent of such dispute, counterclaim, offset or chargeback;
(g) Accounts which arise out of any sale made not in the ordinary course of business, made on a basis other than upon credit terms usual to the business of the Borrowers or are not payable in Dollars;
(h) Accounts which are owed by any account debtor whose principal place of business is not within the continental United States;
(i) Accounts which are owed by any Affiliate or any employee of a Loan Party;
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(j) Accounts for which all consents, approvals or authorizations of, or registrations or declarations with any Governmental Authority required to be obtained, effected or given in connection with the performance of such Account by the account debtor or in connection with the enforcement of such Account by the Agent have been duly obtained, effected or given and are in full force and effect;
(k) Accounts due from an account debtor which is the subject of any bankruptcy or insolvency proceeding, has had a trustee or receiver appointed for all or a substantial part of its property, has made an assignment for the benefit of creditors or has suspended its business;
(l) Accounts due from any Governmental Authority except to the extent that the subject account debtor is the federal government of the United States of America and has complied with the Federal Assignment of Claims Act of 1940 and any similar state legislation;
(m) Accounts (i) owing from any Person that is also a supplier to or creditor of a Loan Party or any of its Subsidiaries unless such Person has waived any right of setoff in a manner acceptable to the Agent or (ii) representing any manufacturer’s or supplier’s credits, discounts, incentive plans or similar arrangements entitling a Loan Party or any of its Subsidiaries to discounts on future purchase therefrom;
(n) Accounts arising out of sales on a bill-and-hold, guaranteed sale, sale-or-return, sale on approval or consignment basis or subject to any right of return, set off or charge back;
(o) Accounts arising out of sales to account debtors outside the United States unless such Accounts are fully backed by an irrevocable letter of credit on terms, and issued by a financial institution, acceptable to the Agent and such irrevocable letter of credit is in the possession of the Agent;
(p) Reserved;
(q) Accounts evidenced by a promissory note or other instrument;
(r) Accounts consisting of amounts due from vendors as rebates or allowances;
(s) Accounts which are in excess of the credit limit for such account debtor established by the Borrowers in the ordinary course of business and consistent with past practices;
(t) Accounts which include extended payment terms (datings) beyond those generally furnished to other account debtors in the ordinary course of business;
(u) Accounts which constitute Credit Card Receivables;
(v) Accounts which the Agent determines in its Permitted Discretion to be unacceptable for borrowing; and
(w) all Accounts owed by an account debtor and/or its Affiliates that have outstanding Accounts sold to CIT, or on which CIT has a Lien, pursuant to the terms of the CIT Deferred Purchase Factoring Agreement.
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“Enforcement Action” means the exercise by the Agent in good faith of any of its enforcement rights and remedies as a secured creditor hereunder or under the other Loan Documents, applicable law or otherwise at any time upon the occurrence and during the continuance of an Event of Default (including, without limitation, the solicitation of bids from third parties to conduct the liquidation of the Collateral, the engagement or retention of sales brokers, marketing agents, investment bankers, accountants, appraisers, auctioneers or other third parties for the purposes of valuing, marketing, promoting and selling the Collateral, the commencement of any action to foreclose on the security interests or Liens of Agent in or on all or any material portion of the Collateral, notification of account debtors to make payments to the Agent, any action to take possession of all or any portion of the Collateral or commencement of any legal proceedings or actions against or with respect to all or any portion of the Collateral, but excluding, for the avoidance of doubt, notification from the Agent pursuant to a Blocked Account Agreement upon the occurrence of a Cash Dominion Event).
“Environmental Costs” means any and all costs or expenses (including attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or alleged violation of, noncompliance with or liability under any Environmental Laws. Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind.
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any Hazardous Materials into the environment.
“Environmental Liability” means any liability, obligation, damage, loss, claim, action, suit, judgment, order, fine, penalty, fee, expense, or cost, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal or presence of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Permits” means any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law.
“Equipment” has the meaning specified in the UCC.
“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 (other than debt 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, as amended.
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“EU Bail-In Legislation Schedule”: EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” has the meaning
specified in Section 8.018.01.
“Excess Testing Availability” means, as of any date of determination thereof by the Agent, the result, if a positive number, of:
(a) the Borrowing Base (provided that this clause (a) shall not exceed 102.5% of the Aggregate Revolving Commitments),
minus
(b) the Total Outstandings.
“Excluded Contribution” means Net Proceeds, or the fair market value of property or assets, received by the Lead Borrower as capital contributions to the Lead Borrower after the Closing Date or from the issuance or sale (other than to a Subsidiary) of Equity Interests (other than Disqualified Stock) of the Lead Borrower, in each case to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of the Lead Borrower.
“Excluded Subsidiary” means, at any date of determination, any Subsidiary of a Borrower:
(a) that is an Immaterial Subsidiary;
(b) that is prohibited by Requirement of Law or Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof) from Guaranteeing the Obligations or if Guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;
(c) with respect to which the Lead Borrower and the Agent reasonably agree that the burden or cost or other consequences of providing a guarantee of the Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom;
(d) with respect to which the provision of such guarantee of the Obligations would result in material adverse tax consequences to any Borrower or any of its Subsidiaries (as reasonably determined by the Lead Borrower and notified in writing to the Agent by the Lead Borrower);
(e) that is a Subsidiary of a Foreign Subsidiary;
(f) that is a joint venture or non-wholly owned Subsidiary;
(g) that is an Unrestricted Subsidiary;
(h) that is a Captive Insurance Subsidiary;
(i) that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity, or (y) merging with a Borrower or any Parent Entity in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with a Borrower or any Parent Entity within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity; or
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(j) that is a not for profit Subsidiary;
provided that, notwithstanding the foregoing, any Subsidiary that Guarantees the payment of the Term Loan Agreement shall not be an Excluded Subsidiary.
Subject to the proviso in the preceding
sentence, any Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four
consecutive Fiscal Quarters for which consolidated financial statements of Parent have been delivered
pursuant to Section 6.04Required Financial Statements
have been provided as required hereunder shall continue to be deemed an Excluded Subsidiary hereunder until the date
that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant
to Section 6.046.04
with respect to such period. If reasonably requested by the Agent, the Lead Borrower shall provide to the Agent a list of all Excluded
Subsidiaries promptly following such request.
“Excluded Swap Obligation” means any Swap Obligation that arises from any guaranty or collateral pledge with respect to the Obligations that becomes impermissible under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time this Guaranty becomes effective with respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one (1) swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or collateral pledge becomes illegal.
“Excluded Taxes” means,
with respect to the Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Loan Parties hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), in each case (i) imposed as a result of such recipient being organized
under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes (b) any branch profits
taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which any Loan Party is located, (c)
in the case of a Foreign Lender, (i) any withholding tax that is imposed on amounts payable to such Foreign Lender (A) at the time
such Foreign Lender becomes a party hereto (other than as an assignee pursuant to a request by the Lead Borrower under Section
10.1310.13)
or (B) designates a new Lending Office, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Loan Parties with respect
to such withholding tax pursuant to Section 3.01(a)3.01(a)
or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply
with Section 3.01(e)3.01(e),
and (d) any U.S. federal, state or local backup withholding tax, and (e) any U.S. federal withholding tax imposed under FATCA.
“Executive Order” has the meaning
set forth in Section 10.1810.18.
“Existing Credit Agreement” has the meaning specified in the introductory paragraph hereto.
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“Existing Indebtedness” means all obligations under the Existing Credit Agreement and all obligations under the Existing Term Loan Agreement and the documents executed in connection therewith.
“Existing Letters of Credit” means those letters of credit referenced on Schedule 1.04 attached hereto.
“Existing Term Loan Agreement” means that certain Credit Agreement, dated as of May 1, 2013, among the Lead Borrower, Borrower Holdco, the GCI Capital Markets LLC and the lenders party thereto.
“Exiting Lender” means each “Lender” (as defined in the Existing Credit Agreement) without any Commitment hereunder.
“Extended Revolving Commitment”
has the meaning specified in Section 2.16(a)2.16(a).
“Extension” has the meaning specified
in Section 2.16(a)2.16(a).
“Extension Amendment” has the meaning
specified in Section 2.16(c)2.16(c).
“Extension Offer” has the meaning
specified in Section 2.16(a)2.16(a).
“Extraordinary Receipt” means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase price adjustments.
“Facility Guaranty” means the Amended and Restated Guarantee dated as of the Closing Date made by the Guarantors in favor of the Agent and the other Credit Parties, in form reasonably satisfactory to the Agent, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced (including, without limitation, through any joinder agreements).
“Factored Receivables” means any Accounts originally owed or owing by a Loan Party to another Person which have been purchased by or factored with Wells Fargo or any of its Affiliates pursuant to a factoring arrangement or otherwise with the Person that sold the goods or rendered the services to the Loan Party which gave rise to such Account.
“FATCA” means current Section 1471 through 1474 of the Code or any amended version or successor provision that is substantively similar to and, in each case, any regulations promulgated thereunder and any interpretation and other guidance issued in connection therewith, any agreements entered into pursuant to Section 1471(b) of the Code, any intergovernmental agreements entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement, treaty or convention.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Wells Fargo on such day on such transactions as determined by the Agent.
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“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.
“Fee Letter” means collectively, (i) the amended and restated fee letter agreement, dated September 19, 2016, among the Lead Borrower, the Agent and Wells Fargo Securities, LLC and (ii) the First Amendment Fee Letter.
“Financial Performance Covenant”
shall mean the covenant set forth in Section 7.10.7.10.
“First Amendment” means that certain Amendment No. 1 to Amended and Restated Credit Agreement and Amendment No. 1 to Amended and Restated Security Agreement, dated as of February 14, 2020, among Borrower Holdco, the Borrowers, the other Loan Parties party thereto, the Agent and the Lenders party thereto.
“First Amendment Effective Date” means the date on which all of the conditions contained in Section 5 of the First Amendment have been satisfied or waived.
“First Amendment Fee Letter” means the fee letter agreement, dated as of the First Amendment Effective Date, among the Borrowers and the Agent .
“Fiscal Month” means any fiscal month of any Fiscal Year, which month shall generally end on the last Thursday of each calendar month in accordance with the fiscal accounting calendar of the Loan Parties.
“Fiscal Quarter” means any fiscal quarter of any Fiscal Year, which quarters shall generally end on the last Thursday of each March, June, September, and December of such Fiscal Year in accordance with the fiscal accounting calendar of the Loan Parties.
“Fiscal Year” means any period of twelve (12) consecutive months ending on the last Thursday of any calendar year.
“Fixed GAAP Date” means the Closing Date, provided that at any time after the Closing Date, the Lead Borrower may by written notice to the Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.
“Fixed GAAP Terms” means (a) the definitions of the terms “Borrowing Base”, “Capital Expenditures”, “Capital Lease Obligation”, “Consolidated EBITDA”, “Consolidated First Lien Indebtedness”, “Consolidated First Lien Leverage Ratio”, “Consolidated Interest Charges”, “Consolidated Net Income”, “Consolidated Secured Indebtedness”, “Foreign Borrowing Base”, “Secured Leverage Ratio”, “Consolidated Total Assets”, “Consolidated Total Indebtedness”, “Total Leverage Ratio”, “Consolidated” or “Inventory”, (b) all defined terms in this Agreement to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Agreement or the Loan Documents that, at the Lead Borrower’s election, may be specified by the Lead Borrower by written notice to the Agent from time to time.
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“Flood Insurance Laws” means collectively, (i) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Reform Act of 2004 as now or hereafter in effect or any successor statute thereto, and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
“Foreign Asset Control Regulations”
has the meaning specified in Section 10.1810.18.
“Foreign Borrowing Base” means the sum of (1) 92.50% of the net ordinary liquidation value of inventory held by the Borrowers’ Foreign Subsidiaries, (2) 90.00% of all Receivables of the Borrowers’ Foreign Subsidiaries, and (3) Unrestricted Cash of the Borrowers’ Foreign Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month for which internal consolidated financial statements of the Borrowers are available, and, in the case of any determination relating to any incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Lead Borrower is organized. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Foreign Pension Plan” means a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which any Loan Party or any Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.
“Foreign Plan” means each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by any Loan Party or any of its Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.
“Foreign Subsidiary” means any Subsidiary of a Borrower (a) that is organized under the laws of any jurisdiction outside of the United States of America and any Subsidiary of such Foreign Subsidiary or (b) that is a Foreign Subsidiary Holdco. Any subsidiary of a Borrower which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.
“Foreign Subsidiary Holdco” means any Subsidiary of a Borrower, so long as such Subsidiary has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof). Any Subsidiary which is a Foreign Subsidiary Holdco that fails to meet the foregoing requirements as of any date of determination shall continue to be deemed a “Foreign Subsidiary Holdco” hereunder until the date that is 60 days following such date (or such later date as the Agent may reasonably agree).
“Foreign Vendor” means a Person that sells In-Transit Inventory to a Borrower.
“Foreign Vendor Agreement” means an agreement between a Foreign Vendor and the Agent in form and substance reasonably satisfactory to the Agent and pursuant to which, among other things, the parties shall agree upon their relative rights with respect to In-Transit Inventory of a Borrower purchased from such Foreign Vendor.
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“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“Fronting Fee” has the meaning
specified in Section 2.03(j)2.03(j).
“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business.
“GAAP”
means generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for
purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including
those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements
by such other entity as approved by a significant segment of the accounting profession, and subject to the following
sentence. If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the
Exchange Act to use IFRS in lieu of GAAP for financial reporting purposes, the Lead Borrower may elect by written notice to
the Administrative Agent to so use IFRS in lieu of GAAP and, upon any such
notice, references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date
specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and
as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP as defined in the
first sentence of this definition. All ratios and computations based on GAAP contained in this Agreement shall be computed in
conformity with GAAP.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).
“Guarantee” means, as to any Person, (a) 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, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) 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, (iii) 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 (iv) 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), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided, however, that the term “Guarantee” shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, 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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“Guarantor” has the meaning
specified in the introductory paragraph hereto, and each other Subsidiary of Borrower Holdco that shall be required to execute
and deliver a Facility Guaranty pursuant to Section 6.10(c).6.10(c).
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature, in each case, that are regulated pursuant to any Environmental Law.
“Honor Date” has the meaning specified
in Section 2.03(c)(i)2.03(c)(i).
“Immaterial Subsidiaries” means any Subsidiary that (a) did not, as of the last day of the fiscal quarter of Parent most recently ended, have assets with a value in excess of 5.0% of the Consolidated Total Assets or revenues representing in excess of 5.0% of total revenues of Borrower Holdco and its Subsidiaries on a Consolidated basis as of such date, and (b) taken together with all Immaterial Subsidiaries as of the last day of the fiscal quarter of Parent most recently ended, did not have assets with a value in excess of 10.0% of Consolidated Total Assets or revenues representing in excess of 10.0% of total revenues of Borrower Holdco and its Subsidiaries on a Consolidated basis as of such date. All Accounts and Inventory of the Immaterial Subsidiaries shall be segregated or otherwise identifiable in a manner sufficient to distinguish ownership of such Accounts and Inventory from the Accounts and Inventory of the Borrowers.
“Increase Effective Date” has the
meaning specified in Section 2.15(a)(iv)2.15(a)(iv).
“Indebtedness” means, with respect to any person, without duplication, (a) the principal of indebtedness of such person for borrowed money, (b) the principal of obligations of such person evidenced by bonds, debentures, notes or similar instruments, (c) all reimbursement obligations of such person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed), (d) all obligations of such person issued or assumed as the deferred and unpaid purchase price of property (except trade payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto, (e) all Capital Lease Obligations of such person, (f) the redemption, repayment or other repurchase amount of such person with respect to any Disqualified Stock of such person or (if such person is a Subsidiary of a Borrower other than a Subsidiary Guarantor) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Equity Interest, or if less (or if such Equity Interest has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Equity Interest, such fair market value shall be as determined in good faith by senior management of the Lead Borrower, the board of directors of the Lead Borrower or the board of directors of the issuer of such Equity Interests), (g) all Indebtedness of other persons secured by a Lien on any asset of such person, whether or not such Indebtedness is assumed by such person; provided that the amount of Indebtedness of such person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by the Lead Borrower) and (B) the amount of such Indebtedness of such other persons, (h) all Guarantees by such person of Indebtedness of other persons, to the extent so Guaranteed by such person and (i) to the extent not otherwise included in this definition, net Swap Obligations of such person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Swap Obligation that would be payable by such Person at such time); provided that amount of Indebtedness of any person at any date shall be determined as set forth above or as otherwise provided for in this Agreement, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such person (excluding any notes thereto) prepared in accordance with GAAP. The Indebtedness of any person shall include the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness expressly limits the liability of such person in respect thereof.
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“Indemnified Taxes” means 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.
“Indemnitees” has the meaning specified
in Section 10.04(b)10.04(b).
“Information” has the meaning specified
in Section 5.14(a)5.14(a).
“Insolvency” means, with respect to any Multiemployer Plan, the condition that such Plan is “insolvent” within the meaning of Section 4245 of ERISA.
“Intellectual Property” means all present and future: trade secrets, know-how and other proprietary information; trademarks, trademark applications, internet domain names, service marks, trade dress, trade names, business names, designs, logos, slogans (and all translations, adaptations, derivations and combinations of the foregoing) indicia and other source and/or business identifiers, and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights and copyright applications; (including copyrights for computer programs) and all tangible and intangible property embodying the copyrights, unpatented inventions (whether or not patentable); patents and patent applications; industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; books, records, writings, computer tapes or disks, flow diagrams, specification sheets, computer software, source codes, object codes, executable code, data, databases and other physical manifestations, embodiments or incorporations of any of the foregoing; all other intellectual property; and all common law and other rights throughout the world in and to all of the foregoing.
“Intercreditor Agreement” means that certain Intercreditor Agreement entered into as of the Closing Date by and between the Agent and the Term Loan Agent, as amended, restated, or otherwise modified from time to time.
“Interest Payment Date” means, (a) as to any LIBO Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a LIBO Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the first day after the end of each quarter and the Maturity Date.
“Interest Period” means, as to each LIBO Rate Loan, the period commencing on the date such LIBO Rate Loan is disbursed or converted to or continued as a LIBO Rate Loan and ending on the date one, two, or three or six months thereafter, as selected by the Lead Borrower in its Committed Loan Notice; provided that:
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(i) (i) any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;
(ii) (ii) 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) shall end on the last Business Day of the calendar month at the end
of such Interest Period;
(iii) (iii) no
Interest Period shall extend beyond the Maturity Date; and
(iv) (iv) notwithstanding
the provisions of clause (iii) no Interest Period shall have a duration of less than one (1) month, and if any Interest Period
applicable to a LIBO Borrowing would be for a shorter period, such Interest Period shall not be available hereunder.
For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“In-Transit Inventory” means Inventory of a Borrower which is in the possession of a common carrier and is in transit from a Foreign Vendor of a Borrower from a location outside of the continental United States to a location of a Borrower that is within the continental United States.
“Internal Control Event” means a material weakness in, or fraud that involves management or other employees who have a significant role in, the Parent’s and/or its Subsidiaries’ internal controls over financial reporting, in each case as described in the Securities Laws.
“Inventory” has the meaning specified in the UCC, and shall also include, without limitation, all: (a) goods which (i) are leased by a Person as lessor, (ii) are held by a Person for sale or lease or to be furnished under a contract of service, (iii) are furnished by a Person under a contract of service, or (iv) consist of raw materials, work in process, finished goods or materials used or consumed in a business; (b) goods of said description in transit; (c) goods of said description which are returned, repossessed or rejected; and (d) packaging, advertising, and shipping materials related to any of the foregoing.
“Inventory Reserves” means such reserves as may be established from time to time by the Agent in its Permitted Discretion with respect to the determination of the saleability, at retail, of the Eligible Inventory, which reflect such other factors as affect the market value of the Eligible Inventory or which reflect claims and liabilities that the Agent determines will need to be satisfied in connection with the realization upon the Inventory. Without limiting the generality of the foregoing, Inventory Reserves may, in the Agent’s Permitted Discretion, include (but are not limited to) reserves based on:
(a) obsolescence;
(b) seasonality;
(c) Shrink;
(d) imbalance;
(e) change in Inventory character;
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(f) change in Inventory composition;
(g) change in Inventory mix;
(h) markdowns (both permanent and point of sale);
(i) purchase price and freight variances;
(j) consigned inventory;
(k) retail markons and markups inconsistent with prior period practice and performance, industry standards, current business plans or advertising calendar and planned advertising events; and
(l) out-of-date and/or expired Inventory.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests 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 interest in, another Person, (c) any Acquisition, or (d) any other investment of money or capital. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but adjusted for any dividends or other return of capital upon such Investment.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, the Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable, and any other document, agreement and instrument entered into by the L/C Issuer and a Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to any such Letter of Credit.
“Joinder” means an agreement, substantially in the form attached hereto as Exhibit I, pursuant to which, among other things, a Person becomes a party to, and bound by the terms of, this Agreement and/or the other Loan Documents in the same capacity and to the same extent as either a Borrower or a Guarantor, as applicable.
“Junior Capital” means, collectively, any Indebtedness of any Parent Entity or any Borrower that (a) is not secured by any asset of any Loan Party or any Subsidiary, (b) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Outside Maturity Date (other than through conversion or exchange of any such Indebtedness for Equity Interests (other than Disqualified Stock) of the Borrowers, Equity of Parent or Borrower Holdco, or any other Junior Capital), (c) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Obligations and (d) does not require the payment of cash interest until the date that is 91 days after the Outside Maturity Date.
“Landlord Lien State” means such state(s) in which a landlord’s claim for rent may have priority over the Lien of the Agent in any of the Collateral.
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“Laws” means each international, foreign, Federal, state and local statute, treaty, rule, guideline, regulation, ordinance, code and administrative or judicial precedent or authority, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and each applicable administrative order, directed duty, request, license, authorization and permit of, and agreement with, any Governmental Authority, in each case whether or not having the force of law.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“L/C Issuer” means (a) Wells Fargo in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder (which successor may only be a Revolving Lender reasonably acceptable to the Agent) and (b) with respect to the Existing Letters of Credit and until such Existing Letters of Credit expires or is returned undrawn, Wells Fargo. The L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the L/C Issuer and/or for such Affiliate to act as an advising, transferring, confirming and/or nominated bank in connection with the issuance or administration of any such Letter of Credit, in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.
“L/C Obligations” means,
as at any date of determination, the aggregate undrawn amount available to be drawn under all outstanding Letters of Credit. For
purposes of computing the amounts available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06.1.06.
For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount
may still be drawn thereunder by reason of the operation of any “rule” under the ISP or any article of UCP 600, such
Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Lead Borrower” has the meaning specified in the preamble of this Agreement.
“Lease” means any agreement, whether written or oral, no matter how styled or structured, pursuant to which a Loan Party is entitled to the use or occupancy of any space in a structure, land, improvements or premises for any period of time.
“Lender” means, individually, a Revolving Lender (and, as the context requires, includes the Swing Line Lender).
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Lead Borrower and the Agent.
“Letter of Credit” means each Standby Letter of Credit and each Commercial Letter of Credit issued hereunder and shall include the Existing Letters of Credit.
“Letter of Credit Application” means an application for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
“Letter of Credit Expiration Date” means the day that is seven (7) days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
“Letter of Credit Fee” has the
meaning specified in Section 2.03(i)2.03(i).
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“Letter of Credit Sublimit” means
an amount equal to $3050,000,000.
The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. A permanent reduction of
the Aggregate Revolving Commitments shall not require a corresponding pro rata reduction in the Letter of Credit Sublimit; provided,
however, that if the Aggregate Revolving Commitments are reduced to an amount less than the Letter of Credit Sublimit,
then the Letter of Credit Sublimit shall be reduced to an amount equal to (or, at Lead Borrower’s option, less than) the
Aggregate Revolving Commitments.
“LIBO Borrowing” means a Revolving Credit Borrowing or Term Borrowing comprised of LIBO Rate Loans.
“LIBO Rate” means for any Interest Period with respect to a LIBO Rate Loan, the rate per annum which appears on the Reuters Screen LIBOR01 page (or any successor page) as of 11:00 a.m., London time, on the second London Business Day preceding the first day of such Interest Period (or if such rate does not appear on the Reuters Screen LIBOR01 page (or any successor page), then the rate as determined by the Agent from another recognized source or interbank quotation and consented to by the Lead Borrower), for a term, and in an amount comparable to the Interest Period and the amount of the LIBO Rate Loan requested (whether as an initial LIBO Rate Loan or as a continuation of a LIBO Rate Loan or as a conversion of a Base Rate Loan to a LIBO Rate Loan) by the Borrowers in accordance with this Agreement (and, if such rate is below zero, the LIBO Rate shall be deemed to be zero), which determination shall be made by Agent and shall be conclusive in the absence of manifest error. If such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the rate per annum determined by the Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the LIBO Rate Loan being made, continued or converted by Wells Fargo and with a term equivalent to such Interest Period would be offered to Wells Fargo by major banks in the London interbank eurodollar market in which Wells Fargo participates at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period (and, if such rate is below zero, the LIBO Rate shall be deemed to be zero).
“LIBO Rate Loan” means a Committed Revolving Loan that bears interest at a rate based on the Adjusted LIBO Rate.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
“Liquidation” means the exercise by the Agent of those rights and remedies accorded to the Agent under the Loan Documents and applicable Law as a creditor of the Loan Parties with respect to the realization on the Collateral, including (after the occurrence and during the continuation of an Event of Default) the conduct by the Loan Parties acting with the consent of the Agent, of any public, private or “going out of business”, “store closing”, or other similarly themed sale or other disposition of the Collateral for the purpose of liquidating the Collateral. Derivations of the word “Liquidation” (such as “Liquidate”) are used with like meaning in this Agreement.
“Loan” means an extension
of credit by a Lender to the Borrowers under Article IIArticle
II in the form of a Committed Revolving Loan or a Swing Line Loan.
“Loan Account” has the meaning
specified in Section 2.11(a)2.11(a).
“Loan Cap” means, at any time of determination, the lesser of (a) the Aggregate Revolving Commitments and (b) the Borrowing Base.
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“Loan Documents” means this Agreement, each Note, each Issuer Document, the Fee Letter, all Borrowing Base Certificates, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications, the Security Documents, the Confirmation Agreement, the Facility Guaranty, and any other instrument or agreement now or hereafter executed and delivered in connection herewith, or in connection with any transaction arising out of any Cash Management Services and Bank Products provided by a Lender or any of their Affiliates, each as amended and in effect from time to time.
“Loan Parties” means, collectively, the Borrowers and each Guarantor.
“Management Advances” means (1) loans or advances made to directors, management members, officers, employees or consultants of any Parent Entity, any Borrower or any Subsidiary (x) in respect of travel, entertainment or moving related expenses incurred in the ordinary course of business, (y) in respect of moving related expenses incurred in connection with any closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause (z)) not exceeding $7,500,000 in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) Management Guarantees.
“Management Guarantees” means Guarantees (a) of up to an aggregate principal amount outstanding at any time of $15,000,000 of borrowings by Management Investors in connection with their purchase of Management Stock or (b) made on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of Parent, Borrower Holdco, the Borrowers or any Subsidiary (i) in respect of travel, entertainment and moving related expenses incurred in the ordinary course of business, or (ii) in the ordinary course of business and (in the case of this clause (ii)) not exceeding $7,500,000 in the aggregate outstanding at any time.
“Management Indebtedness”
means Indebtedness incurred to (a) any Person other than a Management Investor of up to an aggregate principal amount outstanding
at any time of $15,000,000, and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Equity
Interests of Parent, any Parent Entity, Borrower Holdco, the Borrowers or any Subsidiary (including any options, warrants or other
rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Equity Interests is permitted
by Section 7.06.7.06.
“Management Investors” means the management members, officers, directors, employees and other members of the management of Parent, any Parent Entity, Borrower Holdco, the Borrowers or any Subsidiary, or family members or relatives of any of the foregoing, or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Equity Interests of Parent, any Parent Entity, Borrower Holdco, the Borrowers or any Subsidiary.
“Management Stock” means Equity Interests of Parent, Borrower Holdco, the Borrowers or any Subsidiary (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.
“Margin Stock” has the meaning specified in Regulation U.
“Material Adverse Effect” means a material adverse change in, or a material adverse effect upon, (a) the operations, business, assets, liabilities (actual or contingent) or financial condition of the Loan Parties and their Subsidiaries (taken as a whole), (b) the ability of the Loan Parties (taken as a whole) to perform their obligations under the Loan Documents (taken as a whole), or (c) the legality, validity or enforceability of the Loan Documents (taken as a whole) or the rights and remedies of the Agent and the Lenders (taken as a whole) under the Loan Documents (taken as a whole). In determining whether any individual event would result in a Material Adverse Effect, notwithstanding that such event in and of itself does not have such effect, a Material Adverse Effect shall be deemed to have occurred if the cumulative effect of such event and all other than existing events would result in a Material Adverse Effect.
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“Material Contract” means, with respect to any Person, each contract to which such Person is a party, the loss of which is reasonably likely to result in a Material Adverse Effect. Schedule 5.24 annexed hereto sets forth, as of the Closing Date, each of the Loan Parties’ Material Contracts.
“Material Indebtedness”
means Indebtedness (other than the Obligations) of the Loan Parties in an aggregate principal amount exceeding $2550,000,000.
For purposes of determining the amount of Material Indebtedness at any time, (a) the amount of the obligations in respect of any
Swap Contract at such time shall be calculated at the Swap Termination Value thereof and (b) available yet undrawn committed amounts
shall be included.
“Materials of Environmental Concern” means any pollutants, contaminants, hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos, pesticides, herbicides, fungicides and polychlorinated biphenyls.
“Maturity Date” means the earliest of (a) the Outside Maturity Date and (b) in the event that there are outstanding obligations under the Term Loan Facility or any Permitted Refinancing thereof, the date that is 90 days prior to the then scheduled maturity date of the Term Loan Facility or any Permitted Refinancing thereof.
“Maximum Rate” has the meaning
specified in Section 10.0910.09.
“Minimum Extension Condition” has
the meaning specified in Section 2.16(b)2.16(b).
“Monthly Financial Statements”
has the meaning specified in Section 6.04(b)6.04(b).
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Policies” has the meaning
specified in Section 6.10(b)6.10(b).
“Multiemployer Plan” means a Plan which is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.
“Net Proceeds” means:
(a) (a) with
respect to any Disposition by any Loan Party or any of its Subsidiaries, or any Extraordinary Receipt received or paid to the
account of any Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of cash and cash equivalents
received in connection with such transaction (including any cash or cash equivalents received by way of deferred payment
pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of
(A) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case, as a
consequence of, or in respect of, such Disposition, (B) all payments made, and all installment payments required to be made,
on any Indebtedness (x) that is secured by any assets subject to such, in accordance with the terms of any Lien upon such
assets, or (y) that must by its terms, or in order to obtain a necessary consent to such Disposition, or by applicable law,
be repaid out of the proceeds from such Disposition, including but not limited to any payments required to be made to
increase borrowing availability under any revolving credit facility, (C) all distributions and other payments required to be
made to minority interest holders in Subsidiaries or joint ventures as a result of such Disposition, or to any other Person
(other than Parent or a Subsidiary) owning a beneficial interest in the assets disposed of in such Disposition, (D) any
liabilities or obligations associated with the assets disposed of in such Disposition and retained, indemnified or insured by
a Borrower or any Subsidiary after such Disposition, including pension and other post-employment benefit liabilities,
liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with
such Disposition and (E) the amount of any purchase price or similar adjustment (x) claimed by any Person to be owed by a
Borrower or any Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or (y) paid
or payable by a Borrower or any Subsidiary, in either case in respect of such Disposition; and
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(b) (b) with
respect to the sale or issuance of any Equity Interest by Parent or any Loan Party or any of its Subsidiaries, or any capital contributions,
or the incurrence or issuance of any Indebtedness by Parent or any Loan Party or any of its Subsidiaries, the excess of (i) the
sum of the cash and cash equivalents received in connection with such transaction over (ii) attorneys’ fees, accountants’
fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such transactions, and all taxes paid or payable as a result, or in respect, thereof.
“Non-Consenting Lender” has the
meaning provided therefor in Section 10.0110.01.
“Note” means (a) a Revolving Note and (b) the Swing Line Note, as each may be amended, restated, supplemented or modified from time to time.
“Obligations” means (a) all advances to, and debts (including principal, interest, fees, costs, and expenses), liabilities, obligations, covenants, indemnities, and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit (including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral therefor), 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, fees, costs, expenses and indemnities 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, fees, costs, expenses and indemnities are allowed claims in such proceeding, and (b) any Other Liabilities; provided, however, the “Obligations” shall exclude all Excluded Swap Obligations.
“Organization 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-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; 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 and any agreement, instrument, filing or notice with respect thereto filed in connection with its 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 entity.
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“Other Connection Taxes” means, with respect to any recipient, Taxes imposed on overall net income however denominated and franchise leases imposed (in lieu of net income taken) 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 Liabilities” means (a) any obligation on account of (i) any Cash Management Services furnished to any of the Loan Parties or any of their Subsidiaries and/or (ii) any transaction with any Credit Party that arises out of any Bank Product entered into with any Loan Party and any such Person, as each may be amended from time to time.
“Other Taxes” means all
present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any
payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an
assignment (other than an assignment pursuant to Section 10.1310.13).
“Outside Maturity Date” means September
30, 2021February 14, 2025.
“Outstanding Amount” means (i) with respect to Committed Revolving Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Revolving Loans and Swing Line Loans, as the case may be, occurring on such date and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date.
“Overadvance” means a Credit Extension to the extent that, immediately after its having been made, Availability is less than zero.
“Parent” means FDOFloor
& Decor Holdings, Inc., a Delaware corporation.
“Parent Entity” means any of Parent, Borrower Holdco, any Other Parent, and any other Person that is a Subsidiary of Parent, Borrower Holdco, or any Other Parent and of which Borrower is a Subsidiary. As used herein, “Other Parent” means a Person of which the Lead Borrower becomes a Subsidiary after the Closing Date that is designated by the Lead Borrower as an “Other Parent”; provided that either (x) immediately after the Lead Borrower first becomes a Subsidiary of such Person, more than 50.00% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.00% of the Voting Stock of a Parent Entity of the Lead Borrower immediately prior to the Lead Borrower first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of the Lead Borrower first becoming a Subsidiary of such Person. In no event shall the Lead Borrower be deemed to be a “Parent Entity”.
“Participant” has the meaning specified
in Section 10.06(d)10.06(d).
“Participation Register” has the
meaning specified in Section 10.06(d)10.06(d).
“Payment Conditions” means no Designated Event of Default shall have occurred and be continuing or would result from the taking of the relevant action as to which the satisfaction of the Payment Conditions is being determined, (A) in the case of any Investment or Permitted Business Acquisition, either (1) Availability is greater than 17.5% of the Loan Cap after giving effect to such payment or transaction and for the preceding 30 days or (2) (x) Availability is greater than 12.5% of the Loan Cap after giving effect to such payment or transaction and for the preceding 30 days and (y) the Consolidated Fixed Charge Coverage Ratio, on a Pro Forma Basis, is at least 1.0 to 1.0 after giving effect to such payment or transaction; and (B) in the case of any Restricted Payment or any prepayment of any Subordinated Indebtedness or Term Loan Obligations, either (1) Availability is greater than 20.0% of the Loan Cap after giving effect to such payment and for the preceding 30 days or (2) (x) Availability is greater than 15.0% of the Loan Cap after giving effect to such payment or transaction and for the preceding 30 days and (y) the Consolidated Fixed Charge Coverage Ratio, on a Pro Forma Basis, is at least 1.0 to 1.0 after giving effect to such payment or transaction.
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“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).
“PCAOB” means the Public Company Accounting Oversight Board.
“Pension Plan”
means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Lead Borrower or any ERISA Affiliate or to which
the Lead Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer
or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan
years.
“Perfection Certificate” shall mean a perfection certificate with respect to the Loan Parties in a form reasonably satisfactory to the Agent.
“Permitted Asset Disposition” means:
(i) (i)
any Financing Disposition (as defined in the Term Loan Agreement as in effect on the date
hereofFirst
Amendment Effective Date),
(ii) (ii)
any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in
use by a Borrower or any Subsidiary, so long as a Borrower or any Subsidiary may obtain title to such assets upon reasonable notice
by paying a nominal fee,
(iii) (iii)
any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section)
of the Code, or any exchange of equipment to be leased, rented or otherwise used in a Related Business,
(iv) (iv) any
disposition arising from foreclosure, condemnation, eminent domain, or similar action with respect to any property or other
assets, or exercise of termination rights under any lease, license, concession or other agreement or necessary or advisable
(as determined by the Lead Borrower in good faith) in order to consummate any acquisition of any Person, business or assets
or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement,
(v) (v)
any Disposition of Equity Interests, Indebtedness or other securities of an Unrestricted Subsidiary,
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(vi) (vi)
a Disposition of Equity Interests of a Restricted Subsidiary pursuant to an agreement or other obligation with
or to a Person (other than a Borrower or a Subsidiary) from whom such Subsidiary was acquired, or from whom such Subsidiary acquired
its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition,
(vii) (vii)
a Disposition of not more than 5.00% of the outstanding Equity Interests of a Foreign Subsidiary that has been
approved by the board of directors of the Lead Borrower,
(viii) (viii)
any Disposition or series of related Dispositions for aggregate consideration not to exceed the greater of (A)
$1027,000,000
and (B) 10.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder; provided that if (x) more than five percent (5%) of assets of the type which may be included
in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions
under this clause (viii), the Borrowers shall deliver an updated Borrowing Base Certificate to the Agent, prepared on a
pro forma basis after giving effect to such Disposition and/or (y) more than ten percent (10%) of assets of the type which may
be included in the Borrowing Base (regardless of eligibility) are Disposed of pursuant to a single transaction or a series of
related transactions under this clause (viii), the Agent shall have the ability to conduct an updated appraisal of the
assets included on the Borrowing Base at the expense of the Loan Parties (but which appraisal shall not, for the avoidance of
doubt, be counted as one of the appraisals performed pursuant to Section 6.076.07
hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties),
(ix) (ix)
the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable
judgment of the Lead Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrowers
and their Subsidiaries taken as a whole,
(x) (x)
any Exempt Sale and Leaseback Transaction (as defined in the Term Loan Agreement as in effect on the date
hereofFirst Amendment Effective Date), or
(xi) (xi)
to the extent constituting a Disposition, a Public Offering.
“Permitted Business Acquisition” means an Acquisition in which all of the following conditions are satisfied:
(a) no Designated Event of Default then exists, nor would any Default or Designated Event of Default arise from the consummation of such Acquisition;
(b) such Acquisition shall have been approved by the board of directors of the Person (or similar governing body if such Person is not a corporation) which is the subject of such Acquisition and such Person shall not have announced that it will oppose such Acquisition or shall not have commenced any action which alleges that such Acquisition shall violate applicable Law;
(c) any assets acquired shall be utilized in, and if the Acquisition involves a merger, consolidation or Acquisition of Equity Interests, the Person which is the subject of such Acquisition shall be engaged in, a business otherwise permitted to be engaged in by a Borrower under this Agreement;
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(d) if
the Person which is the subject of such Acquisition will be maintained as a Subsidiary of a Loan Party (other than an Excluded
Subsidiary), or if the assets acquired in an acquisition will be transferred to a Subsidiary (other than an Excluded Subsidiary)
which is not then a Loan Party, such Subsidiary shall have been joined as a “Borrower” or as a “Guarantor”
hereunder, as applicable, pursuant to the requirements of Section 6.106.10;
(e) after giving effect to the Acquisition, if the Acquisition is an Acquisition of the Equity Interests, a Loan Party shall acquire and own, directly or indirectly, a majority of the Equity Interests in the Person being acquired and shall Control a majority of any voting interests or shall otherwise Control the governance of the Person being acquired; and
(f) the
total consideration paid for all such Acquisitions (whether in cash, tangible property, notes or other property) after the Closing
Date shall not exceed in the aggregate the sum of $15,000,000greater
of $40,500,000 and 15.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial
Statements have been provided as required hereunder, provided additional Acquisitions may be consummated in excess
of the foregoing cap so long as both immediately before such Acquisition is consummated and immediately after giving effect thereto,
the Payment Conditions are satisfied.
“Permitted Cash Equivalent Investments” means:
(a) direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof, in each case, with maturities not exceeding two years;
(b) time deposits, eurodollar time deposits, certificates of deposit and money market deposits, in each case, with maturities not exceeding one year from the date of acquisition thereof, and overnight bank deposits, in each case, with any commercial bank having capital, surplus and undivided profits of not less than $250.0 million and whose long term debt, or whose parent holding company’s long term debt, is rated at least “A-2” by Moody’s or at least “A” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(c) repurchase obligations for underlying securities of the types described in clauses (a) and (b) above entered into with a bank meeting the qualifications described in clause (b) above;
(d) commercial paper maturing not more than one year after the date of acquisition, issued by a corporation (other than an Affiliate of the Borrower) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time any investment therein is made of at least “P-1” by Moody’s or at least “A-1” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(e) securities with maturities of two years or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized rating agency);
(f) Indebtedness issued by persons (other than any Permitted Holder) with a rating of at least “A-2” by Moody’s or “A” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency), in each case with maturities not exceeding one year from the date of acquisition;
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(g) shares of mutual funds whose investment guidelines restrict 95% of such funds’ investments to those satisfying the provisions of clauses (a) through (g) above;
(h) money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated “Aaa” by Moody’s and “AAA” by S&P (or reasonably equivalent ratings of another internationally recognized rating agency) and (iii) have portfolio assets of at least $5,000.0 million; and
(i) instruments equivalent to those referred to in clauses (a) through (i) above denominated in any foreign currency comparable in credit quality and tenor to those referred to above and commonly used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by any Subsidiary organized in such jurisdiction.
“Permitted Debt Exchange Notes”
has the meaning assigned to such term in the Term Loan Agreement as in effect on the date hereofFirst
Amendment Effective Date.
“Permitted Discretion” means a determination made in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Disposition” has the
meaning specified in Section 7.057.05.
“Permitted Encumbrances” has the
meaning specified in Section 7.027.02.
“Permitted Holders” means any of the following: (i) any member of the Sponsor Group; (ii) any of the Management Investors and their respective Affiliates, (iii) any investment fund or vehicle managed, sponsored or advised by any member of the Sponsor Group or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, any member of the Sponsor Group or any Affiliate thereof, or any such investment fund or vehicle; (v) any “group” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) of which any of the Persons specified in clause (i), (ii), (iii) or (iv) above is a member (provided that (without giving effect to the existence of such “group” or any other “group”) one or more of such Persons collectively have beneficial ownership, directly or indirectly, of more than 50.00% of the total voting power of the voting stock of the Lead Borrower or the Parent Entity held by such “group”), and any other Person that is a member of such “group”; and (vi) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of capital stock of any Parent Entity or the Borrower Holdco. In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) constitutes or results in a Change of Control (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Indebtedness), together with its Affiliates, shall thereafter constitute Permitted Holders.
“Permitted Indebtedness” has the
meaning specified in Section 7.017.01.
“Permitted Investments” has the
meaning provided in Section 7.047.04.
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“Permitted Overadvance” means an Overadvance made by the Agent, in its Permitted Discretion, which:
(a) is made to maintain, protect or preserve the Collateral and/or the Credit Parties’ rights under the Loan Documents or which is otherwise for the benefit of the Credit Parties;
(b) is made to enhance the likelihood of, or to maximize the amount of, repayment of any Obligation;
(c) is made to pay any other amount chargeable to any Loan Party hereunder; and
(d) together with all other Permitted Overadvances then outstanding, shall not (i) exceed ten percent (10%) of the Borrowing Base at any time or (ii) unless a Liquidation is occurring, remain outstanding for more than forty-five (45) consecutive Business Days, unless in each case, the Required Lenders otherwise agree.
provided,
however, that the foregoing shall not (i) modify or abrogate any of the provisions of Section 2.032.03
regarding the Revolving Lenders’ obligations with respect to Letters of Credit or Section 2.042.04
regarding the Revolving Lenders’ obligations with respect to Swing Line Loans, or (ii) result in any claim or
liability against the Agent (regardless of the amount of any Overadvance) for Unintentional Overadvances and such Unintentional
Overadvances shall not reduce the amount of Permitted Overadvances allowed hereunder; provided further that
in no event shall the Agent make an Overadvance, if after giving effect thereto, the principal amount of the Credit Extensions
would exceed the Aggregate Revolving Commitments (as in effect prior to any termination of the Revolving Commitments pursuant
to Section 2.06(a)2.06(a)
hereof).
“Permitted Refinancing”
means, with respect to any Person, any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous
refinancings thereof constituting a Permitted Refinancing); provided, that (a) the principal amount (or accreted value,
if applicable) of such Permitted Refinancing does not exceed the sum of (x) the principal amount (or accreted value, if applicable)
of the Indebtedness so Refinanced and (y) an amount equal to any unutilized commitment relating to the Indebtedness being so Refinanced
or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced
could be drawn in compliance with Section 7.017.01
immediately prior to such Refinancing (plus unpaid accrued interest and premiums thereon and underwriting discounts, defeasance
costs, fees, commissions and expenses), (b) the weighted average life to maturity of such Permitted Refinancing is greater than
or equal to the weighted average life to maturity of the Indebtedness being Refinanced (c) such Permitted Refinancing shall not
require any scheduled principal payments due prior to the Maturity Date in excess of, or prior to, the scheduled principal payments
due prior to such Maturity Date for the Indebtedness being Refinanced, (d) if the Indebtedness being Refinanced is subordinated
in right of payment or liens to the Obligations under this Agreement (whether through an intercreditor agreement or otherwise),
such Permitted Refinancing shall be subordinated in right of payment or liens, as applicable, to such Obligations on terms at least
as favorable to the Credit Parties as those contained in the documentation governing the Indebtedness being Refinanced, and, to
the extent such Indebtedness is subject to an intercreditor agreement, such Permitted Refinancing will be subject to the provisions
of such intercreditor agreement and (e) no Permitted Refinancing shall have direct or indirect obligors who were not also obligors
of the Indebtedness being Refinanced, or greater guarantees or security, than the Indebtedness being Refinanced.
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“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, limited partnership, Governmental Authority or other entity.
“Plan” means at a particular time, any employee benefit plan which is covered by ERISA and in respect of which any Loan Party, any Subsidiary or any Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.
“Platform” has the meaning specified
in Section 6.046.04.
“Portal” has the meaning specified
in Section 2.02.2.02.
“Post-Closing Letter”
means the letter agreement, dated the date hereofClosing
Date, among the Loan Parties and the Agent, as the same now exists or may hereafter be amended, modified, supplemented,
renewed, restated or replaced.
“Preferred Stock” means, as applied to the capital stock of any corporation or company, capital stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over capital stock of any other class of such corporation or company.
“Pro Forma Basis” means, for purposes of calculating compliance with any test or financial covenant under this Agreement for any period, that the applicable Permitted Business Acquisition, Restricted Payment, Disposition or Investment (and all other Permitted Business Acquisitions, Restricted Payments, Dispositions or Investments that have been consummated during the applicable period) and the following transactions in connection therewith shall be deemed to have occurred as of the first day of the applicable period of measurement in such test or covenant: (a) income statement items (whether positive or negative) attributable to or projected from the property or Person subject to such Permitted Business Acquisition, Restricted Payment, Disposition or Investment, (i) in the case of a Disposition shall be excluded, and (ii) in the case of a Permitted Business Acquisition, shall be included; (b) any retired Indebtedness; and (c) any Indebtedness incurred or assumed by the Lead Borrower or any of the Subsidiaries in connection therewith and if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided, however, that the foregoing pro forma adjustments may be applied to any such test or financial covenant solely to the extent that such adjustments are approved by Agent (other than adjustments described in clause (ix) of the definition of “Consolidated EBITDA” and give effect to events (including operating expense reductions) that are (1) attributable to such transaction, (2) expected to have a continuing impact on the Lead Borrower and its Subsidiaries, and (3) are reasonably deemed in good faith to be achievable based on reasonable assumptions and information then available to the Lead Borrower and Agent.
“Public Lender” has the meaning
specified in Section 6.046.04.
“Public Offering” means the issuance by the Lead Borrower or any Parent Entity of its common equity interests or the sale by selling stockholders of common equity interests of the Lead Borrower or any Parent Entity, in either case, in an underwritten public offering (other than a public offering pursuant to a registration statement on Form S-8) pursuant to an effective registration statement filed with the SEC in accordance with the Securities Act (whether the offering is primary or secondary) and such equity interests are listed on a nationally-recognized stock exchange in the U.S.
“Purchase” has the meaning specified in the definition of “Secured Leverage Ratio”.
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“Qualified ECP Guarantor” means, in respect of any Swap Obligation, the Borrower, the Guarantor (if applicable) or any other guarantor of the Obligations that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an “Eligible Contract Participant” (an “ECP”) as that term is defined 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 Equity Interests” shall mean any Equity Interests other than Disqualified Stock.
“Real Estate” means all Leases and all land, together with the buildings, structures, parking areas, and other improvements thereon, now or hereafter owned by any Loan Party, including all easements, rights-of-way, and similar rights relating thereto and all leases, tenancies, and occupancies thereof.
“Receipts and Collections” has
the meaning specified in Section 6.11(c)6.11(c).
“Receivables Reserves” means such Reserves as may be established from time to time by the Agent in the Agent’s Permitted Discretion with respect to the determination of the collectability in the ordinary course of Eligible Trade Receivables, including, without limitation, dilution reserves.
“Register” has the meaning specified
in Section 10.06(c)10.06(c).
“Registered Public Accounting Firm” means a firm of independent public accountants of recognized national or regional standing reasonably acceptable to the Agent.
“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related
Businesses” means thoseany
businesses or
business activity in which any Borrower or any of its Subsidiaries is engaged on the Closing Date, or that are
reasonably similar, corollary, related,
complementary, incidental or ancillary thereto or reasonable extensions, developments or expansions thereof.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating in, into, upon, onto or through the environment.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Reportable
Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the 30
day notice period is waived under Section 21, 22, 23, 24, 25, 27 or 28 of PBGC Regulation
Section 4043 or any successor regulation thereto.
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“Reports” has the meaning provided
in Section 9.12(b)9.12(b).
“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Revolving Loans, an electronic notice via the Portal or Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application and, if required by the L/C Issuer, a Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
“Required Financial Statements”
hasmeans
the meaning specified inmost
recent Annual Financial Statements and Monthly Financial Statements delivered or required to be delivered pursuant to
Section 6.04(b).6.04.
“Required Lenders” means,
as of any date of determination, Lenders holding more than fifty percent (50%) of the Aggregate Revolving Commitments or, if the
Aggregate Revolving Commitments and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant
to Section 8.038.03,
Lenders holding in the aggregate more than fifty percent (50%) of the sum of the Total Outstandings (with the aggregate amount
of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed
“held” by such Revolving Lender for purposes of this definition); provided, that the Revolving Commitment of,
and the portion in the aggregate of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders; provided, further, that if there are two or more Lenders
that are not Defaulting Lenders, “Required Lenders” must consist of at least two Lenders that are not Defaulting
Lenders.
“Requirement of Law” means, as to any Person, the Organization Documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.
“Reserves” means all Inventory Reserves, Availability Reserves, and Receivables Reserves.
“Responsible Officer” means the chief executive officer, president, chief financial officer, vice president of finance, controller, treasurer or assistant treasurer of a Loan Party or any of the other individuals designated in writing to the Agent by an existing Responsible Officer of a Loan Party as an authorized signatory of any certificate or other document to be delivered hereunder. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent of any thereof), or any option, warrant or other right to acquire any such dividend or other distribution or payment. Without limiting the foregoing, “Restricted Payments” with respect to any Person shall also include all payments made by such Person with any proceeds of a dissolution or liquidation of such Person.
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“Revolving Commitment”
means, as to each Revolving Lender, its obligation to (a) make Committed Revolving Loans to the Borrowers pursuant to Section
2.012.01,
(b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement. For the avoidance of doubt, “Revolving Commitment”
shall include any Extended Revolving Commitment.
“Revolving Credit Borrowing”
means a borrowing consisting of simultaneous Committed Revolving Loans of the same Type and, in the case of LIBO Rate Loans which
are Committed Revolving Loans, having the same Interest Period made by each of the Revolving Lenders pursuant to Section 2.012.01.
“Revolving Lender” means each Lender having a Revolving Commitment as set forth on Schedule 2.01 hereto or in the Assignment and Assumption by which such Person becomes a Revolving Lender.
“Revolving Note” a promissory note made by the Borrowers in favor of a Revolving Lender evidencing Committed Revolving Loans made by such Revolving Lender, substantially in the form of Exhibit C-1.
“Rollover Indebtedness” means Indebtedness of the Borrowers and their Subsidiaries issued to any lender under the Term Loan Facility in lieu of such lender’s pro rata portion of any repayment of Term Loans made pursuant to the Term Loan Agreement.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.
“Sale” has the meaning specified in the definition of “Secured Leverage Ratio”.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Secured Leverage Ratio”
means as of any date of determination, the ratio of (i) Consolidated Total Indebtedness secured
by a Lien on property or assets of the Loan Parties and their Subsidiaries (other than property or assets held in a defeasance
or similar trust or arrangement for the benefit of the Indebtedness secured thereby)Secured
Indebtedness as at such date (after giving effect to any incurrence or discharge of Indebtedness on such date) to (ii)
the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive Fiscal Quarters ending prior to
the date of such determination for which consolidated financial statements of the Lead BorrowerRequired
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder, provided that:
(1) (1) if,
since the beginning of such period, any Loan Party or any Subsidiary shall have disposed of any company, any business or any group
of assets constituting an operating unit of a business, including any such disposition occurring in connection with a transaction
causing a calculation to be made hereunder, or designated any Subsidiary as an Unrestricted Subsidiary (any such disposition or
designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated
EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal
to the Consolidated EBITDA (if negative) attributable thereto for such period;
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(2) (2) if,
since the beginning of such period, any Loan Party or any Subsidiary (by merger, consolidation or otherwise) shall have made an
Investment in any Person that thereby becomes a Subsidiary, or otherwise acquired any company, any business or any group of assets
constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction
causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Subsidiary (any such Investment, acquisition
or designation, “Purchase”), Consolidated EBITDA for such period shall be calculated after giving pro forma
effect thereto as if such Purchase occurred on the first day of such period; and
(3) (3) if,
since the beginning of such period, any Person became a Subsidiary or was merged or consolidated with or into any Borrower or any
Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an
adjustment pursuant to clause (1) or (2) above if made by any Borrower or a Subsidiary since the beginning of such period, Consolidated
EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first
day of such period;
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Lead Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Lead Borrower to be taken no later than 18 months after the date of determination.
“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act of 1934, Sarbanes-Oxley, and the applicable accounting and auditing principles, rules, standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.
“Security Agreement” means the Amended and Restated Security Agreement dated as of the Closing Date among the Loan Parties and the Agent, as the same now exists or may hereafter be amended, modified, supplemented, renewed, restated or replaced (including, without limitation, by the First Amendment and through any joinder agreements).
“Security Documents” means the Security Agreement, the Blocked Account Agreements, the DDA Notifications, the Credit Card Notifications, and each other security agreement or other instrument or document executed and delivered to the Agent pursuant to this Agreement or any other Loan Document granting a Lien to secure any of the Obligations.
“Settlement Date” has the meaning
specified in Section 2.14(a)2.14(a).
“Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity of the Lead Borrower and its Subsidiaries as of that date determined in accordance with GAAP.
“Shrink” means Inventory which has been lost, misplaced, stolen, or is otherwise unaccounted for.
“Single Employer Plan” means any Plan which is covered by Title IV or Section 302 of ERISA or Section 412 of the Code, but which is not a Multiemployer Plan.
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“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).
“Solvent” and “Solvency”
means, with respect to the Loan Parties and their Subsidiaries on a consolidated basis after giving effect to the Transactions
on the Closing Date, (a) the Fair Value and Present Fair Salable Value of the assets of the Loan Parties and their Subsidiaries
taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (b) the Loan Parties and their Subsidiaries
taken as a whole do not have Unreasonably Small Capital; and (c) the Loan Parties and their Subsidiaries taken as a whole will
be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature (all capitalized terms used in this
definition (other than “Closing Date”, “Transactions”, “Loan Parties”
and “Subsidiaries” which have the meanings set forth in this Agreement) shall have the meanings assigned to
such terms in the certificate delivered on the Closing Date pursuant to Section 4.01(a)(vi)).4.01(a)(vi)).
“Sponsor Group” means Ares Corporate Opportunities Fund III, L.P, FS Equity Partners VI, L.P. and FS Affiliates VI, L.P. and each of their respective Affiliates, other than the Loan Parties and their respective Subsidiaries.
“Spot Rate” has the meaning specified
in Section 1.071.07
hereof.
“Standby Letter of Credit” means any Letter of Credit that is not a Commercial Letter of Credit and that (a) is used in lieu or in support of performance guaranties or performance, surety or similar bonds (excluding appeal bonds) arising in the ordinary course of business, (b) is used in lieu or in support of stay or appeal bonds, (c) supports the payment of insurance premiums for reasonably necessary casualty insurance carried by any of the Loan Parties, or (d) supports payment or performance for identified purchases or exchanges of products or services in the ordinary course of business.
“Standby Letter of Credit Agreement” means the Standby Letter of Credit Agreement relating to the issuance of a Standby Letter of Credit in the form from time to time in use by the L/C Issuer.
“Stated Amount” means at any time the maximum amount for which a Letter of Credit may be honored.
“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the FRB to which the Agent is subject with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. LIBO Rate Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Store” means any retail store (which may include any real property, fixtures, equipment, inventory and other property related thereto) operated, or to be operated, by any Loan Party.
“Subordinated Indebtedness” means Indebtedness which is expressly subordinated in right of payment to the prior payment in full of the Obligations pursuant to a written agreement.
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“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the Equity Interests having ordinary voting power for the election of directors or other governing body 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” shall refer to a Subsidiary or Subsidiaries of a Loan Party. Notwithstanding the foregoing, except for purposes of the definition of “Unrestricted Subsidiary”, an Unrestricted Subsidiary shall be deemed not to be a Subsidiary of a Loan Party for purposes of this Agreement, other than with respect to the provisions related to ERISA, for which it shall constitute a Subsidiary.
“Subsidiary Redesignation” shall have the meaning specified in the definition of “Unrestricted Subsidiary”.
“Supermajority Lenders” means, as of any date of determination, Lenders holding more than 66 2/3% of the Aggregate Revolving Commitments or, if the Aggregate Revolving Commitments and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.03, Lenders holding in the aggregate more than 66 2/3% of the sum of the Total Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Lender for purposes of this definition); provided, that the Revolving Commitment of, and the portion in the aggregate of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders; provided, further, that if there are two or more Lenders that are not Defaulting Lenders, “Supermajority Lenders” must consist of at least two Lenders that are not Defaulting Lenders.
“Supply Chain Finance Reserves” means such reserves as the Agent from time to time determines in its Permitted Discretion as being appropriate to reflect the liabilities and obligations of the Loan Parties with respect to supply chain finance services provided by any Credit Party or any of their respective Affiliates.
“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, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement, and (c) any other Swap Obligations.
“Swap Obligation” means any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the 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).
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“Swing Line Borrowing” means a
borrowing of a Swing Line Loan pursuant to Section 2.042.04.
“Swing Line Lender” means Wells Fargo, in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
“Swing Line Loan” has the meaning
specified in Section 2.04(a)2.04(a).
“Swing Line Loan Notice”
means a notice of a Swing Line Borrowing pursuant to Section 2.04(b)2.04(b),
which, if in writing, shall be substantially in the form of Exhibit B.
“Swing Line Note” means the promissory note of the Borrowers substantially in the form of Exhibit C-2, payable to the order of the Swing Line Lender, evidencing the Swing Line Loans made by the Swing Line Lender.
“Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
“Syndication Agent” means SunTrust
Bank of
America, N.A. and its successors and assigns.
“Taxes” or “taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Loan Agent” means UBS AG, Stamford Branch.
“Term Loan Agreement”
means that certain Credit Agreement, dated as of the date hereof,September
30, 2016 (as amended, restated, amended and restated or otherwise modified in accordance with the Intercreditor Agreement),
among the Lead Borrower, Borrower Holdco, the Term Loan Agent and the lenders party thereto.
“Term Loan Facility”
means the $350,000144,625,000
term loan facility under the Term Loan Agreement.
“Term Loan Lender” means “Lender” as defined in the Term Loan Agreement.
“Term Loan Obligations”
means “Term Loan Facility Obligations” as defined in the Term Loan Agreement as in effect on the date
hereofFirst Amendment Effective Date.
“Term Loan Security Documents” means the “Security Documents” as defined in the Term Loan Agreement.
“Term Priority Accounts” has the meaning specified in the Intercreditor Agreement.
“Term Priority Collateral” has the meaning specified in the Intercreditor Agreement.
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“Term SOFR” means the forward-looking term rate based on SOFR and that has been selected or recommended by the Relevant Governmental Body.
“Termination Date” means
the earliest to occur of (i) the Maturity Date, (ii) the date on which the maturity of the Obligations is accelerated (or deemed
accelerated) and the Commitments are irrevocably terminated (or deemed terminated) in accordance with Article
VIIIArticle VIII, or (iii) the termination
of the Revolving Commitments in accordance with the provisions of Section 2.06(a)2.06(a)
hereof.
“Total Leverage
Ratio” means the ratio of (i) Consolidated Total Indebtedness as at such date (after giving effect to any incurrence
or discharge of Indebtedness on such date) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent
four consecutive Fiscal Quarters ending prior to the date of such determination for which consolidated
financial statements of ParentRequired
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder, provided that:
(1) (1) if,
since the beginning of such period, any Loan Party or any Subsidiary shall have made a Sale (including any Sale occurring in connection
with a transaction causing a calculation to be made hereunder), the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period
or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(2) (2) if,
since the beginning of such period, any Loan Party or any Subsidiary (by merger, consolidation or otherwise) shall have made a
Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated
EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day
of such period; and
(3) (3) if,
since the beginning of such period, any Person became a Subsidiary or was merged or consolidated with or into any Borrower or any
Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an
adjustment pursuant to clause (1) or (2) above if made by any Borrower or a Subsidiary since the beginning of such period, Consolidated
EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first
day of such period;
For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of the Lead Borrower; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by the Lead Borrower to be taken no later than 18 months after the date of determination.
“Total Outstandings” means the aggregate Outstanding Amount of all Committed Revolving Loans, all Swing Line Loans, and all L/C Obligations.
“Trading with the Enemy Act” has
the meaning specified in Section 10.1810.18.
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“Transactions” means, collectively, (a) the execution and delivery of the Term Loan Agreement and the extension of credit under the Term Loan Facility, (b) the execution and delivery of this Agreement and the funding of the Loans on the Closing Date, (c) repaying and release of the obligations of the Lead Borrower and the Guarantor under the Existing Term Loan Agreement, (d) repaying the Term Loan (as defined in the Existing Credit Agreement), together with all interest, fees and expenses payable in connection therewith under the Existing Credit Agreement, (e) the Closing Date Dividend, (f) the consummation of any other transactions in connection with the foregoing, and (g) the payment of the fees and expenses incurred in connection with the foregoing.
“Type” means, with respect to a Committed Revolving Loan, its character as a Base Rate Loan or a LIBO Rate Loan.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the New York; provided, however, that if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article thereof, the term shall have the meaning specified in Article 9; provided further that, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection, of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or availability of such remedy, as the case may be.
“UCP 600” means the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce and in effect as of July 1, 2007 (or such later version thereof as may be in effect at the time of issuance).
“UFCA” has the meaning specified
in Section 10.21(d)10.21(d).
“UFTA” has the meaning specified
in Section 10.21(d)10.21(d).
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment
“Unintentional Overadvance” means an Overadvance which, to the Agent’s knowledge, did not constitute an Overadvance when made but which has become an Overadvance resulting from changed circumstances beyond the control of the Credit Parties, including, without limitation, a reduction in the Appraised Value of property or assets included in the Borrowing Base or misrepresentation by the Loan Parties.
“United States” and “U.S.” mean the United States of America.
“Unrestricted Cash” means, at any date of determination, the aggregate amount of cash, cash equivalents and Permitted Cash Equivalent Investments included in the cash accounts that would be listed on the consolidated balance sheet of the Borrowers prepared in accordance with GAAP as of the end of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of the Borrowers are available to the extent such cash is not classified as “restricted” for financial statement purposes (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the Intercreditor Agreement or any other intercreditor agreement governing the application thereof or because they are subject to a Lien securing Indebtedness that is subject to the Intercreditor Agreement or any other intercreditor agreement) excluding, however, the proceeds from any incurrence of Indebtedness borrowed on the date of such determination that are not (in the good faith judgment of the Lead Borrower) intended to be used for working capital purposes.
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“Unrestricted
Subsidiary” means (i) any Subsidiary of Borrower Holdco (other than a Borrower) that at the time of determination
is an Unrestricted Subsidiary, as designated by the board of directors of Borrower Holdco in the manner provided below, and
(ii) any Subsidiary of an Unrestricted Subsidiary (other than a Borrower). The board of directors of Borrower Holdco may
designate any Subsidiary of Borrower Holdco (other than a Borrower) (including any newly acquired or newly formed Subsidiary
of Borrower Holdco) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity
Interests or Indebtedness of, or owns or holds any Lien on any property of, Borrower Holdco or any other Restricted
Subsidiary of Borrower Holdco that is not a Subsidiary of the Subsidiary to be so designated; provided, that (A) such
designation was made at or prior to the Closing Date, or (B)
(i) immediately after such designation, no Event of Default under Sections
8.01(b),Section
8.01(b), (c), or (i) shall have occurred and be continuing and (ii)
on a pro forma basis, C)
in no event shall any Loan Party assign, contribute or transfer any Intellectual Property material to the Total
Leverage Ratio is less than or equal to (x) 3.70:1.00 or (y)business
of the Total Leverage Ratio immediately priorLoan
Parties to giving effect to such designationan
Unrestricted Subsidiary. The board of directors of Borrower Holdco may designate any Unrestricted Subsidiary to be
a “restricted” Subsidiary; provided, that (A) such Unrestricted Subsidiary, both before and immediately
after giving effect to such designation, shall be a wholly owned Subsidiary of Borrower Holdco, and (B)
immediately after such designation, no Event of Default under Sections
8.01(b),Section
8.01(b), (c), or (i) shall have occurred and be continuing and
(C) on a pro forma basis, the Total Leverage Ratio is less than or equal to (x) 3.70:1.00 or (y) the Total Leverage Ratio
immediately prior to giving effect to such designation. Any such designation by the board of directors of
Borrower Holdco shall be evidenced to the Agent by promptly filing with the Agent a copy of the resolution of Borrower
Holdco’s board of directors giving effect to such designation and a certificate of a Responsible Officer of the Lead
Borrower certifying that such designation complied with the foregoing provisions.
“Wells Fargo” means Wells Fargo Bank, National Association and its successors.
“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
(d) Any reference herein or in any other Loan Document to the satisfaction, repayment, or payment in full of the Obligations shall mean the repayment in Dollars in full in cash or immediately available funds (or, in the case of contingent reimbursement obligations with respect to Letters of Credit and Bank Products (other than Swap Contracts) and any other contingent Obligations, providing Cash Collateralization or other collateral as may be requested by the Agent) of all of the Obligations (including the payment of any termination amount then applicable (or which would or could become applicable as a result of the repayment of the other Obligations) under Swap Contracts) other than (i) unasserted contingent indemnification Obligations, (ii) any Obligations relating to Bank Products (other than Swap Contracts) that, at such time, are allowed by the applicable Bank Product provider to remain outstanding without being required to be repaid or Cash Collateralized or otherwise collateralized as may be requested by the Agent, and (iii) any Obligations relating to Swap Contracts that, at such time, are allowed by the applicable provider of such Swap Contracts to remain outstanding without being required to be repaid.
(e) For purposes of determining compliance with any Section of Article VII, in the event that any Lien, Investment, Indebtedness, Disposition, Restricted Payment, transaction with Affiliates, contractual obligation, or prepayment of Indebtedness meets the criteria of one or more of the categories of transactions permitted pursuant to any clause of such Sections within the same Section, such transaction (or portion thereof) at any time, shall be permitted under one or more of such clauses within the same Section as determined by the Lead Borrower in its reasonable discretion at such time and the Borrower may reclassify such transaction across such clauses within each Section of Article VII in its sole discretion at any time. Unless the Lead Borrower elects otherwise, compliance with any Section of Article VII shall be deemed to be first incurred pursuant to a basket or exception based on a financial ratio prior to being applied to a basket or exception based on a fixed Dollar amount.
1.03 Accounting Terms Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis.
1.04 Rounding. Any financial ratios required to be maintained by the Borrowers pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
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1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified, all references herein to the amount of a Letter of Credit at any time shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms of any Issuer Documents related thereto, provides for one or more automatic increases in the Stated Amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time.
1.07 Currency
Equivalents Generally. Any amount specified in this Agreement (other than in Article
IIArticle
II, Article IXArticle
IX and Article XArticle
X) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any
currency other than Dollars, such equivalent amount thereof in the applicable currency to be determined by the Agent at such
time on the basis of the Spot Rate (as defined below) for the purchase of such currency with Dollars. For purposes of this Section 1.071.07,
the “Spot Rate” for a currency means the rate determined by the Agent to be the rate quoted by the Person acting
in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date of such
determination; provided that the Agent may obtain such spot rate from another financial institution designated by the Agent
if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such
currency.
1.08 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
1.09 LIBOR Replacement.
(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Agent and the Lead Borrower may amend this Agreement to replace LIBOR with a Benchmark Replacement. Any such amendment will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted such proposed amendment to all Lenders and the Lead Borrower so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each Class.
(b) Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time, in consultation with the Lead Borrower 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.
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(c) Notices; Standards for Decisions and Determinations. The Agent will promptly notify the Lead Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, and (iv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Agent or Lenders pursuant to Section 1.09, including any determination with respect to a tenor, rate or adjustment or of the occurrence or nonoccurrence of an event, circumstance or date and any decision to take or refrain from taking any action, 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 hereto, except, in each case, as expressly required pursuant to Section 1.09.
(d) Benchmark Unavailability Period. Upon the Lead Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Lead Borrower may revoke any request for a LIBO Rate Loan or continuation of same during any Benchmark Unavailability Period and, failing that, the Lead Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During any Benchmark Unavailability Period, the component of Base Rate based upon the LIBO Rate will not be used in any determination of Base Rate.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Loans; Reserves.
(a) Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Committed Revolving Loan”) to the Borrowers from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the lesser of (x) the amount of such Lender’s Revolving Commitment, or (y) such Revolving Lender’s Applicable Percentage of the Borrowing Base; subject in each case to the following limitations:
(i) after giving effect to any Revolving Credit Borrowing, the Total Outstandings shall not exceed the Loan Cap,
(ii) after giving effect to any Revolving Credit Borrowing, the aggregate Outstanding Amount of the Committed Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed the lesser of (x) such Lender’s Revolving Commitment, and (y) such Lender’s Applicable Percentage of the Borrowing Base, and
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(iii) The Outstanding Amount of all L/C Obligations shall not at any time exceed the Letter of Credit Sublimit.
Within the limits of
each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow
under this Section 2.012.01,
prepay under Section 2.052.05,
and reborrow Committed Revolving Loans under this Section 2.012.01.
Committed Revolving Loans may be Base Rate Loans or LIBO Rate Loans, as further provided herein.
(b) The
Inventory Reserves, Receivables Reserves, and Availability Reserves as of the Closing Date are set forth in the Borrowing Base
Certificate delivered pursuant to Section 4.01(c)4.01(c)
hereof.
(c) The
Agent shall have the right, at any time and from time to time after the Closing Date in its Permitted Discretion to establish,
modify or eliminate Reserves upon three (3five
(5) Business Days’ prior notice to the Lead Borrower (during which period the Agent shall be available to discuss
any such proposed Reserve with the Borrowers); provided that no such prior notice shall be required (1) at any time that
an Event of Default is continuing, (2) for changes to any Reserves resulting solely by virtue of mathematical calculations of the
amount of the Reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent
and Customer Credit Liabilities), or (3) for changes to Reserves or establishment of additional Reserves if a Material Adverse
Effect has occurred or it would be reasonably likely that a Material Adverse Effect to the Lenders would occur were such Reserve
not changed or established prior to the expiration of such three (3five
(5) Business Day period.
2.02 Borrowings, Conversions and Continuations of Committed Revolving Loans.
(a) Committed
Revolving Loans (other than Swing Line Loans) shall be either Base Rate Loans or LIBO Rate Loans as the Lead Borrower may request
subject to and in accordance with this Section 2.02.2.02.
All Swing Line Loans shall be only Base Rate Loans. Subject to the other provisions of this Section 2.022.02,
Revolving Credit Borrowings of more than one Type may be incurred at the same time.
(b) Each
request for a Committed Revolving Loan consisting of a Base Rate Loan shall be made by electronic request of the Lead
Borrower through Agent’s Commercial Electronic Office Portal or through such other electronic portal provided by Agent
(the “Portal”). The Borrowers hereby acknowledge and agree that any request made through the Portal shall
be deemed made by a Responsible Officer of the Borrowers. Each request for a Committed Revolving Loan consisting of a LIBO
Rate Loan shall be made pursuant to the Lead Borrower’s submission of a Committed Loan Notice, which must be received
by the Agent not later than 1:00 p.m. three (3) Business Days prior to the requested date of any Borrowing or continuation of
LIBO Rate Loans. Each Committed Loan Notice shall specify (i) the requested date of the Borrowing or continuation, as the
case may be (which shall be a Business Day), (ii) the principal amount of LIBO Rate Loans to be borrowed or continued (which
shall be in a principal amount of $500,000 or a whole multiple of $250,000 in excess thereof), and (iii) the duration of the
Interest Period with respect thereto. If the Lead Borrower fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. On the requested date of any LIBO Rate Loan, (i) in the event that Base Rate Loans
are outstanding in an amount equal to or greater than the requested LIBO Rate Loan, all or a portion of such Base Rate Loans
shall be automatically converted to a LIBO Rate Loan in the amount requested by the Lead Borrower, and (ii) if Base Rate
Loans are not outstanding in an amount at least equal to the requested LIBO Rate Loan, the Lead Borrower shall make an
electronic request via the Portal for additional Base Rate Loans in an such amount, when taken with the outstanding Base Rate
Loans (which shall be converted automatically at such time), as is necessary to satisfy the requested LIBO Rate Loan. If the
Lead Borrower fails to make such additional request via the Portal as required pursuant to clause (ii) of the foregoing
sentence, then the Borrowers shall be responsible for all amounts due pursuant to Section 3.053.05 hereof
arising on account of such failure. If the Lead Borrower fails to give a timely notice with respect to any continuation of a
LIBO Rate Loan, then the applicable Committed Revolving Loans shall be converted to Base Rate Loans, effective as of the last
day of the Interest Period then in effect with respect to the applicable LIBO Rate Loans.
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(c) Following
receipt of a Committed Loan Notice, the Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Committed Revolving Loans, and if no timely notice of a conversion or continuation is provided by the Lead Borrower,
the Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section 2.02(b).2.02(b).
In the case of a Committed Revolving Loan, each Lender shall make the amount of its Committed Revolving Loan available to the Agent
in immediately available funds at the Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable
Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.024.02
(and, if such Borrowing is the initial Credit Extension, Section 4.014.01),
the Agent shall use reasonable efforts to make all funds so received available to the Borrowers in like funds by no later than
3:00 p.m. on the day of receipt by the Agent either by (i) crediting the account of the Lead Borrower on the books of Wells Fargo
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) the Agent by the Lead Borrower.
(d) The
Agent, without the request of the Lead Borrower, may advance as a Revolving Loan any interest, fee, service charge (including direct
wire fees), Credit Party Expenses, or other payment to which any Credit Party is entitled from the Loan Parties pursuant hereto
or any other Loan Document and may charge the same to the Loan Account notwithstanding that an Overadvance may result thereby.
The Agent shall advise the Lead Borrower of any such advance or charge promptly after the making thereof. Such action on the part
of the Agent shall not constitute a waiver of the Agent’s rights and the Borrowers’ obligations under Section 2.05(c).2.05(c).
Any amount which is added to the principal balance of the Loan Account as provided in this Section 2.02(d)2.02(d)
shall bear interest at the interest rate then and thereafter applicable to Base Rate Loans.
(e) Except as otherwise provided herein, a LIBO Rate Loan may be continued or converted only on the last day of an Interest Period for such LIBO Rate Loan. During the existence of a Default or an Event of Default, no Committed Revolving Loans may be requested as, converted to or continued as LIBO Rate Loans without the Consent of the Required Lenders.
(f) The Agent shall promptly notify the Lead Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBO Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Agent shall notify the Lead Borrower and the Lenders of any change in Wells Fargo’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(g) After giving effect to all Revolving Credit Borrowings, all conversions of Committed Revolving Loans from one Type to the other, and all continuations of Committed Revolving Loans as the same Type, there shall not be more than nine (9) Interest Periods in effect with respect to LIBO Rate Loans.
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(h) The
Agent, the Revolving Lenders, the Swing Line Lender and the L/C Issuer shall have no obligation to make any Revolving Loan or
to provide any Letter of Credit if an Overadvance would result. The Agent may, in its discretion, make Permitted Overadvances
without the consent of the Borrowers, the Lenders, the Swing Line Lender and the L/C Issuer and the Borrowers and each Lender
and L/C Issuer shall be bound thereby. Any Permitted Overadvance may constitute a Swing Line Loan. A Permitted Overadvance is
for the account of the Borrowers and shall constitute a Revolving Loan which is a Base Rate Loan and an Obligation and shall
be repaid by the Borrowers in accordance with the provisions of Section 2.05(c).2.05(c). The
making of any such Permitted Overadvance on any one occasion shall not obligate the Agent or any Revolving Lender to make or
permit any Permitted Overadvance on any other occasion or to permit such Permitted Overadvances to remain outstanding. The
making by the Agent of a Permitted Overadvance shall not modify or abrogate any of the provisions of Section 2.032.03 regarding
the Revolving Lenders’ obligations to purchase participations with respect to Letters of Credit or of Section 2.042.04 regarding
the Revolving Lenders’ obligations to purchase participations with respect to Swing Line Loans. The Agent shall have no
liability for, and no Loan Party or Credit Party shall have the right to, or shall, bring any claim of any kind whatsoever
against the Agent with respect to Unintentional Overadvances regardless of the amount of any such Overadvance(s).
2.03 Letters
of Credit..
(a) The Letter of Credit Commitment.
(i) Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders
set forth in this Section 2.032.03,
(1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrowers, and to amend or extend Letters of Credit previously issued by it, in
accordance with Section 2.03(b)2.03(b)
below, and (2) to honor drawings under the Letters of Credit; and (B) the Revolving Lenders severally agree to participate in Letters
of Credit issued for the account of the Borrowers and any drawings thereunder; provided that after giving effect to any
L/C Credit Extension with respect to any Letter of Credit, (x) the Total Outstandings shall not exceed Loan Cap, (y) the aggregate
Outstanding Amount of the Committed Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the
Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender’s Revolving Commitment or such Lender’s Applicable Percentage of the
Borrowing Base, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by the Lead Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers
that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within
the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Letters of Credit
shall be fully revolving, and accordingly the Borrowers may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed. The Existing Letters of Credit shall be deemed to have
been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) No Letter of Credit shall be issued if:
(A) subject
to Section 2.03(a)(iii)2.03(a)(iii),
the expiry date of such requested Standby Letter of Credit would occur more than twelve (12) months after the date of issuance
or last extension, unless the Required Lenders have approved such expiry date; or
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(B) subject
to Section 2.03(a)(iii)2.03(a)(iii),
the expiry date of such requested Commercial Letter of Credit would occur more than one hundred twenty (120) days after the date
of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(C) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless either such Letter of Credit is Cash Collateralized on or prior to the date of issuance of such Letter of Credit (or such later date as to which the Agent may agree) or all the Revolving Lenders have approved such expiry date.
(iii) No Letter of Credit shall be issued without the prior consent of the Agent if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter of 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 shall prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Agent and the L/C Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000, in the case of a Commercial Letter of Credit, or $250,000, in the case of a Standby Letter of Credit;
(D) such Letter of Credit is to be denominated in a currency other than Dollars; provided that if the L/C Issuer, in its discretion, issues a Letter of Credit denominated in a currency other than Dollars, all reimbursements by the Borrowers of the honoring of any drawing under such Letter of Credit shall be paid in Dollars based on the Spot Rate;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the Stated Amount after any drawing thereunder; or
(F) a
default of any Revolving Lender’s obligations to fund under Section 2.03(c)2.03(c)
exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless the Agent or L/C Issuer has entered into satisfactory
arrangements with the Borrowers or such Revolving Lender to eliminate the L/C Issuer’s risk with respect to such Revolving
Lender.
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(iv) The L/C Issuer shall not amend any Letter of Credit if (A) the L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(v) The
L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Agent in Article
IXArticle IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agent” as used in Article
IXArticle IX 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 Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Lead Borrower delivered to the L/C Issuer (with a copy to the Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Lead Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the Agent not later than 11:00 a.m. at least two Business Days (or such other date and time as the Agent and the L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the Agent and the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount 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; and (G) such other matters as the Agent or L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the Agent and the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as the Agent or the L/C Issuer may reasonably require. Additionally, the Lead Borrower shall furnish to the L/C Issuer and the Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, and any Issuer Documents (including, if requested by the L/C Issuer, a Standby Letter of Credit Agreement or Commercial Letter of Credit Agreement, as applicable), as the L/C Issuer or the Agent may reasonably require.
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(ii) Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Agent (by telephone or in writing)
that the Agent has received a copy of such Letter of Credit Application from the Lead Borrower and, if not, the L/C Issuer
will provide the Agent with a copy thereof. Unless the L/C Issuer has received written notice from any Revolving Lender, the
Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article
IVArticle
IV shall not then be satisfied or unless the L/C Issuer would not be permitted, or would have no obligation, at
such time to issue such Letter of Credit under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a)2.03(a) or
otherwise), then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of
Credit for the account of the applicable 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. Immediately upon the issuance or amendment of
each Letter of Credit, each Revolving Lender shall be deemed to (without any further action), and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer, without recourse or warranty, a risk participation in such Letter of
Credit in an amount equal to the product of such Revolving Lender’s Applicable Percentage times the Stated Amount of
such Letter of Credit. Upon any change in the Revolving Commitments under this Agreement, it is hereby agreed that with
respect to all L/C Obligations, there shall be an automatic adjustment to the participations hereby created to reflect the
new Applicable Percentages of the assigning and assignee Revolving Lenders.
(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C Issuer will also deliver to the Lead Borrower and the Agent a true and complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Lead Borrower and the Agent thereof not less than two (2) Business Days prior to the Honor Date (as defined below; provided,
however, that any failure to give or delay in giving such notice shall not relieve the Borrowers of their obligation to
reimburse the L/C Issuer and the Revolving Lenders with respect to any such payment. On the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an “Honor Date”), the Borrowers shall be deemed to have requested
a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the amount of such payment,
without regard to the minimum and multiples specified in Section 2.02(b)2.02(b)
for the principal amount of Base Rate Loans, and without regard to whether the conditions set forth in Section 4.024.02
have been met. Any notice given by the L/C Issuer or the Agent pursuant to this Section 2.03(c)(i)2.03(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.
(ii) Each
Revolving Lender’s obligation to make Committed Revolving Loans to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c)2.03(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Lender may have against the L/C Issuer, any 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, and without regard to whether the conditions set forth in Section 4.024.02
have been met.
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(d) Repayment
of Participations. If any payment received by the L/C Issuer pursuant to Section 2.03(c)(i)2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.0510.05 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion), each Revolving Lender shall pay to the Agent
for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Revolving Lender, at a rate per annum equal to the Federal
Funds Rate from time to time in effect. The obligations of the Revolving Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse the L/C Issuer for each drawing under each Letter of Credit shall be absolute, unconditional and irrevocable, and shall 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 Letter of Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;
(v) any 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, the Borrowers or any of their Subsidiaries; or
(vi) the fact that any Default or Event of Default shall have occurred and be continuing.
The Lead Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Lead Borrower’s instructions or other irregularity, the Lead Borrower will immediately notify the Agent and the L/C Issuer.
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(f) Role
of L/C Issuer. Each Revolving Lender and the Borrowers agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the L/C Issuer, the Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Revolving Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful misconduct; (iii) any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit
or any error in interpretation of technical terms; or (iv) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that
this assumption is not intended to, and shall not, preclude the Borrowers’ pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e)2.03(e) or
for any action, neglect or omission under or in connection with any Letter of Credit or Issuer Documents, including, without limitation,
the issuance or any amendment of any Letter of Credit, the failure to issue or amend any Letter of Credit, or the honoring or
dishonoring of any demand under any Letter of Credit, and such action or neglect or omission will bind the Borrowers; provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrowers may have a claim against the L/C
Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to
consequential, exemplary or punitive damages suffered by the Borrowers which the Borrowers prove were caused by the L/C Issuer’s
willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit;
provided further, however, that any claim against the L/C Issuer by the Borrowers for any loss suffered or
incurred by the Borrowers shall be reduced by an amount equal to the sum of (i) the amount (if any) saved by the Borrowers as
a result of the breach or other wrongful conduct that allegedly caused such loss, and (ii) the amount (if any) of the loss that
would have been avoided had the Borrowers taken all reasonable steps to mitigate such loss, including, without limitation, by
enforcing their rights against any beneficiary and, in case of a claim of wrongful dishonor, by specifically and timely authorizing
the L/C Issuer to cure such dishonor. 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 (or the L/C Issuer may refuse to accept and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit and may disregard any requirement in a Letter of Credit that notice of dishonor
be given in a particular manner and any requirement that presentation be made at a particular place or by a particular time of
day), and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning
or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason. The L/C Issuer shall not be responsible for the wording of
any Letter of Credit (including, without limitation, any drawing conditions or any terms or conditions that are ineffective, ambiguous,
inconsistent, unduly complicated or reasonably impossible to satisfy), notwithstanding any assistance the L/C Issuer may provide
to the Borrowers with drafting or recommending text for any Letter of Credit Application or with the structuring of any transaction
related to any Letter of Credit, and the Borrowers hereby acknowledge and agree that any such assistance will not constitute legal
or other advice by the L/C Issuer or any representation or warranty by the L/C Issuer that any such wording or such Letter of
Credit will be effective. Without limiting the foregoing, the L/C Issuer may, as it deems appropriate, modify or alter and use
in any Letter of Credit the terminology contained on the Letter of Credit Application for such Letter of Credit.
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(g) Cash
Collateral. Upon the request of the Agent, (i) if the L/C Issuer has honored any full or partial drawing request under
any Letter of Credit and such drawing has resulted in an L/C Obligation that remains outstanding, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers shall, in each case,
promptly (but in all events with respect to clause (i) above, within five (5) Business Days and, with respect to clause (ii)
above, within three (3) Business Days) Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05(c)2.05(c) and Section 8.038.03 set
forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section
2.05(c) and Section 8.032.03,
Section 2.05(c) and Section 8.03, “Cash Collateralize” means to pledge and deposit with or
deliver to the Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or
deposit account balances in an amount equal to 103% of the Outstanding Amount of all L/C Obligations (other than L/C
Obligations with respect to Letters of Credit denominated in a currency other than Dollars, which L/C Obligations shall be
Cash Collateralized in an amount equal to 105% of the Outstanding Amount of such L/C Obligations), pursuant to documentation
in form and substance reasonably satisfactory to the Agent and the L/C Issuer (which documents are hereby Consented to by the
Lenders). The Borrowers hereby grant to the Agent a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Wells Fargo. If at any time the Agent determines that any funds held as Cash Collateral are subject to any right
or claim of any Person other than the Agent or that the total amount of such funds is less than the aggregate Outstanding
Amount of all L/C Obligations, the Borrowers will, forthwith upon demand by the Agent, pay to the Agent, as additional funds
to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total
amount of funds, if any, then held as Cash Collateral that the Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be
applied, to the extent permitted under applicable Laws, to reimburse the L/C Issuer and, to the extent not so applied, shall,
so long as no Default or Event of Default has occurred and is continuing, thereafter be returned to the Borrowers.
(h) Applicability of ISP and UCP 600. Unless otherwise expressly agreed by the L/C Issuer and the Lead Borrower when a Letter of Credit is issued (including any such agreement applicable to the Existing Letters of Credit), (i) the rules of the ISP and the UCP 600 shall apply to each Standby Letter of Credit, and (ii) the rules of the UCP 600 shall apply to each Commercial Letter of Credit.
(i) Letter
of Credit Fees. The Borrowers shall pay to the Agent for the account of each Revolving Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable
Margin times the daily Stated Amount under each such Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit). For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of the Letter of Credit shall be determined in accordance with Section 1.06.1.06.
Letter of Credit Fees shall be (i) due and payable on the first day after the end of each quarter commencing with the first such
date to occur after the issuance of such Letter of Credit, and thereafter on demand, and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Margin during any quarter, the daily amount available to be drawn under of each
Letter of Credit shall 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 pursuant
to Sections 8.01(b), (c) or (i)8.01(b),
(c) or (i) exists, all Letter of Credit Fees shall accrue at the Default Rate as provided in Section 2.08(b)2.08(b)
hereof; provided that, with respect to any Event of Default pursuant to Sections 8.01(b)8.01(b)
or (c)(c),
the Default Rate shall apply only at the election of the Agent or at the direction of the Required Lenders.
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(j) Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrowers shall pay directly to the L/C Issuer, for
its own account, a fronting fee (the “Fronting Fee”) (i) with respect to each Commercial Letter of Credit,
at a rate equal to 0.125% per annum, computed on the amount of such Letter of Credit, and payable upon the issuance or amendment
thereof, and (ii) with respect to each Standby Letter of Credit, at a rate equal to 0.250% per annum, computed on the daily amount
available to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such Fronting Fees shall be due and payable
on the first day after the end of each quarter, commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available
to be drawn under any Letter of Credit, the amount of the Letter of Credit shall be determined in accordance with Section 1.06.1.06. In
addition, the Borrowers shall pay directly to the L/C Issuer, for its own account, 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 as from time
to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
2.04 Swing
Line Loans.
.
(a) The
Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in reliance upon the agreements
of the other Revolving Lenders set forth in this Section 2.042.04,
make loans (each such loan, a “Swing Line Loan”) to the Borrowers from time to time on any Business Day during
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, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Revolving
Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Commitment;
provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed
Loan Cap, and (ii) the aggregate Outstanding Amount of the Committed Revolving Loans of any Lender at such time, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations at such time, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans at such time shall not exceed such Lender’s Revolving
Commitment or such Lender’s Applicable Percentage of the Borrowing Base, and provided, further, that the Borrowers
shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and provided further
that the Swing Line Lender shall not be obligated to make any Swing Line Loan at any time when any Revolving Lender is at
such time a Defaulting Lender hereunder, unless the Swing Line Lender has entered into satisfactory arrangements with the Borrowers
or such Revolving Lender to eliminate the Swing Line Lender’s risk with respect to such Lender. Within the foregoing limits,
and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.042.04,
prepay under Section 2.05(c)2.05(c),
and reborrow under this Section 2.042.04.
Each Swing Line Loan shall bear interest only at the rate applicable to Base Rate Loans. Immediately upon the making of a Swing
Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage
times the amount of such Swing Line Loan. The Swing Line Lender shall have all of the benefits and immunities (A) provided to
the Agent in Article IXArticle
IX with respect to any acts taken or omissions suffered by the Swing Line Lender in connection with Swing Line Loans
made by it or proposed to be made by it as if the term “Agent” as used in Article
IXArticle
IX included the Swing Line Lender with respect to such acts or omissions, and (B) as additionally provided herein with
respect to the Swing Line Lender.
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(b) Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Lead Borrower’s irrevocable notice to the Swing Line Lender
and the Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Agent not later
than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000,
and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by
delivery to the Swing Line Lender and the Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible
Officer of the Lead Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing
Line Lender will confirm with the Agent (by telephone or in writing) that the Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Agent (by telephone or in writing) of the contents thereof. Unless the Swing
Line Lender has received notice (by telephone or in writing) from the Agent at the request of the Required Lenders prior to 1:00
p.m. on the date of the proposed Swing Line Borrowing (A) directing the 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)2.04(a),
or (B) that one or more of the applicable conditions specified in Section 4.024.02
is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender may, not later than
1:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to
the Borrowers at its office by crediting the account of the Lead Borrower on the books of the Swing Line Lender in immediately
available funds.
(c) Refinancing of Swing Line Loans.
(i) The
Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby irrevocably
authorize the Swing Line Lender to so request on their behalf), that each Revolving Lender make a Base Rate Loan in an amount equal
to such Revolving Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be
made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with
the requirements of Section 2.022.02,
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 Loan Cap and the conditions set forth in Section 4.02.4.02.
The Swing Line Lender shall furnish the Lead Borrower with a copy of the applicable Committed Loan Notice promptly after delivering
such notice to the Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified
in such Committed Loan Notice available to the Agent in immediately available funds for the account of the Swing Line Lender at
the Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii)2.04(c)(ii),
each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrowers in such amount.
The Agent shall remit the funds so received to the Swing Line Lender.
(ii) If
for any reason any Swing Line Loan cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.04(c)(i)2.04(c)(i),
the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing
Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s
payment to the Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i)2.04(c)(i)
shall be deemed payment in respect of such participation.
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(iii) If
any Revolving Lender fails to make available to the Agent for the account of the Swing Line Lender any amount required to be paid
by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04(c)2.04(c)
by the time specified in Section 2.04(c)(i)2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Revolving Lender (acting through the 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 Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing
Line Lender in accordance with banking industry rules on interbank compensation plus any administrative, processing or
similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Revolving Lender pays such
amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving Lender’s Committed Revolving
Loan included in the relevant Revolving Credit Borrowing or funded participation in the relevant Swing Line Loan, as the case
may be. A certificate of the Swing Line Lender submitted to any Revolving Lender (through the Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each
Revolving Lender’s obligation to make Committed Revolving Loans or to purchase and fund risk participations in Swing Line
Loans pursuant to this Section 2.04(c)2.04(c)
shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Revolving Lender may have against the Swing Line Lender, the Borrowers or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however, that each Revolving Lender’s
obligation to make Committed Revolving Loans pursuant to this Section 2.04(c)2.04(c)
is subject to the conditions set forth in Section 4.024.02.
No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans,
together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Revolving Lender’s risk participation was funded) in the same funds as those received by the Swing Line Lender.
(ii) If
any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned
by the Swing Line Lender under any of the circumstances described in Section 10.0510.05
(including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Revolving Lender
shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the 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. The Agent will
make such demand upon the request of the Swing Line Lender. The obligations of the Revolving Lenders under this clause shall survive
the payment in full of the Obligations and the termination of this Agreement.
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(e) Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowers for interest on the
Swing Line Loans. Until each Revolving Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.042.04
to refinance such Revolving Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such
Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrowers shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
2.05 Prepayments.
(a) The
Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, at any time or from time to time voluntarily prepay
Committed Revolving Loans in whole or in part without premium or penalty; provided that (i) such notice must be received
by the Agent not later than 1:00 p.m. (A) three Business Days prior to any date of prepayment of LIBO Rate Loans and (B) on the
date of prepayment of Base Rate Loans; (ii) any prepayment of LIBO Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $250,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $250,000 in excess thereof ($100,000 and $100,000, respectively, in the case of Swing Line Loans) or, in
each case, if less, the entire principal amount thereof then outstanding; provided, further, that such notice may state that it
is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrowers (by
notice to the Agent on or prior to the specified closing date) if such condition is not satisfied. Each such notice shall specify
the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if LIBO Rate Loans, the Interest Period(s) of
such Loans. The Agent will promptly notify each Revolving Lender of its receipt of each such notice, and of the amount of such
Revolving Lender’s Applicable Percentage of such prepayment. If such notice is given by the Lead Borrower, the Borrowers
shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a LIBO Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional
amounts required pursuant to Section 3.05.3.05. Each such prepayment shall be applied to the Committed Revolving Loans of the Lenders in accordance with their respective Applicable
Percentages.
(b) The Borrowers may, upon irrevocable notice from the Lead Borrower to the Swing Line Lender (with a copy to the 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 (i) such notice must be received by the Swing Line Lender and the Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Lead Borrower, the Borrowers shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
(c) If
for any reason the Total Outstandings at any time exceed the Loan Cap as then in effect, the Borrowers shall immediately prepay
Committed Revolving Loans, Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(c)2.05(c)
unless after the prepayment in full of the Committed Revolving Loans and Swing Line Loans, the Total Outstandings exceed the Loan
Cap as then in effect.
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(d) After
the occurrence and during the continuance of a Cash Dominion Event, the Borrowers shall prepay the Committed Revolving Loans,
all outstanding interest fees and Credit Party Expenses, and Cash Collateralize the L/C Obligations with proceeds and collections
received by the Loan Parties to the extent so required under the provisions of Section 6.116.11
hereof.
(e) Prepayments
made pursuant to Section 2.05(c)2.05(c),
and (d)(d)(i)
above, first, shall be applied to the Swing Line Loans, second, shall be applied ratably to the outstanding Committed Revolving
Loans, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, fourth, the amount remaining, if any, after
the prepayment in full of all Swing Line Loans and Committed Revolving Loans outstanding at such time and the Cash Collateralization
of the remaining L/C Obligations in full may be retained by the Borrowers for use in the ordinary course of its business. Prepayments
made pursuant to Section 2.05(d)2.05(d)(ii)
shall be applied in accordance with Section 8.048.04.
Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied
(without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving
Lenders, as applicable.
2.06 Termination or Reduction of Commitments.
(a) The Borrowers may, upon irrevocable notice from the Lead Borrower to the Agent, terminate the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit or from time to time permanently reduce the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any such notice shall be received by the Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrowers shall not terminate or reduce (A) the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Revolving Commitments, (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, and (C) the Swing Line Sublimit if, after giving effect thereto, and to any concurrent payments hereunder, the Outstanding Amount of Swing Line Loans hereunder would exceed the Swing Line Sublimit.
(b) If, after giving effect to any reduction of the Aggregate Revolving Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Commitments, such Letter of Credit Sublimit or Swing Line Sublimit shall be automatically reduced by the amount of such excess.
(c) The
Agent will promptly notify the Revolving Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit
or the Aggregate Revolving Commitments under this Section 2.06(c).2.06(c).
Upon any reduction of the Aggregate Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by
such Revolving Lender’s Applicable Percentage of such reduction amount. All fees (including, without limitation, commitment
fees and Letter of Credit Fees) and interest in respect of the Aggregate Revolving Commitments accrued until the effective date
of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.
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2.07 Repayment of Loans.
(a) The Borrowers shall repay to the Revolving Lenders on the Termination Date the aggregate principal amount of Committed Revolving Loans outstanding on such date.
(b) To the extent not previously paid, the Borrowers shall repay the outstanding balance of the Swing Line Loans on the Termination Date.
2.08 Interest.
.
(a) Subject
to the provisions of Section 2.08(b)2.08(b)
below,
(i) each LIBO Rate Loan constituting a Committed Revolving Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Adjusted LIBO Rate for such Interest Period plus the Applicable Margin;
(ii) each Base Rate Loan constituting a Committed Revolving Loan shall 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; and
(iii) each Swing Line Loan shall 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.
(b) (i) If
any Event of Default exists under Section 8.01(i),8.01(i),
or if any amount payable under any Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.
(i)(ii) If
any Event of Default exists under Section 8.01(b) or (c)8.01(b)
or (c), then the Agent may, and upon the request of the Required Lenders shall, notify the Lead Borrower that all amounts
payable under any Loan Document not paid when due (without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.
(ii)(iii) Accrued
and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall 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 shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
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2.09 Fees.
In addition to certain fees described in Sections 2.03(i)
and 2.03(j):.
In addition to certain fees described in Sections 2.03(i) and 2.03(j):
(a) Commitment Fee. The Borrowers shall pay to the Agent
for the account of each Revolving Lender in accordance with its Applicable Percentage, a commitment fee calculated on a per annum
basis equal to 0.25.20%
per annum times the actual daily amount by which the Aggregate Revolving Commitments exceed the Total Outstandings. The commitment
fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions
in Article IVArticle
IV is not met, and shall be due and payable quarterly in arrears on the first day after the end of each quarter, commencing
with the first such date to occur after the Closing Date, and on the last day of the Availability Period. The commitment fee shall
be calculated quarterly in arrears.
(b) Other Fees. The Borrowers shall pay to Wells Fargo (in its capacity as an Arranger and the Agent) fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
2.10 Computation of Interest and Fees.
Except for any computations with respect
to clause (c) of the definition of Base Rate (which shall be computed on the basis of a year of 365, or to the extent a leap year,
366), all computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed. Interest shall
accrue on each Loan for the day on which the Loan is made, and shall 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 shall, subject
to Section 2.12(a)2.12(a),
bear interest for one day. Each determination by the Agent of an interest rate or fee hereunder shall be conclusive and binding
for all purposes, absent manifest error.
2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by the Agent (the “Loan Account”) in the ordinary course of business. In addition, each Lender may record in such Lender’s internal records, an appropriate notation evidencing the date and amount of each Loan from such Lender, each payment and prepayment of principal of any such Loan, and each payment of interest, fees and other amounts due in connection with the Obligations due to such Lender. The accounts or records maintained by the Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Agent, the Borrowers shall execute and deliver to such Lender (through the Agent) a Note, which shall evidence such Lender’s Committed Revolving Loans in addition to such accounts or records. Each Lender 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. Upon receipt of an affidavit of a Lender as to the loss, theft, destruction or mutilation of such Lender’s Note and upon cancellation of such Note, the Borrowers will issue, in lieu thereof, a replacement Note in favor of such Lender, in the same principal amount thereof and otherwise of like tenor.
(b) In
addition to the accounts and records referred to in Section 2.11(a)2.11(a),
each Revolving Lender and the Agent shall maintain in accordance with its usual practice accounts or records evidencing the
purchases and sales by such Revolving Lender of participations in Letters of Credit and Swing Line Loans. In the event of any
conflict between the accounts and records maintained by the Agent and the accounts and records of any Revolving Lender in
respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error.
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(c) Agent shall render monthly statements regarding the Loan Account to the Lead Borrower including principal, interest, fees, and including an itemization of all charges and expenses constituting Credit Party Expenses owing, and such statements, absent manifest error, shall be conclusively presumed to be correct and accurate and constitute an account stated between Borrowers and the Credit Parties unless, within thirty (30) days after receipt thereof by the Lead Borrower, the Lead Borrower shall deliver to Agent written objection thereto describing the error or errors contained in any such statements.
2.12 Payments Generally; Agent’s Clawback.
(a) General. All payments to be made by the Loan Parties shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Agent, for the account of the respective Lenders to which such payment is owed, at the Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Agent after 2:00 p.m., at the option of the Agent, shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Revolving
Lenders; Presumption by Agent. Unless the Agent shall have received notice from a Revolving Lender prior to the proposed date
of any Revolving Credit Borrowing of LIBO Rate Loans (or in the case of any Revolving Credit Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Revolving Lender will not make available to the Agent such
Revolving Lender’s share of such Revolving Credit Borrowing, the Agent may assume that such Revolving Lender has made
such share available on such date in accordance with Section 2.022.02 (or
in the case of a Revolving Credit Borrowing of Base Rate Loans, that such Lender has made such share available in accordance
with and at the time required by Section 2.022.02) and
may, in reliance upon such assumption, make available to the Borrowers a corresponding amount. In such event, if a Revolving
Lender has not in fact made its share of the applicable Revolving Credit Borrowing available to the Agent, then the
applicable Revolving Lender and the Borrowers severally agree to pay to the Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the date such amount is made
available to the Borrowers to but excluding the date of payment to the Agent, at (A) in the case of a payment to be made by
such Revolving Lender, the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking
industry rules on interbank compensation plus any administrative processing or similar fees customarily charged by the
Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrowers, the interest rate
applicable to Committed Revolving Loans comprising Base Rate Loans. If the Borrowers and such Revolving Lender shall pay such
interest to the Agent for the same or an overlapping period, the Agent shall promptly remit to the Borrowers the amount of
such interest paid by the Borrowers for such period. If such Revolving Lender pays its share of the applicable Revolving
Credit Borrowing to the Agent, then the amount so paid shall constitute such Revolving Lender’s Committed Revolving
Loan included in such Revolving Credit Borrowing. Any payment by the Borrowers shall be without prejudice to any claim the
Borrowers may have against a Revolving Lender that shall have failed to make such payment to the Agent.
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(i)(ii) Payments
by Borrowers; Presumptions by Agent. Unless the Agent shall have received notice from the Lead Borrower prior to the time at
which any payment is due to the Agent for the account of the Lenders or the L/C Issuer hereunder that the Borrowers will not make
such payment, the Agent may assume that the Borrowers have 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 the Borrowers
have not in fact made such payment, then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the
Agent, at the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on
interbank compensation.
A notice of the Agent to any Lender or the
Lead Borrower with respect to any amount owing under this subsection (b)(b)
shall be conclusive, absent manifest error.
(c) Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article IIArticle
II, and such funds are not made available to the Borrowers by the Agent because the conditions to the applicable Credit
Extension set forth in Article IVArticle
IV are not satisfied or waived in accordance with the terms hereof (subject to the provisions of the last paragraph
of Section 4.024.02
hereof), the Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Revolving Lenders hereunder to make Committed Revolving Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments hereunder are several and not joint. The failure of any Revolving Lender to make any Committed Revolving Loan, to fund any such participation or to make any payment hereunder on any date required hereunder shall not relieve any other Revolving Lender of its corresponding obligation to do so on such date, and no Revolving Lender shall be responsible for the failure of any other Revolving Lender to so make its portion of its Committed Revolving Loan, to purchase its participation or to make its payment hereunder.
(e) Funding Source. Nothing herein shall 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.
2.13 Sharing of Payments by Lenders.
If any Credit Party shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, interest on, or
other amounts with respect to, any of the Obligations resulting in any Revolving Lender receiving payment of a proportion of
the aggregate amount of Obligations in respect of Committed Revolving Loans greater than its pro rata share thereof as
provided herein (including as in contravention of the priorities of payment set forth in Section 8.048.04),
then the Credit Party receiving such greater proportion shall (a) notify the Agent of such fact, and (b) purchase (for cash
at face value) participations in the Obligations of the other Revolving Lenders, or make such other adjustments as shall be
equitable, so that the benefit of all such payments shall be shared by the Credit Parties ratably and in the priorities set
forth in Section 8.048.04,
provided that:
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(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 shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by the Loan Parties pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its portion of its Committed Revolving Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Borrowers or any Subsidiary thereof (as to which the provisions of this Section shall 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.
2.14 Settlement Amongst Lenders.
(a) The amount of each Revolving Lender’s Applicable Percentage of outstanding Committed Revolving Loans (including outstanding Swing Line Loans), shall be computed weekly (or more frequently in the Agent’s discretion) and shall be adjusted upward or downward based on all Committed Revolving Loans (including Swing Line Loans) and repayments of Committed Revolving Loans (including Swing Line Loans) received by the Agent as of 3:00 p.m. on the first Business Day (such date, the “Settlement Date”) following the end of the period specified by the Agent.
(b) The Agent shall deliver to each of the Revolving Lenders promptly after a Settlement Date a summary statement of the amount of outstanding Committed Revolving Loans and Swing Line Loans for the period and the amount of repayments received for the period. As reflected on the summary statement, (i) the Agent shall transfer to each Revolving Lender its Applicable Percentage of repayments, and (ii) each Revolving Lender shall transfer to the Agent (as provided below) or the Agent shall transfer to each Revolving Lender, such amounts as are necessary to insure that, after giving effect to all such transfers, the amount of Committed Revolving Loans made by each Lender shall be equal to such Revolving Lender’s Applicable Percentage of all Committed Revolving Loans outstanding as of such Settlement Date. If the summary statement requires transfers to be made to the Agent by the Revolving Lenders and is received prior to 1:00 p.m. on a Business Day, such transfers shall be made in immediately available funds no later than 3:00 p.m. that day; and, if received after 1:00 p.m., then no later than 3:00 p.m. on the next Business Day. The obligation of each Revolving Lender to transfer such funds is irrevocable, unconditional and without recourse to or warranty by the Agent. If and to the extent any Revolving Lender shall not have so made its transfer to the Agent, such Revolving Lender agrees to pay to the Agent, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Agent, equal to the greater of the Federal Funds Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation plus any administrative, processing, or similar fees customarily charged by the Agent in connection with the foregoing.
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2.15 Uncommitted Increase.
(a) Uncommitted Increase.
(i) Request
for Increase. Provided no Default or Event of Default then exists or would arise therefrom, upon notice to the Agent (which
shall promptly notify the Lenders), the Lead Borrower may request an increase in the Aggregate Revolving Commitments by an amount
(for all such requests) not exceeding $100,000,000 or such higher amount as may be agreed to by Required Lenders (the “Commitment
Increase”); provided that (i) any such request for an increase
shall be in a minimum amount of $5,000,000 and (ii) the Lead Borrower may make a maximum of three
such requests. At the time of sending such notice, the Lead Borrower (in consultation with the Agent) shall specify
the time period within which each Revolving Lender is requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Revolving Lenders). No Lender is required to increase its Commitment.
(ii) Lender Elections to Increase. Each Lender shall notify the Agent within such time period whether or not it agrees to increase its Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Revolving Lender not responding within such time period shall be deemed to have declined to increase its Revolving Commitment.
(iii) Notification by Agent; Additional Lenders. The Agent shall notify the Lead Borrower and each Revolving Lender of the Revolving Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Agent, the L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld), to the extent that the existing Lenders decline to increase their Revolving Commitments, or decline to increase their Revolving Commitments to the amount requested by the Lead Borrower, the Agent, in consultation with the Lead Borrower, will use its reasonable efforts to arrange for other Eligible Assignees to become a Revolving Lender hereunder and to issue commitments in an amount equal to the amount of the increase in the Aggregate Revolving Commitments requested by the Lead Borrower and not accepted by the existing Revolving Lenders (and the Lead Borrower may also invite additional Eligible Assignees to become Revolving Lenders) (each, an “Additional Commitment Lender”), provided, however, that without the consent of the Agent, at no time shall the Revolving Commitment of any Additional Commitment Lender be less than $10,000,000.
(iv) Effective Date and Allocations. If the Aggregate Revolving Commitments are increased in accordance with this Section, the Agent, in consultation with the Lead Borrower, shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Agent shall promptly notify the Lead Borrower and the Revolving Lenders of the final allocation of such increase and the Increase Effective Date and on the Increase Effective Date (i) the Aggregate Revolving Commitments under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Commitment Increases, and (ii) Schedule 2.01 shall be deemed modified, without further action, to reflect the revised Commitments and Applicable Percentages of the Revolving Lenders.
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(b) Conditions
to Effectiveness of Commitment Increase. As a condition precedent to such Commitment Increase, (i) the Lead Borrower shall
deliver to the Agent a certificate of the Lead Borrower dated as of the Increase Effective Date signed by a Responsible Officer
of the Lead Borrower (A) certifying and attaching the resolutions adopted by the Lead Borrower approving or consenting to such
Commitment Increase, and (B) certifying that, before and after giving effect to such Commitment Increase, (1) the representations
and warranties contained in Article VArticle
V and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date,
except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true
and correct in all material respects as of such earlier date and except in the case of any representation and warranty qualified
by materiality, in which case they shall be true and correct in all respects, and except that for purposes of this Section
2.152.15,
the representations and warranties contained in subsections (a)(a)
and (b)(b)
of Section 5.065.06
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of
Section 6.046.04,
and (2) no Default or Event of Default exists or would arise therefrom, (ii) the Borrowers, the Agent, and any Additional Commitment
Lender shall have executed and delivered a joinder to the Loan Documents in such form as the Agent shall reasonably require; (iii)
the Borrowers shall have paid such fees and other compensation, if any, to the Revolving Lenders increasing their Revolving Commitments
and to the Additional Commitment Lenders, as the Lead Borrower and such Revolving Lenders and Additional Commitment Lenders, as
applicable, shall agree; (iv) the Borrowers shall have paid such arrangement fees to the Agent as the Lead Borrower and the Agent
may agree; (v) if requested by the Agent, the Borrowers shall deliver to the Agent and the Lenders an opinion or opinions, in
form and substance reasonably satisfactory to the Agent, from counsel to the Borrowers reasonably satisfactory to the Agent and
dated such date; (vi) the Borrowers and the Additional Commitment Lender shall have delivered such other instruments, documents
and agreements as the Agent may reasonably have requested; and (vii) no Default or Event of Default exists. The Borrowers shall
prepay any Committed Revolving Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant
to Section 2.052.05)
to the extent necessary to keep the outstanding Committed Revolving Loans ratable with any revised Applicable Percentages arising
from any nonratable increase in the Revolving Commitments under this Section.
(c) Conflicting
Provisions. This Section shall supersede any provisions in Sections 2.132.13
or 10.0110.01
to the contrary.
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2.16 Extensions of Revolving Commitments.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Lead Borrower to all Lenders on a pro rata basis (based on the aggregate outstanding principal amount of the respective Revolving Commitments) and on the same terms to each such Lender, the Loan Parties may consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the Maturity Date of each such Lender’s Revolving Commitments and otherwise modify the terms of such Revolving Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Revolving Commitments) (each, an “Extension”, and each group of Revolving Commitments so extended, as well as the original Revolving Commitments not so extended, being a “tranche”). Any Extended Revolving Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of Revolving Commitments so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders; (ii) except as to pricing (interest rate and fees) and maturity (which shall be set forth in the relevant Extension Offer but shall be no earlier than the Maturity Date of the Revolving Commitments), the Revolving Commitment of any Lender that agrees to an Extension with respect to such amounts extended pursuant to any Extension (an “Extended Revolving Commitment”), and the related outstandings, shall be a Revolving Commitment (or related outstandings, as the case may be) with the same terms as the original Revolving Commitments (and related outstandings); provided that (A) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings), (2) repayments required upon the Maturity Date of the non-extending Revolving Commitments and (3) repayments made in connection with a permanent repayment and termination of any portion of the Revolving Commitments) of Loans with respect to Extended Revolving Commitments after the applicable date of such Extension shall be made on a pro rata basis with all other Revolving Commitments, (B) the permanent repayment of Committed Revolving Loans with respect to, and termination of, Extended Revolving Commitments after the applicable date of such Extension shall be made on a pro rata basis with all other Revolving Commitments, except that the Loan Parties shall be permitted to permanently repay and terminate Revolving Commitments prior to any Extended Revolving Commitments, (C) assignments and participations of Extended Revolving Commitments and extended Committed Revolving Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Committed Revolving Loans, and (D) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments) which have more than two different Maturity Dates; (iii) if the aggregate principal amount of Revolving Commitments be (calculated on the face amount thereof) in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Commitments offered to be extended by the Loan Parties pursuant to such Extension Offer, then the Revolving Commitments of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer; and (iv) any applicable Minimum Extension Condition (as defined below) shall be satisfied unless waived by the Loan Parties and, to extent provided below, the Agent.
(b) With
respect to all Extensions consummated by the Loan Parties pursuant to this Section 2.162.16,
(i) such Extensions shall not constitute voluntary or mandatory payments for purposes of this Agreement and (ii) each Extension
Offer shall specify the minimum amount of Revolving Commitments to be tendered, which shall be with respect to Revolving Commitments
of a class an integral multiple of $5,000,000 and an aggregate principal amount that is not less than $10,000,000 (or if less,
the remaining outstanding principal amount thereof) (or such lesser minimum amount reasonably approved by the Agent) (a “Minimum
Extension Condition”). The transactions contemplated by this Section 2.162.16
(including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Commitments
on such terms as may be set forth in the relevant Extension Offer) shall not require the consent of any Lender or any other person
(other than as set forth in clause (c) of this Section 2.162.16).
(c) The
consent (such consent not to be unreasonably withheld, delayed or conditioned) of the Agent shall be required to effectuate any
Extension. No consent of any Lender or any other person shall be required to effectuate any Extension, other than the consent of
the Loan Parties and each Lender agreeing to such Extension with respect to one or more of its Revolving Commitments. The Lenders
hereby irrevocably authorize the Agent to enter into amendments to this Agreement and the other Loan Documents (an “Extension
Amendment”) with the Loan Parties as may be necessary in order to establish new tranches in respect of Revolving Commitments
so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Agent and the Loan
Parties in connection with the establishment of such new tranches, in each case, on terms consistent with this Section 2.162.16.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY;
APPOINTMENT OF LEAD BORROWER
3.01 Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrowers under any Loan Document shall 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 shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. If the Borrowers or any other withholding agent shall be required by applicable law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Agent, the applicable Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions or withholding been made.
(b) Payment
of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a)(a)
above, the Borrowers shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Loan Parties. The Loan Parties shall indemnify the Agent, each Lender and the L/C Issuer, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Agent, such Lender or the L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Lead Borrower by a Lender or the L/C Issuer (with a copy to the Agent), or by the Agent, on its own behalf or on behalf of the a Lender or the L/C Issuer, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrowers to a Governmental Authority, the Lead Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(e) Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which any Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Lead Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by the Lead Borrower or the Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate of withholding. Such delivery shall be provided on the Closing Date and on or before such documentation expires or becomes obsolete or after the occurrence of an event requiring a change in the documentation most recently delivered. In addition, any Lender, if requested by the Lead Borrower or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Lead Borrower or the Agent as will enable the Lead Borrower or the Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.
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Without limiting the generality of the foregoing, in the event that any Borrower is a U.S. Person within the meaning of Code Section 7701(a)(30) (a “U.S. Person”), any Lender shall deliver to the Lead Borrower and the Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Lead Borrower or the Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:
(i) any Lender that is a U.S. Person shall deliver executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; and
(ii) any Foreign Lender shall deliver whichever of the following is applicable:
(A) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, or any successor form thereto, claiming eligibility for benefits of an income tax treaty to which the United States is a party;
(B) duly completed copies of Internal Revenue Service Form W-8ECI;
(C) 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 (“Tax Compliance Certificate”) to the effect that such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrowers within the meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E, or any successor form thereto;
(D) 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, a Tax Compliance Certificate, IRS Form W-9 and/or other certification documents from each beneficial owner, as applicable;
(E) any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Lead Borrower to determine the withholding or deduction required to be made;
(F) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Lead Borrower and the Agent at the time or times prescribed by law and at such time or times reasonably requested by the Lead Borrower or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Lead Borrower or the Agent as may be necessary for the Borrowers and the Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (F), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Lead Borrower and the Agent in writing of its legal inability to do so.
(f) Treatment of Certain Refunds. If the Agent, any Lender or the L/C Issuer determines, in its sole discretion, exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Loan Parties or with respect to which the Loan Parties have paid or remitted additional amounts pursuant to this Section, it shall pay to the Loan Parties an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Parties under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent, such Lender or the L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Parties, upon the request of the Agent, such Lender or the L/C Issuer, agree to repay the amount paid over to the Loan Parties (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Agent, such Lender or the L/C Issuer in the event the Agent, such Lender or the L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the Loan Parties or any other Person.
(g) Agent Withholding. On or before the date the Agent (or any successor thereto) becomes a party to this Agreement, the Agent shall provide to the Lead Borrower, two duly-signed, properly completed copies of the documentation prescribed in clause (i) or (ii) below, as applicable (together with all required attachments thereto): (i) IRS Form W-9 or any successor thereto, or (ii) (A) with respect to payments to be received by it as a beneficial owner, IRS Form W-8ECI or any successor thereto, and (B) with respect to payments received on account of any Lender, a U.S. branch withholding certificate on IRS Form W-8IMY (together with required accompanying documentation) or any successor thereto evidencing its agreement with the Lead Borrower to be treated as a U.S. Person for U.S. federal withholding purposes. At any time thereafter, the Agent shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request of the Lead Borrower.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund LIBO Rate Loans, or to determine or charge interest rates based upon the LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Lead Borrower through the Agent, any obligation of such Lender to make or continue LIBO Rate Loans or to convert Base Rate Loans to LIBO Rate Loans shall be suspended until such Lender notifies the Agent and the Lead Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the Agent), prepay or, if applicable, convert all LIBO Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such LIBO Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such LIBO Rate Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
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3.03 Inability to Determine Rates.
If the Required Lenders determine that for any reason in connection with any request for a LIBO Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank market for the applicable amount and Interest Period of such LIBO Rate Loan, (b) adequate and reasonable means do not exist for determining the LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan, or (c) the LIBO Rate for any requested Interest Period with respect to a proposed LIBO Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Agent will promptly so notify the Lead Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain LIBO Rate Loans shall be suspended until the Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Lead Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of LIBO Rate Loans or, failing that, will be deemed to have converted such request into a request for a Revolving Credit Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Costs; Reserves on LIBO Rate Loans.
(a) Increased Costs Generally. If any Change in Law shall:
(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 Lender (except any reserve requirement reflected in the LIBO Rate) or the L/C Issuer;
(ii) subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation
in a Letter of Credit or any LIBO Rate Loan made by it, or change the basis of taxation of payments to such Lender or the L/C Issuer
in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.013.01
and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or
(iii) impose on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or LIBO Rate Loans made by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any LIBO Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
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(b) Capital Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital requirements or liquidity has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company for any such reduction suffered.
(c) Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate
such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a)(a)
or (b)(b)
of this Section and delivered to the Lead Borrower shall be conclusive absent manifest error. The Borrowers shall pay such Lender
or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided that the Borrowers shall not be required to compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies the Lead Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor.
(e) Reserves on LIBO Rate Loans. The Borrowers shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including eurocurrency funds or deposits (currently known as “Eurocurrency liabilities”), additional interest on the unpaid principal amount of each LIBO Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Lead Borrower shall have received at least ten (10) days’ prior notice (with a copy to the Agent) of such additional interest from such Lender. If a Lender fails to give notice ten (10) days prior to the relevant Interest Payment Date, such additional interest shall be due and payable ten (10) days from receipt of such notice.
3.05 Compensation for Losses.
Upon demand of any Lender (with a copy to the Agent) from time to time, the Borrowers shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
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(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Lead Borrower; or
(c) any
assignment of a LIBO Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the
Lead Borrower pursuant to Section 10.1310.13;
including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrowers shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable
by the Borrowers to the Lenders under this Section 3.053.05,
each Lender shall be deemed to have funded each LIBO Rate Loan made by it at the LIBO Rate for such Loan by a matching deposit
or other borrowing in the London interbank market for a comparable amount and for a comparable period, whether or not such LIBO
Rate Loan was in fact so funded.
3.06 Mitigation
Obligations; Replacement of Lenders..
(a) Designation
of a Different Lending Office. If any Lender requests compensation under Section 3.05,3.05,
or the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 3.013.01,
or if any Lender gives a notice pursuant to Section 3.023.02,
then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01
or 3.05,3.01 or 3.05,
as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.023.02,
as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Replacement
of Lenders. If any Lender requests compensation under Section 3.05,3.05,
or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.013.01,
the Borrowers may replace such Lender in accordance with Section 10.1310.13.
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3.07 Survival.
Each party’s obligations under
this Article IIIArticle
III shall survive termination of the Aggregate Revolving Commitments and repayment of the Committed Revolving Loans,
the Swing Line Loans, and all other Obligations.
3.08 Designation
of Lead Borrower as Borrowers’ Agent.
.
(a) Each Borrower hereby irrevocably designates and appoints the Lead Borrower as such Borrower’s agent to obtain Credit Extensions, the proceeds of which shall be available to each Borrower for such uses as are permitted under this Agreement. As the disclosed principal for its agent, each Borrower shall be obligated to each Credit Party on account of Credit Extensions so made as if made directly by the applicable Credit Party to such Borrower, notwithstanding the manner by which such Credit Extensions are recorded on the books and records of the Lead Borrower and of any other Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Lead Borrower as such Loan Party’s agent to represent such Loan Party in all respects under this Agreement and the other Loan Documents.
(b) Each Borrower recognizes that credit available to it hereunder is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Obligations of each of the other Borrowers.
(c) The Lead Borrower shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Lead Borrower has requested a Credit Extension. Neither the Agent nor any other Credit Party shall have any obligation to see to the application of such proceeds therefrom.
ARTICLE IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.
The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The
Agent’s receipt of the following, each of which shall be originals, facsimiles or other electronic image scan transmission
(e.g., “pdf” or “tif “”
via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
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(iii) copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion(s) of Proskauer Rose LLP, counsel to the Loan Parties on the Closing Date, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Agent may reasonably request;
(vi) a
certificate signed by a Responsible Officer of the Lead Borrower certifying (1) that the conditions specified in Sections 4.02(a)
and 4.02(b)4.02(a) and
4.02(b) have been satisfied, (2) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect,
(3) to the Solvency of the Loan Parties, on a consolidated basis, as of the Closing Date after giving effect to the Transactions,
and (4) either that (x) no consents, licenses or approvals are required in connection with the execution, delivery and performance
by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (y) that all such
consents, licenses and approvals have been obtained and are in full force and effect;
(vii) certificates
of insurance evidencing insurance required to be maintained by Section 6.02(a);6.02(a);
(viii) a payoff letter from the agent for the lenders under the Existing Term Loan Agreement reasonably satisfactory in form and substance to the Agent evidencing that the Existing Term Loan Agreement has been or substantially concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Term Loan Agreement have been or substantially concurrently with the Closing Date are being released;
(ix) the Security Documents and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by all applicable parties;
(xi) the Confirmation Agreement, Facility Guaranty, Perfection Certificate, Grant of Security Interest in Trademarks, Disbursement Letter, Post-Closing Letter and Borrowing Base Certificate, each duly executed by the applicable Loan Parties;
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(xii) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xiii) (A)
all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested
by the Agent to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the
Loan Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the
Agent and (B) the DDA Notifications, Credit Card Notifications required pursuant to Section 6.116.11
hereof; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to the Transactions, including, without limitation (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability, after giving pro forma effect to the Closing Date Dividend, shall be not less than $100,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 25, 2016, and executed by a Responsible Officer of the Lead Borrower.
(d) Since December 31, 2015, no Material Adverse Effect has occurred.
(e) The Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and through and including the Maturity Date, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow (on a monthly basis for the 2016 Fiscal Year, and on an annual basis for each Fiscal Year thereafter), each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) Each
Exiting Lender shall have received, or substantially concurrently with the Closing Date will receive, payment of the principal
balance of the Loans (as defined in the Existing Credit Agreement) held by such Exiting Lender outstanding on the date
hereofClosing Date plus amounts accrued and
unpaid in respect of interest, fees and expenses payable to such Exiting Lender as of the date
hereofClosing Date and the commitment of
such Exiting Lender to extend credit under the Existing Credit Agreement shall be terminated.
(h) The consummation of the Transactions shall not violate any applicable Law or any Organization Document.
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(i) All fees and expenses required to be paid to Wells Fargo (in its capacity as the Agent or an Arranger, as applicable), on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced at least two (2) Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(k) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) The Loan Parties shall have received not less than $346,500,000 in gross proceeds in connection with the Term Loan Agreement on the Closing Date.
Without limiting the generality of the provisions of Section
9.049.04,
for purposes of determining compliance with the conditions specified in this Section 4.014.01,
each Lender that has signed this Agreement shall be deemed to have Consented to, approved or accepted or to be satisfied with,
each document or other matter required thereunder to be Consented to or approved by or acceptable or satisfactory to a Lender unless
the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Revolving Loans to the other Type, or a continuation of LIBO Rate Loans) and each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(a) The
representations and warranties of each other Loan Party contained in Article VArticle
V or in any other Loan Document, or which are contained in any document furnished at any time under or in connection
herewith or therewith, shall be true and correct in all material respects on and as of the date of such Credit Extension, except
(i) to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true
and correct as of such earlier date, (ii) in the case of any representation and warranty qualified by materiality, they shall be
true and correct in all respects, and (iii) for purposes of this Section 4.024.02,
the representations and warranties contained in subsections (a)(a)
and (b)(b)
of Section 5.065.06
shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.046.04;
(b) No Default or Event of Default shall exist, or would result immediately after giving effect to such proposed Credit Extension or from the application of the proceeds thereof;
(c) The Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof; and
(d) No Overadvance shall result from such Credit Extension.
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Each Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Revolving Loans to the other Type, or a continuation of LIBO Rate Loans) submitted
by the Lead Borrower shall be deemed to be a representation and warranty by the Borrowers that the conditions specified in Sections
4.02(a) and (b)4.02(a)and (b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this
Section 4.024.02
are for the sole benefit of the Agent, Lenders, L/C Issuer, and Swing Line Lender but, until the Required Lenders otherwise direct
the Agent to cease making Committed Revolving Loans and direct the L/C Issuer to cease issuing Letters of Credit, the Revolving
Lenders will fund their Applicable Percentage of all Committed Revolving Loans and participate in all Swing Line Loans and Letters
of Credit whenever made or issued, which are requested by the Lead Borrower and which, notwithstanding the failure of the Loan
Parties to comply with the provisions of this Article IVArticle
IV, agreed to by the Agent, provided, however, the making of any such Loans or the issuance of any Letters
of Credit shall not be deemed a modification or waiver by any Credit Party of the provisions of this Article
IVArticle IV on any future occasion or
a waiver of any rights or the Credit Parties as a result of any such failure to comply.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to each Agent, Lender, L/C Issuer, and Swing Line Lender that:
5.01 Organization; Powers.
Each Loan Party and each of their Subsidiaries (a) is a partnership, limited liability company or corporation duly organized, validly existing and in good standing (or in any foreign jurisdiction where an equivalent status exists, enjoys the equivalent status under the laws of such foreign jurisdiction of organization) under the laws of the jurisdiction of its organization, except (other than with respect to any Borrower solely in respect of its jurisdiction of organization), to the extent that the failure to be so organized, existing and in good standing could not reasonably be expected to have a Material Adverse Effect, (b) has all requisite power and authority to own its property and assets and to carry on its business as now conducted, except to the extent that the failure to have such power and authority could not reasonably be expected to have a Material Adverse Effect, (c) is qualified and is licensed, and where applicable, in good standing to do business in each jurisdiction where such qualification is required, except where the failure so to qualify or be in good standing could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, and (d) has the power and authority to execute, deliver and perform its obligations under each of the Loan Documents and each other agreement or instrument contemplated thereby to which it is or will be a party and, in the case of the Borrowers, to borrow and otherwise obtain credit hereunder. Schedule 5.01 annexed hereto sets forth, as of the Closing Date, each Loan Party’s name as it appears in official filings in its state of incorporation or organization, its state of incorporation or organization, organization type, organization number, if any, issued by its state of incorporation or organization, and its federal employer identification number.
5.02 Authorization.
The execution, delivery and performance by the Loan Parties of each of the Loan Documents to which it is a party and the borrowings hereunder (a) have been duly authorized by all corporate, stockholder, partnership or limited liability company action required to be taken by the Loan Parties and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, in any material respect, (B) the certificate or articles of incorporation or other constitutive documents (including any partnership, limited liability company or operating agreement or by-laws) of any Loan Party, (C) any applicable order of any court or any rule, regulation or order of any Governmental Authority or (D) any Contractual Obligation,
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(ii) be in conflict with, result in a breach
of, constitute (alone or with notice or lapse of time or both) a default under, or give rise to a right of or result in any cancellation
or acceleration of any Material Contract or Material Indebtedness or right or obligation (including any payment) or to a loss
of a material benefit under any such indenture, certificate of designation for preferred stock, agreement or other instrument,
other than with respect to the constitutive documents of any Loan Party, where any such conflict, violation, breach or default
referred to in clause (i) (A), (C) or (D) of this Section 5.025.02(b)
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (iii) result in the creation
or imposition of any Lien upon any property or assets of any Loan Party, other than the Liens created by the Loan Documents and
Permitted Encumbrances.
5.03 Enforceability.
This Agreement has been duly executed and delivered by each of the Loan Parties and constitutes, and each other Loan Document when executed and delivered by each Loan Party that is party thereto will constitute, a legal, valid and binding obligation of such Loan Party enforceable against each such Loan Party in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other similar laws affecting creditors’ rights generally, (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (c) implied covenants of good faith and fair dealing.
5.04 Governmental Approvals.
No action, consent or approval of, registration or filing with or any other action by any Governmental Authority or third party is required for the perfection or maintenance of the Liens created under the Security Documents or the exercise by the Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral, except for (a) the filing of Uniform Commercial Code financing statements and equivalent filings in foreign jurisdictions, (b) filings with the United States Patent and Trademark Office and the United States Copyright Office and comparable offices in foreign jurisdictions and equivalent filings in foreign jurisdictions, (c) filings which may be required under Environmental Laws, (d) such as have been made or obtained and are in full force and effect, (e) such actions, consents and approvals the failure of which to be obtained or made could not reasonably be expected to have a Material Adverse Effect and (f) filings or other actions listed on Schedule 5.04.
5.05 Reserved.
.
5.06 Financial Statements.
(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise approved by a Responsible Officer and expressly noted therein and (ii) fairly present, in all material respects, the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise approved by a Responsible Officer and expressly noted therein.
(b) The unaudited Consolidated balance sheet of the Parent and its Subsidiaries dated August 25, 2016, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for the Fiscal Month ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise approved by a Responsible Officer and expressly noted therein, and (ii) fairly present, in all material respects, the financial condition of the Parent and its Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments. Schedule 5.06 sets forth all Material Indebtedness of the Loan Parties and their Consolidated Subsidiaries as of the Closing Date.
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(c) To the best knowledge of the Borrowers, no Internal Control Event exists or has occurred since the date of the Audited Financial Statements that has resulted in or could reasonably be expected to result in a misstatement in any material respect, (i) in any financial information delivered or to be delivered to the Agent or the Lenders, (ii) of the Borrowing Base, (iii) of covenant compliance calculations provided hereunder or (iv) of the assets, liabilities, financial condition or results of operations of the Parent and its Subsidiaries on a Consolidated basis; it being understood and agreed that any Internal Control Event disclosed in connection with preparation for an imminent Public Offering may be remedied within six (6) months following the date of such Public Offering.
5.07 Title
to Properties; Possession Under Leases.
.
(a) Each of the Loan Parties has valid fee simple title to, or valid leasehold interests in, or easements or other limited property interests in, all of its material Real Estate located in the United States and has valid title to its material personal property and assets located in the United States, in each case, except for Permitted Encumbrances and defects in title that do not materially interfere with its ability to conduct its business as currently conducted or to utilize such properties and assets for their intended purposes and except where the failure to have such title could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. All such properties and assets are free and clear of Liens, other than Permitted Encumbrances.
(b) Neither the Loan Parties nor any of their Subsidiaries has defaulted under any lease to which it is a party, except for such defaults as could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Each of the Loan Parties’ and their Subsidiaries’ leases is in full force and effect, except leases in respect of which the failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect. The Loan Parties and each of their Subsidiaries enjoys peaceful and undisturbed possession under all such leases, other than leases in respect of which the failure to enjoy peaceful and undisturbed possession could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.08 Subsidiaries; Equity Interests.
As of the Closing Date, the Loan Parties
have no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.08, which Schedule sets forth the legal
name, jurisdiction of incorporation or formation and authorized Equity Interests of each such Subsidiary. All of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned by a Loan Party
(or a Subsidiary of a Loan Party) and are free and clear of all Liens except for those created under the Security Documents or
those in favor of the Term Loan Agent, and, as of the Closing Date, are in the amounts listed on Part (a) of Schedule 5.08. On
the Closing Date, except as set forth in Schedule 5.08, there are no outstanding rights to purchase any Equity Interests in any
Subsidiary. As of the Closing Date, the Loan Parties have no equity investments in any other corporation or entity other than
those specifically disclosed in Part (b) of Schedule 5.08. All of the outstanding Equity Interests in the Loan Parties have been
validly issued, and are fully paid and non-assessable and, in the case of the Equity Interests in the Loan Parties, are owned
free and clear of all Liens except for those created under the Security Documents and Permitted Encumbrances, and which, with
respect to the outstanding Equity Interests of the Loan Parties as of as of the Closing Date, are in the amounts specified on
Part (c) of Schedule 5.08. The copies of the Organization Documents of each Loan Party and each amendment thereto provided pursuant
to Section 4.01(a)(iv)4.01(a)(iv),
together with any updates, amendments, or other modifications delivered to the Agent under this Agreement from time to time, are
true and correct copies of each such document, each of which is valid and in full force and effect.
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5.09 Litigation; Compliance with Laws.
(a) Except
as set forth on Schedule 5.09, there are no actions, suits or proceedings at law or in equity or by or on behalf of any Governmental
Authority or in arbitration now pending, or, to the knowledge of the Lead Borrower, threatened in writing against or affecting
Borrower Holdco or any of its Subsidiaries or any business, property or rights of any such person (but excluding any actions, suits
or proceedings arising under or relating to any Environmental Laws, which are subject to Section 5.165.16)
which if adversely determined could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
To the knowledge of the Lead Borrower, none of Borrower Holdco or any of its Subsidiaries or their respective properties or assets
is in violation of (nor will the continued operation of their material properties and assets as currently conducted violate) any
law, rule or regulation (including any zoning, building, ordinance, code or approval, or any building permit, but excluding any
Environmental Laws, which are subject to Section 5.165.16)
or any restriction of record or agreement affecting any property, or is in default with respect to any judgment, writ, injunction
or decree of any Governmental Authority, where such violation or default could reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect. Schedule 5.09 lists all ongoing litigation as of the Closing Date that relates to
any of the Loan Documents or any of the Transactions.
5.10 Federal Reserve Regulations.
(a) No Loan Party is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan or Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase or carry Margin Stock or to extend credit to others for the purpose of purchasing or carrying Margin Stock or to refund indebtedness originally incurred for such purpose or (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Board, including Regulation T, Regulation U or Regulation X.
5.11 Investment Company Act.
Neither Parent nor any Loan Party is an “investment company” or a company “controlled” by an “investment company”, each as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby.
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5.12 Use of Proceeds.
The Lead Borrower will use the proceeds of the Committed Revolving Loans and Swing Line Loans, and may request the issuance of Letters of Credit, to finance working capital needs and for general corporate purposes (including, without limitation, for capital expenditures, Permitted Business Acquisitions, the repayment or refinancing of Indebtedness and the making of Investments and Restricted Payments, in each case to the extent not prohibited hereunder).
5.13 Tax Returns.
Except as set forth on Schedule 5.13:
(a) each Loan Party has timely filed or caused to be filed all material tax returns required to have been filed by it and each such tax return is true and correct in all material respects;
(b) each
Loan Party has timely paid or caused to be timely paid (i) all
material
Taxes shown to be due and payable by it on the returns referred to in clause (a) of this Section 5.135.13,
(ii) all
material Taxes shown to be due and payable on any
assessments of which it has received notice made against it or any of its property and (iii) all other
material
Taxes imposed on it or any of its property by any Governmental Authority; and
(c) no Tax Liens have been filed (except for Permitted Encumbrances) and there are no claims being asserted in writing with respect to any Taxes (in each case other than in respect of any such (i) Taxes with respect to which the failure to pay, in the aggregate, could not have a Material Adverse Effect or (ii) Taxes the amount or validity of which are currently being contested in good faith by appropriate proceedings diligently conducted and with respect to which reserves in conformity with GAAP have been provided on the books of such Loan Party).
5.14 No Material Misstatements.
(a) All written information (other than projections, estimates and information of a general economic nature or general industry nature) (the “Information”) concerning Parent or any of the Loan Parties, and any other transactions contemplated hereby prepared by or on behalf of the foregoing or their representatives and made available to any Lender, the Agent in connection with the transactions contemplated hereby, when taken as a whole, heretofore, contemporaneously or hereafter furnished, was, is or will be true and correct in all material respects as of the date such Information was furnished to such person and as of the Closing Date and did not, taken as a whole, contain any untrue statement of a material fact as of any such date or omit to state a material fact necessary in order to make the statements contained therein, taken as a whole, not materially misleading in light of the circumstances under which such statements were made.
(b) The projections, estimates and information of a general economic nature prepared by or on behalf of the Lead Borrower or any of its representatives and that have been made available to any Lenders, the Agent in connection with the transactions contemplated hereby have been prepared in good faith based upon assumptions believed by the Lead Borrower to be reasonable as of the date thereof (it being understood that actual results may vary materially from such projections), as of the date such projections and estimates, as applicable, were furnished to the Lenders.
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5.15 Employee Benefit Plans.
(a) During the five year period prior to each date as of which this representation is made, or deemed made, with respect to any Plan, none of the following events or conditions, either individually or in the aggregate, has resulted or is reasonably likely to result in a Material Adverse Effect: (i) a Reportable Event, (ii) any noncompliance with the applicable provisions of ERISA or the Code, (iii) a termination of a Single Employer Plan (other than a standard termination pursuant to Section 4041(b) of ERISA), (iv) a Lien on the property of any Loan Party or its Subsidiaries in favor of the PBGC or a Plan, (v) a complete or partial withdrawal from any Multiemployer Plan by any Loan Party or its Subsidiaries or any Commonly Controlled Entity, (vi) the “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA) of, or Insolvency of, any Multiemployer Plan, (vii) any transaction that resulted or could reasonably be expected to result in any Liability to any Loan Party or its Subsidiaries or any Commonly Controlled Entity under Section 4069 of ERISA or Section 4212(c) of ERISA, (viii) an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Single Employer Plan, (ix) the imposition of any Liability under Title IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party, any Subsidiary or any Commonly Controlled Entity or (x) any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan. During the five year period prior to each date as of which this representation is made, or deemed made, no Loan Party nor any Commonly Controlled Entity has failed to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) with respect to any Single Employer Plan.
(b) Except as could not reasonably be expected to result in a Material Adverse Effect, there are no pending, or to the knowledge of the Lead Borrower, threatened claims (other than claims for benefits in the normal course), sanctions, actions or lawsuits, asserted or instituted against any Plan or any person as fiduciary or sponsor of any Plan.
(c) With
respect to any Foreign Plan, none of the following events or conditions exists and is continuing that, either individually or in
the aggregate, couldwould
reasonably be expected to have a Material Adverse Effect: (i) non-compliance with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and orders, (ii) failure to be maintained, where required, in
good standing with applicable regulatory authorities, (iii) any obligation of a Loan Party or its Subsidiaries in connection
with the termination or partial termination of, or withdrawal from, any Foreign Plan, (iv) any Lien on the property of any
Loan Party or its Subsidiaries in favor of a Governmental Authority as a result of any action or inaction regarding a Foreign Plan,
(v) for each Foreign Plan which is a funded or insured plan, failure to be funded or insured on an ongoing basis to the
extent required by applicable non-U.S. law (using actuarial methods and assumptions which are consistent with the valuations last
filed with the applicable Governmental Authorities), (vi) any facts that, to the best knowledge of each Loan Party or any
of its Subsidiaries, exist that could reasonably be expected to give rise to a dispute and any pending or threatened disputes that,
to the best knowledge of each Loan Party or any of its Subsidiaries, couldwould
reasonably be expected to result in a material liability to any Loan Party or any of its Subsidiaries concerning the assets of
any Foreign Plan (other than individual claims for the payment of benefits), and (vii) failure to make contributions in
a timely manner to the extent required by applicable non-U.S. law.
5.16 Environmental Matters.
Except as set forth on Schedule 5.16 or as to matters that could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) the Loan Parties and each of their Subsidiaries is in compliance with all Environmental Laws (including having obtained all permits, licenses and other approvals required under any Environmental Law for the operation of its business and being in compliance with the terms of such permits, licenses and other approvals), (b) none of the Loan Parties nor any of their Subsidiaries has received notice of or is subject to any pending, or to the Lead Borrower’s knowledge, threatened action, suit or proceeding alleging a violation of, or liability under, any Environmental Law that remains outstanding or unresolved, (c) to the Lead Borrower’s knowledge, no Hazardous Material is located at, on or under any property currently or formerly owned, operated or leased by any Loan Party or any of their Subsidiaries and no Hazardous Material has been generated, owned, treated, stored, handled or controlled by any Loan Party or any of their Subsidiaries and transported to or Released at any location which, in each case described in this clause (c), could reasonably be expected to result in liability to any Loan Party or any of their Subsidiaries and (d) there are no agreements in which any Loan Party or any of their Subsidiaries has expressly assumed or undertaken responsibility for any known or reasonably likely liability or obligation of any other person arising under or relating to Environmental Laws or Hazardous Materials.
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5.17 Security Documents.
(a) The Security Agreement creates in favor of the Agent, for the benefit of the Credit Parties referred to therein, a legal, valid, continuing and enforceable security interest in the Collateral (as defined in the Security Agreement), the enforceability of which is subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The financing statements, releases and other filings are in appropriate form and have been or will be filed in the offices specified in Schedule II of the Security Agreement. Upon such filings and/or the obtaining of “control,” (as defined in the UCC) the Agent will have a perfected Lien on, and security interest in, to and under all right, title and interest of the grantors thereunder in all Collateral that may be perfected by filing, recording or registering a financing statement or analogous document (including without limitation the proceeds of such Collateral subject to the limitations relating to such proceeds in the UCC) or by obtaining control, under the UCC (in effect on the date this representation is made) in each case prior and superior in right to any other Person (except for Permitted Encumbrances having priority under applicable Law or otherwise permitted to have priority pursuant to the terms hereof).
(b) When
the Security Agreement (or a short form thereof) is filed in the United States Patent and Trademark Office and the United States
Copyright Office and when financing statements, releases and other filings in appropriate form are filed in the offices specified
in Schedule II of the Security Agreement, the Agent shall have a fully perfected Lien on, and security interest in, all right,
title and interest of the applicable Loan Parties in the Intellectual Property (as defined in
the Security Agreement) in which a security interest may be perfected by filing, recording or registering a security
agreement, financing statement or analogous document in the United States Patent and Trademark Office or the United States Copyright
Office, as applicable, in each case prior and superior in right to any other Person except for Permitted Encumbrances having priority
under applicable Law or otherwise permitted to have priority pursuant to the terms hereof (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect
a Lien on registered trademarks, trademark applications and copyrights acquired by the Loan Parties after the Closing Date).
5.18 Location of Real Estate and Leased Premises.
Each Borrower and each of their Subsidiaries has good title in fee simple to, or a valid leasehold interest in, all its material real property located in the United States of America, and good title to, or a valid leasehold interest in, all its other material property located in the United States of America, except those for which the failure to have such good title or such leasehold interest could not be reasonably expected to have a Material Adverse Effect, and none of such real or other property is subject to any Lien, except for Liens permitted hereby (including Permitted Encumbrances). Schedule 5.18 sets forth all Real Estate owned by the Loan Parties and located in the United States as of the Closing Date.
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5.19 Solvency.
On the Closing Date, after giving effect to the Transactions and the application of the proceeds of all Indebtedness being incurred in connection with the Transactions, the Loan Parties, on a consolidated basis, are Solvent.
5.20 No Material Adverse Effect.
Since December 31, 2015, there has been no change in the financial condition, business, operations, assets or liabilities of Parent or any Loan Party that has had, or could reasonably be expected to have a Material Adverse Effect.
5.21 Insurance.
The properties of the Loan Parties and their Subsidiaries are insured with financially sound and reputable insurance companies which are not Affiliates of the Loan Parties, in such amounts, with such deductibles and covering such risks (including, without limitation, workmen’s compensation, public liability, business interruption and property damage insurance) as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Loan Parties or the applicable Subsidiary operates. Schedule 5.21 sets forth a true, complete and correct description of all material insurance maintained by or on behalf of the Loan Parties or any of their Subsidiaries. Each insurance policy listed on Schedule 5.21 is in full force and effect and all premiums in respect thereof that are due and payable have been paid.
5.22 USA PATRIOT Act; OFAC.
(a) To the extent applicable, each of Parent and each of the Loan Parties is in compliance with the USA PATRIOT Act.
(b) Neither Parent nor any Loan Party nor any of their Subsidiaries is any of the following:
(i) a person that is listed in the annex to, or it otherwise subject to the provisions of the Executive Order;
(ii) a person owned or Controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;
(iii) a person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any laws with respect to terrorism or money laundering;
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(iv) a person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or
(v) a person that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) at its official website or any replacement website or other replacement official publication of such list and none of the proceeds of the Loans will be, directly or indirectly, offered, lent, contributed or otherwise made available to any Subsidiary, joint venture partner or other person for the purpose of financing the activities of any person the subject of sanctions administered by OFAC.
5.23 Intellectual Property; Licenses, Etc.
(a) The Loan Parties own, or possess the right to use, all of the patents, patent rights, trademarks, service marks, trade names, copyrights or mask works, domain names, applications and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) that are necessary for the operation of their respective businesses as currently conducted, without conflict with the rights of any other person in any material respect, except for those the failure to own or have such legal right to use could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (b) to the knowledge of the Lead Borrower, neither the Loan Parties nor any of their Subsidiaries nor any intellectual property right, proprietary right, product, process, method, substance, part or other material now employed, sold or offered by or contemplated to be employed, sold or offered by the Loan Parties or their Subsidiaries is interfering with, infringing upon, misappropriating or otherwise violating Intellectual Property Rights of any person, in each case, except as could not reasonably be expected to have a Material Adverse Effect, and (c) no claim or litigation regarding any of the foregoing is pending or, to the knowledge of the Lead Borrower, threatened which, if adversely decided, could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
5.24 No Default.
Neither Parent nor any Loan Party or any of their Subsidiaries is in default under or with respect to (a) any Material Indebtedness or (b) any of its Contractual Obligations, except, in the case of clause (b) only, as could not reasonably be expected to have a Material Adverse Effect. No Default or 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.
5.25 Labor Matters.
There are no strikes, lockouts,
slowdowns or other material labor disputes against any Loan Party or any of their Subsidiaries thereof pending or, to the
knowledge of any Loan Party, threatened, which, individually or in the aggregate, could would reasonably
be expected to have a Material Adverse Effect. Except as could would not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, (i) the hours worked by and
payments made to employees of the Loan Parties comply with the Fair Labor Standards Act and any other applicable federal,
state, local or foreign Law dealing with such matters, (ii) no Loan Party or any of its Subsidiaries has incurred any
liability or obligation under the Worker Adjustment and Retraining Act or similar state Law, (iii) all payments due from any
Loan Party and its Subsidiaries, or for which any claim may be made against any Loan Party or any of its Subsidiaries, on
account of wages and employee health and welfare insurance and other benefits, have been paid or properly accrued in
accordance with GAAP as a liability on the books of such Loan Party, (iv) no Loan Party or any Subsidiary is a party to or
bound by any collective bargaining agreement, (v) there are no representation proceedings pending or, to any Loan
Party’s knowledge, threatened to be filed with the National Labor Relations Board, and no labor organization or group
of employees of any Loan Party or any Subsidiary has made a pending demand for recognition, (vi) there are no complaints,
unfair labor practice charges, grievances, arbitrations, unfair employment practices charges or any other claims or
complaints against any Loan Party or any Subsidiary pending or, to the knowledge of any Loan Party, threatened to be filed
with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the
employment or termination of employment of any employee of any Loan Party or any of its Subsidiaries, and (vii) the
consummation of the transactions contemplated by this Agreement or any other Loan Document will not give rise to any right of
termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Loan
Party or any of its Subsidiaries is bound.
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5.26 Deposit Accounts; Credit Card Arrangements.
(a) Annexed hereto as Schedule 5.26(a) is a list of all DDAs maintained by the Loan Parties as of the Closing Date, which Schedule includes, with respect to each DDA (i) the name and address of the depository; (ii) the account number(s) maintained with such depository; (iii) a contact person at such depository, and (iv) the identification of each Blocked Account Bank.
(b) Annexed hereto as Schedule 5.26(b) is a list describing all arrangements as of the Closing Date to which any Loan Party is a party with respect to the processing and/or payment to such Loan Party of the proceeds of any credit card charges and debit card charges for sales made by such Loan Party.
ARTICLE VI
AFFIRMATIVE COVENANTS
Each of the Loan Parties covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the Obligations (other than Obligations in respect of Cash Management Services and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted) shall have been paid in full, in cash, the Commitments have been terminated and Letters of Credit expired, terminated or cash collateralized on terms satisfactory to the L/C Issuer, unless the Required Lenders shall otherwise consent in writing, the Loan Parties will, and will cause their Subsidiaries to:
6.01 Existence; Businesses and Properties.
(a) Do
or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence, except as otherwise
expressly permitted under Section 6.016.01
and except, other than in the case of the Loan Parties, where the failure to do so could not reasonably be expected to have a Material
Adverse Effect; and
(b) Except where the failure to do so could not reasonably be expected to have a Material Adverse Effect (i) do or cause to be done all things necessary to lawfully obtain, preserve, renew, extend and keep in full force and effect the permits, franchises, authorizations, licenses and rights with respect thereto necessary to the normal conduct of its business required by Governmental Authorities and necessary to the ownership, occupation or use of its properties or the conduct of its business, (ii) at all times maintain and preserve all property necessary to the normal conduct of its business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all necessary and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith, if any, may be properly conducted at all times (in each case except as expressly permitted by this Agreement) and (iii) comply with all Contractual Obligations.
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6.02 Insurance.
(a) Maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are usually insured against in the same general area by companies engaged in the same or similar businesses and cause the Agent to be listed as a co-loss payee on property and casualty policies and as an additional insured on liability policies.
(b) In
connection with the covenants set forth in this Section 6.02 6.02,
it is understood and agreed that:
(i) neither
the Agent, the Lenders, nor their respective agents or employees shall be liable for any loss or damage insured by the insurance
policies required to be maintained under this Section 6.02 6.02,
it being understood that (A) the Loan Parties and their Subsidiaries shall look solely to their insurance companies or any other
parties other than the aforesaid parties for the recovery of such loss or damage and (B) such insurance companies shall have no
rights of subrogation against the Agent, the Lenders or their agents or employees. If, however, the insurance policies, as a matter
of the internal policy of such insurer, do not provide waiver of subrogation rights against such parties, as required above, then
the Loan Parties hereby agree, to the extent permitted by law, to waive, and further agree to cause each of their Subsidiaries,
to the extent permitted by law, to waive, its right of recovery, if any, against the Agent, the Lenders and their agents and employees;
(ii) the
designation of any form, type or amount of insurance coverage by the Agent under this Section 6.02 6.02
shall in no event be deemed a representation, warranty or advice by the Agent or the Lenders that such insurance is adequate for
the purposes of the business of the Loan Parties or the protection of their properties; and
(c) (A)
fire and extended coverage policies maintained with respect to any Collateral shall be endorsed or otherwise amended to
include (1) a lenders’ loss payable clause (regarding personal property), in form and substance reasonably satisfactory
to the Agent, which endorsements or amendments shall provide that the insurer shall pay all proceeds in respect of personal
property otherwise payable to the Loan Parties under the policies directly to the Agent, and (2) a provision to the effect
that none of the Loan Parties, the Agent, the Lenders or any other person shall be a co-insurer; (B) commercial general
liability policies shall be endorsed to name the Agent, as an additional insured; and (C) business interruption policies
shall name the Agent as a loss payee and shall be endorsed or amended to include (1) a provision that, from and after the
Closing Date, the insurer shall pay all proceeds otherwise payable to the Lead Borrower and its Subsidiaries under the
policies directly to the Agent and (2) a provision to the effect that none of the Loan Parties, the Agent, the Lenders or any
other party shall be a co-insurer. Each such policy referred to in this Section 6.02 6.02 shall
also provide that it shall not be canceled, modified or not renewed (x) by reason of nonpayment of premium except upon not
less than ten (10) days’ prior written notice thereof by the insurer to the Agent (giving the Agent the right to cure
defaults in the payment of premiums) or (y) for any other reason except upon not less than thirty (30) days’ prior
written notice thereof by the insurer to the Agent. The Lead Borrower shall deliver to the Agent, prior to the cancellation,
modification or nonrenewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Agent, including an insurance binder) together with evidence reasonably
satisfactory to the Agent of payment of the premium therefor. Notwithstanding the foregoing, it is understood and agreed that
no Loan Party shall be required to maintain flood insurance unless any Real Estate is required to be so insured pursuant to
the Flood Disaster Protection Act of 1973 or the National Flood Insurance Act of 1968, and the regulations promulgated
thereunder because such Real Estate is located in an area which has been identified by the Secretary of Housing and Urban
Development as a “special flood hazard area”.
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(d) Maintain for themselves and their Subsidiaries, a Directors and Officers insurance policy, and a “Blanket Crime” policy (whether as a separate policy or as part of the Directors and Officers policy) including employee dishonesty, forgery or alteration, theft, disappearance and destruction, robbery and safe burglary, property, and computer fraud coverage with responsible companies in such amounts as are customarily carried by business entities engaged in similar businesses similarly situated, and will upon request by the Agent furnish the Agent certificates evidencing renewal of each such policy.
(e) Deliver to the Agent, prior to the cancellation, modification or non-renewal of any such policy of insurance, a copy of a renewal or replacement policy (or other evidence of renewal of a policy previously delivered to the Agent, including an insurance binder) together with evidence satisfactory to the Agent of payment of the premium therefor.
6.03 Taxes.
Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all Taxes imposed upon it or its income or profits or in respect of its property; provided that such payment and discharge shall not be required with respect to any Tax, assessment, charge, levy or claim so long as (a) the validity or amount thereof shall be contested in good faith by appropriate proceedings diligently conducted and (b) any affected Loan Party, shall have set aside on its books reserves in accordance with GAAP with respect thereto, or (c) the failure to do so, in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Nothing contained herein shall be deemed to limit the rights of the agents with respect to determining Reserves pursuant to this Agreement.
6.04 Financial Statements, Reports, etc. Furnish to the Agent:
(a) as soon as available, but in all events within one hundred and twenty (120) days after the end of each Fiscal Year commencing with the 2016 Fiscal Year, (i) a consolidated balance sheet and related statements of operations, cash flows and owners’ equity showing the financial position of, so long as Parent does not own any Subsidiaries other than Borrower Holdco and its Subsidiaries, Parent and its Subsidiaries, and, if Parent does own any Subsidiaries other than Borrower Holdco, the Loan Parties and their Subsidiaries, as of the close of such Fiscal Year and the consolidated results of its operations during such year, setting forth in comparative form the corresponding figures for the prior Fiscal Year, which consolidated balance sheet and related statements of operations, cash flows and owners’ equity shall be audited by a Registered Public Accounting Firm and accompanied by an opinion of such accountants (which shall not be qualified as to scope of audit or as to the status of any Loan Party as a going concern other than any such qualification or exception that is solely with respect to, or resulting solely from, an upcoming maturity date under this Agreement, the Term Loan Facility or any other Indebtedness occurring within one year from the time such report is delivered) to the effect that such consolidated financial statements fairly present, in all material respects, the financial position and results of operations of the Loan Parties on a consolidated basis in accordance with GAAP (it being understood
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that the delivery of annual reports on Form 10-K of Parent and
its Subsidiaries or the Loan Parties, as required hereunder, shall satisfy the requirements of this Section 6.04(a)6.04(a)
to the extent such annual reports include the information specified herein) (the applicable financial statements delivered pursuant
to this clause (a) being the “Annual Financial Statements”);
(b) within
(x) thirty (30) days following the end of each fiscal month that is not the last month of a Fiscal Quarter of each Fiscal
Year and (y) forty five (45) days (or 60 days for the fiscal month ending on or about September 30, 2016) following the end
of each fiscal month that is the last month of a Fiscal Quarter of each Fiscal Year (other than the last Fiscal Quarter of
any Fiscal Year), (i) a consolidated balance sheet and related statements of operations and
cash flows showing the financial position of, so long as Parent does not own any Subsidiaries other than
Borrower Holdco and its Subsidiaries, Parent and its Subsidiaries, and, if Parent does own any Subsidiaries other than
Borrower Holdco, the Loan Parties, as of the close of such fiscal month and the consolidated results of its operations during
such fiscal month, and, in each case, the then-elapsed portion of the Fiscal Year and setting forth in comparative form the
corresponding figures for the corresponding periods of the prior Fiscal Year and compared to the budget delivered under Section 6.04(e)6.04(e)
for such Fiscal Year (or, prior to the initial delivery under Section 6.04(e)6.04(e),
compared to the budget delivered to the Agent on or prior to the Closing Date), and (ii) management’s discussion and
analysis of significant operational and financial developments during such monthly period (provided
that following a Public Offering, such management’s discussion and analysis shall be due within such timeframes and be
substantially the same as is delivered to the board of directors), together with reasonable detail regarding non-recurring
addbacks included in Consolidated EBITDA for such period (to the extent requested by the Agent),in
the form of the company’s internal system-generated reports, all of which shall be in reasonable detail and
which consolidated balance sheet and related statements of operations and cash flows shall be certified by a Responsible Officer of Lead Borrower as fairly presenting, in all material respects, the financial
position and results of operations of the Parent and its Subsidiaries or Loan Parties and their Subsidiaries, as required
hereunder, on a consolidated basis in accordance with GAAP (subject to normal year-end audit adjustments and the absence of
footnotes) (the applicable financial statements delivered pursuant to this clause (b) being the “Monthly Financial
Statements”, and, together with the Annual Financial Statements, the
“Required Financial Statements);”);
(c) concurrently
with any delivery of Required Financial Statements under paragraphs (a) and (b) of this Section 6.046.04,
a certificate of a Responsible Officer of the Lead Borrower (i) certifying that no Default or Event of Default has occurred and
is continuing or, if a Default or Event of Default has occurred and is continuing, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto, (ii) if such
Required Financial Statements are delivered pursuant to paragraph (a) of this Section 6.04 or paragraph (b) of this Section 6.04
with respect to the last Fiscal Month of a Fiscal Quarter and if a Covenant Compliance Event has occurred and is continuing,
demonstrating compliance with Section 7.107.10
(in reasonable detail satisfactory to the Agent) and (iii) certifying a list of all Immaterial Subsidiaries, that each Subsidiary
set forth on such list individually qualifies as an Immaterial Subsidiary and that all such Subsidiaries in the aggregate do not
exceed the limitation set forth in clause (b) of the definition of the term “Immaterial Subsidiary”;
(d) within five (5) Business Days after the same become publicly available, copies of all periodic and other publicly available reports, proxy statements and, to the extent requested by the Agent, other materials filed by Parent, any Loan Party, Borrower or any other with the SEC, or after a Public Offering, distributed to its stockholders generally, as applicable; provided that such reports, proxy statements, filings and other materials required to be delivered pursuant to this clause (d) shall be deemed delivered for purposes of this Agreement when posted to the website of the Lead Borrower;
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(e) within one hundred twenty (120) days following the end of each Fiscal Year, a reasonably detailed consolidated annual budget for such Fiscal Year (including a projected consolidated balance sheet of Parent and its Subsidiaries as of the end of each Fiscal Month for the following Fiscal Year, and annual consolidated statements of projected cash flow and projected income and projected Availability on a monthly basis), including a description of underlying assumptions with respect thereto and describing any changes from such preliminary budget delivered to Agent (collectively, the “Budget”), which Budget shall in each case be accompanied by the statement of a Responsible Officer of the Lead Borrower to the effect that the Budget is based on assumptions believed by such Responsible Officer to be reasonable as of the date of delivery thereof;
(f) [reserved];
(g) promptly, from time to time, such other information regarding the operations, business affairs and financial condition of Parent or any Loan Party, or compliance with the terms of any Loan Document, in each case, as the Agent may reasonably request (for itself or on behalf of any Lender), including, without limitation, those items listed on Schedule 6.04 attached hereto;
(h) on
or before the 15th day of each month from andquarter
after the Closing Date, a Borrowing Base Certificate as of the last day of the immediately preceding monthquarter,
with such supporting materials as the Agent shall reasonably request, including, without limitation, (i) a report in
reasonable detail of the Accounts assigned to CIT pursuant to the CIT Deferred Purchase Factoring Agreement and (ii) in the
event that Accounts sold to CIT pursuant to the CIT Deferred Purchase Factoring Agreement exceed $1,000,000 in any Fiscal
Year, a report in reasonable detail of the Accounts sold to CIT pursuant to the CIT Deferred Purchase Factoring Agreement
solely to the extent such sold Accounts are due from customers having additional Accounts which have been included in the
Borrowing Base for such month. Notwithstanding the foregoing, (x) after the occurrence and during the continuance of an Accelerated Monthly
Borrowing Base Delivery Event, on or before the 15th day of each month, the Lead Borrower shall furnish a Borrowing Base
Certificate calculated as of the last day of the immediately preceding month and (y) after the occurrence and during the
continuance of an Accelerated Weekly Borrowing Base Delivery Event, on Wednesday of each week (or, if Wednesday is
not a Business Day, on the next succeeding Business Day), the Lead Borrower shall furnish a Borrowing Base Certificate
calculated as of the close of business on Saturday of the immediately preceding calendar week; provided,
that the Lead Borrower may elect to deliver a Borrowing Base Certificate more frequently so long as if any Borrowing Base
Certificate is delivered (I) within one week of the prior Borrowing Base Certificate (the “Initial Borrowing Base
Certificate”), the Lead Borrower shall continue to deliver Borrowing Base Certificates weekly (in accordance with
clause (y) above) for a period of sixty (60) days from the delivery of the Initial Borrowing Base Certificate (or for such
longer period as required by the occurrence of an Accelerated Weekly Borrowing Base Delivery Event) or (II) more than one
week but one month or less after the Initial Borrowing Base Certificate, the Lead Borrower shall continue to deliver
Borrowing Base Certificates monthly (in accordance with clause (x) above) for a period of ninety (90) days from the delivery
of the Initial Borrowing Base Certificate (or more frequently or for such longer period as required by the occurrence of an
Accelerated Monthly Borrowing Base Delivery Event or Accelerated Weekly Borrowing Base Delivery Event);
(i) promptly
upon request by the Agent (so long as the following are obtainable using commercially reasonable measures), copies of (i)
each Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) to the most recent annual report (Form 5500
Series) filed with the Internal Revenue Service with respect to a Plan, (ii) the most recent actuarial valuation report for
any Plan, and (iii) all notices received from a Multiemployer Plan sponsor, a plan administrator or any governmental agency,
or provided to any Multiemployer Plan by the Loan Parties or any ERISA AffiliateCommonly Controlled Entity, concerning an ERISA Event;
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(j) promptly
following any request therefor by the Agent (so long as the following are obtainable using commercially reasonable measures), copies
of (i) any documents described in Section 101(k)(1) of ERISA that Parent, the Loan Parties or any ERISA
AffiliateCommonly Controlled Entity may request
with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that Parent, the Loan Parties
or any ERISA AffiliateCommonly
Controlled Entity may request with respect to any Multiemployer Plan; provided that if Parent, any of the Loan Parties
or any ERISA AffiliateCommonly
Controlled Entity has not requested such documents or notices from the administrator or sponsor of the applicable Multiemployer
Plan, Parent, the Lead Borrower, such other Subsidiary or such ERISA AffiliateCommonly
Controlled Entity shall promptly make a request for such documents or notices from the such
administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof;
(k) promptly upon reasonable request from the Agent, calculations of Consolidated EBITDA and other Fixed GAAP Terms as reasonably requested by the Agent promptly following receipt of a written notice from the Lead Borrower electing to change the Fixed GAAP Date, which calculations shall show the calculations of the respective Fixed GAAP Terms both before and after giving effect to the change in the Fixed GAAP Date and identify the material change(s) in GAAP giving rise to the change in such calculations, together with a reconciliation between calculations of any financial ratio made before and after giving effect to such change in GAAP; and
(l) if, at any time, Availability is less than or equal to fifteen percent (15%) of the Loan Cap, the Borrowers shall promptly, upon the written request of the Agent, provide to the Agent a written certification as to the Consolidated Fixed Charge Coverage Ratio, including reasonably detailed calculations with respect thereto in accordance with Appendix IV of the Compliance Certificate;
provided that in the event that Parent, any other Parent
Entity or a Loan Party is not engaged in any business or activity, and does not own any assets or have other liabilities, other
than those incidental to its ownership directly or indirectly of the Equity Interests of the Lead Borrower and the other Subsidiaries,
such consolidated reporting at a Person’s level in a manner consistent with that described in paragraphs (a) and (b) of this
Section 6.046.04
for Parent will satisfy the requirements of such paragraphs.
The Loan Parties hereby acknowledge that (a) the Agent and/or
the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the
Loan Parties hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks
or another similar electronic system (the “Platform”) and (b) certain of the Lenders may be “public-side”
Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Loan Parties or their securities)
(each, a “Public Lender”). The Loan Parties hereby agree that so long as any Loan Party is the issuer of any
outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating
issuing any such securities they will use commercially reasonable efforts to identify that portion of the Borrower Materials that
may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Agent, the Arrangers, the L/C
Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may
be sensitive and proprietary) with respect to the Loan Parties or their securities for purposes of United States Federal and state
securities laws (provided, however, that to the extent such Borrower Materials constitute Confidential Information,
they shall be treated as set forth in Section 10.0710.07);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
“Public Investor”; and (z) the Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”
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6.05 Litigation and Other Notices.
Furnish to the Agent written notice of the following promptly after any Responsible Officer of the Lead Borrower obtains actual knowledge thereof or receipt of such document or notice, as applicable:
(a) any Default or Event of Default;
(b) any litigation investigation or proceeding affecting any Loan Party or its Subsidiaries that could reasonably be expected to have a Material Adverse Effect;
(c) (i)
the occurrence or expected occurrence of any Reportable Event (or similar event) with respect to any Single Employer Plan (or Foreign
Plan), a failure to make any required contribution to a Single Employer Plan, Multiemployer Plan or Foreign Plan, the creation
of any Lien on the property of the Borrowers or their respective Subsidiaries in favor of the PBGC, a Plan or a Foreign Plan or
any withdrawal from, or the full or partial termination, “endangered” or “critical” status (within the
meaning of Section 432 of the Code or Section 305 of ERISA), or Insolvency of, any Multiemployer Plan or Foreign Plan; or (ii)
the institution of proceedings or the taking of any other formal action by the PBGC or any Loan Party or any of its Subsidiaries
or any Commonly Controlled Entity or any Multiemployer Plan which couldwould
reasonably be expected to result in the withdrawal from, or the termination, or Insolvency of, any Single Employer Plan, Multiemployer
Plan or Foreign Plan; provided, however, that no such notice will be required under clause (i) or (ii) above unless
the event giving rise to such notice, when aggregated with all other such events under clause (i) or (ii) above, couldwould
be reasonably expected to result in a Material Adverse Effect;
(d) any other development specific to any Loan Party that is not a matter of general public knowledge and that has had, or could reasonably be expected to have, a Material Adverse Effect;
(e) any material notices or material demands delivered or received by any Loan Party (or on its behalf) in connection with the CIT Deferred Purchase Factoring Agreement;
(f) the occurrence of (i) any default or event of default under the Term Loan Agreement or (ii) any payment default with respect to Material Indebtedness of any Loan Party;
(g) the filing of any lien for unpaid Taxes against any Loan Party in excess of $1,000,000, individually, or $2,500,000, in the aggregate;
(h) any casualty or other insured damage to any significant portion of the Collateral or the commencement of any action or proceeding for the taking of any interest in a significant portion of the Collateral under power of imminent domain or by condemnation or similar proceeding;
(i) any loss, damage or destruction to a significant portion of Collateral, whether or not covered by insurance;
(j) the filing or asserting of any Lien by customs or revenue authority against any Loan Party in excess of $1,000,000, individually, or $2,500,000, in the aggregate;
(k) the failure by any Loan Party to pay rent under any Real Estate leases which, individually or in the aggregate, could reasonably be excepted to have a Material Adverse Effect;
(l) any default under any Contractual Obligation of any Loan Party or its Subsidiaries, which could reasonably be expected to have a Material Adverse Effect; and
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(m) (i) any release or discharge by any Loan Party or its Subsidiaries of any Materials of Environmental Concern required to be report under applicable Environmental Laws to any Governmental Authority, unless the total Environmental Costs arising out of such release or discharge could not reasonably have a Material Adverse Effect and (ii) any condition, circumstance, occurrence or event not previously disclosed in writing to the Agent that could reasonably be expected to result in liability or expense under applicable Environmental Laws, unless the total Environmental Costs arising out of such condition, circumstance, occurrence or event could not reasonably be expected to have a Material Adverse Effect, or could not reasonably be expected to result in the imposition of any lien or other material restriction on the title, ownership or transferability of any facilities and properties owned, leased or operated by the Loan Parties or any of their Subsidiaries that could reasonably be expected to result in a Material Adverse Effect, and (iii) any proposed action to be taken by any Loan Party or any of its Subsidiaries that could reasonably be expected to subject the any Loan Party or any of its Subsidiaries to any material additional or different requirements or liabilities under Environmental Laws, unless the total Environmental Costs arising out of such proposed action could not reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.056.05
shall be accompanied by a statement of a Responsible Officer of the Lead Borrower setting forth details of the occurrence referred
to therein and stating what action the Loan Party or its Subsidiary proposes to take with respect thereto.
6.06 Compliance with Laws.
Comply in all material respects with
all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property that are material to the
conduct of the Loan Parties’ business, except in such instances in each case, any material non compliance which could not
reasonably be expected to have a Material Adverse Effect; provided, however, that this Section 6.066.06
shall not apply to Environmental Laws, which are the subject of Section 6.096.09,
or Taxes, which are the subject of Section 6.036.03.
6.07 Maintaining Records; Access to Properties and Inspections; Appraisals.
(a) Maintain all material financial records in accordance with GAAP and permit any persons designated by the Agent (including, without limitation, the Agent or any representatives or independent contractors thereof) or, upon the occurrence and during the continuance of an Event of Default, any Lender, to visit and inspect the financial records (including, without limitation, the corporate, financial and operating records) and the properties of the Borrowers or any of their Subsidiaries at reasonable times, upon reasonable prior notice to the Borrowers, and as often as reasonably requested, to make extracts from and copies of such financial records, and to discuss its affairs, finances and accounts with its Registered Public Accounting Firm, and permit the Agent or professionals (including investment bankers, consultants, accountants, and lawyers) retained by the Agent to conduct evaluations of the Loan Parties’ business plan, forecasts and cash flows, all at the expense of the Loan Parties and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Lead Borrower; provided, that, so long as no Default or Event of Default shall have occurred and be continuing, the Agent shall be limited to one (1) such visit at the Loan Parties’ expense in any Fiscal Year; provided, further, that when a Default or Event of Default exists the Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Loan Parties at any time during normal business hours and without advance notice.
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(b) Upon the request of the Agent after reasonable prior notice, permit the Agent or professionals (including investment bankers, consultants, accountants, and lawyers) retained by the Agent to conduct commercial finance examinations and other evaluations, including, without limitation, of (i) the Lead Borrower’s practices in the computation of the Borrowing Base and (ii) the assets included in the Borrowing Base and related financial information such as, but not limited to, sales, gross margins, payables, accruals and reserves. The Loan Parties shall pay the fees and expenses of the Agent and such professionals with respect to such examinations and evaluations. Without limiting the foregoing, the Loan Parties acknowledge that the Agent shall undertake one (1) commercial finance examination during each twelve (12) month period following the Closing Date at the Loan Parties’ expense; provided, that, if Availability is, at any time, less than twenty percent (20%) of the Loan Cap for three (3) consecutive Business Days, the Agent may conduct two (2) commercial finance examinations during such twelve (12) month period at the Loan Parties’ expense. Notwithstanding the foregoing, the Agent may cause additional commercial finance examinations to be undertaken (i) as it in its discretion deems necessary or appropriate, at its own expense or (ii) if required by Law, at the expense of Agent and the Loan Parties shared equally or (iii) if a Designated Event of Default shall have occurred and be continuing, at the expense of the Loan Parties.
(c) Upon the request of the Agent after reasonable prior notice, permit the Agent or professionals (including appraisers) retained by the Agent to conduct appraisals of the Collateral, including, without limitation, the assets included in the Borrowing Base. The Loan Parties shall pay the fees and expenses of the Agent and such professionals with respect to such appraisals. Without limiting the foregoing, the Loan Parties acknowledge that the Agent shall undertake one (1) inventory appraisal during each twelve (12) month period following the Closing Date at the Loan Parties’ expense; provided, that, if Availability is, at any time, less than twenty percent (20%) of the Loan Cap for three (3) consecutive Business Days, the Agent may conduct two (2) inventory appraisals during such twelve (12) month period at the Loan Parties’ expense. Notwithstanding the foregoing, the Agent may cause additional appraisals to be undertaken (i) as it in its discretion deems necessary or appropriate, at its own expense or, (ii) if required by Law, at the expense of Agent and the Loan Parties shared equally or (iii) if a Designated Event of Default shall have occurred and be continuing, at the expense of the Loan Parties. So long as no Default or Event of Default has occurred and is continuing, Agent will provide Lead Borrower with a copy of the final appraisal report. Any adjustments to the Appraised Value or the Borrowing Base hereunder as a result of such appraisals shall become effective ten (10) days following the date of the applicable final appraisal report.
(d) The Loan Parties shall cause (i) not less than one physical inventory at each store location to be undertaken in each 12 month period by such inventory takers substantially consistent with the practices in place on the Closing Date or as otherwise are reasonably satisfactory to the Agent and (ii) periodic cycle counts of Inventory to be undertaken at each location, in each case, at least once in each 12 month period, and at the expense of the Loan Parties, in accordance with the Loan Parties’ usual business practices, conducted using methodology routinely used by the Loan Parties in their ordinary course of business with respect to such Inventory counts or as otherwise consistent with standard and customary business practices, and shall post such results to the Loan Parties’ stock ledgers and general ledgers, as applicable.
Notwithstanding anything to the contrary in Section 6.04(g)6.04(g)
or this Section 6.07,6.07,
neither the Loan Parties nor any Subsidiary will be required to disclose, or permit the inspection or discussion of, any document,
information or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in
respect of which disclosure to the Agent or the Lenders (or their respective representatives) is prohibited by applicable Law or
(iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
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6.08 Use of Proceeds.
Use the proceeds of the Credit Extensions only (a) to refinance Indebtedness of the Lead Borrower and its Subsidiaries under the Existing Term Loan Agreement and the Existing Credit Agreement (with respect to the Exiting Lenders), (b) to finance transaction fees and expenses related hereto, and (c) to finance working capital needs and for general corporate purposes (including, without limitation, for capital expenditures, Permitted Business Acquisitions, the repayment or refinancing of Indebtedness and the making of Investments and Restricted Payments (other than the Closing Date Dividend), in each case to the extent not prohibited hereunder).
6.09 Compliance with Environmental Laws.
(a) (i)
Comply substantially with, and require substantial compliance by all tenants, subtenants, contractors, and invitees with, all applicable
Environmental Laws; (ii) obtain, comply substantially with and maintain any and all Environmental Permits necessary for its operations
as conducted and as planned; and (iii) require that all tenants, subtenants, contractors, and invitees obtain, comply substantially
with and maintain any and all Environmental Permits necessary for their operations as conducted and as planned, with respect to
any property leased or subleased from, or operated by any Loan Party or its Subsidiaries. For purposes of this Section 6.09(a),6.09(a),
noncompliance shall not constitute a breach of this covenant, provided that, upon learning of any actual or suspected noncompliance,
the Lead Borrower and any such affected Loan Party or Subsidiary shall promptly undertake and diligently pursue reasonable efforts,
if any, to achieve compliance, and provided, further, that in any case such noncompliance could not reasonably be expected to have
a Material Adverse Effect.
(b) Promptly comply, in all material respects, with all orders and directives of all Governmental Authorities regarding Environmental Laws, other than such orders or directives (i) as to which the failure to comply could not reasonably be expected to result in a Material Adverse Effect or (ii) as to which: (x) appropriate reserves have been established in accordance with GAAP; (y) an appeal or other appropriate contest is or has been timely and properly taken and is being diligently pursued in good faith; and (z) if the effectiveness of such order or directive has not been stayed, the failure to comply with such order or directive during the pendency of such appeal or contest could not reasonably be expected to have a Material Adverse Effect.
(c) Except to the extent that failure to do so, in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (i) conduct, or have conducted on its behalf, any investigation, study, sampling, or testing any real property at which the Loan Parties and their Subsidiaries operate as required by Environmental Laws, and (ii) respond, or cause a third party to respond, to any release, threatened release, or discharge of Materials of Environmental Concern at, on, or under any real property at which the Loan Parties or their Subsidiaries operate as required by Environmental Laws.
6.10 Further Assurances; Additional Security.
(a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Agent may reasonably request, all at the expense of the Loan Parties, and provide to the Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
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(b) If
any Loan Party directly or indirectly acquires fee-owned Real Estate in the United States after the Closing Date that has an aggregate
fair market value of $7,500,000 or more,20,250,000
or more (excluding any real property subject to Indebtedness pursuant to Section 7.01(z)), (i) notify the Agent thereof,
(ii) cause each such fee-owned Real Estate to be subjected to a mortgage or deed of trust securing the Obligations, in form and
substance reasonably acceptable to the Agent, (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage
title insurance policies in form and substance, with endorsements (including zoning endorsements where available) and in amounts
reasonably acceptable to the Agent (the “Mortgage Policies”), (iv) to the extent necessary to issue the Mortgage
Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than thirty
(30) days before the date of their delivery to the Agent, certified to the Agent and the issuer of the Mortgage Policies in a manner
reasonably satisfactory to the Agent, (v) provide (1) “Life of Loan” Federal Emergency Management Agency Standard
Flood Hazard determinations, (2) notices, in the form required under the Flood Insurance Laws, about special flood hazard area
status and flood disaster assistance duly executed by each Loan Party, and, (3) if any improved real property encumbered by any
mortgage is located in a special flood hazard area, a policy of flood insurance that (A) covers such improved real property, (B)
is written in an amount not less than the outstanding principal amount of the Indebtedness secured by such mortgage reasonably
allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property
under the Flood Insurance Laws, whichever is less, (C) naming the Agent as loss payee and additional insured with such responsible
and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory
to the Agent, and (D) is otherwise on terms satisfactory to the Agent; and (vi) obtain customary mortgage or deed of trust enforceability
opinions of local counsel for the Loan Parties in the states in which such fee-owned Real Estate are located and (vii) take, and
cause the applicable Subsidiary to take, such actions as shall be necessary or reasonably requested by the Agent to perfect such
Liens, including actions described in paragraph (a) of this Section 6.10,
in each case, at the expense of the Loan Parties.6.10,
in each case, at the expense of the Loan Parties. Notwithstanding the foregoing, the Agent shall not enter into any mortgage or
deed of trust in respect of any Real Estate acquired by any Loan Party after the Closing Date until (1) the Agent has delivered
to the Lenders (which may be delivered electronically) the following documents in respect of such Real Estate: (i) a completed
flood hazard determination from a third party vendor, (ii) if such Real Estate is located in a “special flood hazard area,”
(A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that
flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (iii) if such notice
is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Real Estate
is located, evidence of flood insurance, and (2) the Agent shall have received written confirmation from the Lenders that flood
insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably
conditioned, withheld or delayed).
(c) Each of the parties hereto acknowledges and agrees that, if there are any Real Estate subjected to a mortgage or deed of trust securing the Obligations, any increase, extension or renewal of any of the Commitments or Loans (including the provision of Commitment Increase and Extended Revolving Commitments) or any other incremental or additional credit facilities hereunder, but excluding (i) any continuation or conversion of borrowings, (ii) the making of any Loans, or (iii) the issuance, renewal or extension of Letters of Credit shall be subject to and conditioned upon: (1) the prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Real Estate subjected to a mortgage or deed of trust securing the Obligations as required by the Flood Insurance Laws and as otherwise reasonably required by the Agent and (2) the Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance have been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed).
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(d) With respect to any Real Estate subjected to a mortgage or deed of trust securing the Obligations, that is located in an area identified by the Federal Emergency Management Agency (or any successor agency thereto) as a “special flood hazard area” with respect to which flood insurance has been made available under the Flood Insurance Laws, the applicable Loan Party (a) shall obtain and maintain with financially sound and reputable insurance companies (except to the extent that any insurance company insuring such Real Estate of such Loan Party ceases to be financially sound and reputable after the Closing Date, in which case such Loan Party shall promptly replace such insurance company with a financially sound and reputable insurance company), such flood insurance in such reasonable total amount as the Agent and the Lenders may from time to time reasonably require and otherwise sufficient to comply with all applicable rules and regulations promulgated under the Flood Insurance Laws and (b) promptly upon request of the Agent or any Lender, shall deliver to the Agent or such Lender as applicable, evidence of such compliance in form and substance reasonably acceptable to the Agent or such Lender, including, without limitation, evidence of annual renewals of such flood insurance.
(e) If any additional Domestic Subsidiary of a Loan Party is formed or acquired after the Closing Date (or if an Excluded Subsidiary ceases to qualify as such), promptly after the date such Domestic Subsidiary is formed or acquired (or after such entity ceases to qualify as an Excluded Subsidiary, as applicable), notify the Agent thereof and, within thirty (30) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Agent shall agree), to the extent such Person does not constitute an Excluded Subsidiary, cause the Collateral and Guaranty Requirements to be satisfied with respect to such Domestic Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary owned by or on behalf of a Loan Party as and to the extent required under the Security Documents.
(f) (i) In each case furnish the Agent prompt written notice of any change (and in any event within 30 days of such change) in any Loan Party’s (A) corporate or organization name, (B) organizational structure or (C) organizational identification number (or equivalent); provided that the Borrowers shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral for the benefit of the applicable Credit Parties.
6.11 Cash
Management..
(a) Prior to the date that is forty-five (45) days (or such later date as may be consented to by the Agent, such consent not to be unreasonably withheld, conditioned or delayed) following the Closing Date (in each case to the extent not previously delivered in connection with the Existing Credit Agreement):
(i) deliver to the Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.26(b); and
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(ii) enter
into a Blocked Account Agreement with each Blocked Account Bank, subject to Section 6.11(d)6.11(d)
below (collectively, the “Blocked Accounts”); and
(iii) at the request of the Agent, deliver to the Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to each depository institution listed on Schedule 5.26(a).
Notwithstanding anything herein to the contrary, the provisions
of this Section 6.11(a)6.11(a)
shall not apply to any deposit account that is acquired by a Loan Party in connection with a Permitted Business Acquisition permitted
under this Agreement prior to the date that is sixty (60) days (or such later date as may be consented to by the Agent, such consent
not to be unreasonably withheld, conditioned or delayed) following the date of such Permitted Business Acquisition.
(b) From and after the Closing Date, the Loan Parties shall ACH or wire transfer no less frequently than once per Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all of the following:
(i) all amounts on deposit in each DDA except for the Term Priority Accounts (net of any minimum balance, not to exceed $2,500, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash receipts from the Disposition of Inventory and other assets (whether or not constituting Collateral);
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Disposition or other transaction or event (other than identifiable proceeds of Term Priority Collateral, which may be paid to the Term Loan Agent for application of the Term Loan Obligations).
(c) Each Blocked Account Agreement shall require upon notice from the Agent, which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Agent at Wells Fargo (the “Concentration Account”), of all cash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), including, without limitation, the following:
(i) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (b) above; and
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(iii) any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or event;
provided, however, that (i) the Agent may, in its sole discretion, permit the Loan Parties to have one or more “intermediate” Blocked Account Agreements, whereby such agreements would provide, upon notice from the Agent, the ACH or wire transfer no less frequently than once per Business Day (and whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the Concentration Account and (ii) the Loan Parties may maintain the Term Priority Accounts, so long as the Loan Parties only deposit any funds into such account that constitute identifiable proceeds of Term Priority Collateral and no other funds or amounts can be deposited therein.
(d) Notwithstanding anything herein or in any other Loan Document to the contrary, the Loan Parties shall not be required to enter into any Blocked Account Agreement with respect to DDAs that have an average daily balance of less than $2,500,000, individually or in the aggregate.
(e) The
Concentration Account shall at all times be under the sole dominion and control of the Agent. The Agent shall cause all funds on
deposit in the Concentration Account to be applied to the Obligations, which amounts shall be applied to the Obligations in the
order proscribed in either Section 2.05(e)2.05(e)
or Section 8.048.04
of this Agreement, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal
from the Concentration Account, and (ii) the funds on deposit in the Concentration Account shall at all times be collateral security
for all of the Obligations. In the event that, notwithstanding the provisions of this Section 6.116.11,
any Loan Party receives or otherwise has dominion and control of any such cash receipts or collections, such receipts and collections
shall be held in trust by such Loan Party for the Agent, shall not be commingled with any of such Loan Party’s other funds
or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into
the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent.
(f) Upon the request of the Agent, after the occurrence and during the continuance of a Cash Dominion Event or a Designated Event of Default, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(g) If
the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.11(a)6.11(a)
above, then the Loan Parties shall, upon the request of the Agent at any time after the Closing Date, deliver to the Agent copies
of DDA Notifications, which have been executed on behalf of the applicable Loan Party and delivered to each depository institution
listed on Schedule 5.26(a).
6.12 Fiscal Year; Accounting.
(a) The Lead Borrower will, for financial reporting purposes, cause the Loan Parties’ and each of their Subsidiaries’ Fiscal Years to end on the last Thursday of each calendar year; provided that the Lead Borrower may, upon written notice to the Agent, change the financial reporting convention specified above to cause the Loan Parties’ and each of their Subsidiaries’ Fiscal Years to end on any other date reasonably acceptable to the Agent, in which case the Lead Borrower and the Agent will, and are hereby authorized by the Lenders to, make any adjustments to this Agreement that are necessary in order to reflect such change in financial reporting. The Lead Borrower shall give prior written notice to the Agent of any change in the accounting policies or reporting practices of the Loan Parties, except as required by GAAP.
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(b) At all times retain a Registered Public Accounting Firm, and shall instruct such Registered Public Accounting Firm to cooperate with, and be available to, the Agent, or their representatives to discuss the Loan Parties’ financial performance, financial condition, operating results, controls, and such other matters, within the scope of the retention of such Registered Public Accounting Firm, as may be raised by the Agent; provided that a representative of the Lead Borrower shall have received a reasonable opportunity to participate in any such discussions with such Registered Public Accounting Firm.
6.13 Lender Calls.
Upon the reasonable request by the Agent delivered to the Lead Borrower, use commercially reasonable efforts to hold an update call (which call shall take place on or prior to the date that is ten Business Days following the receipt of such notice) with a Responsible Officer of the Lead Borrower and such other members of senior management of the Lead Borrower as the Lead Borrower deems appropriate (with such other details to be reasonably agreed between the Lead Borrower and the Agent) and the Lenders and their respective representatives and advisors to discuss the state of the Lead Borrower’s business, including, but not limited to, recent performance, cash and liquidity management, operational activities, current business and market conditions and material performance changes; provided that in no event shall more than one such call be requested in any Fiscal Year.
6.14 Deposit Accounts; Credit Card Processors.
Within ten Business Days following
any Loan Party opening a new DDA, such Loan Party shall have delivered to the Agent appropriate DDA Notifications (to the extent
requested by Agent pursuant to the provisions of Section 6.116.11
hereof) and any Blocked Account Agreements consistent with the provisions of Section 6.116.11,
as applicable. The Loan Parties shall only maintain bank accounts and enter into any agreements with any Credit Card Issuers or
Credit Card Processors to the extent expressly contemplated herein or in Section 6.116.11.
6.15 Post-Closing Matters.
The Loan Parties shall satisfy the requirements set forth in the Post-Closing Letter.
ARTICLE VII
NEGATIVE COVENANTS
Each of the Loan Parties covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the Obligations (other than Obligations in respect of Cash Management Services and contingent indemnification and reimbursement obligations that are not yet due and payable and for which no claim has been asserted) have been paid in full, in cash, and Letters of Credit have expired or been terminated or cash collateralized on terms satisfactory to the L/C Issuer, unless the Required Lenders shall otherwise consent in writing, no Loan Party will, nor will it permit any of its Subsidiaries to:
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7.01 Indebtedness.
Incur, create, assume or permit to exist any Indebtedness, except the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness outstanding (or incurred pursuant to any commitment outstanding) on the Closing Date and set forth on Schedule 7.01 and any Permitted Refinancing thereof;
(b) Indebtedness created hereunder or under the other Loan Documents;
(c) Indebtedness pursuant to Swap Contracts, provided that such agreements are entered into for bona fide hedging purposes and not for purposes of speculation or taking a “market view”;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to a Loan Party pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business;
(e) (i)
intercompany Indebtedness between or among Loan Parties and (ii) intercompany Indebtedness between a Loan Party and any Subsidiary
that is not a Loan Party, provided that any such Indebtedness of a Loan Party to any Subsidiary that is not a Loan Party
must be subordinated to the Obligations pursuant to a subordination agreement in form and substance reasonably satisfactory to
Agent, and any Investment resulting from any such Indebtedness of a Subsidiary that is not a Loan Party to any Loan Party must
be permitted under Section 7.04;7.04;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds;
(h) Indebtedness comprised of industrial revenue bonds or other tax advantaged financings issued through a Governmental Authority;
(i) Capital
Lease Obligations and purchase money Indebtedness, and in each case any Permitted Refinancing with respect thereto, in an
aggregate principal amount at any time outstanding not to exceed the greater of $25,00067,500,000
and 25.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder;
(j) Indebtedness
consisting of (I) Term Loan Obligations (and any Permitted Refinancing in respect thereof), (II) any Permitted Debt Exchange
Notes (and any Permitted Refinancing in respect thereof), (III) any Rollover Indebtedness (and any Permitted
Refinancing in respect thereof) and (IV) any Additional Obligations (and any Permitted Refinancing in respect thereof)
in an aggregate principal amount for all such Indebtedness not in excess of the sum of (i) $350,000,000, (ii) the definition
of Maximum Incremental Facilities Amount (as defined in the Term Loan Agreement as in effect on the date
hereofFirst Amendment Effective Date and
inclusive of any reclassification or amendment thereof permitted in such definition) and (iii) without duplication of
incremental amounts included in the definition of “Permitted Refinancing”, in the event of any refinancing
of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses
(including accrued and unpaid interest) incurred or payable in connection with such refinancing, provided that all
such Indebtedness and all obligations related thereto are subject to the Intercreditor Agreement or another intercreditor
agreement in form and substance reasonably satisfactory to Agent;
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(k) (A)
Guarantees by the Borrowers or any of their Subsidiaries of Indebtedness or any other obligation or liability of the Borrowers
or any of their Subsidiaries (other than any Indebtedness incurred by the Borrowers or such Subsidiaries, as the case may be, in
violation of this Section 7.01),7.01),
or (B) without limiting Section 7.02,7.02,
Indebtedness of the Borrowers or any of their Subsidiaries arising by reason of any Lien granted by or applicable to such Person
securing Indebtedness of the Borrowers or any of their Subsidiaries (other than any Indebtedness incurred by the Borrowers or such
Subsidiaries, as the case may be, in violation of this Section 7.01);7.01);
(l) Indebtedness arising from agreements of a Loan Party providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the Disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(m) Indebtedness consisting of the financing of insurance premiums in the ordinary course of business;
(n) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within sixty (60) days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Contracts;
(o) Management Guarantees and Management Indebtedness;
(p) Junior
Capital in an amount not to exceed $50,000,000 in the aggregate at any time outstanding
the greater of $135,000,000 and 50.00% of Consolidated EBITDA for the
most recently ended four Fiscal Quarter period for which Required Financial Statements have been provided as required hereunder;
(q) Indebtedness
(and any Permitted Refinancing of such Indebtedness) of (i) any Borrower or any Subsidiary incurred to finance or refinance,
or otherwise incurred in connection with, any Permitted Business Acquisition or (ii) any Person that is acquired in
connection with any Permitted Business Acquisition (including Indebtedness thereof incurred in connection with such Permitted
Business Acquisition); provided that on the date of such Permitted Business Acquisition, after giving effect to the
incurrence or assumption of such Indebtedness on a pro forma basis, (1)(x) if such Indebtedness is unsecured, at the Lead
Borrower’s option, the Borrowers would have a Total Leverage Ratio shall be less than or equal to (i) 3.7050:1.00
or (yii)
the Total Leverage Ratio in effect immediately prior to such Indebtedness or (y) (A) if such Indebtedness is
secured on a pari passu orbasis,
at the Lead Borrower’s option, the Borrowers would have a Consolidated First Lien Leverage Ratio less than or equal to
(i) 2.50:1.00 or (ii) the Consolidated First Lien Leverage Ratio in effect immediately prior to such Indebtedness and (B) if
such Indebtedness is secured on a junior priority basis, the at
the Lead Borrower’s option, the Borrowers would have a Secured Leverage Ratio shall
be less than or equal to (i) 3.70:1.00 50:1.00
or (ii) the Secured Leverage Ratio in effect immediately prior to such Indebtedness, (2) if secured by a Lien on a pari
passu or junior priority basis on the Collateral, the Borrowers shall have caused to be executed an intercreditor
agreement in form and substance reasonably satisfactory to Agent, (3) the maturity date of such Indebtedness shall be no
earlier than the Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to
customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which
does not provide for an earlier maturity date than the Maturity Date, and (4) the interest rate margins and (subject to
clause (3) above) amortization schedule applicable such Indebtedness shall be determined by the Lead Borrower and the
applicable lenders; provided, that the aggregate principal amount of Indebtedness of which the primary obligor or a
guarantor is a Subsidiary that is not a Loan Party outstanding on this clause (q) shall not exceed, at the time of incurrence
thereof and after giving pro forma effect thereto, the greater of $50,000,000 and 50.00% of Consolidated EBITDA for the most
recently ended four Fiscal Quarter period for which Required Financial
Statements have been delivered pursuant to Section
6.04provided
as required hereunder. If, at the Lead Borrower’s option, on the date of the initial borrowing of such
Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is
given to the incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed
and reborrowed, in whole or in part, from time to time, without further compliance with this clause (q);
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(r) Contribution Indebtedness and any Permitted Refinancing with respect thereto;
(s) Indebtedness
of any Borrower or any Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of
$60162,000,000
and 60.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial Statements have been delivered pursuant to Section
6.04provided
as required hereunder;
(t) Indebtedness
of any Borrower or any Subsidiary incurred as consideration in connection with any Permitted Business Acquisition, and any Permitted
Refinancing with respect thereto, in an aggregate principal amount at any time outstanding not exceeding the greater of $25,00067,500,000
and 25.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder;
(u) Indebtedness
of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $2054,000,000
and (y) an amount equal to (A) the Foreign Borrowing Base plus (B) in the event of any refinancing of any Indebtedness incurred
under this clause (u), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued
and unpaid interest) incurred or payable in connection with such refinancing;
(v) Indebtedness
incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate principal amount
of Indebtedness incurred or Guaranteed pursuant to this clause (v) shall not exceed the greater of (i) $7,50020,250,000
and (ii) 7.50% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder;
(w) (i) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (ii) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which any Borrower or any Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, and (iii) obligations in respect of Bank Products;
(x) additional
Indebtedness so long as, on a pro forma basis, (A)
if such Indebtedness is unsecured, the Borrowers
would have a Total Leverage Ratio equal to or less than 3.50:1.00, (B) if such Indebtedness is secured on a pari passu
basis, the Borrowers would have a Consolidated First Lien Leverage Ratio equal to or less than 2.50:1.00, (C) if such Indebtedness
is secured on a junior priority basis, the Borrowers would have a Secured Leverage Ratio would
beequal
to or less than or equal to 3.7050:1.00;
provided, that the aggregate principal amount of Indebtedness of which the primary obligor or a guarantor is a Subsidiary
that is not a Loan Party outstanding on this clause (x) shall not exceed, at the time of incurrence thereof and after giving pro
forma effect thereto, the greater of $50135,000,000
and 50.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04;provided
as required hereunder;
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(y) Indebtedness
(A) supported by a letter of credit issued in compliance with this Section 7.017.01
in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation
guarantees for the benefit of trade creditors of the Borrowers or any of their Subsidiaries; and
(z) Indebtedness incurred in connection with entering into mortgages or deeds of trust or similar security instruments on real property, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $81,000,000 and 30.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial Statements have been provided as required hereunder; and
(aa) without duplication, all premiums
(if any, including tender premiums), defeasance costs, interest (including post petition interest), fees, expenses and charges
and additional or contingent interest on obligations described in clauses (a) through (yz)
of this Section 7.01.7.01.
For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 7.01,7.01,
(i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness
under this Section 7.01)7.01)
arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting
such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or
other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness
incurred pursuant to this Section 7.017.01
meets the criteria of more than one of the types of Indebtedness described in this Section 7.01,7.01,
the Lead Borrower, in its sole discretion, shallmay
classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of this
Section 7.017.01
(including in part under one such clause and in part under another such clause); (iii) the amount of Indebtedness issued
at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined
in accordance with GAAP; (iv) the principal amount of Indebtedness outstanding under any clause of this Section 7.01,7.01,
shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness;
and (v) if any Indebtedness is incurred to refinance Indebtedness initially incurred in reliance on a basket measured by
reference to a percentage of Consolidated EBITDA at the time of incurrence, and such refinancing would cause the percentage of
Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing,
such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing
Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting
discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with
such refinancing. Notwithstanding anything herein to the contrary, Indebtedness incurred by the Loan Parties on the Closing Date
under this Agreement or the Term Loan Agreement shall be classified as incurred under Section 7.01(b)
or 7.01(j),7.01(b)
or 7.01(j), respectively.
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For purposes of determining compliance with any dollar denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, and (y) if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being incurred), and such refinancing would cause the applicable dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such dollar denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
7.02 Liens.
Create, incur, assume or permit to exist any Lien on any of its property or assets (including Equity Interests or other securities of any person) at the time owned by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, “Permitted Encumbrances”):
(a) Liens
existing on, or provided for under written arrangements existing on, the Closing Date and set forth on Schedule 7.02, or
(in the case of any such Liens securing Indebtedness of the Borrowers or any of their Subsidiaries existing or arising under written
arrangements existing on the Closing Date) securing any Permitted Refinancing in respect of such Indebtedness (other than Indebtedness
incurred under Section 7.01(j)7.01(j)
and secured under clause (s) of this Section), so long as the Lien securing such refinancing Indebtedness is limited to all or
part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof)
that secured (or under such written arrangements could secure) the original Indebtedness;
(b) Liens created under the Loan Documents;
(c) Liens
for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably
be expected to have a material adverse effect on the Loan Parties and their Subsidiaries or that are being contested in good faith
and by appropriate proceedings in compliance with Section 6.036.03
if adequate reserves with respect thereto are maintained on the books of a Loan Party or a Subsidiary thereof, as the case may
be, in accordance with GAAP;
(d) Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of a Loan Party or a Subsidiary thereof, as the case may be, in accordance with GAAP;
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(e) pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);
(f) pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases (other than Capital Lease Obligations), licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;
(g) (i) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, declarations, encroachments, charges, and other similar encumbrances or title defects incurred, or leases or subleases granted to others, in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of the Loan Parties and their Subsidiaries, taken as a whole, (ii) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which any Loan Party or any Subsidiary has easement rights or on any leased property and subordination or similar agreements relating thereto, and (iii) any condemnation or eminent domain proceedings affecting any real property;
(h) Liens
(i) consisting of cash collateral deposits securing Indebtedness consisting of obligations under Swap Contracts and Bank Products,
and (ii) securing purchase money Indebtedness or Capital Lease Obligations permitted by Section 7.017.01
(limited to the assets subject to such purchase money Indebtedness or Capital Lease Obligations);
(i) Liens securing
judgments that do not constitute an Event of Default under Section 8.01(j)8.01(j);
(j) leases, subleases, licenses or sublicenses to or from third parties;
(k) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of Borrower Holdco or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Borrower Holdco or any of its Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of Borrower Holdco or any of its Subsidiaries in the ordinary course of business;
(l) Liens
in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the
importation of goods being contested as provided in Section 6.066.06
provided any assets affected by such a Lien will not, absent Reserves established by the Agent therefor in its Permitted Discretion,
be included in the Borrowing Base;
(m) Liens solely on any cash earnest money deposits made by Borrower Holdco or any of its Subsidiaries in connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder;
(n) Liens
with respect to property or assets of any Subsidiary of a Borrower that is not a Loan Party, or the Equity Interests of such Subsidiary,
securing Indebtedness of any Subsidiary of a Borrower that is not a Loan Party permitted under Section 7.017.01;
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(o) Liens
on consigned goods in favor of consignors with respect to consignment agreements entered into in the ordinary course of business
not to exceed forty percent (40%) of the Eligible On-Hand Inventory attributable to any major class or category of inventory, as
reflected in the most recent appraisal obtained by the Agent under Section 6.076.07;
(p) Liens arising from precautionary Uniform Commercial Code financing statements;
(q) Liens on Equity Interests, Indebtedness or other securities of an Unrestricted Subsidiary or any joint venture that is not a Subsidiary of a Borrower (i) securing Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture or (ii) pursuant to the relevant joint venture agreement or arrangement;
(r) Liens securing insurance premium financing arrangements so long as such Liens are limited to the applicable unearned insurance premiums;
(s) Liens
securing obligations permitted under Section 7.01(j)7.01(j)
to the extent such Liens are subject to the Intercreditor Agreement;
(t) other
Liens on property or assets securing Indebtedness permitted under Section 7.017.01
or other obligations that in the aggregate do not exceed at any time outstanding an amount equal to the greater of $35135,000,000
and 3550.00%
of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder; provided, that such Indebtedness or other obligations shall, at Agent’s request,
be subject to an intercreditor agreement in form and substance reasonably satisfactory to Agent;
(u) other
Liens on property or assets securing Indebtedness permitted under Section 7.01;7.01;
provided, that on the date of incurrence of such Indebtedness after pro forma giving effect to such incurrence (or on the date
of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness
after giving pro forma effect to the incurrence of the entire committed amount, in which case such committed amount may thereafter
be borrowed and reborrowed in whole or in part, from time to time, without further compliance with this clause), the
Secured Leverage Ratio shall not exceed 3.70:1.00(A)
if such Indebtedness is secured on a pari passu basis, at the Lead Borrower’s option, Borrowers would have a Consolidated
First Lien Leverage Ratio less than or equal to (i) 2.50:1.00 or (ii) the Consolidated First Lien Leverage Ratio in effect immediately
prior to such Indebtedness and (B) if such Indebtedness is secured on a junior priority basis, at the Lead Borrower’s option,
the Borrowers would have a Secured Leverage Ratio less than or equal to (i) 3.50:1.00 or (ii) the Secured Leverage Ratio in effect
immediately prior to such Indebtedness; and provided, further, that such Indebtedness or other obligations
shall, at Agent’s request, be subject to an intercreditor agreement in form and substance reasonably satisfactory to Agent;
(v) Liens on the Collateral, if such Liens rank junior to the Liens on such Collateral in relation to the Lien securing the Obligations; provided that such Liens shall be subordinated to the Liens securing the Obligations pursuant to an intercreditor agreement in form and substance reasonably satisfactory to Agent;
(w) Liens existing on property or assets (other than property or assets of the type which may be included in the Borrowing Base (regardless of eligibility), unless such Liens with respect to such property or assets are subject to an intercreditor agreement in form and substance reasonably satisfactory to Agent) of a Person at the time such Person becomes a Subsidiary of any Borrower (or at the time any Borrower or a Subsidiary acquires such property or assets, including any acquisition by means of a merger, consolidation or amalgamation with or into such Borrower or any Subsidiary); provided, however, that such Liens are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate;
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(x) Liens on real property securing Indebtedness permitted under Section 7.01(z) so long as such Liens shall not extend to any other property or assets of the Loan Parties;
(y)(a) [Reserved];
(z)(y) Liens
securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of refinancing Indebtedness permitted
under Section 7.017.01
incurred in respect of any Indebtedness secured by (other than any Indebtedness described in Section 7.02(j)),7.02(j)),
or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured
by, any other Liens permitted under this Section 7.02;7.02;
provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds
or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien
arose, could secure) the obligations to which such Liens relate;
(aa)(z) Liens
securing (A) Acquisition Indebtedness incurred in compliance with Section 7.01(q)7.01(q)
or (r); provided that (x) such Liens are limited to all or part of the same property or assets,
including Equity Interests (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements
of any thereof) acquired, or of any Person acquired or merged or consolidated with or into the Borrowers or any of their Subsidiaries,
in any transaction to which such Acquisition Indebtedness relates, (y) on the date of the incurrence of such Indebtedness
after giving effect to such incurrence, (I) if
such Indebtedness is secured on a pari passu basis, at the SecuredLead
Borrower’s option, the Borrowers would have a Consolidated First Lien Leverage Ratio would
be equal to or less than or
equal to (i) 2.50:1.00 or (ii) the Consolidated First Lien Leverage Ratio in effect immediately prior to such Indebtedness and
(II) if such Indebtedness is secured on a junior priority basis, at the Lead Borrower’s option, the Borrowers would have
a Secured Leverage Ratio less than or equal to (i) 3.7050:1.00
or (ii) the Secured Leverage Ratio would equal or be less than the Secured Leverage Ratio
in
effect immediately prior to giving effect theretosuch
Indebtedness, and (z) such Liens rank pari
passu or junior to the Liens securing the Obligations and shall be subject to the Intercreditor Agreement or another
intercreditor agreement in form and substance reasonably satisfactory to Agent, as applicable, or (B) any Permitted Refinancing
incurred in respect thereof;
(bb)(aa)
Liens on cash set aside at the time of the incurrence of any Indebtedness permitted under Section 7.017.01
or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund
the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose;
(b)(a) [Reserved];
(bb) [Reserved];
(cc) Liens in favor of theany
Borrower or any Subsidiary (other than Liens on property or assets of any Loan Party in favor of any Subsidiary that is not a Subsidiary
Guarantor);
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(dd) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business;
(ee) [Reserved];
(ff) Liens attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business; and
(gg) Liens arising in connection with repurchase
agreements permitted under Section 7.017.01
on assets that are the subject of such repurchase agreements.
Without limiting the foregoing, no Loan Party shall obtain any advance payments from CIT in respect of accounts to be sold or assigned by the Borrowers to CIT pursuant to the CIT Deferred Purchase Factoring Agreement, or any loans or other advances or other financial accommodations from CIT, and the only Indebtedness of any Loan Party to CIT, contingent or otherwise, shall consist of the commissions and other fees and charges of CIT incurred in the ordinary course of business pursuant to the terms of the CIT Deferred Purchase Factoring Agreement.
For purposes of determining compliance with this Section, (w)
a Lien need not be incurred solely by reference to one category of Liens described in this Section but may be incurred under any
combination of such categories (including in part under one such category and in part under any other such category), (x) in the
event that a Lien (or any portion thereof) meets the criteria of one or more of such clauses of this Section, the Lead Borrower
shallmay,
in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this Section,
(including in part under one such clause and in part under another such
clause), (y) in the event that a portion of Indebtedness secured by a Lien could be classified in part pursuant to clause
(u) above (giving effect to the incurrence of such portion of Indebtedness), the Lead Borrower, in its sole discretion, may classify
such portion of Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (u) above and the
remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition and (z) if
any Liens securing Indebtedness are incurred to refinance Liens securing Indebtedness initially incurred in reliance on a basket
measured by reference to a percentage of Consolidated EBITDA at the time of incurrence, and such refinancing would cause the percentage
of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing,
such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded so long as the principal amount of such Indebtedness
secured by such Liens does not exceed the principal amount of such Indebtedness secured by such Liens being refinanced, plus the
aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest)
incurred or payable in connection with such refinancing.
7.03 [Reserved].
7.04 Investments, Loans and Advances.
Purchase, hold or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of, make or permit to exist any loans or advances to or Guarantees of the obligations of, or make or permit to exist any investment or any other interest in (each, an “Investment”), any other person, except the following (collectively, “Permitted Investments”):
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(a) (i) Investments in the Equity Interests of Borrower Holdco, any Borrower or any other Loan Party, (ii) intercompany loans to the Lead Borrower or any other Loan Party and (iii) Guarantees of Indebtedness expressly permitted hereunder;
(b) Cash and Permitted Cash Equivalent Investments and Investments that were Permitted Investments when made;
(c) Investments
arising out of the receipt of non-cash consideration for the sale of assets permitted under Section 7.057.05;
(d) any assets or securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and any prepayments and other credits to suppliers made in the ordinary course of business;
(e) Swap Contracts;
(f) Investments existing on, or contractually committed as of, the Closing Date and set forth on Schedule 7.04;
(g) Investments resulting from pledges and deposits constituting Permitted Encumbrances;
(h) Investments constituting Permitted Business Acquisitions;
(i) (i)
intercompany loans among Foreign Subsidiaries, (ii) Guarantees by Foreign Subsidiaries permitted by Section 7.01,7.01,
and (iii) trade receivables owing to any Borrower or any Subsidiary, if created or acquired in the ordinary course of business;
(j) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with or judgments against, customers and suppliers, in each case in the ordinary course of business and Investments acquired as a result of a foreclosure by Borrower Holdco or any of its Subsidiaries with respect to any secured Investments or other transfer of title with respect to any secured Investment in default;
(k) Investments
of a Domestic Subsidiary of Borrower Holdco acquired after the Closing Date or of an entity merged into, or consolidated or amalgamated
with, Borrower Holdco or any Borrower or merged into or consolidated or amalgamated with any Domestic Subsidiary of Borrower Holdco
after the Closing Date, in each case, (i) to the extent permitted under this Section 7.047.04,
(ii) in the case of any acquisition, merger, consolidation or amalgamation, in accordance with Section 7.057.05,
and (iii) to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger,
consolidation or amalgamation and were in existence on the date of such acquisition, merger, consolidation or amalgamation;
(l) Management Advances;
(m) Guarantees of operating leases (for the avoidance of doubt, excluding Capital Lease Obligations) or of other obligations that do not constitute Indebtedness, in each case entered into by a Loan Party in the ordinary course of business;
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(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business consistent with past practices;
(o) additional Investments to the extent that payment for such Investments is made with Equity Interests of any Parent Entity or Junior Capital;
(p) Investments
consisting of the redemption, purchase, repurchase or retirement of any Equity Interests permitted under Section 7.067.06;
(q) Investments in the ordinary course of business consisting of Uniform Commercial Code Article 3 endorsements for collection or deposit and Uniform Commercial Code Article 4 customary trade arrangements with customers consistent with past practices;
(r) Guarantees
permitted under Section 7.017.01
(except to the extent such Guarantee is expressly subject to Section 7.047.04);
(s) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of Borrower Holdco or any of its Subsidiaries;
(t) Investments consisting of non-exclusive licensing of intellectual property pursuant to joint marketing arrangements with other persons;
(u) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property in each case in the ordinary course of business for the purpose of speculating therewith, to the extent such purchases and acquisitions constitute Investments;
(v) other
Investments made after the Closing Date in an aggregate amount at any time outstanding not exceeding the greater of $3570,000,000
and 35.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04;provided
as required hereunder;
(w) [Reserved];
(x) [Reserved];
(y) additional Investments; provided that both immediately before such Investment is made and immediately after giving effect thereto, the Payment Conditions shall be satisfied;
(z) bonds secured by assets leased to and operated by the Borrowers or any Subsidiary that were issued in connection with the financing of such assets so long as a Borrower or any Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;
(aa) any Investment
by any Captive Insurance Subsidiary in connection with the provision of insurance to Borrower Holdco or any of its Subsidiaries,
which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law,
rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance
Subsidiary or its business, as applicable; and
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(bb) Investments in an aggregate amount
outstanding at any time not to exceed the amount of Excluded Contributions (less the aggregate amount of Restricted Payments made
pursuant to Section 7.06(p)7.06(p)
and payments made pursuant to Section 7.09(b)).7.09(b));
and
(cc) additional Investments in an amount not to exceed any available Restricted Payment capacity under Section 7.06(l) (provided, that such use shall reduce the applicable Restricted Payment capacity on a dollar-for-dollar basis).
For purposes of the definition of “Unrestricted
Subsidiary” and Section 7.047.04
only, (i) “Investment” shall include the portion (proportionate to theapplicable
Borrower’s equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of Borrower Holdco
at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Unrestricted
Subsidiary as a Subsidiary, the applicable Borrower shall
be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal
to (x) the aggregate amount of the Loan Parties’ “Investment” in such Unrestricted Subsidiary at the time
of such redesignation less (y) the portion (proportionate to the Borrowers’ equity interest in such Unrestricted Subsidiary)
of the fair market value of the net assets of such Unrestricted Subsidiary at the time of such redesignation, and (ii) any
property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith
by the Lead Borrower) at the time of such transfer. The amount of any Investment outstanding at any time shall be the original
cost of such Investment, reduced (at the Lead Borrower’s option) by any dividend, distribution, interest payment, return
of capital, repayment or other amount or value received in respect of such Investment.
If any Investment pursuant to clause (v)
or (y) above, or Section 7.06(l),7.06(l),
as applicable, is made in any Person that is not a Loan Party and such Person thereafter (A) becomes a Loan Party or (B) is merged
or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, a Loan Party, then
such Investment shall thereafter be deemed to have been made pursuant to clause (a) above, and not clause (v) or (y) above, or
Section 7.06(l),7.06(l),
as applicable.
7.05 Mergers, Consolidations, Sales of Assets and Acquisitions.
Merge into, or consolidate or amalgamate
with, any other person, or permit any other person to merge into or consolidate with it, or sell, transfer or otherwise dispose
of (in one transaction or in a series of transactions) all or any part of its assets (whether now owned or hereafter acquired),
or issue, sell, transfer or otherwise dispose of any Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire
(in one transaction or a series of transactions) all or any substantial part of the assets of any other person or any division,
unit or business of any other person, except that this Section 7.057.05
shall not prohibit the following (collectively, “Permitted Dispositions”):
(a) (i) the purchase and sale of inventory in the ordinary course of business, (ii) the acquisition or lease (pursuant to an operating lease) of any other asset in the ordinary course of business, (iii) the sale of surplus, obsolete, damaged or worn out equipment or other property in the ordinary course of business or (iv) the Disposition of Permitted Investments;
(b) if
at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would
result therefrom, (i) the merger, consolidation or amalgamation of any Subsidiary into (or with) Borrower Holdco or the Lead Borrower
in a transaction in which Borrower Holdco or the Lead Borrower, as applicable, is the survivor, (ii) the merger, consolidation
or amalgamation of any Subsidiary into or with any Subsidiary of Borrower Holdco that is a Loan Party in a transaction in which
the surviving or resulting entity is a Subsidiary of Borrower Holdco that is a Loan Party and, in the case of each of clauses
(i) and (ii), no person other than Borrower Holdco, the Lead Borrower or another Loan Party receives any consideration, (iii)
the merger, consolidation or amalgamation of any Subsidiary that is not a Loan Party into or with any other Subsidiary that is
not a Loan Party, (iv) the liquidation or dissolution or change in form of entity of any Excluded Subsidiary if the Lead Borrower
determines in good faith that such liquidation, dissolution or change in form is in the best interests of the Lead Borrower and
is not materially disadvantageous to the Lenders or (v) the merger, consolidation or amalgamation of any Subsidiary of Borrower
Holdco (other than the Lead Borrower) with or into any other person in order to effect an Investment permitted under Section
7.047.04
so long as the continuing or surviving person shall be a Subsidiary of Borrower Holdco that is a Loan Party if the
merging, consolidating or amalgamating Subsidiary was a Loan Party and which, together with each of its Subsidiaries, shall have
complied with the requirements of Section 6.016.01;
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(c) sales, transfers, leases or other Dispositions to Borrower Holdco or any of its Subsidiaries (upon voluntary liquidation or otherwise);
(d) dispositions by the Borrowers to CIT of Accounts of the Borrowers, in accordance with the terms and conditions of the CIT Deferred Purchase Factoring Agreement;
(e) Investments
permitted by Section 7.047.04,
Permitted Encumbrances and Restricted Payments permitted by Section 7.067.06;
(f) the sale of defaulted receivables in the ordinary course of business and not as part of an accounts receivables financing transaction;
(g) Permitted Business Acquisitions;
(h) leases, nonexclusive licenses, or nonexclusive subleases or sublicenses of any real or personal property in the ordinary course of business;
(i) Dispositions
that satisfy both of the following requirements: (i) such Loan Party or such Subsidiary receives consideration (including by way
of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such
Disposition at least equal to the fair market value of the shares and assets subject to such Disposition, as such fair market value
(on the date a legally binding commitment for such Disposition was entered into) may be determined in good faith by the Lead Borrower
and (ii) in the case of any Disposition (or series of related Dispositions) having a fair market value (on the date a legally binding
commitment for such Disposition was entered into) in excess of $25the greater of
$50,000,000 or moreand
2.2% of the Consolidated Total Assets, at least 75.00% of the consideration therefor (excluding, in the case of a Disposition
(or series of related Dispositions), any consideration by way of relief from, or by any other Person assuming responsibility for,
any liabilities, contingent or otherwise, that are not Indebtedness) received by such Loan Party or such Subsidiary is in the form
of cash; provided that if (x) more than five percent (5%) of assets of the type which may be included in the Borrowing Base
(regardless of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section
7.05(i),7.05(i),
the Borrowers shall deliver an updated Borrowing Base Certificate to the Agent, prepared on a pro forma basis after giving effect
to such Disposition and/or (y) more than ten percent (10%) of assets of the type which may be included in the Borrowing Base (regardless
of eligibility) are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(i),7.05(i),
the Agent shall have the ability to conduct an updated appraisal of the assets included on the Borrowing Base at the expense of
the Loan Parties (but which appraisal shall not, for the avoidance of doubt, be counted as one of the appraisals performed pursuant
to Section 6.076.07
hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties);
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(j) bulk
sales or other Dispositions of the Inventory of a Loan Party not in the ordinary course of business in connection with Store closings,
at arm’s length; provided, that such Store closures and related Inventory Dispositions
shall not exceed (i) in any Fiscal Year of the Parent and its Subsidiaries, 5% of the number of the Loan Parties’ Stores
as of the beginning of such Fiscal Year (net of new Store openings) and (ii) in the aggregate from and after the Closing Date,
10% of the number of the Loan Parties’ Stores in existence as of the Closing Date (net of new Store openingsif
(x) more than five percent (5%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility) are
Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(j), the Borrowers shall
deliver an updated Borrowing Base Certificate to the Agent, prepared on a pro forma basis after giving effect to such Disposition
and/or (y) more than ten percent (10%) of assets of the type which may be included in the Borrowing Base (regardless of eligibility)
are Disposed of pursuant to a single transaction or a series of related transactions under this Section 7.05(j), the Agent shall
have the ability to conduct an updated appraisal of the assets included on the Borrowing Base at the expense of the Loan Parties
(but which appraisal shall not, for the avoidance of doubt, be counted as one of the appraisals performed pursuant to Section 6.07
hereof for purposes of determining reimbursement of the costs and expenses thereof by the Loan Parties); provided,
further that all sales of Inventory in connection with Store closings shall be in accordance with liquidation agreements
and with professional liquidators reasonably acceptable to the Agent;
(k) any other Permitted Asset Dispositions; and
(l) the creation or granting of any Lien permitted under this Agreement.
For the purposes of Section 7.05(i)(ii), the following are deemed to be cash: (1) Permitted Cash Equivalent Investments and cash equivalents, (2) the assumption of Indebtedness of the Lead Borrower (other than Disqualified Stock of the Borrower) or any Subsidiary and the release of the Lead Borrower or such Subsidiary from all liability on payment of the principal amount of such Indebtedness in connection with such Disposition, (3) Indebtedness of any Subsidiary that is no longer a Subsidiary as a result of such Disposition, to the extent that the Lead Borrower and each Subsidiary are released from any Guarantee of payment of the principal amount of such Indebtedness in connection with such Disposition, (4) securities received by any Borrower or any Subsidiary from the transferee that are converted by the Lead Borrower or such Subsidiary into cash within 180 days, (5) consideration consisting of Indebtedness of the Lead Borrower or any Subsidiary, (6) Additional Assets, and (7) any Designated Non-Cash Consideration received by the Lead Borrower or any of its Subsidiaries in an Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (7), not to exceed an aggregate amount at any time outstanding equal to the greater of $40,000,000 and 20.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial Statements have been provided as required hereunder (with the fair market value of each item of Designated Non-Cash Consideration being measured on the date a legally binding commitment for such Disposition (or, if later, for the payment of such item) was entered into and without giving effect to subsequent changes in value).
7.06 Restricted Payments.
Declare, pay, or otherwise make any Restricted Payments, directly or indirectly, except the following:
(a) Restricted
Payments to Borrower Holdco, the Lead Borrower or any other Subsidiary of Borrower Holdco (or, in the case of non-wholly owned
Subsidiaries, to Borrower Holdco and to each other owner of Equity Interests of such Subsidiary on a pro rata basis (or more favorable
basis from the perspective of Borrower Holdco, the Lead Borrower or such Subsidiary) based on their relative ownership interests
so long as any repurchase of its Equity Interests from a person that is not Borrower Holdco or a Subsidiary of Borrower Holdco
is permitted under Section 7.047.04);
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(b) Restricted
Payments to permit any Parent Entity, directly or indirectly, to (i) pay operating, overhead, legal, accounting and other
professional fees and expenses (including directors’ fees and expenses and administrative, legal, accounting, consulting, filings and similar expenses), (ii) pay fees and expenses related to any public offering or private placement of debt or
equity securities of any Parent Entity whether or not consummated or any Investment permitted hereunder, (iii) pay franchise
taxes and other fees, taxes and expenses in connection with such Parent Entity’s ownership, directly or indirectly, of
the Lead Borrower or the maintenance of its legal existence, or (iv) make payments permitted by Section 7.077.07
(other than Section 7.07(e)),7.07(e)),
or (v) pay customary salary, bonus and other compensation
and benefits payable to, and indemnities provided on behalf of, full
time employees of such Parent Entity;
(c) Restricted
Payments to a Parent Entity if it files a consolidated U.S. federal or combined or unitary state tax return that includes Borrower
Holdco and its Subsidiaries (or the taxable income thereof), in each case, in an amount not to exceed the amount that Borrower
Holdco and its Subsidiaries would have been required to pay in respect of federal, state or local taxes (as the case may be) in
respect of such Fiscal Year if Borrower Holdco and its Subsidiaries paid such taxes directly as a stand-alone taxpayer (or stand-alone
group));
provided such amounts are actually used to pay such taxes promptly after such Restricted Payment is made;
(d) Restricted
Payments to a Parent Entity, the proceeds of which are used, directly or indirectly, to purchase or redeem, the Equity Interests
of such Parent Entity (including any options, warrants or other rights in respect thereof) held by Management Investors; provided
that the aggregate amount of such purchases or redemptions under this clause (d) shall not exceed the sum of (x) (i) $12,500,000, the greater of $25,000,000 and 9.25% of Consolidated EBITDA for the
most recently ended four Fiscal Quarter period for which Required Financial Statements have been provided as required hereunder,
plus (ii) $37,500,000, plus (iiiplus (ii)
$12,500,000 multiplied by the number of calendar years that have commenced since the Closing Date plus (iiy)
the net cash proceeds received by the Borrowers since the Closing Date from, or as a capital contribution from, the issuance or
sale to Management Investors of Equity Interests (including any options, warrants or other rights in respect thereof), plus
(iiiz) the
cash proceeds of key man life insurance policies received by any Borrower or any Subsidiary (or by a Parent Entity and contributed
to a Borrower) since the Closing Date; provided that any cancellation of Indebtedness owing to any Borrower or any Subsidiary
by any Management Investor in connection with any repurchase or other acquisition of Equity Interests (including any options, warrants
or other rights in respect thereof) from any Management Investor shall not constitute a Restricted Payment for purposes of this
covenant or any other provision of this Agreement;
(e) non-cash repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f) a Restricted Payment in the form of a dividend not to exceed $225,000,000 to be made not later than twelve (12) Business Days following the Closing Date, solely with proceeds of the Term Loan Facility (the “Closing Date Dividend”);
(g) Restricted Payments to allow any Parent Entity to make payments in cash, in lieu of the issuance of fractional shares, upon the exercise of warrants or upon the conversion or exchange of Equity Interests of any such person;
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(h) after a Public Offering, Restricted Payments to any Parent Entity in an amount equal to 6.0% per annum of the Net Proceeds received from any public offering of the Equity Interests of any Parent Entity that are contributed to Borrower Holdco or a Borrower;
(i) Restricted Payments to pay (i) monitoring, consulting, management, transaction, advisory, termination or similar fees payable to any Permitted Holder or any of their respective Affiliates and (ii) indemnities, reimbursements and reasonable and documented out of pocket fees and expenses of Permitted Holders or any of their respective Affiliates in connection therewith;
(j) any purchase, redemption, repurchase, defeasance or other acquisition or retirement of Equity Interests of the Lead Borrower or any Junior Indebtedness made by exchange (including any such exchange pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of the issuance of fractional shares) for, or out of the proceeds of the issuance or sale of, Equity Interests of the Lead Borrower (other than Disqualified Stock and other than Equity Interests issued or sold to a Subsidiary) or a capital contribution to the Lead Borrower;
(k) any
dividend paid or redemption made within 60 days after the date of declaration thereof or of the giving of notice thereof, as applicable,
if at such date of declaration or the giving of such notice, such dividend or redemption would have complied with this Section
7.06;7.06;
(l) Restricted
Payments (including loans or advances) in an aggregate amount outstanding at any time, not to exceed an amount (net of repayments
of any such loans or advances) equal to (i) the greater of $3050,000,000
and 30.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder minus (ii) any payments made pursuant to Section 7.09(b)(7.09(b)(vi);
(m) dividends or other distributions of Equity Interests, Indebtedness or other securities of Unrestricted Subsidiaries;
(n) [Reserved];any
dividend or other distribution or payment for purposes of making AHYDO Catch-Up Payments related to Indebtedness of the Loan Parties;
(o) additional Restricted Payments; provided that both immediately before such Restricted Payment is made and immediately after giving effect thereto, the Payment Conditions are satisfied; and
(p) Restricted
Payments in an aggregate amount outstanding at any time not to exceed the amount of Excluded Contributions (less the aggregate
amount of Investments made pursuant to Section 7.04(bb)7.04(bb)
and payments made pursuant to Section 7.09(b)).7.09(b)).
The Lead Borrower, in its sole discretion, may classify any
Investment or other Restricted Payment as being made in part under one of the clauses or subclauses of this Section 7.077.07
(or, in the case of any Investment, the clauses or subclauses of Section 7.04)7.04)
and in part under one or more other such clauses or subclauses (or, as applicable, clauses or subclauses).
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7.07 Transactions with Affiliates.
Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with,
any of its Affiliates, in each case involving aggregate consideration in excess of $10,000,000, unless (x) the terms of such transaction
are not materially less favorable to the applicable Loan Party or Subsidiary, as the case may be, than those that could be obtained
at the time in a transaction with a Person who is not such an Affiliate and (y) if such transaction involves aggregate consideration
in excess of $25,000,000, the terms of such transaction have been approved by a majority of the board of directors of such Loan
Party or Subsidiary. For purposes of this Section 7.07,7.07,
any such transaction shall be deemed to have satisfied the foregoing requirements if (1) such transaction is approved
by a majority of the Disinterested Directors or (2) in the event there are no Disinterested Directors, a fairness opinion is provided
by a nationally recognized appraisal or investment banking firm with respect to such transaction. Without limiting the foregoing,
this Section 7.077.07
shall not prohibit:
(a) any issuance of securities, or other payments, awards or grants which do not require or provide a cash payment therewith, securities or otherwise pursuant to, or the funding of, employment arrangements, equity purchase agreements, stock options and stock ownership plans approved by the board of directors of the Parent;
(b) loans
or advances to employees of the Lead Borrower or any of its Subsidiaries in accordance with Section 7.04;7.04;
(c) transactions between or among the Lead Borrower and any other Loan Party or any entity that becomes a Loan Party as a result of such transaction (including via merger, consolidation or amalgamation in which a Loan Party is the surviving entity);
(d) the payment of fees, reasonable out-of-pocket costs and indemnities to directors or officers of a Parent Entity or any of its Subsidiaries in the ordinary course of business (limited, in the case of a Parent Entity, to the portion of such fees and expenses that are allocable to Borrower Holdco and its Subsidiaries (which shall be 100% for so long as Parent owns no assets other than the Equity Interests in the Subsidiaries and assets incidental to the ownership of Borrower Holdco and its Subsidiaries));
(e) Restricted
Payments permitted under Section 7.067.06,
including payments to a Parent Entity;
(f) any purchase by a Loan Party of the Equity Interests of any wholly-owned Domestic Subsidiary; provided that any Equity Interests of any wholly owned Subsidiary purchased by a Loan Party shall be pledged to the Agent on behalf of the Lenders pursuant to the Security Documents;
(g) the issuance, sale or transfer of Equity Interests of Borrower Holdco or the Lead Borrower to Parent and capital contributions by Parent to Borrower Holdco or the Borrower;
(h) payments by Parent or any of its Domestic Subsidiaries pursuant to tax sharing agreements among Parent and any of its Domestic Subsidiaries on customary terms that require each party to make payments when such taxes are due or refunds received of amounts equal to the income tax liabilities and refunds generated by each such party calculated on a separate return basis and payments to the party generating tax benefits and credits of amounts equal to the value of such tax benefits and credits made available to the group by such party;
(i) payments or loans (or cancellation of loans) to employees or transactions with employees, officers, or directors in the ordinary course of business;
(j) transactions
permitted by, and complying with, the provisions of Section 7.047.04
and Section 7.05(b)7.05(b);
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(k) any transaction arising out of agreements or instruments in existence on the Closing Date and set forth on Schedule 7.07, and any payments made pursuant thereto;
(l) intercompany transactions undertaken in good faith (as determined by a Responsible Officer of the Lead Borrower in good faith) for the purpose of improving the consolidated tax efficiency of Borrower Holdco and its Subsidiaries and not for the purpose of circumventing any covenant set forth herein and not materially adverse to the interests of any Credit Party;
(m) (i)
the entering into, maintaining or performance of any employment or,
consulting or
other similar service contract, collective bargaining agreement, benefit plan, program or arrangement, related trust
agreement or any other similar arrangement for or with any current or former management member, employee, officer or director
or consultant of or to the Borrowers, any Subsidiary or any Parent Entity heretofore or hereafter entered into in the ordinary
course of business, including vacation, health, insurance, deferred compensation, severance, retirement, savings or other similar
plans, programs or arrangements and (ii) any issuance, grant or award of stock, options, other equity related intrerestsinterests
or other securities, to any such management members, employees, officers, directors or consultants; and
(n) [Reserved];
(o) any issuance or sale of Equity Interests (other than Disqualified Stock) or Junior Capital or any capital contribution to Borrower Holdco, the Borrowers or any Subsidiary.
7.08 Business of Borrower Holdco and its Subsidiaries.
Notwithstanding any other provisions hereof, engage at any time in any business or business activity other than any business or business activity conducted by any Loan Party on the Closing Date and any other Related Businesses.
7.09 Limitation on Payments and Modifications of Indebtedness; Modifications of Certificate of Incorporation, By Laws and Certain Other Agreements; etc.
(a) Amend or modify in any manner materially adverse to the Lenders or the Agent, or grant any waiver or release under or terminate in any manner (if such granting or termination shall be materially adverse to the Lenders), (a) the Organization Documents of Parent, Borrower Holdco or any of their Subsidiaries or (b) the CIT Deferred Purchase Factoring Agreement;
(b) Make,
or agree or offer in writing to pay or make, directly or indirectly, any payment or other distribution in cash in respect of: (1)
any Subordinated Indebtedness or any Indebtedness secured by Liens that are subordinated to the Liens securing
the Obligations pursuant to a subordination agreement between the holders of such Indebtedness and Agent, which subordination agreement
must be in form and substance acceptable to the Agent in its sole discretion (“Junior
Indebtedness”), or (2) any;
provided, that in no event shall the Term Loan Obligations or any Permitted Refinancing in respect thereof;
be Junior Indebtedness (“Junior Indebtedness”);
except for (i) payments of regularly scheduled principal and interest, mandatory offers to repay, mandatory prepayments of principal,
premium and interest and payments of fees, expenses and indemnification obligations with respect to such Term
Loan Obligations, Junior Indebtedness or, in each case any Permitted
Refinancing in respect thereof to the extent permitted under any applicable subordination agreement, (ii) payments or distributions
in respect of all or any portion of Term Loan Obligations, Junior Indebtedness
or, in each case, any Permitted Refinancing in respect thereof with the proceeds
contributed directly or indirectly to Borrower Holdco or the Lead Borrower by Parent from the issuance, sale or exchange by Parent
of Equity
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Interests made within six (6) months prior thereto, (iii) the
conversion of any Term Loan Obligations or Junior Indebtedness to Equity Interests
of any Parent Entity, (iv) so long as no Event of Default has occurred and is continuing, the payment that is required under the
Code to prevent any Term Loan Obligations, Junior Indebtedness, or in each case,
any Permitted Refinancing in respect thereof from being treated as an “applicable high yield discount obligation” within
the meaning of Section 163(i)(l) of the Code, (v) payments in connection with a Permitted Refinancing in respect thereof, (vi)
payments in respect of Term Loan Obligations or Junior Indebtedness in an aggregate
amount outstanding at any time, not to exceed an amount (net of repayments of any such loans or advances) equal to (i) the greater
of $3050,000,000
and 30.00% of Consolidated EBITDA for the most recently ended four Fiscal Quarter period for which Required
Financial Statements have been delivered pursuant to Section 6.04provided
as required hereunder minus (ii) any Restricted Payments made pursuant to Section 7.06(l),7.06(l),
(vii) additional payments and distributions so long as both immediately before such payment or distribution is made and immediately
after giving effect thereto, the Payment Conditions are satisfied, or (viii) payments in an aggregate amount outstanding at any
time not to exceed the amount of Excluded Contributions (less the aggregate amount of Restricted Payments made pursuant to Section
7.06(p)7.06(p)
and Investments made pursuant to Section 7.04(bb));7.04(bb));
(c) Permit any Subsidiary to enter into any agreement or instrument that by its terms restricts (i) the payment of dividends or distributions or the making of cash advances to Borrower Holdco or any of its Subsidiaries that is a direct or indirect parent of such Subsidiary or (ii) the granting of Liens by Borrower Holdco or such Subsidiary pursuant to the Security Documents, in each case other than those arising under any Loan Document, except, in each case, restrictions existing by reason of:
(i) restrictions imposed by applicable law;
(ii) contractual encumbrances or restrictions under the Term Loan Facility or the Term Loan Documents;
(iii) any restriction on a Subsidiary imposed pursuant to an agreement entered into for the sale or Disposition of the Equity Interests or assets of a Subsidiary pending the closing of such sale or Disposition;
(iv) customary provisions in joint venture agreements and other similar agreements entered into in the ordinary course of business;
(v) any restrictions imposed by any agreement relating to secured Indebtedness permitted by this Agreement to the extent that such restrictions apply only to the property or assets securing such Indebtedness;
(vi) any
restrictions imposed by any agreement relating to Indebtedness incurred pursuant to Section 7.01(i),7.01(i),
to the extent such restrictions are not more restrictive, taken as a whole, than the restrictions contained herein;
(vii) customary provisions contained in leases or licenses of intellectual property and other similar agreements entered into in the ordinary course of business;
(viii) customary provisions restricting subletting or assignment of any lease governing a leasehold interest;
(ix) customary provisions restricting assignment of any agreement entered into in the ordinary course of business;
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(x) customary
restrictions and conditions contained in any agreement relating to the sale, transfer or other Disposition of any asset permitted
under Section 6.056.05
pending the consummation of such sale, transfer or other Disposition;
(xi) customary
restrictions and conditions contained in the document relating to any Lien, so long as (1) such Lien is a Permitted Encumbrance
and such restrictions or conditions relate only to the specific asset subject to such Lien and (2) such restrictions and conditions
are not created for the purpose of avoiding the restrictions imposed by this Section 7.097.09;
(xii) customary net worth provisions contained in Real Estate leases entered into by Subsidiaries, so long as the Lead Borrower has determined in good faith that such net worth provisions would not reasonably be expected to impair the ability of the Borrowers and their respective Subsidiaries to meet their ongoing obligations;
(xiii) any agreement in effect at the time any person becomes a Subsidiary, so long as such agreement was not entered into in contemplation of such person becoming a Subsidiary;
(xiv) restrictions
in agreements representing Indebtedness permitted under Section 7.017.01
of a Subsidiary of Borrower Holdco that is not a Loan Party;
(xv) customary restrictions on leases, subleases, licenses or Equity Interests or asset sale agreements otherwise permitted hereby as long as such restrictions relate to the Equity Interests and assets subject thereto;
(xvi) restrictions on cash or other deposits imposed by customers under contracts entered into in the ordinary course of business; or
(xvii) any
encumbrances or restrictions of the type referred to in Sections 7.09(c)(i)
and 7.09(c)(ii)7.09(c)(i)
and 7.09(c)(ii) imposed by any amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments or obligations referred to above so long as such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or refinancings are, in the good faith judgment of the
Borrower, no more restrictive with respect to or such Lien, dividend and other payment restrictions than those contained in the
Lien, dividend or other payment restrictions prior to such amendment, modification, restatement, renewal, increase, supplement,
refunding, replacement or refinancing; or
(d) amend or modify the Term Loan Agreement, the Term Loan Security Documents, or any other “Loan Document” (as defined in the Term Loan Agreement) in any manner which would not constitute a Permitted Refinancing.
7.10 Financial Performance Covenant.
Upon the occurrence
and during the continuance of a Covenant Compliance Event, the Borrowers shall maintain as of the last day of each Fiscal MonthQuarter,
a Consolidated Fixed Charge Coverage Ratio of not less than 1.0 to 1.0 for the most recent period of twelvefour consecutive
Fiscal MonthsQuarters at the time of occurrence of such Covenant Compliance Event for which Required
Financial Statements have been or haveprovided
as required to have been delivered pursuant to Section 6.04,hereunder, and
each subsequent twelvefour
consecutive monthFiscal
Quarter period ending during the continuance of such Covenant Compliance Event.
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ARTICLE VIIA
BORROWER HOLDCO COVENANT
Borrower Holdco covenants and agrees with
each Lender that, so long as this Agreement shall remain in effect and until all Obligations (other than Obligations in respect
of Cash Management Services and contingent indemnification and reimbursement obligations that are not yet due and payable and for
which no claim has been asserted) have been paid in full and all Letters of Credit and Commitments have expired or been terminated
or cash collateralized on terms satisfactory to the L/C Issuer, unless the Required Lenders shall otherwise consent in writing,
(a) Borrower Holdco will not create, incur, assume or permit to exist any Lien (other than Liens of a type described in Sections
7.02(c)7.02(c) and (l)) on any
of the Equity Interests issued by Borrower Holdco other than the Liens created under the Loan Documents, the Term Loan Documents
and any Permitted Refinancing thereof, (b) Borrower Holdco shall do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence; provided that so long as no Event of Default exists or would result
therefrom, Borrower Holdco may merge with any other person, (c) Borrower Holdco will otherwise maintain its passive holding company
status; provided that notwithstanding the foregoing, Borrower Holdco shall be permitted to be a borrower or issuer of any
Indebtedness permitted under this Agreement, a Loan Party of any Indebtedness permitted under this Agreement, grant liens in connection
with the foregoing except as prevented by clause (a) above, and take all other actions permitted or required under the Loan Documents,
the Term Loan Facility (or documents evidencing any Permitted Refinancing thereof), the making of Restricted Payments to the extent
such Restricted Payments are permitted to be made to it under Section 7.067.06,
and other activities incidental to compliance with applicable laws and legal, tax and accounting matters related thereto and activities
relating to employees; provided, further, that notwithstanding the foregoing or any other restriction in this Agreement,
Borrower Holdco may liquidate, wind up or dissolve itself, in connection with a restructuring whereby a newly formed wholly owned
Domestic Subsidiary of Parent will directly own 100% of the Equity Interests of the Lead Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default.
In case of the happening of any of the following (each an “Event of Default”):
(a) any representation or warranty made or deemed made by the Borrowers or any other Loan Party herein or in any other Loan Document or in any amendment, modification or supplement hereto or any certificate or document delivered pursuant hereto or thereto or in completing any request for a Committed Revolving Loan via the Portal shall prove to have been false or misleading in any material respect when so made or deemed made, and shall have continued unremedied for a period of five (5) Business Days thereafter;
(b) default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof, at a date fixed for prepayment thereof, by acceleration thereof or otherwise;
(c) default
shall be made in the payment of any interest on any Loan or the L/C Obligations or in the payment of any fee or any other
amount (other than an amount referred to in clause (b) of this Section 8.018.01)
due under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied
for a period of five (5) Business Days;
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(d) default
shall be made in the due observance or performance by the Borrowers or any other Loan Party of any covenant, condition or agreement
contained in (i) Section 6.01(a), 6.04, 6.05(a), 6.07, 6.08, 6.11, 6.15 or in Article
VII or Article VIIA or (ii) Section 6.02 and Section 6.056.01(a),
6.04, 6.05(a), 6.07, 6.08, 6.11, 6.15 or in Article VII or Article VIIA or (ii) Section 6.02 and Section 6.05 (other
than clause (a) thereof) and such default shall continue unremedied for a period of five (5) Business Days;
(e) default
shall be made in the due observance or performance by the Lead Borrower or any other Loan Party of any covenant, condition or agreement
contained in any Loan Document (other than those specified in clauses (b), (c) and (d) of this Section 8.018.01)
(in each case solely to the extent applicable to such Person) and such default shall continue unremedied for a period of thirty
(30) days to duly observe or perform any such covenant, condition or agreement) after the Lead Borrower’s receipt of notice
thereof from the Agent or Required Lenders; provided, however, for the purposes of determining whether an Event of
Default has occurred hereunder to the extent such Event of Default arises as a result of any payment defaults under any Cash Management
Services or Bank Products, such defaults shall not constitute an Event of Default hereunder unless such payment defaults are for
amounts in excess of $1,000,000 in the aggregate;
(f) Any
Loan Party or any of its Subsidiaries shall (i) default in (x) any payment of principal of or interest on any Material Indebtedness
or (y) any payment of any Guarantee of Material Indebtedness, beyond the period of grace, if any, provided in the instrument or
agreement under which such Material Indebtedness or Guarantee was created; or (ii) default in the observance or performance of
any other agreement or condition relating to any Material Indebtedness or Guarantee of any Material Indebtedness or contained in
any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit the holder or holders of such Material Indebtedness or beneficiary
or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice or lapse of time if required, such Material Indebtedness to become due prior to its stated
maturity or such Guarantee to become payable (an “Acceleration”), and such time shall have lapsed and, if any
notice (a “Default Notice”) shall be required to commence a grace period or declare the occurrence of an event
of default before notice of Acceleration may be delivered, such Default Notice shall have been given and (in the case of the preceding
clause (i) or (ii)) such default, event or condition shall not have been remedied or waived by or on behalf of the holder or holders
of such Material Indebtedness or Guarantee thereof (provided that the preceding clause (ii) shall not apply to (x) secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale
or transfer is permitted hereunder or (y) any termination event or equivalent event pursuant to the terms of any Swap Contract
unless the Swap Termination Value exceeds $2550,000,000);
(g) a Change of Control shall have occurred;
(h) Reserved;
(i) If
(i) any Loan Party or any of its Subsidiaries shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts (excluding, in each case, the solvent liquidation or reorganization of any Foreign Subsidiary of
the Parent that is not a Loan Party), or (B) seeking appointment of a receiver, interim receiver, receivers, receiver and
manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets,
or any Loan Party or any of its Subsidiaries shall make a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Loan Party or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment
or (B) remains undismissed, undischarged, unstayed or unbonded for a period of 60 days; or (iii) any Loan Party or any of its
Subsidiaries shall file an answer admitting the material allegations of a petition filed against it in any such proceeding;
or (iv) there shall be commenced against any Loan Party or any of its Subsidiaries any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or (v) any Loan Party or any of itsSubsidiariesits
Subsidiaries shall take any corporate or other similar organizational action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), (iii) or (iv) above; or (vi) any
Loan Party or any of its Subsidiaries shall be generally unable to, or shall admit in writing its general inability to, pay
its debts as they become due; or
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(j) One
or more judgments or decrees shall be entered against the Borrowers, and Loan Party or any of their respective Subsidiaries involving
in the aggregate at any time a liability (net of any insurance or indemnity payments actually received in respect thereof prior
to or within 60 days from the entry thereof, or to be received in respect thereof in the event any appeal thereof shall be unsuccessful)
of $2550,000,000
or more, and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof;
(k) (i)
Any failure to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Loan Party, any Subsidiary or any Commonly Controlled Entity, (ii) any Person shall engage in any “prohibited transaction”
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is in the
reasonable opinion of the Agent likely to result in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Single Employer Plan shall terminate for purposes of Title IV of ERISA other than a standard termination pursuant to Section
4041(b) of ERISA, or (v) either of a Loan Party or
any Commonly Controlled Entity shall, or in the reasonable opinion of the Agent is reasonably likely to, incur any liability in
connection with a withdrawal from, or the Insolvency of, a Multiemployer Plan ,or (vi) any other
event or condition shall occur or exist with respect to a Plan or Foreign Plan; and in each case in clauses (ii)
through (vi) above, such event or condition, together with all other such events or conditions, if any, couldwould
be reasonably expected to result in a Material Adverse Effect; or
(l) (i) any material provision of any Loan Document shall cease to be, or be asserted in writing by any Loan Party or any of their Subsidiaries not to be, for any reason, to be a legal, valid and binding obligation of any party thereto, (ii) any security interest purported to be created by any Security Document and to extend to assets that are of the type which may be included in the Borrowing Base (regardless of eligibility) or otherwise are not immaterial to any Loan Party and their Subsidiaries on a consolidated basis shall cease to be, or shall be asserted in writing by the Lead Borrower or any other Loan Party not to be, a valid and perfected security interest (perfected as or having the priority required by this Agreement or the relevant Security Document and subject to such limitations and restrictions as are set forth herein and therein) in the securities, assets or properties covered thereby, other than from the failure of the Agent (or the Term Agent) to maintain possession of certificates actually delivered to it representing securities pledged under a Security Document or to file Uniform Commercial Code continuation statements or take the actions described on Schedule 5.04 and except to the extent that such loss is covered by a lender’s title insurance policy and the Agent shall be reasonably satisfied with the credit of such insurer, or (iii) the Guarantees pursuant to the Security Documents by any Loan Party of any of the Obligations shall cease to be in full force and effect (other than in accordance with the terms thereof), or shall be asserted in writing by Parent or any Loan Party not to be in effect or not to be legal, valid and binding obligations;
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(m) except as otherwise expressly permitted hereunder, any Loan Party shall take any action to suspend the operation of its business in the ordinary course, liquidate all or a material portion of its assets or Store locations, or employ an agent or other third party to conduct a program of closings, liquidations or “Going-Out-Of-Business” sales of any material portion of its business;
(n) (i) the subordination provisions of the documents evidencing or governing any Subordinated Indebtedness (the “Subordination Provisions”) shall, in whole or in part, terminate, cease to be effective or cease to be legally valid, binding and enforceable against any holder of the applicable Subordinated Indebtedness; or (ii) any Borrower or any other Loan Party shall, directly or indirectly, disavow or contest in any manner (A) the effectiveness, validity or enforceability of any of the Subordination Provisions, (B) that the Subordination Provisions exist for the benefit of the Credit Parties, or (C) that all payments of principal of or premium and interest on the applicable Subordinated Indebtedness, or realized from the liquidation of any property of any Loan Party, shall be subject to any of the Subordination Provisions; or
(o) there shall occur (i) any uninsured damage to, theft or destruction of, any Collateral or other assets or properties of the Loan Parties having an aggregate fair market value in excess of $15,000,000 unless, at such time, Availability minus the aggregate fair market value of the Collateral subject to such damage, theft or destruction is greater than fifteen percent (15%) of the Loan Cap, or (ii) damage, theft or destruction of any Collateral or other assets or properties of the Loan Parties that has had or could reasonably be expected to have a Material Adverse Effect;
then, (i) in every such event (other than
an event with respect to the Borrowers described in clause (i) of this Section 8.018.01),
and at any time thereafter during the continuance of such event, the Agent, at the request of the Required Lenders, shall, by
notice to the Lead Borrower, take any or all of the following actions, at the same or different times: (A) terminate forthwith
the Commitments, (B) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal
of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties, anything
contained herein or in any other Loan Document to the contrary notwithstanding, (C) if the Loans have been declared due and payable
pursuant to clause (B) above, demand cash collateral pursuant to Section 2.03(g)2.03(g) and
(D) exercise all rights and remedies granted to it under any Loan Document and all of its rights under any other applicable law
or in equity and (ii) in any event with respect to the Borrowers described in clause (i) of this Section 8.018.01,
the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable
and the Agent shall be deemed to have made a demand for cash collateral to the full extent permitted under Section 2.03(g)2.03(g),
without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties,
anything contained herein or in any other Loan Document to the contrary notwithstanding.
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Solely for the purposes of determining whether an Event of Default
has occurred under Section 8.01 (i)8.01
(i), any reference in any such Section to any Subsidiary shall be deemed not to include any Immaterial Subsidiary, and,
for purposes of determining whether an Event of Default has occurred under Section 8.01(k),8.01(k),
an Unrestricted Subsidiary will be deemed to be a Subsidiary.
8.02 Right to Cure.
Notwithstanding anything to the contrary
contained in Section 8.018.01,
in the event that the Loan Parties fail (or, but for the operation of this Section 8.028.02,
would fail) to comply with the Financial Performance Covenant, until the expiration of the 10th Business Day subsequent
to the date the Required Financial Statements are required to be delivered, Borrower Holdco shall have the right to issue Qualified
Equity Interests for cash or otherwise receive cash contributions to the capital of Borrower Holdco, and, in each case, to contribute
any such cash to the capital of the Lead Borrower (collectively, the “Cure Right”) and, upon the receipt by
the Lead Borrower of such cash (the “Cure Amount”) pursuant to the exercise by Borrower Holdco of such Cure
Right, the Financial Performance Covenant shall be recalculated giving effect to a pro forma adjustment by which Consolidated EBITDA
shall be increased with respect to such applicable Fiscal Month and any 12 Fiscal Month period that contains such Fiscal Month,
solely for the purpose of measuring the Financial Performance Covenant and not for any other purpose under this Agreement, by an
amount equal to the Cure Amount. The resulting increase to Consolidated EBITDA from the application of a Cure Amount shall not
result in any adjustment to Consolidated EBITDA or any other financial definition for any purpose under this Agreement other than
for purposes of calculating the Financial Performance Covenant. In each 12 Fiscal Month period there shall be at least two fiscal
quarters in which the Cure Right is not exercised and the Cure Right may not be exercised more than five times during the term
of this Agreement and, for purposes of this Section 8.028.02,
the Cure Amount shall be no greater than the amount required for purposes of complying with the Financial Performance Covenant.
If, after giving effect to the adjustments in this Section 8.028.02,
the Lead Borrower shall then be in compliance with the requirement of the Financial Performance Covenant, the Lead Borrower shall
be deemed to have satisfied the requirements of the Financial Performance Covenant as of the relevant date of determination with
the same effect as though there had been no failure to comply therewith at such date, and the applicable breach of the Financial
Performance Covenant but for no other purposes under this Agreement. The Lead Borrower shall be
required to apply the Cure Amount to prepay outstanding Committed Revolving Loans.
8.03 Remedies Upon Events of Default.
If any Event of Default occurs and is continuing:
(a) the Agent may, or, at the request of the Required Lenders shall, (A) declare the Revolving Commitments of each Revolving Lender to make Committed Revolving Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such Revolving Commitments and obligation shall be terminated, and (B) declare the unpaid principal amount of all outstanding Committed Revolving Loans, and all interest accrued and unpaid thereon, and any other Obligations related to the foregoing, to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Loan Parties; and
(b) the Agent may, or, at the request of the Required Lenders shall:
(i) require that the Loan Parties Cash Collateralize the L/C Obligations; and
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(ii) whether or not the maturity of the Obligations shall have been accelerated pursuant hereto, proceed to protect, enforce and exercise all rights and remedies of the Credit Parties under this Agreement, any of the other Loan Documents or applicable Law, including, but not limited to, by suit in equity, action at law or other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and the other Loan Documents or any instrument pursuant to which the Obligations are evidenced, and, if such amount shall have become due, by declaration or otherwise, proceed to enforce the payment thereof or any other legal or equitable right of the Credit Parties;
provided,
however, that upon the occurrence of any Event of Default with respect to any Loan Party or any Subsidiary thereof under
Section 8.01(i),8.01(i),
the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically
terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Loan Parties to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Agent or any Lender.
No remedy herein is intended to be exclusive of any other remedy and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or any other provision of Law.
8.04 Application of Funds.
After the exercise of remedies provided
for in Section 8.038.03
(or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required
to be Cash Collateralized as set forth in the proviso to Section 8.038.03),
any amounts received on account of the Obligations shall be applied by the Agent in the following order:
First,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting fees, indemnities, Credit Party Expenses
and other amounts (including fees, charges and disbursements of counsel to the Agent and amounts payable under Article
IIIArticle III) payable to the Agent;
Second,
to payment of that portion of the Obligations (excluding the Other Liabilities) constituting indemnities, Credit Party Expenses,
and other amounts (other than principal, interest and fees) payable to the Revolving Lenders and the L/C Issuer (including fees,
charges and disbursements of counsel to the respective Revolving Lenders and the L/C Issuer and amounts payable under Article
IIIArticle III), ratably among them in
proportion to the amounts described in this clause Second payable to them;
Third, to the extent not previously reimbursed by the Revolving Lenders, to payment to the Agent of that portion of the Obligations constituting principal and accrued and unpaid interest on any Permitted Overadvances;
Fourth, to the extent that Swing Line Loans have not been refinanced by a Committed Revolving Loan, payment to the Swing Line Lender of that portion of the Obligations constituting accrued and unpaid interest on the Swing Line Loans;
Fifth, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Committed Revolving Loans and other Obligations in connection therewith, and fees (including Letter of Credit Fees), ratably among the Revolving Lenders and the L/C Issuer in proportion to the respective amounts described in this clause Fifth payable to them;
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Sixth, to the extent that Swing Line Loans have not been refinanced by a Committed Revolving Loan, to payment to the Swing Line Lender of that portion of the Obligations constituting unpaid principal of the Swing Line Loans;
Seventh, to payment of that portion of the Obligations constituting unpaid principal of the Committed Revolving Loans, ratably among the Revolving Lenders in proportion to the respective amounts described in this clause Seventh held by them;
Eighth, to the Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit;
Ninth, to payment of that portion of the Obligations arising from Bank Products consisting of supply chain finance services (to the extent secured under the Security Documents) to the extent a Supply Chain Finance Reserve is in place on the Borrowing Base with respect to such Bank Products, ratably among the Credit Parties in proportion to the respective amounts described in this clause Ninth held by them;
Tenth, to payment of that portion of the Obligations arising from Cash Management Services and Bank Products not paid pursuant to clause Ninth, in each case to the extent secured under the Security Documents, ratably among the Credit Parties in proportion to the respective amounts described in this clause Tenth held by them;
Eleventh, to payment of all other Obligations (including without limitation the cash collateralization of unliquidated indemnification obligations), ratably among the Credit Parties in proportion to the respective amounts described in this clause Eleventh held by them; and
Last, the balance, if any, after all of the Obligations have been paid in full, to the Loan Parties or as otherwise required by Law.
Subject to Section 2.03(c)2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Eighth above shall be applied
to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters
of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in
the order set forth above.
ARTICLE IX
THE AGENT
9.01 Appointment and Authority.
Each of the Lenders and the Swing Line Lender hereby irrevocably appoints Wells Fargo to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof (including, without limitation, acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations), together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Agent, the Lenders and the L/C Issuer, and no Loan Party or any Subsidiary thereof shall have rights as a third party beneficiary of any of such provisions.
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9.02 Rights as a Lender.
The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though they were not the Agent and the terms “Revolving Lender” or “Revolving Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Loan Parties or any Subsidiary or other Affiliate thereof as if such Person were not the hereunder and without any duty to account therefor to the Lenders.
9.03 Exculpatory Provisions.
The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Loan Parties or any of its Affiliates that is communicated to or obtained by the Person serving as the Agent or any of its respective Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken
by it (i) with the Consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections
10.01 and 8.0310.01
and 8.03) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final and non-appealable
judgment of a court of competent jurisdiction.
The Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Agent by the Loan Parties, a Lender or the L/C Issuer. Upon the occurrence of a Default or Event of Default, the Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Applicable Lenders. Unless and until the Agent shall have received such direction, the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to any such Default or Event of Default as it shall deem advisable in the best interest of the Credit Parties. In no event shall the Agent be required to comply with any such directions to the extent that the Agent believes that its compliance with such directions would be unlawful.
The Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of
Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or the creation, perfection or priority of any Lien purported to be created by the
Security Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth
in Article IVArticle
IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Agent.
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9.04 Reliance by Agent.
The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including, but not limited to, any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Agent shall have received written notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Agent may consult with legal counsel (who may be counsel for any Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
9.05 Delegation of Duties.
The Agent may perform any and all of their respective duties and exercise their respective rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent, and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Agent.
9.06 Resignation of Agent.
The Agent may at any
time give written notice of its resignation to the Lenders and the Lead Borrower. Upon receipt of any such notice of resignation
from the Agent, the Required Lenders shall have the right to appoint a successor, which shall be a bank with an office in the
United States, or an Affiliate of any such bank with an office in the United States, which successor agent shall (unless an Event
of Default shall have occurred and be continuing) be subject to approval by the Lead Borrower (which approval shall not be unreasonably
withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the
Revolving Lenders and the L/C Issuer, appoint a successor Agent meeting the qualifications set forth above, which successor agent
shall (unless an Event of Default shall have occurred and be continuing) be subject to approval by the Lead Borrower (which approval
shall not be unreasonably withheld or delayed); provided, that if the Agent shall notify the Lead Borrower and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with
such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any Collateral held by the Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is
appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Agent shall instead
be made by or to each Lender and the L/C Issuer directly, until such time as the Applicable Lenders appoint a successor Agent
as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and
the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the Borrowers to a successor Agent shall
be the same as those payable to its predecessor unless otherwise agreed between the Lead Borrower and such successor. After the
retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section
10.0410.04
shall continue in effect for the benefit of such retiring Agent, its sub agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting in such capacity hereunder.
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Any resignation by Wells Fargo as Agent pursuant to this Section shall also constitute its resignation as Swing Line Lender and the resignation of Wells Fargo as L/C Issuer. Upon the acceptance of a successor’s appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
9.07 Non-Reliance on Agent, and Other Lenders.
Each Lender and the L/C Issuer acknowledges
that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on
such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and the L/C Issuer also acknowledges that it will, independently and without reliance upon the Agent or any other Lender
or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue
to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder. Except as provided in Section 9.129.12,
the Agent shall not have any duty or responsibility to provide any Credit Party with any other credit or other information concerning
the affairs, financial condition or business of any Loan Party that may come into the possession of the Agent.
9.08 No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or Syndication Agent listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity as the Agent, a Lender or the L/C Issuer hereunder.
9.09 Agent May File Proofs of Claim.
In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Agent shall have made any demand on the Loan Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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(a) to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the L/C Issuer, the Agent and the other Credit Parties (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C Issuer, the Agent, such Credit Parties and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer the Agent and such Credit Parties under Sections 2.03(i),
2.03(j) and 2.03(k) as applicable, 2.09
and 10.042.03(i),
2.03(j) and 2.03(k) as applicable, 2.09 and 10.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to
make such payments to the Agent and, if the Agent shall consent to the making of such payments directly to the Lenders and the
L/C Issuer, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent
and its respective agents and counsel, and any other amounts due the Agent under Sections 2.092.09
and 10.0410.04.
Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer or to authorize the Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
9.10 Collateral and Guaranty Matters.
The Credit Parties irrevocably authorize the Agent, at its option and in its discretion,
(a) to
release any Lien on any property granted to or held by the Agent under any Loan Document (i) upon termination of the Aggregate
Revolving Commitments and payment in full, in cash, of all Obligations, and the expiration, termination or Cash Collateralization
of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under
any other Loan Document, or (iii) if approved, authorized or ratified in writing by the Applicable Lenders in accordance with Section
10.0110.01;
(b) to subordinate any Lien on any property granted to or held by the Agent under any Loan Document to the holder of any Lien on such property that is permitted by clause (h), (t) or (u) of the definition of Permitted Encumbrances; and
(c) to release any Guarantor from its obligations under the Facility Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.
Upon request by the Agent at any time,
the Applicable Lenders will confirm in writing the Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Facility Guaranty pursuant to this Section
9.10.9.10.
In each case as specified in this Section 9.109.10, the
Agent will, at the Loan Parties’ expense, execute and deliver to the applicable Loan Party such documents as such Loan Party
may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under
the Security Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the
Facility Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.109.10.
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9.11 Notice of Transfer.
The Agent may deem and treat a Lender
party to this Agreement as the owner of such Lender’s portion of the Obligations for all purposes, unless and until, and
except to the extent, an Assignment and Assumption shall have become effective as set forth in Section 10.0610.06.
9.12 Reports and Financial Statements.
By signing this Agreement, each Lender:
(a) agrees to furnish the Agent (i) on the Closing Date and (ii) after the occurrence and during the continuance of a Cash Dominion Event (and thereafter at such frequency as the Agent may reasonably request) with a summary of all Other Liabilities due or to become due to such Lender or its Affiliates. In connection with any distributions to be made hereunder, the Agent shall be entitled to assume that no amounts are due to any Lender or its Affiliates on account of Other Liabilities unless the Agent has received written notice thereof from such Lender;
(b) is deemed to have requested that the Agent furnish such Lender, promptly after they become available, copies of all Borrowing Base Certificates and financial statements required to be delivered by the Lead Borrower hereunder and all commercial finance examinations and appraisals of the Collateral received by the Agent (collectively, the “Reports”);
(c) expressly agrees and acknowledges that the Agent makes no representation or warranty as to the accuracy of the Reports, and shall not be liable for any information contained in any Report;
(d) expressly agrees and acknowledges that the Reports are not comprehensive audits or examinations, that the Agent or any other party performing any audit or examination will inspect only specific information regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel;
(e) agrees
to keep all Reports confidential in accordance with the provisions of Section 10.0710.07
hereof; and
(f) without limiting the generality of any other indemnification provision contained in this Agreement, agrees: (i) to hold the Agent and any such other Lender preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any Credit Extensions that the indemnifying Lender has made or may make to the Borrowers, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans; and (ii) to pay and protect, and indemnify, defend, and hold the Agent and any such other Lender preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including attorney costs) incurred by the Agent and any such other Lender preparing a Report as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
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9.13 Agency for Perfection.
Each Lender hereby appoints each other Lender as agent for the purpose of perfecting Liens for the benefit of the Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable Law of the United States can be perfected only by possession.
9.14 Indemnification of Agent.
Without limiting the obligations of the Loan Parties hereunder, the Lenders hereby agree to indemnify the Agent, the L/C Issuer and any Related Party, as the case may be, ratably according to their Applicable Percentages, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent, the L/C Issuer and their Related Parties in any way relating to or arising out of this Agreement or any other Loan Document or any action taken or omitted to be taken by the Agent, the L/C Issuer and their Related Parties in connection therewith; provided, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s, the L/C Issuer’s and their Related Parties’ gross negligence or willful misconduct as determined by a final and nonappealable judgment of a court of competent jurisdiction.
9.15 Relation among Lenders.
The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Agent) authorized to act for, any other Lender.
9.16 Defaulting Lenders.
(a) If
for any reason any Lender shall become a Defaulting Lender and such failure is not cured within three (3) Business Day after receipt
from the Agent of written notice thereof, then, in addition to the rights and remedies that may be available to the other Credit
Parties, the Loan Parties’, or any other party at law or in equity (and not at limitation thereof): (i) any such Defaulting
Lender’s right to participate in the administration of, or decision-making rights related to, the Obligations, this Agreement
or the other Loan Documents shall be suspended during the pendency of such failure or refusal, (ii) any such Defaulting Lender
shall be deemed to have assigned any and all payments due to it from the Loan Parties, whether on account of outstanding Loans,
interest, fees or otherwise, to the remaining non-Defaulting Lenders for application to, and reduction of, their proportionate
shares of all outstanding Obligations, and (iii) at the option of the Agent, any amount payable to such Defaulting Lender hereunder
(whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be
retained by the Agent as cash collateral for future funding obligations of the Defaulting Lender in respect of any Loan or existing
or future participating interest in any Swing Line Loan or Letter of Credit. Such Defaulting Lender’s decision-making and
participation rights and rights to payments as set forth in clauses (i), (ii), and (iii) hereinabove shall be restored only upon
the payment by the Defaulting Lender of its Applicable Percentage of any Obligations, any participation obligation, or expenses
as to which it is delinquent, together with interest thereon at the rate set forth in Section 2.08(b)2.08(b)
hereof from the date when originally due until the date upon which any such amounts are actually paid, or otherwise cure such default
or other cause of such Lender becoming a Defaulting Lender.
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(b) The non-Defaulting Lenders shall also have the right, but not the obligation, in their respective, sole and absolute discretion, to cause the termination and assignment, without any further action by the Defaulting Lender for no cash consideration (pro rata, based on the respective Commitments of those Lenders electing to exercise such right), of the Defaulting Lender’s Commitment to fund future Loans. Upon any such purchase of the Applicable Percentage of any Defaulting Lender, the Defaulting Lender’s share in future Credit Extensions and its rights under the Loan Documents with respect thereto shall terminate on the date of purchase, and the or Defaulting Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest, including, if so requested, an Assignment and Assumption.
(c) Each Defaulting Lender shall indemnify the Agent and each non-Defaulting Lender from and against any and all loss, damage or expenses, including but not limited to reasonable attorneys’ fees and funds advanced by the Agent or by any non-Defaulting Lender, on account of a Defaulting Lender’s failure to timely fund its Applicable Percentage of a Loan or to otherwise perform its obligations under the Loan Documents.
(d) All
or any part of a Defaulting Lender’s participation in Letter of Credit and Swing Line Loans shall be reallocated among the
non-Defaulting Lenders in accordance with their respective Applicable Percentage (calculated without regard to such Defaulting
Lender’s Commitment) but only to the extent that (x) the conditions set forth in Section 4.024.02
are satisfied at the time of such reallocation (and, unless the Borrowers shall have otherwise notified the Agent at such time,
the Borrowers shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such
reallocation does not cause the aggregate revolving credit exposure (which shall include all exposure with respect to Letters of
Credit and Swing Line Loans) of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Commitment. No
reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising
from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting
Lender’s increased exposure following such reallocation.
(e) If
the reallocation described in clause (d) above cannot, or can only partially, be effected, the Borrowers shall, without prejudice
to any right or remedy available to them hereunder or under the law, (x) first, prepay Swing Line Loans in an amount equal to the
Swing Line Lenders’ fronting exposure and (y) second, Cash Collateralize the L/C Issuer’s fronting exposure in accordance
with the procedures set forth in Section 2.03(g)2.03(g).
9.17 Syndication Agent; and Co-Lead Arrangers.
Notwithstanding the provisions of this Agreement or any of the other Loan Documents, no Person who is or becomes a Syndication Agent nor any Person who is or becomes an Arranger shall have any powers, rights, duties, responsibilities or liabilities with respect to this Agreement and the other Loan Documents.
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ARTICLE X
MISCELLANEOUS
10.01 Amendments, Etc.
No amendment (including any Extension Amendment) or waiver of any provision of this Agreement or any other Loan Document, and no Consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Agent, with the Consent of the Required Lenders, and the Lead Borrower or the applicable Loan Party, as the case may be, and each such waiver or Consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:
(a) increase
the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.038.03)
without the written Consent of such Lender;
(b) as
to any Lender, postpone any date fixed by this Agreement or any other Loan Document for (i) any scheduled payment (including any
Maturity Date) or mandatory prepayment of principal, interest, fees or other amounts due hereunder or under any of the other Loan
Documents without the written Consent of such Lender entitled to such payment, or (ii) any scheduled or mandatory reduction or
termination of the Aggregate Revolving Commitments hereunder or under any other Loan Document without the written Consent of such
Lender; provided, that any Revolving Lender may extend the final expiration of its Revolving Commitment without the consent
of any other Lender in accordance with Section 2.16;2.16;
(c) as
to any Lender, reduce the principal of, or the rate of interest specified herein on, any Loan held by such Lender, or (subject
to clause (v) of the second proviso to this Section 10.0110.01)
any fees or other amounts payable hereunder or under any other Loan Document to or for the account of such Lender, without the
written Consent of each Lender entitled to such amount; provided, however, that only the Consent of the Required Lenders
shall be necessary to amend the definition of “Default Rate” as it applies to the Committed Revolving Loans
and the Swing Line Loans or to waive any obligation of the Borrowers to pay interest on the Committed Revolving Loans and the Swing
Line Loans or Letter of Credit Fees at the Default Rate;
(d) (i)
as to any Lender, change Section 2.132.13
in a manner that would alter the pro rata sharing of payments required thereby without the written Consent of such Lender or (ii)
change Section 8.048.04
without the written Consent of each Lender;
(e) change
any provision of this Section 10.0110.01
or the definition of “Applicable Lenders”, “Required Lenders” or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder, without the written Consent of each Lender included in any such definition;
(f) except as expressly permitted hereunder or under any other Loan Document, release, or limit the liability of, any Loan Party without the written Consent of each Lender;
(g) except for Permitted Dispositions, release all or substantially all of the Collateral from the Liens of the Security Documents without the written Consent of each Lender;
(h) except
for Commitment Increases provided pursuant to Section 2.15,2.15,
increase the Aggregate Revolving Commitments without the written Consent of each Lender, provided, that only the Consent
of the Required Lenders shall be required to increase the then outstanding Aggregate Revolving Commitments by an amount up to ten
(10%) percent of the then outstanding Aggregate Revolving Commitments in connection with debtor in possession financing offered
by the Agent after any of the Loan Parties becomes subject to a case under any Debtor Relief Laws;
(i) change
the definition of the term “Borrowing Base” or any component definition thereof if as a result thereof the amounts
available to be borrowed by the Borrowers would be increased without the written Consent of each
Lenderthe Supermajority Lenders;
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(j) modify the definition of Permitted Overadvance so as to increase the amount thereof or the time period for which a Permitted Overadvance may remain outstanding without the written Consent of each Lender; and
(k) except as expressly permitted herein or in any other Loan Document, subordinate the Obligations hereunder or the Liens granted hereunder or under the other Loan Documents to any other Indebtedness or Lien, as the case may be, without the written Consent of each Lender;
and, provided further, that (i) no amendment, waiver or Consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or Consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or Consent shall, unless in writing and signed by the Agent in addition to the Lenders required above, affect the rights or duties of the Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or Consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.
Notwithstanding any provision herein to the contrary, this Agreement and the other Loan Documents may be amended to cure any ambiguity, mistake, omission, defect, or inconsistency with the consent of the Lead Borrower and the Agent.
Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no provider or holder of any Bank Products or Cash Management Services shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in its capacity as a Lender, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or any Loan Party. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, only the consent of the applicable provider or holder of any Bank Products or Cash Management Services shall be required in order to amend such agreements.
If any Lender does not Consent (a “Non-Consenting
Lender”) to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the Consent
of each Lender and that has been approved by the Required Lenders, the Lead Borrower may replace such Non-Consenting Lender in
accordance with Section 10.1310.13;
provided, that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by
such Section (together with all other such assignments required by the Lead Borrower to be made pursuant to this paragraph).
10.02 Notices; Effectiveness; Electronic Communications.
(a) Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except
as provided in subsection (b)(b) below),
all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
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(i) if
to the Loan Parties,:
| Borrowers or other Loan Parties: | Floor and Decor Outlets of America, Inc. | |
| 2500 Windy Ridge Parkway, SE | ||
| Atlanta, Georgia 30339 | ||
| Attention: Trevor Lang | ||
| Telephone: (770) 421-3717 | ||
| Email: TLang@flooranddecor.com | ||
| With copies (which shall not constitute notice) to: | Kirkland & Ellis LLP | |
| 555 South Flower Street | ||
| Los Angeles, CA 90071 | ||
| Attention: David M. Nemecek, P.C. | ||
| Facsimile: (213) 680-8500 | ||
| Telephone: (213) 680-8111 | ||
| Email: david.nemecek@kirkland.com | ||
| and | ||
| Kirkland & Ellis LLP | ||
| 555 California Street | ||
| San Francisco, CA 94104 | ||
| Attention: Katie Taylor | ||
| Facsimile: (415) 439-1424 | ||
| Telephone: (415) 439-1500 | ||
| Email: katie.taylor@kirkland.com |
(ii) if to the Agent, the L/C Issuer or the Swing Line Lender, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and
(iii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire.
(iv) Notices
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received;
notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices
delivered through electronic communications to the extent provided in subsection (b)(b)
below, shall be effective as provided in such subsection (b).(b).
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(b) Electronic
Communications. Notices and other communications to the Loan Parties, the Lenders and the L/C Issuer hereunder may be
delivered or furnished by electronic communication (including e mail and Internet or intranet websites) pursuant to
procedures reasonably satisfactory to the Agent, provided that the foregoing shall not apply to notices to any Lender or the
L/C Issuer pursuant to Article IIArticle
II if such Lender or the L/C Issuer, as applicable, has notified the Agent that it is incapable of receiving
notices under such Article by electronic communication. The Agent may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of
such procedures may be limited to particular notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Loan Parties’ or the Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Loan Party, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Loan Parties, the Agent, the L/C Issuer and the Swing Line Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Lead Borrower, the Agent, the L/C Issuer and the Swing Line Lender. In addition, each Lender agrees to notify the Agent from time to time to ensure that the Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender.
(e) Reliance by Agent, L/C Issuer and Lenders. The Agent, the L/C Issuer and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Loan Parties even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Loan Parties shall indemnify the Agent, the L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Loan Parties. All telephonic notices to and other telephonic communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.
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10.03 No Waiver; Cumulative Remedies.
No failure by any Credit Party to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges provided herein and in the other Loan Documents are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Credit Party may have had notice or knowledge of such Default or Event of Default at the time.
10.04 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrowers shall pay all Credit Party Expenses.
(b) Indemnification by the Loan Parties. The Loan Parties shall indemnify the Agent (and any sub-agents thereof), each other Credit Party, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless (on an after tax basis) from, any and all losses, claims, causes of action, damages, liabilities, settlement payments, costs, and related expenses (including the reasonable and documented out-of-pocket fees, charges and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Agent (and any sub-agents thereof) and their Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit, any bank advising or confirming a Letter of Credit or any other nominated person with respect to a Letter of Credit seeking to be reimbursed or indemnified or compensated, and any third party seeking to enforce the rights of a Borrower, beneficiary, nominated person, transferee, assignee of Letter of Credit proceeds, or holder of an instrument or document related to any Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property for which any Loan Party or any of its Subsidiaries could reasonably be excepted to be subject to Environmental Liability, or any other Environmental Liability of any Loan Party or any of its Subsidiaries, (iv) any claims of, or amounts paid by any Credit Party to, a Blocked Account Bank or other Person which has entered into a control agreement with any Credit Party hereunder, or (v) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party or any of the Loan Parties’ directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by a Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrowers or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; provided that such Credit Parties shall be entitled to reimbursement for no more than one counsel (plus any local counsel) representing the Agent and one counsel representing all other Credit Parties (absent a conflict of interest in which case the Credit Parties may engage and be reimbursed for additional counsel). Paragraph (b) of this Section shall not apply with respect to Taxes, other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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(c) Reimbursement
by Lenders. Without limiting their obligations under Section 9.149.14
hereof, to the extent that the Loan Parties for any reason fail to indefeasibly pay any amount required under subsection (a)
or (b)(a) or (b) of this Section to be paid
by it, each Lender severally agrees to pay to the Agent (or any such sub-agent), the L/C Issuer or such Related Party, as the case
may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability
or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent), or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c)(c)
are subject to the provisions of Section 2.12(d)2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Loan Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable on demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of any Agent and the L/C Issuer, the assignment of any Commitment or Loan by any Lender, the replacement of any Lender, the termination of the Aggregate Revolving Commitments and the repayment, satisfaction or discharge of all the other Obligations.
10.05 Payments Set Aside.
To the extent that any payment by or on behalf of the Loan Parties is made to any Credit Party, or any Credit Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Credit Party in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Revolving Lender and the L/C Issuer severally agrees to pay to the Agent upon demand its Applicable Percentage (without duplication) of any amount relating to the Revolving Commitments or the Committed Revolving Loans so recovered from or repaid by the Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the L/C Issuer under clauses (b) and (c) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
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10.06 Successors and Assigns.
(a) Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that no Loan Party may assign or otherwise transfer any of
its rights or obligations hereunder or under any other Loan Document without the prior written Consent of the Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in
accordance with the provisions of Section 10.06(b)10.06(b),
(ii) by way of participation in accordance with the provisions of Section 10.06(d)10.06(d),
or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(f)10.06(f)
(and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d)(d)
of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Credit Parties) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this Section
(b)(b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be
subject to the following conditions:
(i) Minimum Amounts
(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, no minimum amount need be assigned; and
(B) in
any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 with respect to any assignments of
Revolving Commitments or Committed Revolving Loans, unless the Agent and, so long as no Event of Default under Section 8.01(b), (c) or (i)8.01(b),
(c) or (i) has occurred and is continuing, the Lead Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and
members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount
has been met;
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(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:
(A) the
consent of the Lead Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of
Default under Section 8.01(b), (c)
or (i)8.01(b), (c) or
(i) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate
of a Lender or an Approved Fund, or (3) such assignment is being made in connection with the sale of a Lender’s portfolio
of loans; and
(B) the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for all assignments if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and
(C) the consent of the L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the assignment of any Commitment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500, provided, however, that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver to the Agent an Administrative Questionnaire.
Subject to acceptance and recording
thereof by the Agent pursuant to subsection (c)(c) of
this Section, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case
of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement,
such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
and 10.043.01, 3.04, 3.05,
and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon
request, the Borrowers (at their expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.06(d)10.06(d).
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(c) Register. The Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Agent’s Office in the United States a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, absent manifest error, and the Loan Parties, the Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Lead Borrower and any Lender at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
Any Lender may at any time, without the consent of, or notice to, the Loan Parties or the Agent, sell participations to any
Person (other than a natural person or the Loan Parties, any of the Loan Parties’ Affiliates or Subsidiaries or any
Disqualified Institution) (each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Loan Parties, the Agent, the Lenders and the L/C Issuer
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any Participant shall agree in writing to comply with all confidentiality obligations set forth in Section 10.0710.07 as
if such Participant was a Lender hereunder. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in
the first proviso to Section 10.0110.01 that
affects such Participant. Subject to subsection (e)(e) of
this Section, the Loan Parties agree that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.053.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.06(b).10.06(b). To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.0810.08 as
though it were a Lender, provided such Participant agrees to be subject to Section 2.132.13 as
though it were a Lender. Each Lender, acting for this purpose as an agent of the Loan Parties, shall maintain at its offices
a record of each agreement or instrument effecting any participation and a register for the recordation of the names and
addresses of its Participants and their rights with respect to principal amounts and other Obligations from time to time
(each a “Participation Register”). The entries in each Participation Register shall be conclusive absent
manifest error and such Loan Parties, the Agent, the L/C Issuer and the Lenders shall treat each Person whose name is
recorded in a Participant Register as a Participant for all purposes of this Agreement (including, for the avoidance of
doubt, for purposes of entitlement to benefits under Section 3.013.01,
Section 3.043.04,
Section 3.053.05 and Section 10.0810.08).
The Participation Register shall be available for inspection by the Lead Borrower, the L/C Issuer and any Lender, at any
reasonable time and from time to time upon reasonable prior notice. No Lender shall have any obligation to disclose all or
any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s Interest in any commitments, loans, letters of credit or its other obligations under any Loan Document)
to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of
credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
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(e) Limitations
upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.043.01 or 3.04
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Lead Borrower’s prior written consent. A Participant that
would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.013.01
unless the Lead Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit
of the Loan Parties, to comply with Section 3.01(e)3.01(e)
as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures 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.
(h) Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any
time Wells Fargo assigns all of its Revolving Commitment and Committed Revolving Loans pursuant to subsection (b)(b) above,
Wells Fargo may, (i) upon thirty (30) days’ notice to the Lead Borrower and the Revolving Lenders, resign as L/C Issuer
and/or (ii) upon thirty (30) days’ notice to the Lead Borrower, Wells Fargo may resign as Swing Line Lender. In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Lead Borrower shall be entitled to appoint from among
the Revolving Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the
Lead Borrower to appoint any such successor shall affect the resignation of Wells Fargo as L/C Issuer or Swing Line Lender,
as the case may be. If Wells Fargo resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C
Issuer and all L/C Obligations with respect thereto (including the right to require the Revolving Lenders to make Base Rate
Loans pursuant to Section 2.03(e)).2.03(e)). If
Wells Fargo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with
respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to
require the Revolving Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c).2.04(c). Upon
the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be,
and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangements satisfactory to Wells Fargo to effectively assume the obligations
of Wells Fargo with respect to such Letters of Credit.
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10.07 Treatment of Certain Information; Confidentiality.
Each of the Credit Parties agrees to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, funding sources, attorneys, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Confidential Information and instructed to keep such Confidential Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to any Loan Party and its obligations, (g) with the consent of the Lead Borrower or (h) to the extent such Confidential Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to any Credit Party or any of their respective Affiliates on a non-confidential basis from a source other than the Loan Parties.
For purposes of this Section, “Confidential Information” means all information received from the Loan Parties or any Subsidiary thereof relating to the Loan Parties or any Subsidiary thereof or their respective businesses, other than any such information that is available to any Credit Party on a non-confidential basis prior to disclosure by the Loan Parties or any Subsidiary thereof, provided that, in the case of information received from any Loan Party or any Subsidiary after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Confidential Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Confidential Information as such Person would accord to its own confidential information.
Each of the Credit Parties acknowledges that (a) the Confidential Information may include material non-public information concerning the Loan Parties or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including Federal and state securities Laws.
10.08 Right of Setoff.
If an Event of Default shall have occurred and be continuing or if any Lender shall have been served with a trustee process or similar attachment relating to property of a Loan Party, each Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Agent or the Required Lenders, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrowers or any other Loan Party against any and all of the Obligations now or hereafter existing under this Agreement or any other Loan Document to such Lender or the L/C Issuer, regardless of the adequacy of the Collateral, and irrespective of whether or not such Lender or the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrowers or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify the Lead Borrower and the Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.
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10.09 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers. In determining whether the interest contracted for, charged, or received by the Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
10.10 Counterparts; Integration; Effectiveness.
This Agreement may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.014.01,
this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts
hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile, pdf., or other electronic transmission shall be as effective as delivery of
a manually executed counterpart of this Agreement.
10.11 Survival.
All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have
been or will be relied upon by the Credit Parties, regardless of any investigation made by any Credit Party or on their
behalf and notwithstanding that any Credit Party may have had notice or knowledge of any Default or Event of Default at the
time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding. Further, the provisions of Sections 3.013.01, 3.043.04, 3.053.05
and 10.0410.04 and Article
IXArticle IX shall survive and
remain in full force and effect regardless of the repayment of the Obligations, the expiration or termination of the Letters
of Credit and the Commitments or the termination of this Agreement or any provision hereof. In connection with the
termination of this Agreement and the release and termination of the security interests in the Collateral, the Agent may
require such indemnities and collateral security as they shall reasonably deem necessary or appropriate to protect the Credit
Parties against (x) loss on account of credits previously applied to the Obligations that may subsequently be reversed or
revoked, (y) any obligations that may thereafter arise with respect to the Other Liabilities and (z) any Obligations that may
thereafter arise under Section 10.0410.04.
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10.12 Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
10.13 Replacement of Lenders.
If any Lender requests compensation
under Section 3.043.04,
or if the Borrowers are required to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 3.013.01,
or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrowers may, at their sole expense and effort, upon
notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.0610.06,
all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the
Borrowers shall have paid to the Agent the assignment fee specified in Section 10.06(b)10.06(b);
(b) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.053.05)
from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrowers (in the case of
all other amounts);
(c) in
the case of any such assignment resulting from a claim for compensation under Section 3.043.04
or payments required to be made pursuant to Section 3.013.01,
such assignment will result in a reduction in such compensation or payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall 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 the Borrowers to require such assignment and delegation cease to apply.
10.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
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(b) SUBMISSION TO JURISDICTION. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE LOAN PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY CREDIT PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE LOAN PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) ACTIONS COMMENCED BY LOAN PARTIES. EACH LOAN PARTY AGREES THAT ANY ACTION COMMENCED BY ANY LOAN PARTY ASSERTING ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT SOLELY IN A COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR ANY FEDERAL COURT SITTING THEREIN AS THE AGENT MAY ELECT IN ITS SOLE DISCRETION AND CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WITH RESPECT TO ANY SUCH ACTION AND ANY COUNTERCLAIM BROUGHT BY ANY LOAN PARTY SHALL BE IN THE SAME COURT AS THE INITIAL CLAIM WAS BROUGHT.
10.15 Waiver of Jury Trial.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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10.16 No Advisory or Fiduciary Responsibility.
In connection with all aspects of each transaction contemplated hereby, the Loan Parties each acknowledge and agree that: (i) the credit facility provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Loan Parties, on the one hand, and the Credit Parties, on the other hand, and each of the Loan Parties is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, the each Credit Party is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Loan Parties or any of their respective Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the Credit Parties has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Loan Parties with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any of the Credit Parties has advised or is currently advising any Loan Party or any of its Affiliates on other matters) and none of the Credit Parties has any obligation to any Loan Party or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; (iv) the Credit Parties and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates, and none of the Credit Parties has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the Credit Parties have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each of the Loan Parties hereby waives and releases, to the fullest extent permitted by law, any claims that it may have against each of the Credit Parties with respect to any breach or alleged breach of agency or fiduciary duty.
10.17 USA PATRIOT Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender, the Agent to identify each Loan Party in accordance with the Act. Each Loan Party is in compliance, in all material respects, with the Patriot Act. No part of the proceeds of the Loans will be used by the Loan Parties, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
10.18 Foreign Asset Control Regulations.
Neither of the advance of the Loans nor the use of the proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the “Trading With the Enemy Act”) or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) (the “Foreign Assets Control Regulations”) or any enabling legislation or executive order relating thereto (which for the avoidance of doubt shall include, but shall not be limited to (a) Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)). Furthermore, none of the Borrowers or their Affiliates (a) is or will become a “blocked person” as described in the Executive Order, the Trading With the Enemy Act or the Foreign Assets Control Regulations or (b) engages or will engage in any dealings or transactions, or be otherwise associated, with any such “blocked person” or in any manner violative of any such order.
10.19 Time
of the Essence. Time is of the essence of the Loan Documents..
Time is of the essence of the Loan Documents.
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10.20 Press Releases.
(a) Each Credit Party executing this Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or other public disclosure using the name of the Agent or their Affiliates or referring to this Agreement or the other Loan Documents without at least two (2) Business Days’ prior notice to the Agent and without the prior written consent of the Agent unless (and only to the extent that) such Credit Party or Affiliate is required to do so under applicable Law and then, in any event, such Credit Party or Affiliate will consult with the Agent before issuing such press release or other public disclosure.
(b) Each Loan Party consents to the publication by the Agent or any Lender of advertising material, including any “tombstone” or comparable advertising, on its website or in other marketing materials of Agent, relating to the financing transactions contemplated by this Agreement using any Loan Party’s name, product photographs, logo, trademark or other insignia. The Agent or such Lender shall provide a draft reasonably in advance of any advertising material to the Lead Borrower for review and comment prior to the publication thereof. The Agent reserves the right to provide to industry trade organizations and loan syndication and pricing reporting services information necessary and customary for inclusion in league table measurements.
10.21 Additional
Waivers.
.
(a) The Obligations are the joint and several obligation of each Loan Party. To the fullest extent permitted by applicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement or any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Agent or any other Credit Party.
(b) The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Commitments).
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(c) To the fullest extent permitted by applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been paid in full in cash and the Commitments have been terminated. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, sue for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrowers making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
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10.22 No Strict Construction.
The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
10.23 Attachments.
The exhibits, schedules and annexes attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein, except that in the event of any conflict between any of the provisions of such exhibits and the provisions of this Agreement, the provisions of this Agreement shall prevail.
10.24 Keepwell.
Each Qualified ECP Guarantor hereby
jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed
from time to time by each other Loan Party to honor all of its obligations under the Facility Guaranty in respect of Swap Obligations
(provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.2410.24
for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.2410.24,
or otherwise under the Facility Guaranty, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer,
and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force
and effect until payment in full of the Obligations. Each Qualified ECP Guarantor intends that this Section 10.2410.24
constitute, and this Section 10.2410.24
shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for
all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
10.25 Acknowledgement and Consent to Bail-In of EEA Financing Institutions.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
10.26 Acknowledgement Regarding Any Supported QFCs.
To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any swap or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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(b) As used in this Section 10.26, the following terms have the following meanings:
“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.
“Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“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.
“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).
10.27 Amendment and Restatement.
Effective immediately upon the Closing Date, the terms and conditions of the Existing Credit Agreement shall be amended and restated as set forth herein and the Existing Credit Agreement shall be superseded by this Agreement. On the Closing Date, the rights and obligations of the parties evidenced by the Existing Credit Agreement shall be evidenced by this Agreement and the other Loan Documents and the grant of security interests and Liens in the Collateral under the Existing Credit Agreement and the other “Loan Documents” (as defined in the Existing Credit Agreement) by the Borrowers and the Guarantors party thereto shall continue under this Agreement and the other Loan Documents, and shall not in any event be terminated, extinguished or annulled but shall hereafter continue to be in full force and effect and be governed by this Agreement and the other Loan Documents. All Obligations (as defined in the Existing Credit Agreement) under the Existing Credit Agreement and the other “Loan Documents” (as defined in the Existing Credit Agreement) shall continue to be outstanding except as expressly modified by this Agreement and shall be governed in all respects by this Agreement and the other Loan Documents, it being agreed and understood that this Agreement does not constitute a novation, satisfaction, payment or reborrowing of any Obligation (as defined in the Existing Credit Agreement) under the Existing Credit Agreement or any other “Loan Document” (as defined in the Existing Credit Agreement), nor does it operate as a waiver of any right, power or remedy of any Lender under any “Loan Document” (as defined in the Existing Credit Agreement). All references to the Existing Credit Agreement in any Loan Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof.
[Signature Pages to Follow]
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Cover |
Feb. 14, 2020 |
|---|---|
| Cover [Abstract] | |
| Document Type | 8-K |
| Amendment Flag | false |
| Document Period End Date | Feb. 14, 2020 |
| Entity File Number | 001-38070 |
| Entity Registrant Name | Floor & Decor Holdings, Inc. |
| Entity Central Index Key | 0001507079 |
| Entity Tax Identification Number | 27-3730271 |
| Entity Incorporation, State or Country Code | DE |
| Entity Address, Address Line One | 2500 Windy Ridge Parkway SE |
| Entity Address, City or Town | Atlanta |
| Entity Address, State or Province | GA |
| Entity Address, Postal Zip Code | 30339 |
| City Area Code | 404 |
| Local Phone Number | 471-1634 |
| Written Communications | false |
| Soliciting Material | false |
| Pre-commencement Tender Offer | false |
| Pre-commencement Issuer Tender Offer | false |
| Title of 12(b) Security | Class A common stock, $0.001 par value per share |
| Trading Symbol | FND |
| Security Exchange Name | NYSE |
| Entity Emerging Growth Company | false |
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