Exhibit 10.1
A
MENDED AND
R
ESTATED
C
REDIT
A
GREEMENT
D
ATED AS OF
N
OVEMBER
15,
2021
AMONG
C
AL
-M
AINE
F
OODS
,
I
NC
.,
T
HE
G
UARANTORS FROM TIME TO TIME PARTY HERETO
,
THE
L
ENDERS FROM TIME TO TIME PARTY HERETO
,
AND
BMO
H
ARRIS
B
ANK
N.A.,
AS
A
DMINISTRATIVE
A
GENT
BMO
C
APITAL
M
ARKETS
,
S
OLE
L
EAD
A
RRANGER AND
S
OLE
B
OOK
R
UNNER
AND
G
REEN
S
TONE
F
ARM
C
REDIT
S
ERVICES
,
ACA,
S
YNDICATION
A
GENT
-i-
T
ABLE OF
C
ONTENTS
S
ECTION
EADING
AGE
S
ECTION
EFINITIONS
;
I
NTERPRETATION
Section 1.1. Definitions..............................................................................................2
Section 1.2. Interpretation ........................................................................................26
Section 1.3. Change in Accounting Principles .........................................................27
Section 1.4. Divisions ..............................................................................................27
S
ECTION
HE
R
EVOLVING
F
ACILITY
Section 2.1. Revolving Facility ................................................................................27
Section 2.2 Swingline Loans...................................................................................28
Section 2.3. Letters of Credit ...................................................................................30
Section 2.4. Applicable Interest Rates .....................................................................33
Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans ............34
Section 2.6. Manner of Borrowing Loans and Designating Applicable Interest
Rates .....................................................................................................34
Section 2.7. Maturity of Loans ................................................................................36
Section 2.8. Prepayment ..........................................................................................36
Section 2.9. Default Rate .........................................................................................39
Section 2.10. Evidence of Indebtedness ....................................................................39
Section 2.11. Commitment Terminations ..................................................................40
Section 2.12. Replacement of Lenders ......................................................................40
Section 2.13. Defaulting Lenders ...............................................................................41
Section 2.14. Cash Collateral for Fronting Exposure ................................................44
Section 2.15. Increase in Revolving Credit Commitments; Making of Incremental
Term Loans ..........................................................................................45
Section 2.16. Extension Option .................................................................................46
S
ECTION
EES
Section 3.1. Fees ......................................................................................................48
S
ECTION
AXES
;
C
HANGE IN
C
IRCUMSTANCES
,
I
NCREASED
C
OSTS
,
F
UNDING
I
NDEMNITY
Section 4.1. Taxes ....................................................................................................49
Section 4.2. Change of Law .....................................................................................52
Section 4.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR..................................................................................................53
Section 4.4. Increased Costs ....................................................................................62
Section 4.5. Funding Indemnity ...............................................................................63
Section 4.6. Discretion of Lender as to Manner of Funding ....................................64
Section 4.7. Lending Offices; Mitigation Obligations .............................................64
-ii-
S
ECTION
LACE AND
A
PPLICATION OF
P
AYMENTS
Section 5.1. Place and Application of Payments .....................................................64
Section 5.2. Non-Business Days ..............................................................................65
Section 5.3. Payments Set Aside..............................................................................65
Section 5.4. Account Debit ......................................................................................65
S
ECTION
EPRESENTATIONS AND
W
ARRANTIES
Section 6.1. Organization and Qualification ............................................................66
Section 6.2. Subsidiaries ..........................................................................................66
Section 6.3. Authority and Validity of Obligations .................................................66
Section 6.4. Use of Proceeds; Margin Stock............................................................67
Section 6.5. Financial Reports .................................................................................67
Section 6.6. No Material Adverse Change...............................................................68
Section 6.7. Full Disclosure .....................................................................................68
Section 6.8. Trademarks, Franchises, and Licenses .................................................68
Section 6.9. Governmental Authority and Licensing ...............................................68
Section 6.10. Good Title ............................................................................................69
Section 6.11. Litigation and Other Controversies ......................................................69
Section 6.12. Taxes ....................................................................................................69
Section 6.13. Approvals .............................................................................................69
Section 6.14. Affiliate Transactions ...........................................................................69
Section 6.15. Investment Company ...........................................................................69
Section 6.16. ERISA ..................................................................................................69
Section 6.17. Compliance with Laws ........................................................................70
Section 6.18. OFAC ...................................................................................................71
Section 6.19. Labor Matters .......................................................................................71
Section 6.20. Other Agreements ................................................................................71
Section 6.21. Solvency ...............................................................................................71
Section 6.22. No Default ............................................................................................71
Section 6.23. No Broker Fees ....................................................................................71
S
ECTION
ONDITIONS
P
RECEDENT
Section 7.1. All Credit Events..................................................................................72
Section 7.2. Initial Credit Event ...............................................................................72
S
ECTION
OVENANTS
Section 8.1. Maintenance of Business .....................................................................74
Section 8.2. Maintenance of Properties ...................................................................75
Section 8.3. Taxes and Assessments ........................................................................75
Section 8.4. Insurance ..............................................................................................75
Section 8.5. Financial Reports .................................................................................76
Section 8.6. Inspection; Field Audits .......................................................................78
Section 8.7. Borrowings and Guaranties ..................................................................78
Section 8.8. Liens .....................................................................................................80
-iii-
Section 8.9. Investments, Acquisitions, Loans and Advances .................................82
Section 8.10. Mergers, Consolidations and Sales ......................................................83
Section 8.11. Maintenance of Subsidiaries ................................................................84
Section 8.12. Dividends and Certain Other Restricted Payments ..............................85
Section 8.13. ERISA ..................................................................................................85
Section 8.14. Compliance with Laws ........................................................................85
Section 8.15. Compliance with OFAC Sanctions Programs and Anti-Corruption
Laws .....................................................................................................86
Section 8.16. Burdensome Contracts With Affiliates ................................................87
Section 8.17. No Changes in Fiscal Year ..................................................................88
Section 8.18. Formation of Subsidiaries ....................................................................88
Section 8.19. Change in the Nature of Business ........................................................88
Section 8.20. Use of Proceeds ....................................................................................88
Section 8.21. No Restrictions.....................................................................................88
Section 8.22. Financial Covenants .............................................................................88
S
ECTION
VENTS OF
D
EFAULT AND
R
EMEDIES
Section 9.1. Events of Default .................................................................................89
Section 9.2. Non-Bankruptcy Defaults ....................................................................91
Section 9.3. Bankruptcy Defaults ............................................................................91
Section 9.4. Collateral for Undrawn Letters of Credit .............................................92
Section 9.5. Post-Default Collections ......................................................................92
S
ECTION
HE
A
DMINISTRATIVE
A
GENT
Section 10.1. Appointment and Authority .................................................................93
Section 10.2. Rights as a Lender ................................................................................93
Section 10.3. Action by Administrative Agent; Exculpatory Provisions ..................94
Section 10.4. Reliance by Administrative Agent .......................................................95
Section 10.5. Delegation of Duties ............................................................................95
Section 10.6. Resignation of Administrative Agent ..................................................96
Section 10.7. Non-Reliance on Administrative Agent and Other Lenders ................96
Section 10.8. L/C Issuer and Swingline Lender ........................................................97
Section 10.9. Hedging Liability and Bank Product Obligations ................................98
Section 10.10. Designation of Additional Agents .......................................................98
Section 10.11. Authorization to Enter into, and Enforcement of, the Collateral
Documents; Possession of Collateral ...................................................98
Section 10.12. Authorization to Release, Limit or Subordinate Liens or to Release
Guaranties ............................................................................................99
Section 10.13. Authorization of Administrative Agent to File Proofs of Claim .......100
Section 10.14. Certain ERISA Matters ......................................................................101
Section 10.15. Recovery of Erroneous Payments ......................................................102
S
ECTION
HE
G
UARANTEES
Section 11.1. The Guarantees ..................................................................................102
Section 11.2. Guarantee Unconditional ...................................................................103
-iv-
Section 11.3. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances ....................................................................................104
Section 11.4. Subrogation ........................................................................................104
Section 11.5. Subordination .....................................................................................105
Section 11.6. Waivers ..............................................................................................105
Section 11.7. Limit on Recovery .............................................................................105
Section 11.8. Stay of Acceleration ...........................................................................105
Section 11.9. Benefit to Guarantors .........................................................................105
Section 11.10. Keepwell ............................................................................................105
S
ECTION
OLLATERAL
Section 12.1. Collateral ............................................................................................106
Section 12.2. Depository Banks ...............................................................................106
Section 12.3. Further Assurances.............................................................................106
S
ECTION
ISCELLANEOUS
Section 13.1. Notices ...............................................................................................107
Section 13.2. Successors and Assigns ......................................................................108
Section 13.3. Amendments ......................................................................................112
Section 13.4. Costs and Expenses; Indemnification ................................................114
Section 13.5. No Waiver, Cumulative Remedies ....................................................116
Section 13.6. Right of Setoff....................................................................................116
Section 13.7. Sharing of Payments by Lenders .......................................................117
Section 13.8. Survival of Representations ...............................................................118
Section 13.9. Survival of Indemnities ......................................................................118
Section 13.10. Counterparts; Integration; Effectiveness ............................................118
Section 13.11. Headings ............................................................................................118
Section 13.12. Severability of Provisions ..................................................................118
Section 13.13. Construction .......................................................................................119
Section 13.14. Excess Interest ...................................................................................119
Section 13.15. Lender’s and L/C Issuer’s Obligations Several .................................119
Section 13.16. No Advisory or Fiduciary Responsibility ..........................................120
Section 13.17. Governing Law; Jurisdiction; Consent to Service of Process ............120
Section 13.18. Waiver of Jury Trial ...........................................................................121
Section 13.19. USA Patriot Act .................................................................................121
Section 13.20. Confidentiality ...................................................................................121
Section 13.21. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions..........................................................................................122
Section 13.22. Amendment and Restatement ............................................................123
Section 13.23. Acknowledgement Regarding Any Supported QFCs ........................123
S
ECTION
EFINITIONS
;
I
NTERPRETATION
Section 1.1. Definitions..............................................................................................2
Section 1.2. Interpretation ........................................................................................26
Section 1.3. Change in Accounting Principles .........................................................27
-v-
Section 1.4. Divisions ..............................................................................................27
S
ECTION
HE
R
EVOLVING
F
ACILITY
Section 2.1. Revolving Facility ................................................................................27
Section 2.2 Swingline Loans...................................................................................28
Section 2.3. Letters of Credit ...................................................................................30
Section 2.4. Applicable Interest Rates .....................................................................33
Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans ............34
Section 2.6. Manner of Borrowing Loans and Designating Applicable Interest
Rates .....................................................................................................34
Section 2.7. Maturity of Loans ................................................................................36
Section 2.8. Prepayment ..........................................................................................36
Section 2.9. Default Rate .........................................................................................39
Section 2.10. Evidence of Indebtedness ....................................................................39
Section 2.11. Commitment Terminations ..................................................................40
Section 2.12. Replacement of Lenders ......................................................................40
Section 2.13. Defaulting Lenders ...............................................................................41
Section 2.14. Cash Collateral for Fronting Exposure ................................................44
Section 2.15. Increase in Revolving Credit Commitments; Making of Incremental
Term Loans ..........................................................................................45
Section 2.16. Extension Option .................................................................................46
S
ECTION
EES
Section 3.1. Fees ......................................................................................................48
S
ECTION
AXES
;
C
HANGE IN
C
IRCUMSTANCES
,
I
NCREASED
C
OSTS
,
F
UNDING
I
NDEMNITY
Section 4.1. Taxes ....................................................................................................49
Section 4.2. Change of Law .....................................................................................52
Section 4.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR..................................................................................................53
Section 4.4. Increased Costs ....................................................................................62
Section 4.5. Funding Indemnity ...............................................................................63
Section 4.6. Discretion of Lender as to Manner of Funding ....................................64
Section 4.7. Lending Offices; Mitigation Obligations .............................................64
S
ECTION
LACE AND
A
PPLICATION OF
P
AYMENTS
Section 5.1. Place and Application of Payments .....................................................64
Section 5.2. Non-Business Days ..............................................................................65
Section 5.3. Payments Set Aside..............................................................................65
Section 5.4. Account Debit ......................................................................................65
S
ECTION
EPRESENTATIONS AND
W
ARRANTIES
Section 6.1. Organization and Qualification ............................................................66
-vi-
Section 6.2. Subsidiaries ..........................................................................................66
Section 6.3. Authority and Validity of Obligations .................................................66
Section 6.4. Use of Proceeds; Margin Stock............................................................67
Section 6.5. Financial Reports .................................................................................67
Section 6.6. No Material Adverse Change...............................................................68
Section 6.7. Full Disclosure .....................................................................................68
Section 6.8. Trademarks, Franchises, and Licenses .................................................68
Section 6.9. Governmental Authority and Licensing ...............................................68
Section 6.10. Good Title ............................................................................................69
Section 6.11. Litigation and Other Controversies ......................................................69
Section 6.12. Taxes ....................................................................................................69
Section 6.13. Approvals .............................................................................................69
Section 6.14. Affiliate Transactions ...........................................................................69
Section 6.15. Investment Company ...........................................................................69
Section 6.16. ERISA ..................................................................................................69
Section 6.17. Compliance with Laws ........................................................................70
Section 6.18. OFAC ...................................................................................................71
Section 6.19. Labor Matters .......................................................................................71
Section 6.20. Other Agreements ................................................................................71
Section 6.21. Solvency ...............................................................................................71
Section 6.22. No Default ............................................................................................71
Section 6.23. No Broker Fees ....................................................................................71
S
ECTION
ONDITIONS
P
RECEDENT
Section 7.1. All Credit Events..................................................................................72
Section 7.2. Initial Credit Event ...............................................................................72
S
ECTION
OVENANTS
Section 8.1. Maintenance of Business .....................................................................74
Section 8.2. Maintenance of Properties ...................................................................75
Section 8.3. Taxes and Assessments ........................................................................75
Section 8.4. Insurance ..............................................................................................75
Section 8.5. Financial Reports .................................................................................76
Section 8.6. Inspection; Field Audits .......................................................................78
Section 8.7. Borrowings and Guaranties ..................................................................78
Section 8.8. Liens .....................................................................................................80
Section 8.9. Investments, Acquisitions, Loans and Advances .................................82
Section 8.10. Mergers, Consolidations and Sales ......................................................83
Section 8.11. Maintenance of Subsidiaries ................................................................84
Section 8.12. Dividends and Certain Other Restricted Payments ..............................85
Section 8.13. ERISA ..................................................................................................85
Section 8.14. Compliance with Laws ........................................................................85
Section 8.15. Compliance with OFAC Sanctions Programs and Anti-Corruption
Laws .....................................................................................................86
Section 8.16. Burdensome Contracts With Affiliates ................................................87
-vii-
Section 8.17. No Changes in Fiscal Year ..................................................................88
Section 8.18. Formation of Subsidiaries ....................................................................88
Section 8.19. Change in the Nature of Business ........................................................88
Section 8.20. Use of Proceeds ....................................................................................88
Section 8.21. No Restrictions.....................................................................................88
Section 8.22. Financial Covenants .............................................................................88
S
ECTION
VENTS OF
D
EFAULT AND
R
EMEDIES
Section 9.1. Events of Default .................................................................................89
Section 9.2. Non-Bankruptcy Defaults ....................................................................91
Section 9.3. Bankruptcy Defaults ............................................................................91
Section 9.4. Collateral for Undrawn Letters of Credit .............................................92
Section 9.5. Post-Default Collections ......................................................................92
S
ECTION
HE
A
DMINISTRATIVE
A
GENT
Section 10.1. Appointment and Authority .................................................................93
Section 10.2. Rights as a Lender ................................................................................93
Section 10.3. Action by Administrative Agent; Exculpatory Provisions ..................94
Section 10.4. Reliance by Administrative Agent .......................................................95
Section 10.5. Delegation of Duties ............................................................................95
Section 10.6. Resignation of Administrative Agent ..................................................96
Section 10.7. Non-Reliance on Administrative Agent and Other Lenders ................96
Section 10.8. L/C Issuer and Swingline Lender ........................................................97
Section 10.9. Hedging Liability and Bank Product Obligations ................................98
Section 10.10. Designation of Additional Agents .......................................................98
Section 10.11. Authorization to Enter into, and Enforcement of, the Collateral
Documents; Possession of Collateral ...................................................98
Section 10.12. Authorization to Release, Limit or Subordinate Liens or to Release
Guaranties ............................................................................................99
Section 10.13. Authorization of Administrative Agent to File Proofs of Claim .......100
Section 10.14. Certain ERISA Matters ......................................................................101
Section 10.15. Recovery of Erroneous Payments ......................................................102
S
ECTION
HE
G
UARANTEES
Section 11.1. The Guarantees ..................................................................................102
Section 11.2. Guarantee Unconditional ...................................................................103
Section 11.3. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances ....................................................................................104
Section 11.4. Subrogation ........................................................................................104
Section 11.5. Subordination .....................................................................................105
Section 11.6. Waivers ..............................................................................................105
Section 11.7. Limit on Recovery .............................................................................105
Section 11.8. Stay of Acceleration ...........................................................................105
Section 11.9. Benefit to Guarantors .........................................................................105
Section 11.10. Keepwell ............................................................................................105
-viii-
S
ECTION
OLLATERAL
Section 12.1. Collateral ............................................................................................106
Section 12.2. Depository Banks ...............................................................................106
Section 12.3. Further Assurances.............................................................................106
S
ECTION
ISCELLANEOUS
Section 13.1. Notices ...............................................................................................107
Section 13.2. Successors and Assigns ......................................................................108
Section 13.3. Amendments ......................................................................................112
Section 13.4. Costs and Expenses; Indemnification ................................................114
Section 13.5. No Waiver, Cumulative Remedies ....................................................116
Section 13.6. Right of Setoff....................................................................................116
Section 13.7. Sharing of Payments by Lenders .......................................................117
Section 13.8. Survival of Representations ...............................................................118
Section 13.9. Survival of Indemnities ......................................................................118
Section 13.10. Counterparts; Integration; Effectiveness ............................................118
Section 13.11. Headings ............................................................................................118
Section 13.12. Severability of Provisions ..................................................................118
Section 13.13. Construction .......................................................................................119
Section 13.14. Excess Interest ...................................................................................119
Section 13.15. Lender’s and L/C Issuer’s Obligations Several .................................119
Section 13.16. No Advisory or Fiduciary Responsibility ..........................................120
Section 13.17. Governing Law; Jurisdiction; Consent to Service of Process ............120
Section 13.18. Waiver of Jury Trial ...........................................................................121
Section 13.19. USA Patriot Act .................................................................................121
Section 13.20. Confidentiality ...................................................................................121
Section 13.21. Acknowledgement and Consent to Bail-In of EEA Financial
Institutions..........................................................................................122
Section 13.22. Amendment and Restatement ............................................................123
Section 13.23. Acknowledgement Regarding Any Supported QFCs ........................123
Signature Page ............................................................................................................................. S-1
-ix-
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
E
XHIBIT
U.S. Tax Compliance Certificate
E
XHIBIT
U.S. Tax Compliance Certificate
E
XHIBIT
U.S. Tax Compliance Certificate
E
XHIBIT
U.S. Tax Compliance Certificate
E
XHIBIT
SCHEDULE 1.1 — Cal-Maine Foods Investment Guidelines
S
CHEDULE
2.1/2.2 — Commitments
S
CHEDULE
S
CHEDULE
S
CHEDULE
S
CHEDULE
-1-
A
MENDED AND
R
ESTATED
C
REDIT
A
GREEMENT
This Amended and Restated Credit Agreement is entered into as of November 15, 2021 by
and among Cal-Maine Foods, Inc., a Delaware corporation (the
“Borrower”
), the direct and
indirect Wholly-owned Subsidiaries that are Domestic Subsidiaries of the Borrower from time to
time party to this Agreement, as Guarantors, the several financial institutions from time to time
party to this Agreement, as Lenders, and BMO H
ARRIS
B
ANK
N.A.,
as Administrative Agent as
provided herein.
P
RELIMINARY
S
TATEMENT
W
HEREAS
,
pursuant to that certain Credit Agreement dated as of July 10, 2018 (as amended
prior to the date hereof, without giving effect to the amendments and restatements set forth herein,
the
“Existing Credit Agreement”
), by and among the Borrowers, the Guarantors party thereto, the
lenders party thereto and the Administrative Agent, the lenders thereunder have made available to
the Borrowers a revolving loan facility upon and subject to the terms and conditions set forth
therein;
W
HEREAS
, the Loan Parties, the Administrative Agent and the Lenders desire to amend
and restate the Existing Credit Agreement in its entirety in order to provide an increase to the
revolving credit facility and make certain other amendments as more fully set forth herein, which
amendment and restatement shall become effective upon satisfaction of the conditions precedent
set forth herein;
W
HEREAS
, in connection with the foregoing and as an inducement for the Lenders to extend
and/or continue to extend the credit contemplated hereunder, the Loan Parties have agreed to
continue to secure all of their joint and several Obligations by granting to the Administrative
Agent, for the benefit of the Lenders, a first priority lien on the Collateral (as hereinafter defined);
and
W
HEREAS
, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement, and the parties
hereto hereby agree that all obligations under the Loan Documents (as amended prior to the
Closing Date) shall continue in full force and effect from and after the Closing Date.
N
OW
,
T
HEREFORE
, in consideration of the mutual agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
-2-
S
ECTION
EFINITIONS
;
I
NTERPRETATION
.
Section 1.1. Definitions
. The following terms when used herein shall have the following
meanings:
“Acquired Business”
Party in an Acquisition, whether before or after the date hereof.
“Acquisition”
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition of no less than 51% of the
capital stock, partnership interests, membership interests or equity of any Person (other than a
Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other than a Person that is
a Subsidiary) provided that the Borrower or a Guarantor is the surviving entity.
“Additional Credit Extension Amendment”
means an amendment to this Agreement
(which may, at the option of the Administrative Agent, be in the form of an amendment and
restatement of this Agreement) providing for any Extended Revolving Credit Commitments and/or
Extended Incremental Term Loans pursuant to Section 2.16, which shall be consistent with the
applicable provisions of this Agreement and otherwise satisfactory to the parties thereto. Each
Additional Credit Extension Amendment shall be executed by the Administrative Agent, the L/C
Issuer and/or the Swingline Lender (to the extent Section 2.16 would require the consent of the
L/C Issuer and/or the Swingline Lender, respectively for the amendments effected in such
Additional Credit Extension Amendment), the Loan Partis and each applicable extending Lender.
Any Additional Credit Extension Amendment may include conditions for delivery of opinions of
counsel and other documentation consistent with the conditions in Section 7.2 all to the extent
reasonably requested by the Administrative Agent or the Lenders party to such Additional Credit
Extension Amendment.
“Adjusted LIBOR”
determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
“Administrative Agent”
means BMO Harris Bank N.A., in its capacity as Administrative
Agent hereunder, and any successor in such capacity pursuant to Section 10.6.
“Administrative Questionnaire”
means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified;
provided that
, in any event for purposes of this definition, any
Person that owns, directly or indirectly, 5% or more of the securities having the ordinary voting
-3-
power for the election of directors or governing body of a corporation or 5% or more of the
partnership or other ownership interest of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
“Agreement”
amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Anti-Corruption Law”
concerning or relating to bribery or corruption that are applicable to any Loan Party or any
Subsidiary or Affiliate.
“Applicable Margin”
Participation Fees, and the commitment fees payable under Section 3.1(a), until the first Pricing
Date, the rates per annum shown opposite Level I below, and thereafter from one Pricing Date to
the next the Applicable Margin means the rates per annum determined in accordance with the
following schedule:
L
EVEL
T
OTAL
F
UNDED
D
EBT TO
C
APITALIZATION
R
ATIO FOR
S
UCH
P
RICING
D
ATE
A
PPLICABLE
M
ARGIN FOR
B
ASE
R
ATE
L
OANS UNDER
R
EVOLVING
F
ACILITY AND
R
EIMBURSEMENT
O
BLIGATIONS SHALL
BE
:
A
PPLICABLE
M
ARGIN FOR
E
URODOLLAR
L
OANS UNDER
R
EVOLVING
F
ACILITY AND
L/C
P
ARTICIPATION
F
EES SHALL BE
:
A
PPLICABLE
M
ARGIN FOR
C
OMMITMENT
F
EE
SHALL BE
:
I
Less than 20.0%
0.00%
1.00%
0.15%
II
Greater than or
equal 20.0% and
less than 30.0%
0.25%
1.25%
0.20%
III
Greater than or
equal 30.0% and
less than 40.0%
0.50%
1.50%
0.20%
IV
Greater than or
equal to 40.0%
0.75%
1.75%
0.25%
For purposes hereof, the term
“Pricing Date”
on or after November 27, 2021, the date on which the Administrative Agent is in receipt of the
Borrower’s most recent financial statements (and, in the case of the year-end financial statements,
audit report) for the fiscal quarter then ended, pursuant to Section 8.5. The Applicable Margin
shall be established based on the Total Funded Debt to Capitalization Ratio for the most recently
completed fiscal quarter and the Applicable Margin established on a Pricing Date shall remain in
effect until the next Pricing Date. If the Borrower has not delivered its financial statements by the
date such financial statements (and, in the case of the year-end financial statements, audit report)
are required to be delivered under Section 8.5, until such financial statements and audit report are
delivered, the Applicable Margin shall be the highest Applicable Margin (
i.e.,
apply). If the Borrower subsequently delivers such financial statements before the next Pricing
-4-
Date, the Applicable Margin shall be determined on the date of delivery of such financial
statements and remain in effect until the next Pricing Date. In all other circumstances, the
Applicable Margin shall be in effect from the Pricing Date that occurs immediately after the end
of the fiscal quarter covered by such financial statements until the next Pricing Date. Each
determination of the Applicable Margin made by the Administrative Agent in accordance with the
foregoing shall be conclusive and binding on the Borrower and the Lenders if reasonably
determined.
“Application”
“Assignment and Assumption”
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 13.2(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit G
or any other form approved by the Administrative Agent.
“Authorized Representative”
by the Borrower pursuant to Section 7.2 or on any update of any such list provided by the Borrower
to the Administrative Agent, or any further or different officers of the Borrower so named by any
Authorized Representative of the Borrower in a written notice to the Administrative Agent.
“Bail-In Action”
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”
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”
provided to any Loan Party by any Lender or any of its Affiliates: (a) credit or charge cards for
commercial customers (including, without limitation, “commercial credit cards” and purchasing
cards), (b) stored value cards, and (c) depository, cash management, and treasury management
services (including, without limitation, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository network services).
“Bank Product Obligations”
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions therefor)
in connection with Bank Products.
“Base Rate”
of interest announced or otherwise established by the Administrative Agent from time to time as
its prime commercial rate
as in effect on such day, with any change in the Base Rate resulting from
a change in said prime commercial rate to be effective as of the date of the relevant change in said
prime commercial rate (it being acknowledged and agreed that such rate may not be the
Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day,
-5-
plus
plus
1.00%. As used herein, the
term
“LIBOR Quoted Rate”
rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a one-month interest period as reported on the
applicable Bloomberg screen page (or such other commercially available source providing such
quotations as may be designated by the Administrative Agent from time to time) as of 11:00 a.m.
(London, England time) on such day (or, if such day is not a Business Day, on the immediately
preceding Business Day) divided by (ii) one (1) minus the Eurodollar Reserve Percentage,
provided
“Base Rate Loan”
“Beneficial Ownership Certification”
a required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”
“Borrower”
“Borrowing”
additional Interest Period, or converted from a different type into such type by the Lenders under
a Facility on a single date and, in the case of Eurodollar Loans, for a single Interest Period.
Borrowings of Loans are made and maintained ratably from each of the Lenders under a Facility
according to their Percentages of such Facility. A Borrowing is
“advanced”
advance funds comprising such Borrowing to the Borrower, is
“continued”
Interest Period for the same type of Loans commences for such Borrowing, and is
“converted”
when such Borrowing is changed from one type of Loans to the other, all as determined pursuant
to Section 2.6. Borrowings of Swingline Loans are made by the Swingline Lender in accordance
with the procedures set forth in Section 2.2(b).
“Business Day”
authorized or required to close in Chicago, Illinois and, if the applicable Business Day relates to
the advance or continuation of, or conversion into, or payment of a Eurodollar Loan, on which
banks are dealing in U.S. Dollar deposits in the interbank eurodollar market in London, England.
“Capital Expenditures”
amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during
that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or
additions to property, plant, or equipment (including replacements, capitalized repairs, and
improvements), and for any of the foregoing are required to be capitalized on the balance sheet of
such Person in accordance with GAAP.
“Capital Lease
” means any lease of Property which in accordance with GAAP is required
to be capitalized on the balance sheet of the lessee;
provided
accounting standards after the Closing Date will not cause any lease that was not or would not
have been a Capital Lease prior to such adoption or issuance to be deemed a Capital Lease.
-6-
“Capitalized Lease Obligation”
on the balance sheet of such Person in respect of a Capital Lease determined in accordance with
GAA
P.
“Cash Collateralize”
Agent, for the benefit of one or more of the L/C Issuer or Lenders, as collateral for L/C Obligations
or obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit
account balances subject to a first priority perfected security interest in favor of the Administrative
Agent or, if the Administrative Agent and each applicable L/C Issuer shall agree in their sole
discretion, other credit support, in each case pursuant to documentation in form and substance
satisfactory to the Administrative Agent and each applicable L/C Issuer.
“Cash Collateral”
have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.
“Cash Equivalents”
means (a) cash in banks or on hand and (b) investments with a
maturity of three (3) months or less when purchased, which are made in accordance with the Cal-
Maine Investment Guidelines as attached hereto as Schedule 1.1,
1
from time to time with the consent of the Required Lenders.
“CERCLA”
means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C.
§§
9601
et seq.,
“Change in Law”
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority, or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority;
provided
Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued, or (b) any “Change of Control” (or words
of like import), as defined in any agreement or indenture relating to any issue of Material
Indebtedness of any Loan Party or any Subsidiary of a Loan Party, shall occur.
“Change of Control”
or grandchildren, or any trust, guardianship, conservatorship or custodianship for the primary
benefit of any of the foregoing, or any family limited partnership, similar limited liability company
or other entity that 100% of voting control of such entity, is held by any of the foregoing, cease at
1
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any time and for any reason (including death or incapacity) to own, legally and beneficially, at
least 50% of the votes represented by the Voting Stock of the Borrower.
“Closing Date”
each condition described in Section 7.2 shall be satisfied or waived in a manner acceptable to the
Administrative Agent in its discretion.
“Code”
thereto.
“Collateral”
to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral
Documents.
“Collateral Account”
“Collateral Access Agreement”
bailee letter or other agreement, in form and substance satisfactory to the Administrative Agent,
between the Administrative Agent and any third party (including any bailee, consignee, customs
broker, or other similar Person) in possession of any Collateral or any landlord of the Borrower or
any Subsidiary for any real property where any Collateral is located, as such landlord waiver,
bailee letter or other agreement may be amended, restated, or otherwise modified from time to
time.
“Collateral Documents”
means the Security Agreement, and all other mortgages, deeds of
trust, security agreements, pledge agreements, assignments, financing statements, control
agreements, and other documents as shall from time to time secure or relate to the Secured
Obligations or any part thereof.
“Commitments”
“
Commodity Exchange Act”
as amended from time to time, and any successor statute.
“Connection Income Taxes”
measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes.
“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”
“Controlled”
thereto.
“Controlled Group”
trades or businesses (whether or not incorporated) under common control which, together with any
Loan Party, are treated as a single employer under Section 414 of the Code.
-8-
“Credit Event”
expiration date or increase in the amount of, any Letter of Credit.
“Debtor Relief Laws”
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.
“Default”
or condition the occurrence of which would, with the passage of time or the giving of notice, or
both, constitute an Event of Default.
“Defaulting Lender”
(i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender’s determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the
Administrative Agent, any L/C Issuer, the Swingline Lender or any other Lender any other amount
required to be paid by it hereunder (including in respect of its participation in Letters of Credit or
Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the
Borrower, the Administrative Agent or any L/C Issuer or the Swingline Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a public statement
to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a
Loan hereunder and states that such position is based on such Lender’s determination that a
condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three (3) Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply
with its prospective funding obligations hereunder (
provided
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that
has, at any time after the Closing Date (i) become the subject of a proceeding under any Debtor
Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or assets, including the Federal Deposit Insurance Corporation or any other state or
federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action;
provided
acquisition of any equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
-9-
Section 2.13(b)) upon delivery of written notice of such determination to the Borrower, the L/C
Issuer, the Swingline Lender and each Lender.
“Designated Disbursement Account”
the Administrative Agent or its Affiliate and designated in writing to the Administrative Agent as
the Borrower’s Designated Disbursement Account (or such other account as the Borrower and the
Administrative Agent may otherwise agree).
“Disposition”
than (a) the sale or lease of inventory in the ordinary course of business, and (b) the sale, transfer,
lease or other disposition of Property of a Loan Party to another Loan Party in the ordinary course
of its business.
“Domestic Subsidiary”
“EEA Financial Institution”
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”
Liechtenstein, and Norway.
“EEA Resolution Authority”
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under
Section 13.2(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under
Section 13.2(b)(iii)).
“Eligible Line of Business”
by the Borrower or any other Loan Party or any business reasonably related thereto, including,
without limitation, spent foul business, further processing, fertilizer or nutrient manufacturing or
cooperative purchasing or similar businesses related to Borrower’s commercial egg production
business.
“Environmental Claim”
means any investigation, notice, violation, demand, allegation,
action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim
(whether administrative, judicial or private in nature), but not including internal reports prepared
by or on behalf of Borrower in the ordinary course of business, arising (a) pursuant to, or in
connection with an actual or alleged violation of, any Environmental Law, (b) in connection with
any Hazardous Material, (c) from any abatement, removal, remedial, investigative, corrective or
response action in connection with a Hazardous Material, Environmental Law or order of a
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governmental authority or (d) from any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
“Environmental Law”
protection of health, safety and the indoor or outdoor environment, (b) the conservation,
management, protection or use of natural resources and wildlife, (c) the protection or use of surface
water or groundwater, (d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal,
investigation, remediation or handling of, or exposure to, any Hazardous Material or (e) pollution
(including any Release to air, land, surface water or groundwater), and any amendment, rule,
regulation, order or directive issued thereunder.
“Environmental Liability”
liability for damages, costs of environmental remediation, fines, costs of compliance, penalties or
indemnities), of any Loan Party or any Subsidiary of a Loan Party directly or indirectly resulting
from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials into the environment or (e) any contract, agreement or other legally
enforceable consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“ERISA”
any successor statute thereto.
“EU Bail-In Legislation Schedule”
by the Loan Market Association (or any successor Person), as in effect from time to time.
“Eurodollar Loan”
“Eurodollar Reserve Percentage”
a decimal, at which reserves (including, without limitation, any emergency, marginal, special, and
supplemental reserves) are imposed by the Board of Governors of the Federal Reserve System (or
any successor) on
“eurocurrency liabilities”
, as defined in such Board’s Regulation D (or any
successor thereto), subject to any amendments of such reserve requirement by such Board or its
successor, taking into account any transitional adjustments thereto. For purposes of this definition,
the relevant Loans shall be deemed to be
“eurocurrency liabilities”
without benefit or credit for any prorations, exemptions or offsets under Regulation D.
The
Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of
any change in any such reserve percentage.
“Event of Default”
“Event of Loss”
destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of
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the power of eminent domain or otherwise, of such Property, or confiscation of such Property or
the requisition of the use of such Property.
“Exchange Act”
“Excluded Deposit Account”
means a deposit account the balance of which consists
exclusively of (and is identified when established as an account established solely for the purposes
of) (a) withheld income Taxes and federal, state, local or foreign employment Taxes in such
amounts as are required in the reasonable judgment of a Loan Party to be paid to the Internal
Revenue Service or any other U.S., federal, state or local or foreign government agencies within
the following month with respect to employees of such Loan Party, (b) amounts required to be
paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for
the benefit of employees of any Loan Party, (c) amounts which are required to be pledged or
otherwise provided as security pursuant to any requirement of any Governmental Authority or
foreign pension requirement, (d) amounts to be used to fund payroll obligations (including, but not
limited to, any ZBA for payroll and amounts payable to any employment contracts between any
Loan Party and their respective employees), (e) Texas Egg Products, LLC and South Texas
Applicators, Inc. deposit accounts, and (f) other deposit accounts maintained in the ordinary
course of business containing cash amounts that do not exceed at any time $2,000,000 in the
aggregate for all such accounts under this clause (f), unless requested by the Administrative Agent
after the occurrence and during the continuation of an Event of Default.
“
Excluded Equity Issuances
” means (a) the issuance by any Subsidiary of equity securities
to the Borrower or any Guarantor, as applicable, (b) the issuance of equity securities by the
Borrower to any Person that is an equity holder of the Borrower prior to such issuance, (c) the
issuance of equity securities of the Borrower to directors, officers and employees of the Borrower
and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans
or other compensation arrangements) approved by the Borrower’s Board of Directors, and (d) the
issuance of equity securities of the Borrower in order to finance the purchase consideration (or a
portion thereof) in connection with a Permitted Acquisition or Capital Expenditures.
“Excluded Property”
means (a) any intent-to-use trademark application prior to the filing
of a “Statement of Use” or “Amendment to Allege Use” with the United States Patent and
Trademark Office with respect thereto, to the extent, if any, that, and solely during the period, if
any, in which, the grant of a security interest therein would impair the validity or enforceability of
such intent-to-use trademark application under applicable federal law; (b) any permit or license
issued to any Loan Party as the permit holder or licensee thereof or any lease to which any Loan
Party is lessee thereof, in each case only to the extent and for so long as the terms of such permit,
license, or lease effectively (after giving effect to Sections 9-406 through 9-409, inclusive, of the
Uniform Commercial Code in the applicable state (or any successor provision or provisions) or
any other applicable law) prohibit the creation by such Loan Party of a security interest in such
permit, license, or lease in favor of the Administrative Agent or would result in an effective
invalidation, termination or breach of the terms of any such permit, license or lease (after giving
effect to Sections 9-406 through 9-409, inclusive, of the Uniform Commercial Code in the
applicable state (or any successor provision or provisions) or any other applicable law), in each
case unless and until any required consents are obtained,
provided
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not include, and the Collateral shall include and the security interest granted in the Collateral shall
attach to, (x) all proceeds, substitutions or replacements of any such excluded items referred to
herein unless such proceeds, substitutions or replacements would constitute excluded items
hereunder, (y) all rights to payment due or to become due under any such excluded items referred
to herein, and (z) if and when the prohibition which prevents the granting of a security interest in
any such Property is removed, terminated, or otherwise becomes unenforceable as a matter of law,
the Administrative Agent will be deemed to have, and at all times to have had, a security interest
in such property, and the Collateral will be deemed to include, and at all times to have included,
such Property without further action or notice by any Person; and (c) Excluded Deposit Accounts.
“
Excluded Swap Obligation
” means, with respect to any Guarantor, any Swap Obligation
if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by
such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof)
is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time
the Guarantee of such Guarantor or the grant of such security interest becomes effective with
respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap
Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes
illegal.
“Excluded Taxes”
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed
on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,
in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its applicable lending office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest
in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 2.12) or (ii) such Lender changes its lending office, except in each case to the extent that,
pursuant to Section 4.1 amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply
with Section 4.1(g), and (d) any U.S. federal withholding Taxes imposed under FATCA .
“Existing Credit Agreement”
has the meaning specified in the Preliminary Statements
hereto.
“Extended Revolving Credit Commitment”
means any Revolving Credit Commitment the
maturity of which has been extended pursuant to Section 2.16.
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“
Extended Revolving Loans
” means any Revolving Loans made pursuant to the Extended
Revolving Credit Commitments.
“
Extended Incremental Term Loans
” means any Incremental Term Loans the maturity of
which shall have been extended pursuant to Section 2.16.
“
Extension
” has the meaning specified in Section 2.16(a).
“
Extension Offer
” has the meaning specified in Section 2.16(a).
“Facility”
“FATCA”
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof, and
any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“FCPA”
“Federal Funds Rate”
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day;
provided
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 the Administrative
Agent on such day on such transactions as determined by the Administrative Agent;
provided
in no event shall the Federal Funds Rate be less than 0.00%.
“Financial Officer”
officer, treasurer or controller of such Person.
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Foreign Subsidiary”
jurisdiction other than the United States of America or any state thereof or the District of Columbia,
(b) conducts substantially all of its business outside of the United States of America, and (c) has
substantially all of its assets outside of the United States of America.
“Fronting Exposure”
any L/C Issuer, such Defaulting Lender’s Revolver Percentage of the outstanding L/C Obligations
with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which
such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender,
such Defaulting Lender’s Revolver Percentage of outstanding Swingline Loans made by the
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Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders.
“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”
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the date of
determination.
“Governmental Authority”
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 supra-national bodies such as the European Union or the European
Central Bank).
“Guarantee”
“guarantor”
) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
“primary obligor”
) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation;
provided
include endorsements for collection or deposit in the ordinary course of business.
“Guaranty Agreements”
for in Section 11, and any other guaranty agreement executed and delivered in order to guarantee
the Secured Obligations or any part thereof in form and substance acceptable to the Administrative
Agent.
“Guarantors”
Subsidiary of the Borrower, and Borrower, in its capacity as a guarantor of the Secured Obligations
of another Loan Party.
“Hazardous Material”
means any substance, chemical, compound, product, solid, gas,
liquid, waste, byproduct, pollutant, contaminant or material which is hazardous, toxic, or a
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pollutant and regulated pursuant to any Environmental Law and includes, without limitation,
(a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof)
and (b) any material classified or regulated as “hazardous,” “toxic,” or a “pollutant” or words of
like import pursuant to an Environmental Law. For the purposes of this Agreement, however, the
Parties acknowledge and agree that Borrower is in the live animal agriculture business and
routinely generates, stores, handles, transports, composts, disposes of, applies and/or sells manure
for beneficial reuse (fertilizer) in the ordinary course of business, that manure naturally breaks
down and releases ammonia, phosphorus and other substances and such manure and its constituent
parts shall not be “Hazardous Material” hereunder.
“Hazardous Material Activity”
Hazardous Material, including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement,
removal, remediation, handling of or corrective or response action to any Hazardous Material.
“Hedging Agreement”
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions;
provided
similar plan providing for payments only on account of services provided by current or former
directors, officers, employees or consultants of any Loan Party or its Subsidiaries shall be a
Hedging Agreement.
“Hedging Liability”
to any of the Lenders, or any
Affiliates of such Lenders in respect of any Hedging Agreement as such Loan Party may from
time to time enter into with any one or more of the Lenders party to this Agreement or their
Affiliates, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor);
provided, however,
Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.
“Hostile Acquisition”
a Person through a tender offer or similar solicitation of the owners of such capital stock or other
equity interests which has not been approved (prior to such acquisition) by resolutions of the Board
of Directors of such Person or by similar action if such Person is not a corporation, or as to which
such approval has been withdrawn.
“Increase”
“Increase Date”
“Incremental Amendment”
“Incremental Term Facility”
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“Incremental Term Loans”
“Incremental Term Loan Percentage”
means, for each Lender, the percentage held by such
Lender of the aggregate principal amount of all Incremental Term Loans outstanding, if any.
“Indebtedness”
assumed or incurred in any manner by such Person representing money borrowed (including by
the issuance of debt securities), (b) all indebtedness for the deferred purchase price of property or
services (other than trade accounts payable arising in the ordinary course of business), (c) all
indebtedness secured by any Lien upon Property of such Person, whether or not such Person has
assumed or become liable for the payment of such indebtedness, (d) all Capitalized Lease
Obligations of such Person, (e) all obligations of such Person on or with respect to letters of credit,
bankers’ acceptances and other extensions of credit to the extent any of the foregoing are not cash
collateralized, whether or not representing obligations for borrowed money, (f) all obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any
equity interest in such Person or any other Person or any warrant, right or option to acquire such
equity interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends, (g) all net obligations
(determined as of any time based on the termination value thereof) of such Person under any
interest rate, foreign currency, and/or commodity swap, exchange, cap, collar, floor, forward,
future or option agreement, or any other similar interest rate, currency or commodity hedging
arrangement; and (h) all Guarantees of such Person in respect of any of the foregoing. For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited liability company)
in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person.
“Indemnified Taxes”
respect to any payment made by or on account of any obligation of any Loan Party under any Loan
Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Interest Payment Date”
each Interest Period with respect to such Eurodollar Loan and on the maturity date and, if the
applicable Interest Period is longer than three (3) three months, on each day occurring every
three (3) months after the commencement of such Interest Period, (b) with respect to any Base
Rate Loan (other than Swingline Loans), the last day of every calendar quarter and on the maturity
date, and (c) as to any Swingline Loan, (i) bearing interest by reference to the Base Rate, the last
day of every calendar month, and on the maturity date and (ii) bearing interest by reference to the
Swingline Lender’s Quoted Rate, the last day of the Interest Period with respect to such Swingline
Loan, and on the maturity date.
“Interest Period”
Loans or Swingline Loans (bearing interest at the Swingline Lender’s Quoted Rate) is advanced,
continued, or created by conversion and ending (a) in the case of Eurodollar Loans, one (1),
two (2), three (3), six (6) or twelve (12) months thereafter and (b) in the case of Swingline Loans
bearing interest at the Swingline Lender’s Quoted Rate, on the date one (1) to five (5) Business
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Days thereafter as mutually agreed by the Borrower and the Swingline Lender,
provided, however,
that:
Loans;
is not a Business Day, the last day of such Interest Period shall be extended to the next
succeeding Business Day,
provided
that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately preceding Business
Day; and
Eurodollar Loans, a month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month;
provided,
however,
Interest Period is to end or if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last Business Day of the calendar
month in which such Interest Period is to end.
“IRS”
means the United States Internal Revenue Service.
“L/C Issuer”
Credit hereunder, in each case together with its successors in such capacity as provided in
Section 2.3(h).
“L/C Obligations”
of Credit and all unpaid Reimbursement Obligations.
“L/C Participation Fee”
“L/C Sublimit”
hereof.
“Legal Requirement”
regulation, ordinance, license, permit, governmental approval, injunction, judgment, order,
consent decree or other requirement of any governmental authority, whether federal, state, or local.
“Lenders”
and the other Persons listed on
Schedule 2.1/2.2 and any other Person that shall have become party hereto pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context requires otherwise, the term
“Lenders”
includes the Swingline Lender.
“Lending Office”
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“Letter of Credit”
“LIBOR”
LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index
Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in U.S. Dollars in immediately
available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) two
(2) Business Days before the beginning of such Interest Period by three (3) or more major banks
in the interbank euro dollar market selected by the Administrative Agent for delivery on the first
day of and for a period equal to such Interest Period and in an amount equal or comparable to the
principal amount of the Eurodollar Loan scheduled to be made as part of such Borrowing, provided
that in no event shall “LIBOR” be less than 0.00%.
“LIBOR Index Rate”
if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a period equal to such Interest Period, as reported on the applicable Bloomberg screen
page (or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time)
as of 11:00 a.m. (London, England time) on the
day two (2) Business Days before the commencement of such Interest Period.
“Lien”
means any mortgage, lien, security interest, pledge, charge or encumbrance of any
kind in respect of any Property, including the interests of a vendor or lessor under any conditional
sale, Capital Lease or other title retention arrangement.
“Loan”
whether outstanding as a Base Rate Loan or Eurodollar Loan or otherwise, each of which is a
“type”
“Loan Documents”
Collateral Documents, the Guaranty Agreements, and each other instrument or document to be
delivered hereunder or thereunder or otherwise in connection therewith.
“Loan Party”
“Marketable Securities”
when purchased which are made in accordance with the Cal-Maine Investment Guidelines as
attached hereto as Schedule 1.1, as the same may be amended from time to time with the consent
of the Required Lenders.
“Material Adverse Effect”
effect upon, the operations, business, or financial condition of the Borrower or of the Loan Parties
and their Subsidiaries taken as a whole, (b) a material impairment of the ability of any Loan Party
to perform its material
obligations under any Loan Document or (c) a material adverse effect upon
(i) the legality, validity, binding effect or enforceability against any Loan Party of any Loan
Document or the material rights and remedies of the Administrative Agent and the Lenders
thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document.
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“Material Indebtedness”
or obligations in respect of one or more Hedging Agreements, of any one or more of the Loan
Parties and its Subsidiaries with an individual outstanding principal amount exceeding
$30,000,000. For purposes of determining Material Indebtedness, the “obligations” of any Loan
Party or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that such Loan Party or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
“Minimum Collateral Amount”
consisting of cash or deposit account balances, an amount equal to 105% (or 100% if such Cash
Collateral consists of a demand or time deposit account) of the Fronting Exposure of all L/C Issuers
with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount
determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s”
“Net Cash Proceeds”
cash and cash equivalent proceeds received by or for such Person’s account, net of (i) reasonable
direct costs relating to such Disposition, (ii) sale, use or other transactional taxes paid or payable
by such Person as a direct result of such Disposition, and (iii) the amount of any Indebtedness
permitted hereby which is secured by a prior perfected Lien on the asset subject to such Disposition
and is required to be repaid in connection with such Disposition, (b) with respect to any Event of
Loss of a Person, cash and cash equivalent proceeds received by or for such Person’s account
(whether as a result of payments made under any applicable insurance policy therefor or in
connection with condemnation proceedings or otherwise), net of reasonable direct costs incurred
in connection with the collection of such proceeds, awards or other payments, and the amount of
any Indebtedness permitted hereby which is secured by a prior perfected Lien in the asset subject
to the Event of Loss and (c) with respect to any offering of equity securities of a Person or the
issuance of any Indebtedness by a Person, cash and cash equivalent proceeds received by or for
such Person’s account, net of reasonable legal, underwriting, and other fees and expenses incurred
as a direct result thereof.
“Net Income”
Borrower and its Subsidiaries for such period computed on a consolidated basis in accordance with
GAAP;
provided
any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated
with, the Borrower or another Subsidiary, (b) the net income (or net loss) of any Person (other than
a Subsidiary) in which the Borrower or any of its Subsidiaries has an equity interest, except to the
extent of the amount of dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries during such period, and (c) the undistributed earnings of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such Subsidiary is not at
the time permitted by the terms of any contractual obligation (other than under any Loan
Document) or requirement of law applicable to such Subsidiary.
“Net Worth”
means, at any time the same is to be determined, total shareholder’s equity
(including capital stock, additional paid in capital, and retained earnings after deducting treasury
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stock) that would appear on the balance sheet of the Borrower and its Subsidiaries, determined in
accordance with GAAP on a consolidated basis.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver
or amendment that (a) requires the approval of all affected Lenders in accordance with the terms
of Section 13.3 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender”
at such time.
“Note”
“Notes”
“Obligations”
Loans, all Reimbursement Obligations owing under the Applications, all fees and charges payable
hereunder, and all other payment obligations of the Borrower or any other Loan Party arising under
or in relation to any Loan Document, in each case whether now existing or hereafter arising, due
or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired.
“OFAC”
means the United States Department of Treasury Office of Foreign Assets
Control.
“OFAC Event”
is defined in Section 8.15.
“OFAC Sanctions Programs”
administered by OFAC, including without limitation, the Bank Secrecy Act, anti-money
laundering laws (including, without limitation, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56 (a/k/a the USA Patriot Act)), and all economic and trade sanction programs
administered by OFAC, any and all similar United States federal laws, regulations or Executive
Orders (whether administered by OFAC or otherwise), and any similar laws, regulations or orders
adopted by any State within the United States.
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result
of a present or former connection between such Recipient and the jurisdiction imposing such Tax
(other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or
sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.12).
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“Participant”
has the meaning assigned to such term in clause (d) of Section 13.2.
“Participant Register”
has the meaning specified in clause (d) of Section 13.2.
“Participating Interest”
“Participating Lender”
“PBGC”
any or all of its functions under ERISA.
“Percentage”
means for any Lender its Revolver Percentage or its Incremental Term Loan
Percentage, as applicable.
“Permitted Acquisition”
conditions shall have been satisfied:
operations within the United States of America;
which it is a party in connection with such Acquisition;
the Acquisition, the Borrower shall have complied with the requirements of Section 12.3
within 30 days of the completion thereof;
therewith, no Default shall exist, including with respect to the financial covenants
contained in Section 8.22 on a pro forma basis (looking back four completed fiscal quarters
as if the Acquisition occurred on the first day of such period and after giving effect to the
payment of the purchase price for the Acquired Business); and
therewith, the sum of cash and Cash Equivalents of the Borrower plus availability under
the Revolving Facility shall equal at least $50,000,000.
“Person”
means any natural Person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan”
to the minimum funding standards under Section 412 of the Code that either (a) is maintained by
a member of the Controlled Group for employees of a member of the Controlled Group or (b) is
maintained pursuant to a collective bargaining agreement or any other arrangement under which
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more than one employer makes contributions and to which a member of the Controlled Group is
then making or accruing an obligation to make contributions or has within the preceding five plan
years made contributions.
“Premises”
of a Loan Party.
“Property”
mixed property owned by such Person whether or not included in the most recent balance sheet of
such Person and its subsidiaries under GAAP.
“
Qualified ECP Guarantor
” means, in respect of any Swap Obligation, each Loan Party
that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the
relevant security interest becomes effective with respect to such Swap Obligation or such other
person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any
regulations promulgated thereunder and can cause another person to qualify as an “eligible contract
participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.
“RCRA”
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 U.S.C.
§§
6901
et seq.
, and any future amendments.
“Recipient
” means (a) the Administrative Agent, (b) any Lender, and (c) any L/C Issuer,
as applicable.
“Register”
“Reimbursement Obligation”
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person’s Affiliates.
“Release”
discharging, injecting, escaping, leaching, migrating, dumping, or disposing into the indoor or
outdoor environment, including, without limitation, the abandonment or discarding of barrels,
drums, containers, tanks or other receptacles containing or previously containing any Hazardous
Material.
“Required Lenders”
means, at any time, Lenders having Total Credit Exposures
representing (a) if there are 2 or less Lenders, all of the Lenders, and (b) if there are 3 or more
Lenders, 50.0% or more of the Total Credit Exposures of all Lenders. To the extent provided in
the last paragraph of Section 13.3, the Total Credit Exposure of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.
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“Responsible Officer”
such Person and any other officer, general partner or managing member or similar official thereof
with responsibility for the administration of the obligations of such person in respect of this
Agreement whose signature and incumbency shall have been certified to the Administrative Agent
on or after the Closing Date pursuant to an incumbency certificate of the type contemplated by
Section 7.2.
“Revolver Percentage”
Credit Commitments represented by such Lender’s Revolving Credit Commitment or, if the
Revolving Credit Commitments have been terminated or expired, the percentage of the total
Revolving Credit Exposure then outstanding held by such Lender.
“Revolving Facility”
Loans and issuing Letters of Credit described in Sections 2.1, 2.2 and 2.3.
“Revolving Credit Commitment”
to make Revolving Loans and to participate in Swingline Loans and Letters of Credit issued for
the account of the Borrower hereunder in an aggregate principal or face amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1/2.2
attached hereto and made a part hereof, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof (including, without limitation, Section 2.15 hereof).
The Borrower and the Lenders acknowledge and agree that the Revolving Credit Commitments of
the Lenders aggregate $250,000,000 on the Closing Date.
“Revolving Credit Exposure”
means, as to any Lender at any time, the aggregate principal
amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C
Obligations and Swingline Loans at such time.
“Revolving Credit Termination Date”
which the Revolving Credit Commitments are terminated in whole pursuant to Section 2.11, 9.2
or 9.3.
“Revolving Loan”
is defined in Section 2.1 and, as so defined, includes a Base Rate Loan
or a Eurodollar Loan, each of which is a
“type”
“Revolving Note”
“S&P”
Services LLC business.
“SEC”
“Secured Obligations”
Obligations, in each case whether now existing or hereafter arising, due or to become due, direct
or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all
interest, costs, fees, and charges after the entry of an order for relief against any Loan Party in a
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case under the United States Bankruptcy Code or any similar proceeding, whether or not such
interest, costs, fees and charges would be an allowed claim against such Loan Party in any such
proceeding);
provided, however,
Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.
“Securities Act”
means the United States Securities Act of 1933.
“Security Agreement”
amended and reaffirmed by that certain Reaffirmation, Modification and Omnibus Joinder
Agreement dated as of the date hereof among the Loan Parties and the Administrative Agent, as
the same may be amended, modified, amended and restated, supplemented or otherwise modified
from time to time.
“Subsidiary”
corporation or organization more than 50% of the outstanding Voting Stock of which is at the time
directly or indirectly owned by such parent corporation or organization or by any one or more
other entities which are themselves subsidiaries of such parent corporation or organization. Unless
otherwise expressly noted herein, the term
“Subsidiary”
of any of its direct or indirect Subsidiaries.
“
Swap Obligation
” means, with respect to any Guarantor, 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.
“Sweep Depositary”
Arrangement.
“Sweep to Loan Arrangement”
Borrower with the Swingline Lender or an Affiliate of the Swingline Lender, as depositary (in
such capacity, the
“Sweep Depositary”
), pursuant to which the Swingline Lender is authorized
(a) to make advances of Swingline Loans hereunder, the proceeds of which are deposited by the
Swing Lender into a designated account of the Borrower maintained at the Sweep Depositary, and
(b) to accept as prepayments of the Swingline Loans hereunder proceeds of excess targeted
balances held in such designated account at the Sweep Depositary, which cash management
arrangement is subject to such agreement(s) and on such terms acceptable to the Sweep Depositary
and the Swing Lender.
“Swingline”
means the credit facility for making one or more Swingline Loans described
in Section 2.2.
“Swingline Lender”
Swingline Loans hereunder, or any successor Lender acting in such capacity appointed pursuant
to Section 13.2.
“Swingline Lender’s Quoted Rate”
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“Swingline Sublimit”
“Swingline Loan”
and
“Swingline Loans”
“Swing Note”
“Tangible Net Worth
” means total shareholder’s equity that would appear on the balance
sheet of the Borrower and its Subsidiaries minus the sum of (a) all assets which would be classified
as intangible assets under GAAP, including, without limitation, goodwill, patents, trademarks,
trade names, copyrights, franchises and deferred charges (including, without limitation,
unamortized debt discount and expense, organization costs and deferred research and development
expense) and similar assets, and (b) the write up of assets above cost (other than marketable
securities); provided, however, that intangible assets shall not include prepaid expenses (including,
without limitation, prepaid insurance, software licenses and support agreements, consulting
contracts and prepaid financing fees) carried on the consolidated balance sheet, in each case
determined on a consolidated basis in accordance with GAAP.
“Taxes”
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
“Total Capitalization”
Total Funded Debt and (b) Net Worth.
“Total Credit Exposure”
means, as to any Lender at any time, the unused Commitments,
Revolving Credit Exposure, and Incremental Term Loans (if any) of such Lender at such time.
“Total Funded Debt”
duplication) of (a) all Indebtedness of the Borrower and its Subsidiaries at such time described in
clauses (a) through (f), both inclusive, of the definition thereof, and (b) all Indebtedness of any
other Person which is directly or indirectly Guaranteed by the Borrower or any of its Subsidiaries
or which the Borrower or any of its Subsidiaries has agreed (contingently or otherwise) to purchase
or otherwise acquire or in respect of which the Borrower or any of its Subsidiaries has otherwise
assured a creditor against loss.
“Total Funded Debt to Capitalization Ratio”
of the Borrower, the ratio of (a) Total Funded Debt of the Borrower and its Subsidiaries as of the
last day of such fiscal quarter to (b) Total Capitalization of the Borrower and its Subsidiaries as of
the last day of such fiscal quarter.
“Unfunded Vested Liabilities”
means, for any Plan at any time, the amount (if any) by
which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the
fair market value of all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
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“U.S. Dollars”
“$”
“U.S. Person”
means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in subsection (f)
of Section 4.1.
“Voting Stock”
classes (however designated) having ordinary power to vote as prescribed for such class of capital
stock or equity interest for the election of directors or other similar governing body of such Person,
other than stock or other equity interests having such power only by reason of the happening of a
contingency.
“Welfare Plan”
“Wholly-owned Subsidiary”
shares of capital stock (other than directors’ qualifying shares as required by law) or other equity
interests are owned by the Borrower and/or one or more Wholly-owned Subsidiaries within the
meaning of this definition.
“Withholding Agent”
“Write-Down and Conversion Powers”
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.
Section 1.2.
Interpretation.
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person’s successors and assigns,
(c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or
regulation herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (f) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights. All references to
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time of day herein are references to Chicago, Illinois, time unless otherwise specifically provided.
Where the character or amount of any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done in accordance with GAAP, except where there is
variation from GAAP as currently reflected under the current financial statements as consistently
applied and except where such principles are inconsistent with the specific provisions of this
Agreement.
Section 1.3. Change in Accounting Principles
. If, after the date of this Agreement, there
shall occur any change in GAAP from those used in the preparation of the financial statements
referred to in Section 6.5 and such change shall result in a change in the method of calculation of
any financial covenant, standard or term found in this Agreement, either the Borrower or the
Required Lenders may by notice to the Lenders and the Borrower, respectively, require that the
Lenders and the Borrower negotiate in good faith to amend such covenants, standards, and terms
so as equitably to reflect such change in accounting principles, with the desired result being that
the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the
same as if such change had not been made. No delay by the Borrower or the Required Lenders in
requiring such negotiation shall limit their right to so require such a negotiation at any time after
such a change in accounting principles. Until any such covenant, standard, or term is amended in
accordance with this Section, financial covenants shall be computed and determined in accordance
with GAAP in effect prior to such change in accounting principles. Without limiting the generality
of the foregoing, the Borrower shall neither be deemed to be in compliance with any financial
covenant hereunder nor out of compliance with any financial covenant hereunder if such state of
compliance or noncompliance, as the case may be, would not exist but for the occurrence of a
change in accounting principles after the date hereof.
. 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.
S
ECTION
HE
R
EVOLVING
F
ACILITY
Section 2.1. Revolving Facility.
Subject to the terms and conditions hereof, each Lender,
by its acceptance hereof, severally agrees to make a loan or loans (individually a
“Revolving Loan”
and collectively for all the Lenders the
“Revolving Loans”
) in U.S. Dollars to the Borrower from
time to time on a revolving basis up to the amount of such Lender’s Revolving Credit
Commitment, subject to any reductions thereof pursuant to the terms hereof, before the Revolving
Credit Termination Date. The sum of the aggregate principal amount of Revolving Loans,
Swingline Loans, and L/C Obligations at any time outstanding shall not exceed the Revolving
Credit Commitments in effect at such time. Each Borrowing of Revolving Loans shall be made
ratably by the Lenders in proportion to their respective Revolver Percentages. As provided in
Section 2.6(a), the Borrower may elect that each Borrowing of Revolving Loans be either Base
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Rate Loans or Eurodollar Loans. Revolving Loans may be repaid and the principal amount thereof
reborrowed before the Revolving Credit Termination Date, subject to the terms and conditions
hereof.
Section 2.2
Swingline Loans.
Generally
. Subject to the terms and conditions hereof,
as part of the Revolving Facility, the Swingline Lender may, in its sole discretion, make loans in
U.S. Dollars to the Borrower under the Swingline (individually a
“Swingline Loan”
collectively the
“Swingline Loans”
) which shall not in the aggregate at any time outstanding
exceed the Swingline Sublimit. Swingline Loans may be availed of from time to time and
borrowings thereunder may be repaid and used again during the period ending on the Revolving
Credit Termination Date. Each Swingline Loan shall be in a minimum amount of $150,000 or
such greater amount which is an integral multiple of $100,000. Each Swingline Loan shall bear
interest until maturity (whether by acceleration or otherwise) at a rate per annum equal to (x) the
rate per annum for Base Rate Loans under the Revolving Facility as from time to time in effect or
(y) the Swingline Lender’s Quoted Rate (computed on the basis of a year of 360 days for the actual
number of days elapsed). Interest on each Swingline Loan shall be due and payable by the
Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
. The Borrower shall give the Administrative Agent
prior notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on the date
upon which the Borrower requests that any Swingline Loan be made, of the amount and date of
such Swingline Loan, and, if applicable, the Interest Period requested therefor. The Administrative
Agent shall promptly advise the Swingline Lender of any such notice received from the Borrower.
Thereafter, the Swingline Lender shall notify the Administrative Agent (who shall thereafter
promptly notify the Borrower) whether or not it has elected to make such Swingline Loan. If the
Swingline Lender agrees to make such Swingline Loan, it may in its discretion quote an interest
rate to the Borrower at which the Swingline Lender would be willing to make such Swingline Loan
available to the Borrower for the Interest Period so requested (the rate so quoted for a given Interest
Period being herein referred to as
“Swingline Lender’s Quoted Rate”
). The Borrower
acknowledges and agrees that the interest rate quote is given for immediate and irrevocable
acceptance. If the Borrower does not so immediately accept the Swingline Lender’s Quoted Rate
for the full amount requested by the Borrower for such Swingline Loan, the Swingline Lender’s
Quoted Rate shall be deemed immediately withdrawn. If the Swingline Lender’s Quoted Rate is
not accepted or otherwise does not apply, such Swingline Loan shall bear interest at the rate per
annum for Base Rate Loans under the Revolving Facility as from time to time in effect. Subject
to the terms and conditions hereof, the proceeds of each Swingline Loan extended to the Borrower
shall be deposited or otherwise wire transferred to the Borrower’s Designated Disbursement
Account or as the Borrower, the Administrative Agent, and the Swingline Lender may otherwise
agree. Anything contained in the foregoing to the contrary notwithstanding, the undertaking of
the Swingline Lender to make Swingline Loans shall be subject to all of the terms and conditions
of this Agreement (provided that the Swingline Lender shall be entitled to assume that the
conditions precedent to an advance of any Swingline Loan have been satisfied unless notified to
the contrary by the Administrative Agent or the Required Lenders).
Refunding Swingline Loans
. In its sole and absolute discretion, the Swingline Lender
may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline
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Lender to act on its behalf for such purpose) and with notice to the Borrower and the
Administrative Agent, request each Lender to make a Revolving Loan in the form of a Base Rate
Loan in an amount equal to such Lender’s Revolver Percentage of the amount of the Swingline
Loans outstanding on the date such notice is given (which Loans shall thereafter bear interest as
provided for in Section 2.4(a)). Unless an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the Borrower, regardless of the existence of any other Event of Default, each
Lender shall make the proceeds of its requested Revolving Loan available to the Administrative
Agent for the account of the Swingline Lender), in immediately available funds, at the
Administrative Agent’s office in Chicago, Illinois (or such other location designated by the
Administrative Agent), before 12:00 Noon (Chicago time) on the Business Day following the day
such notice is given. The Administrative Agent shall promptly remit the proceeds of such
Borrowing to the Swingline Lender to repay the outstanding Swingline Loans.
Participation in Swingline Loans.
If any Lender refuses or otherwise fails to make a
Revolving Loan when requested by the Swingline Lender pursuant to Section 2.2(b) above
(because an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the
Borrower or otherwise), such Lender will, by the time and in the manner such Revolving Loan
was to have been funded to the Swingline Lender, purchase from the Swingline Lender an
undivided participating interest in the outstanding Swingline Loans in an amount equal to its
Revolver Percentage of the aggregate principal amount of Swingline Loans that were to have been
repaid with such Revolving Loans. From and after the date of any such purchase, the parties hereto
hereby acknowledge and agree that such Swingline Loans shall thereafter bear interest at the rate
for such Swingline Loan as determined in accordance with Section 2.2(b) hereof. Each Lender
that so purchases a participation in a Swingline Loan shall thereafter be entitled to receive its
Revolver Percentage of each payment of principal received on the Swingline Loan and of interest
received thereon accruing from the date such Lender funded to the Swingline Lender its
participation in such Loan. The several obligations of the Lenders under this Section shall be
absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not
be subject to any set-off, counterclaim or defense to payment which any Lender may have or have
had against the Borrower, any other Lender, or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any Default or by any
reduction or termination of the Commitments of any Lender, and each payment made by a Lender
under this Section shall be made without any offset, abatement, withholding, or reduction
whatsoever.
Sweep to Loan Arrangement
. So long as a Sweep to Loan Arrangement is in effect,
and subject to the terms and conditions thereof, Swingline Loans may be advanced and prepaid
hereunder notwithstanding any notice, minimum amount, or funding and payment location
requirements hereunder for any advance of Swingline Loans or for any prepayment of any
Swingline Loans. The making of any such Swingline Loans shall otherwise be subject to the other
terms and conditions of this Agreement. The Swingline Lender shall have the right in its sole
discretion to suspend or terminate the making and/or prepayment of Swingline Loans pursuant to
such Sweep to Loan Arrangement with notice to the Sweep Depositary and the Borrower (which
may be provided on a same-day basis), whether or not any Default exists. The Swingline Lender
shall not be liable to the Borrower or any other Person for any losses directly or indirectly resulting
from events beyond the Swingline Lender’s reasonable control, including without limitation any
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interruption of communications or data processing services or legal restriction or for any special,
indirect, consequential or punitive damages in connection with any Sweep to Loan Arrangement.
Section 2.3. Letters of Credit.
General Terms.
Facility, the L/C Issuer shall issue standby and commercial letters of credit (each a
“Letter of
Credit”
) for the account of the Borrower
or for the account of the Borrower and one or more of its
Subsidiaries
in an aggregate undrawn face amount up to the L/C Sublimit. Each Letter of Credit
shall be issued by the L/C Issuer, but each Lender shall be obligated to reimburse the L/C Issuer
for such Lender’s Revolver Percentage of the amount of each drawing thereunder and, accordingly,
Letters of Credit shall constitute usage of the Revolving Credit Commitment of each Lender pro
rata in an amount equal to its Revolver Percentage of the L/C Obligations then outstanding.
Applications.
L/C Issuer shall, at the request of the Borrower, issue one or more Letters of Credit
in U.S. Dollars,
in a form satisfactory to the L/C Issuer, with expiration dates no later than the earlier of 12 months
from the date of issuance (or which are cancelable not later than 12 months from the date of
issuance and each renewal) or thirty (30) days prior to the Revolving Credit Termination Date, in
an aggregate face amount as set forth above, upon the receipt of an application duly executed by
the Borrower and, if such Letter of Credit is for the account of one of its Subsidiaries, such
Subsidiary
for the relevant Letter of Credit in the form then customarily prescribed by the
L/C Issuer for the Letter of Credit requested (each an
“Application”
). The Borrower agrees that
if on the Revolving Credit Termination Date any Letters of Credit remain outstanding the
Borrower shall then deliver to the Administrative Agent, without notice or demand, Cash
Collateral in an amount equal to 105% of the aggregate amount of each Letter of Credit then
outstanding (which shall be held by the Administrative Agent pursuant to the terms of Section 9.4).
Notwithstanding anything contained in any Application to the contrary: (i) the Borrower shall pay
fees in connection with each Letter of Credit as set forth in Section 3.1, (ii) except as otherwise
provided herein or in Sections 2.8, 2.13 or 2.14, unless an Event of Default exists, the L/C Issuer
will not call for the funding by the Borrower of any amount under a Letter of Credit before being
presented with a drawing thereunder, and (iii) if the L/C Issuer is not timely reimbursed for the
amount of any drawing under a Letter of Credit on the date such drawing is paid, except as
otherwise provided for in Section 2.6(c), the Borrower’s obligation to reimburse the L/C Issuer for
the amount of such drawing shall bear interest (which the Borrower hereby promises to pay) from
and after the date such drawing is paid at a rate per annum equal to the sum of the Applicable
Margin plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or
366 days, as the case may be, and the actual number of days elapsed). If the L/C Issuer issues any
Letter of Credit with an expiration date that is automatically extended unless the L/C Issuer gives
notice that the expiration date will not so extend beyond its then scheduled expiration date, unless
the Administrative Agent or the Required Lenders instruct the L/C Issuer otherwise, the L/C Issuer
will give such notice of non-renewal before the time necessary to prevent such automatic extension
if before such required notice date: (i) the expiration date of such Letter of Credit if so extended
would be after the Revolving Credit Termination Date, (ii) the Revolving Credit Commitments
have been terminated, or (iii) an Event of Default exists and either the Administrative Agent or the
Required Lenders (with notice to the Administrative Agent) have given the L/C Issuer instructions
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not to so permit the extension of the expiration date of such Letter of Credit. The L/C Issuer agrees
to issue amendments to the Letter(s) of Credit increasing the amount, or extending the expiration
date, thereof at the request of the Borrower subject to the conditions of Section 7 and the other
terms of this Section.
The Reimbursement Obligations.
Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a
“Reimbursement
Obligation”
) shall be governed by the Application related to such Letter of Credit, except that
reimbursement shall be made (i) by no later than 2:00 p.m. (Chicago time) on the date when each
drawing is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or
before 10:00 a.m. (Chicago time) on the date when such drawing is to be paid and the Borrower
has notified the Administrative Agent by 1:00 p.m. (Chicago time) on such date that the Borrower
will reimburse the L/C Issuer on the date each such drawing is to be paid, or (ii) if notice of such
drawing is given to the Borrower after 10:00 a.m. (Chicago time) on the date when such drawing
is to be paid or if the Borrower fails to notify the Administrative Agent by 1:00 p.m. (Chicago
time) on such date that the Borrower will reimburse the L/C Issuer on the date each such drawing
is to be paid, by no later than 12:00 Noon (Chicago time) on the following Business Day, in each
case, in immediately available funds at the Administrative Agent’s principal office in Chicago,
Illinois, or such other office as the Administrative Agent may designate in writing to the Borrower
(who shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds). If the
Borrower does not make any such reimbursement payment on the date due and the Participating
Lenders fund their participations therein in the manner set forth in Section 2.3(e) below, then all
payments thereafter received by the Administrative Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section 2.3(e) below.
Obligations Absolute.
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement and the relevant Application under any and all circumstances whatsoever
and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by the L/C Issuer under a Letter of Credit
against presentation of a draft or other document that does not strictly comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
None of the Administrative Agent, the Lenders, or the L/C Issuer shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any Letter
of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
L/C Issuer;
provided
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower and each other Loan Party to the
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extent permitted by applicable law) suffered by the Borrower or any Loan Party that are caused by
the L/C Issuer’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer
(as determined by a court of competent jurisdiction by final and nonappealable judgment), the
L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the terms of
a Letter of Credit, the L/C Issuer may, in its reasonable discretion, either accept and make payment
upon such documents without responsibility for further investigation, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
The Participating Interests.
in issuing the relevant Letter of Credit), by its acceptance hereof, severally agrees to purchase from
the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Lender (a
“Participating
Lender”
), an undivided percentage participating interest (a
“Participating Interest”)
, to the extent
of its Revolver Percentage, in each Letter of Credit issued by, and each Reimbursement Obligation
owed to, the L/C Issuer. Upon any failure by the Borrower to pay any Reimbursement Obligation
at the time required on the date the related drawing is to be paid, as set forth in Section 2.3(c)
above, or if the L/C Issuer is required at any time to return to the Borrower or to a trustee, receiver,
liquidator, custodian or other Person any portion of any payment of any Reimbursement
Obligation, each Participating Lender shall, not later than the Business Day it receives a certificate
in the form of Exhibit A hereto from the L/C Issuer (with a copy to the Administrative Agent) to
such effect, if such certificate is received before 1:00 p.m. (Chicago time), or not later than
1:00 p.m. (Chicago time) the following Business Day, if such certificate is received after such
time, pay to the Administrative Agent for the account of the L/C Issuer an amount equal to such
Participating Lender’s Revolver Percentage of such unpaid or recaptured Reimbursement
Obligation together with interest on such amount accrued from the date the related payment was
made by the L/C Issuer to the date of such payment by such Participating Lender at a rate per
annum equal to: (i) from the date the related payment was made by the L/C Issuer to the date two
(2) Business Days after payment by such Participating Lender is due hereunder, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation for each such day and (ii) from the date two
(2) Business Days after the date such payment is due from such Participating Lender to the date
such payment is made by such Participating Lender, the Base Rate in effect for each such day.
Each such Participating Lender shall thereafter be entitled to receive its Revolver Percentage of
each payment received in respect of the relevant Reimbursement Obligation and of interest paid
thereon, with the L/C Issuer retaining its Revolver Percentage thereof as a Lender hereunder. The
several obligations of the Participating Lenders to the L/C Issuer under this Section shall be
absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not
be subject to any set-off, counterclaim or defense to payment which any Participating Lender may
have or have had against the Borrower, the L/C Issuer, the Administrative Agent, any Lender or
any other Person whatsoever. Without limiting the generality of the foregoing, such obligations
shall not be affected by any Default or by any reduction or termination of any Commitment of any
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Lender, and each payment by a Participating Lender under this Section shall be made without any
offset, abatement, withholding or reduction whatsoever.
Indemnification.
Revolver Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction by final and nonappealable
judgment) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued
by it. The obligations of the Participating Lenders under this subsection (f) and all other parts of
this Section shall survive termination of this Agreement and of all Applications, Letters of Credit,
and all drafts and other documents presented in connection with drawings thereunder.
Manner of Requesting a Letter of Credit.
(5) Business Days’ advance written notice to the Administrative Agent of each request for the
issuance of a Letter of Credit, such notice in each case to be accompanied by an Application for
such Letter of Credit properly completed and executed by the Borrower and, in the case of an
extension or amendment or an increase in the amount of a Letter of Credit, a written request
therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case,
together with the fees called for by this Agreement. The Administrative Agent shall promptly
notify the L/C Issuer of the Administrative Agent’s receipt of each such notice (and
the L/C Issuer
shall be entitled to assume that the conditions precedent to any such issuance, extension,
amendment or increase have been satisfied unless notified to the contrary by the Administrative
Agent or the Required Lenders) and the L/C Issuer shall promptly notify the Administrative Agent
and the Lenders of the issuance of the Letter of Credit so requested.
Replacement of the L/C Issuer
. The L/C Issuer may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced L/C Issuer, and the
successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement
of the L/C Issuer. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced L/C Issuer. From and after the effective
date of any such replacement (i) the successor L/C Issuer shall have all the rights and obligations
of the L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any
previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall require.
After the replacement of a L/C Issuer hereunder, the replaced L/C Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of a L/C Issuer under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
Section 2.4. Applicable Interest Rates.
Base Rate Loans.
interest (computed on the basis of a year of 365 or 366 days, as the case may be (360 days, in the
case of clause (c) of the definition of Base Rate relating to the LIBOR Quoted Rate), and the actual
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days elapsed on the unpaid principal amount thereof from the date such Loan is advanced, or
created by conversion from a Eurodollar Loan, until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from
time to time in effect, payable by the Borrower on each Interest Payment Date and at maturity
(whether by acceleration or otherwise).
Eurodollar Loans.
interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days
and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is
advanced or continued, or created by conversion from a Base Rate Loan, until maturity (whether
by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus
the Adjusted LIBOR applicable for such Interest Period, payable by the Borrower on each Interest
Payment Date and at maturity (whether by acceleration or otherwise).
Rate Determinations.
applicable to the Loans and the Reimbursement Obligations hereunder, and its determination
thereof shall be conclusive and binding except in the case of manifest error.
Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans
. Each
Borrowing of Base Rate Loans advanced under a Facility shall be in an amount not less than
$100,000. Each Borrowing of Eurodollar Loans advanced, continued or converted under a Facility
shall be in an amount equal to $1,000,000 or such greater amount which is an integral multiple of
$500,000. Without the Administrative Agent’s consent, there shall not be more than ten (10)
Borrowings of Eurodollar Loans outstanding hereunder at any one time.
Section 2.6. Manner of Borrowing Loans and Designating Applicable Interest Rates.
Notice to the Administrative Agent.
Administrative
Agent by no later than 12:00 noon (Chicago time): (i) at least three (3) Business
Days before the date on which the Borrower requests the Lenders to advance a Borrowing of
Eurodollar Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing
of Base Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type
of rate specified in such notice of a new Borrowing. Thereafter, subject to the terms and conditions
hereof, the Borrower may from time to time elect to change or continue the type of interest rate
borne by each Borrowing or, subject to the minimum amount requirement for each outstanding
Borrowing set forth in Section 2.5, a portion thereof, as follows: (i) if such Borrowing is of
Eurodollar Loans, on the last day of the Interest Period applicable thereto, the Borrower may
continue part or all of such Borrowing as Eurodollar Loans or convert part or all of such Borrowing
into Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any Business Day, the
Borrower may convert all or part of such Borrowing into Eurodollar Loans for an Interest Period
or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting
the advance, continuation or conversion of a Borrowing to the Administrative
Agent by telephone,
telecopy, or other telecommunication device acceptable to the Administrative Agent (which notice
shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing in a
manner acceptable to the Administrative Agent), substantially in the form attached hereto as
Exhibit B (Notice of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable,
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or in such other form acceptable to the Administrative
Agent. Notice of the continuation of a
Borrowing of Eurodollar Loans for an additional Interest Period or of the conversion of part or all
of a Borrowing of Base Rate Loans into Eurodollar Loans must be given by no later than
12:00 noon (Chicago time) at least three (3) Business Days before the date of the requested
continuation or conversion. All such notices concerning the advance, continuation or conversion
of a Borrowing shall specify the date of the requested advance, continuation or conversion of a
Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be
advanced, continued or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period
applicable thereto. Upon notice to the Borrower by the Administrative Agent or the Required
Lenders (or, in the case of an Event of Default under Section 9.1(j) or 9.1(k) with respect to the
Borrower, without notice), no Borrowing of Eurodollar Loans shall be advanced, continued, or
created by conversion if any Default then exists. The Borrower agrees that the Administrative
Agent may rely on any such telephonic, telecopy or other telecommunication notice given by any
person the Administrative Agent in good faith believes is an Authorized Representative without
the necessity of independent investigation, and in the event any such notice by telephone conflicts
with any written confirmation such telephonic notice shall govern if the Administrative Agent has
acted in reliance thereon.
Notice to the Lenders
. The Administrative Agent shall give prompt telephonic,
telecopy or other telecommunication notice to each Lender of any notice from the Borrower
received pursuant to Section 2.6(a) above and, if such notice requests the Lenders to make
Eurodollar Loans, the Administrative Agent shall give notice to the Borrower and each Lender by
like means of the interest rate applicable thereto promptly after the Administrative Agent has made
such determination.
Borrower’s Failure to Notify.
If the Borrower fails to give notice pursuant to
Section 2.6(a) above of the continuation or conversion of any outstanding principal amount of a
Borrowing of Eurodollar Loans before the last day of its then current Interest Period within the
period required by Section 2.6(a) and such Borrowing is not prepaid in accordance with
Section 2.8(a), such Borrowing shall automatically be converted into a Borrowing of Base Rate
Loans. In the event the Borrower fails to give notice pursuant to Section 2.6(a) above of a
Borrowing equal to the amount of a Reimbursement Obligation and has not notified the
Administrative Agent by 12:00 noon (Chicago time) on the day such Reimbursement Obligation
becomes due that it intends to repay such Reimbursement Obligation through funds not borrowed
under this Agreement, the Borrower shall be deemed to have requested a Borrowing of Base Rate
Loans under the Revolving Facility (or, at the option of the Swingline Lender, under the Swingline)
on such day in the amount of the Reimbursement Obligation then due, which Borrowing shall be
applied to pay the Reimbursement Obligation then due.
Disbursement of Loans
. Not later than 2:00 p.m. (Chicago time) on the date of any
requested advance of a new Borrowing, subject to Section 7, each Lender shall make available its
Loan comprising part of such Borrowing in funds immediately available at the principal office of
the Administrative Agent in Chicago, Illinois (or at such other location as the Administrative Agent
shall designate). The Administrative Agent shall make the proceeds of each new Borrowing
available to the Borrower at the Administrative Agent’s principal office in Chicago, Illinois (or at
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such other location as the Administrative Agent shall designate), by depositing or wire transferring
such proceeds to the credit of the Borrower’s Designated Disbursement Account or as the
Borrower and the Administrative Agent may otherwise agree.
Administrative Agent Reliance on Lender Funding.
shall have been notified by a Lender prior to (or, in the case of a Borrowing of Base Rate Loans,
by 1:00 p.m. (Chicago time) on) the date on which such Lender is scheduled to make payment to
the Administrative Agent of the proceeds of a Loan (which notice shall be effective upon receipt)
that such Lender does not intend to make such payment, the Administrative Agent may assume
that such Lender has made such payment when due and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the Borrower the proceeds
of the Loan to be made by such Lender and, if any Lender has not in fact made such payment to
the Administrative Agent, such Lender shall, on demand, pay to the Administrative Agent the
amount made available to the Borrower attributable to such Lender together with interest thereon
in respect of each day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to: (i) from the date the related advance was made
by the Administrative Agent to the date two (2) Business Days after payment by such Lender is
due hereunder, the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation for each such day and
(ii) from the date two (2) Business Days after the date such payment is due from such Lender to
the date such payment is made by such Lender, the Base Rate in effect for each such day. If such
amount is not received from such Lender by the Administrative Agent immediately upon demand,
the Borrower will, on demand, repay to the Administrative Agent the proceeds of the Loan
attributable to such Lender with interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan, but without such payment being considered a payment or
prepayment of a Loan under Section 4.5 so that the Borrower will have no liability under such
Section with respect to such payment. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that shall have failed to make such payment
to the Administrative Agent.
.
Revolving Loans.
paid, shall mature and be due and payable by the Borrower on the Revolving Credit Termination
Date.
Swingline Loans
. Each Swingline Loan, both for principal and interest not sooner
paid, shall mature and be due and payable by the Borrower on the Revolving Credit Termination
Date.
Section 2.8. Prepayment.
(a)
. The Borrower may prepay in whole or in part (but, if in part, then: (i) if
such Borrowing is of Base Rate Loans, in an amount not less than $100,000, (ii) if such Borrowing
is of Eurodollar Loans, in an amount not less than $500,000, and (iii) in each case, in an amount
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such that the minimum amount required for a Borrowing pursuant to Sections 2.2(b) and 2.5
remains outstanding) upon not less than three (3) Business Days prior notice by the Borrower to
the Administrative Agent in the case of any prepayment of a Borrowing of Eurodollar Loans and
notice delivered by the Borrower to the Administrative Agent no later than 12:00 noon (Chicago
time) on the date of prepayment in the case of a Borrowing of Base Rate Loans (or, in any case,
such shorter period of time then agreed to by the Administrative Agent), such prepayment to be
made by the payment of the principal amount to be prepaid and, in the case of any Incremental
Term Loans, any Eurodollar Loans or Swingline Loans, accrued interest thereon to the date fixed
for prepayment plus any amounts due the Lenders under Section 4.5.
Mandatory
. (i) The Borrower shall, on each date the Revolving Credit Commitments
are reduced pursuant to Section 2.11, prepay the Swingline Loans, Revolving Loans, and, if
necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the
aggregate principal amount of Swingline Loans, Revolving Loans, and L/C Obligations then
outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
to make a Disposition (other than a Disposition permitted pursuant to Section 8.10 hereof) or shall
suffer an Event of Loss with respect to any Property, then the Borrower shall promptly notify the
Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the
estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof)
and, promptly upon receipt by the Borrower or such Subsidiary of the Net Cash Proceeds of such
Disposition or Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount
equal to 100% of the amount of all such Net Cash Proceeds;
provided
then exists, this subsection shall not require any such prepayment with respect to Net Cash
Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied
to replace or restore the relevant Property in accordance with the relevant Collateral Documents,
(y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds
received on account of Dispositions during any fiscal year of the Borrower not exceeding
$10,000,000 in the aggregate so long as no Default then exists, and (z) in the case of any
Disposition not covered by clause (y) above, so long as no Default then exists, if the Borrower
states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest,
within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to
the assets which were subject to such Disposition, then the Borrower shall not be required to make
a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent
such Net Cash Proceeds are actually reinvested in such similar assets with such 180-day period.
Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent
whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar
assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall
promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The
amount of each such prepayment shall be applied, subject to Section 2.8(b)(v) below, first to the
outstanding Incremental Term Loans, if any, on a ratable basis based on the outstanding principal
amounts thereof, and then to the Revolving Facility, but without a reduction of the Revolving
Credit Commitments. If the Administrative Agent or the Required Lenders so request, all proceeds
of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent)
and held by it in the Collateral Account. So long as no Default exists, the Administrative Agent
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is authorized to disburse amounts representing such proceeds from the Collateral Account to or at
the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding
or restoring such Property.
securities (whether common or preferred stock or otherwise), other than Excluded Equity
Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash
Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary
in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash
Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal
to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be
applied, subject to Section 2.8(b)(v) below, first to the outstanding Incremental Term Loans, if
any, on a ratable basis based on the outstanding principal amounts thereof, and then to the
Revolving Facility, but without a reduction of the Revolving Credit Commitments. The Borrower
acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders
for any breach of Section 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control)
or any other terms of the Loan Documents.
other than Indebtedness permitted by Section 8.7, the Borrower shall promptly notify the
Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or
for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by
the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay
the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
The amount of each such prepayment shall be applied, subject to Section 2.8(b)(v) below, first to
the outstanding Incremental Term Loans, if any, on a ratable basis based on the outstanding
principal amounts thereof, and then to the Revolving Facility, but without a reduction of the
Revolving Credit Commitments. The Borrower acknowledges that its performance hereunder
shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 or any other
terms of the Loan Documents.
Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof
with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest
Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment
of the principal amount to be prepaid and, in the case of any Incremental Term Loans, Eurodollar
Loans or Swingline Loans, accrued interest thereon to the date of prepayment together with any
amounts due the Lenders under Section 4.5. Each prefunding of L/C Obligations shall be made in
accordance with Section 9.4.
Revolving Credit Termination Date may, subject to the terms and conditions of this Agreement,
be borrowed, repaid and borrowed again. No amount of the Incremental Term Loans, if any, paid
or prepaid may be reborrowed, and, in the case of any partial prepayment, such prepayment shall
be applied to the remaining payments on all Incremental Term Loans in inverse order of maturity.
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Section 2.9. Default Rate.
Notwithstanding anything to the contrary contained herein,
while any Event of Default exists or after acceleration, the Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the principal amount
of all Loans and Reimbursement Obligations, letter of credit fees and other amounts at a rate per
annum equal to:
the Base Rate, the sum of 2.0%
plus
the Applicable Margin
plus
the Base Rate from time
to time in effect;
Administrative Agent’s Quoted Rate, the sum of 2.0%
plus
the rate of interest in effect
thereon at the time of such Event of Default until the end of the Interest Period applicable
thereto and, thereafter, at a rate per annum equal to the sum of 2.0%
plus
the Applicable
Margin for Base Rate Loans
plus
the Base Rate from time to time in effect;
plus
the amounts due
under Section 2.3 with respect to such Reimbursement Obligation;
plus
the L/C Participation Fee due
under Section 3.1(b) with respect to such Letter of Credit; and
(d) above, the sum of 2%
plus
plus
in effect;
provided, however,
that in the absence of acceleration pursuant to Section 9.2 or 9.3, any
adjustments pursuant to this Section shall be made at the election of the Administrative Agent,
acting at the request or with the consent of the Required Lenders, with written notice to the
Borrower (which election may be retroactively effective to the date of such Event of Default).
While any Event of Default exists or after acceleration, interest shall be paid on demand of the
Administrative Agent at the request or with the consent of the Required Lenders.
Section 2.10. Evidence of Indebtedness.
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time hereunder.
amount of each Loan made hereunder, the type thereof and the Interest Period with respect thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.
above shall be
prima facie
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recorded;
provided, however,
that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
the forms of Exhibit D-1 (in the case of its Revolving Loans and referred to herein as a
“Revolving
Note”
), or D-2 (in the case of its Swingline Loans and referred to herein as a
“Swing Note”
), as
applicable (the Revolving Notes and Swing Note being hereinafter referred to collectively as the
“Notes”
“Note”
). In such event, the Borrower shall prepare, execute and
deliver to such Lender a Note payable to such Lender or its registered assigns in the amount of the
relevant Commitment, or Swingline Sublimit, as applicable. Thereafter, the Loans evidenced by
such Note or Notes and interest thereon shall at all times (including after any assignment pursuant
to Section 13.2) be represented by one or more Notes payable to the order of the payee named
therein or any assignee pursuant to Section 13.2, except to the extent that any such Lender or
assignee subsequently returns any such Note for cancellation and requests that such Loans once
again be evidenced as described in subsections (a) and (b) above.
Section 2.11. Commitment Terminations .
Optional Revolving Credit Terminations.
The Borrower shall have the right at any
time and from time to time, upon five (5) Business Days prior written notice to the Administrative
Agent (or such shorter period of time agreed to by the Administrative Agent), to terminate the
Revolving Credit Commitments without premium or penalty and in whole or in part, any partial
termination to be (i) in an amount not less than $5,000,000 or any whole multiple thereof and
(ii) allocated ratably among the Lenders in proportion to their respective Revolver Percentages,
provided that the Revolving Credit Commitments may not be reduced to an amount less than the
sum of the aggregate principal amount of Swingline Loans, Revolving Loans, and L/C Obligations
then outstanding. Any termination of the Revolving Credit Commitments below the L/C Sublimit
or the Swingline Sublimit then in effect shall reduce the L/C Sublimit and Swingline Sublimit, as
applicable, by a like amount. The Administrative Agent shall give prompt notice to each Lender
of any such termination of the Revolving Credit Commitments.
not be reinstated.
Section 2.12. Replacement of Lenders
. If any Lender requests compensation under
Section 4.4, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1
and, in each case, such Lender has declined or is unable to designate a different lending office in
accordance with Section 4.7, or if any Lender is a Defaulting Lender or a Non-Consenting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative 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 13.2), all of its
interests, rights (other than its existing rights to payments pursuant to Section 4.1 or Section 4.4)
and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that
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shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment);
provided
that:
fee (if any) specified in Section 13.2;
outstanding principal of its Loans and funded participations in L/C Obligations, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section
4.5 as if the Loans owing to
it were prepaid rather than assigned) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
under Section 4.4 or payments required to be made pursuant to Section 4.1, such
assignment will result in a reduction in such compensation or payments thereafter;
Non-Consenting Lender, the applicable assignee shall have consented to the applicable
amendment, waiver or consent.
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 Borrower to
require such assignment and delegation cease to apply.
Section 2.13. Defaulting Lenders.
Defaulting Lender Adjustments.
in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
Waivers and Amendments
. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders.
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9 or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.7
hereto shall be applied at such time or times as may be determined by the Administrative
Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender
to the Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any
amounts owing by such Defaulting Lender to any L/C Issuer or the Swingline Lender
hereunder;
third
, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to
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such Defaulting Lender in accordance with Section 2.14;
fourth
, as the Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent;
fifth
, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to
(x) satisfy such Defaulting Lender’s potential future funding obligations with respect to
Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting
Exposure with respect to such Defaulting Lender with respect to future Letters of Credit
issued under this Agreement, in accordance with Section 2.14;
sixth
, to the payment of any
amounts owing to the Lenders, the L/C Issuer or the Swingline Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or
the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement;
seventh
, so long as no Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment
of a court of competent jurisdiction obtained by the Borrower against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and
eighth
, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction;
provided
amount of any Loans or L/C Obligations in respect of which such Defaulting Lender has
not fully funded its appropriate share, and (y) such Loans were made or the related Letters
of Credit were issued at a time when the conditions set forth in Section 7.1 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations
owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such
time as all Loans and funded and unfunded participations in L/C Obligations and Swingline
Loans are held by the Lenders pro rata in accordance with their Percentages of the relevant
Commitments without giving effect to Section 2.13(a)(iv) below. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section 2.13(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
Certain Fees
.
fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).
Fees for any period during which that Lender is a Defaulting Lender only to the
extent allocable to its Percentage of the stated amount of Letters of Credit for which
it has provided Cash Collateral pursuant to Section 2.14.
any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to
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each Non-Defaulting Lender that portion of any such fee otherwise payable to such
Defaulting Lender with respect to such Defaulting Lender’s participation in
L/C Obligations or Swingline Loans that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each L/C Issuer
and Swingline Lender, as applicable, the amount of any such fee otherwise payable
to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swingline
Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to
pay the remaining amount of any such fee.
Reallocation of Participations to Reduce Fronting Exposure
. All or any
part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans
shall be reallocated among the Non-Defaulting Lenders in accordance with their respective
Percentages of the relevant Commitments (calculated without regard to such Defaulting
Lender’s Commitments) but only to the extent that (x) the conditions set forth in
Section 7.1 are satisfied at the time of such reallocation (and, unless the Borrower shall
have otherwise notified the Administrative Agent at such time, the Borrower 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 Loans and interests in
L/C Obligations and Swingline Loans of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 13.21, 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.
Cash Collateral; Repayment of Swingline Loans
. If the reallocation
described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall,
without prejudice to any right or remedy available to them hereunder or under law, (x) first,
prepay Swingline Loans in an amount equal to the Swing Lender’s Fronting Exposure and
(y) second, Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the
procedures set forth in Section 2.14.
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, the Swingline
Lender and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements
with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that
portion of outstanding Loans of the other Lenders or take such other actions as the Administrative
Agent may determine to be necessary to cause the Loans and funded and unfunded participations
in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with
their respective Percentages of the relevant Commitments (without giving effect to
Section 2.13(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided
no adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and
provided
,
further
, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
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Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.
New Swingline Loans/Letters of Credit
. So long as any Lender is a Defaulting
Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is
satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and
(ii) no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless
it is satisfied that it will have no Fronting Exposure after giving effect thereto.
Section 2.14. Cash Collateral for Fronting Exposure.
At any time that there shall exist a
Defaulting Lender, within one (1) Business Day following the written request of the
Administrative Agent or any L/C Issuer (with a copy to the Administrative Agent) the Borrower
shall Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender
(determined after giving effect to Section 2.13(a)(iv) and any Cash Collateral provided by such
Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
Grant of Security Interest
. The Borrower, and to the extent provided by any
Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the
benefit of the L/C Issuers, and agree to maintain, a first priority security interest in all such Cash
Collateral as security for such Defaulting Lender’s obligation to fund participations in respect of
L/C Obligations, to be applied pursuant to clause (b) below. If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other than the
Administrative Agent and the L/C Issuers as herein provided, or that the total amount of such Cash
Collateral is less than the Minimum Collateral Amount, the Borrower shall, promptly upon demand
by the Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash
Collateral provided by the Defaulting Lender).
Application
. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.14 or Section 2.13 in respect of Letters of Credit
shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in
respect of L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any
other application of such property as may otherwise be provided for herein.
Termination of Requirement
. Cash Collateral (or the appropriate portion thereof)
provided to reduce any L/C Issuer’s Fronting Exposure shall no longer be required to be held as
Cash Collateral pursuant to this Section 2.14(c) following (A) the elimination of the applicable
Fronting Exposure (including by the termination of Defaulting Lender status of the applicable
Lender), or (B) the determination by the Administrative Agent and each L/C Issuer that there exists
excess Cash Collateral;
provided
Collateral and each L/C Issuer may agree that Cash Collateral shall be held to support future
anticipated Fronting Exposure or other obligations; and
provided further
that to the extent that
such Cash Collateral was provided by the Borrower or any other Loan Party, such Cash Collateral
shall remain subject to the security interest granted pursuant to the Loan Documents.
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Section 2.15. Increase in Revolving Credit Commitments; Making of Incremental Term
Loans.
The Borrower may, on any Business Day prior to the Revolving Credit Termination Date,
with the written consent of the Administrative Agent, the L/C Issuer, and the Swingline Lender,
increase the aggregate amount of the Revolving Credit Commitments and/or borrow one or more
term loans (collectively, the “
Incremental Term Loans
”), in each case, by delivering an Increase
Request substantially in the form attached hereto as Exhibit I (or in such other form acceptable to
the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the
desired effective date of such increase (the
“Increase”
) identifying an additional Lender, which
qualifies as an Eligible Assignee (or additional Revolving Credit Commitments or a commitment
to make Incremental Term Loans for an existing Lender) and the amount of its Revolving Credit
Commitment or Incremental Term Loan (or, for an existing Lender, the amount of additional
Revolving Credit Commitments or the amount of a commitment to make Incremental Term
Loans);
provided, however
, that:
and any such Increase shall be in an amount not less than $10,000,000 (or such lesser
amount then agreed to by the Administrative Agent);
or the effective date of the Increase and after giving pro forma effect to the use of proceeds
thereof; and
other Loan Documents shall be and remain true and correct in all material respects on the
effective date of such Increase (where not already qualified by materiality, otherwise in all
respects), except to the extent the same expressly relate to an earlier date, in which case
they shall be true and correct in all material respects (where not already qualified by
materiality, otherwise in all respects)
as of such earlier date.
The effective date (the
“Increase Date”
) of the Increase shall be agreed upon by the Borrowers,
the Administrative Agent and the Lender(s) providing such Increase. Upon the Increase Date,
Schedule 2.1/2.2 shall be deemed amended to reflect the Increase. With respect to an Increase in
the Revolving Credit Commitments as described above, on the Increase Date, the new Revolving
Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, as applicable, in
an amount sufficient such that after giving effect to such advance(s) or loan(s) and the prepayment
of Revolving Loans by any Lender(s) whose commitment is not increased, each Lender shall have
outstanding its Revolver Percentage of Revolving Loans. It shall be a condition to such
effectiveness that (A) if any Eurodollar Loans are outstanding on the date of such effectiveness,
such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any
amounts owing to the Lenders pursuant to Section 4.5 and (B) the Borrower shall not have
terminated any portion of the Revolving Credit Commitments pursuant to Section 2.11. The
Borrower agrees to pay the expenses of the Administrative Agent (including reasonable attorney’s
fees) relating to any Increase. Notwithstanding anything herein to the contrary, no Lender shall
have any obligation to increase its Revolving Credit Commitment or to make any Incremental
Term Loan and no Lender’s Revolving Credit Commitment shall be increased without its consent
-46-
thereto, and each Lender may at its option, unconditionally and without cause, decline to provide
any Increase.
Each Revolving Credit Increase shall be on the same terms (including pricing and maturity, but
excluding customary arrangement, commitment, structuring and underwriting fees, and
amendment fees not generally shared with other Lenders with respect to such Revolving Credit
Increase) as the Revolving Credit Commitments outstanding prior to the Increase Date. Each
Incremental Term Loan shall be on terms and conditions specified in an Incremental Amendment.
Commitments in respect of Incremental Term Loans and increases in the Revolving Credit
Commitment shall become commitments (or in the case of an increase in the Revolving Credit
Commitment to be provided by an existing Lender, an increase in such Lender’s applicable
Revolving Credit Commitment) under this Agreement pursuant to an amendment (an
“Incremental
Amendment”
) to this Agreement and, as appropriate, the other Loan Documents, executed by the
Borrowers, each existing Lender agreeing to provide such Increase, if any, each additional Lender,
if any, and the Administrative Agent. The Incremental Amendment may, without the consent of
any other Lenders, 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
Borrowers, to effect the provisions of this Section 2.15.
(a) The Borrower may, by written notice to the
Administrative Agent from time to time, request an extension (each, an “
Extension
”) of the
Revolving Credit Termination Date and/or, if applicable, any maturity date applicable to any
Incremental Term Loan to the extended maturity date specified in such request. Such notice shall
set forth (i) the amount of the Revolving Credit Commitments and/or Incremental Term Loans to
be extended (which shall be in minimum increments of $5,000,000 and a minimum of
$10,000,000) and (ii) the date on which such Extension is requested to become effective (which
date shall not be less than ten (10) Business Days nor more than sixty (60) days after after the date
of such requested Extension (or such longer or shorter periods as the Administrative Agent shall
agree). Each Lender shall be offered (an “
Extension Offer
”) an opportunity to participate in such
Extension on a pro rata basis and on the same terms and conditions as each other Lender pursuant
to procedures established by, or reasonably acceptable to, the Administrative Agent. Any Lender
approached to participate in such Extension may elect or decline, in its sole discretion, to
participate in such Extension (it being understood that if a Lender shall fail to respond to any
request for participation in an Extension within five (5) Business Days of receipt of the Extension
Offer, such Lender shall be deemed to have declined to participate in such Extension). If the
aggregate principal amount of Revolving Credit Commitments or Incremental Term Loans,
(calculated on the face amount thereof), as applicable, in respect of which Lenders shall have
accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of
the Revolving Credit Commitment or Incremental Term Loan, as applicable, requested to be
extended by the Borrower pursuant to the Extension Offer, then the Revolving Credit
Commitments or Incremental Term Loans, as applicable of the 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.
-47-
Default shall have occurred and be continuing immediately prior to and immediately after giving
effect to such Extension, (ii) the representations and warranties of the Borrower and each other
Loan Party contained in Section 6 or 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 (and in all respects if any such representation or warranty is already
qualified by materiality or reference to Material Adverse Effect) on and as of the date of such
Extension, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case, they shall be true and correct in all material respects (and in all respects
if any such representation or warranty is already qualified by materiality or reference to Material
Adverse Effect) as of such earlier date, (iii) the L/C Issuer and the Swingline Lender shall have
consented to any Extension of the Revolving Credit Commitments if such Extension provides for
the issuance of Letters of Credit or the making of Swingline Loans at any time during the extended
period, and (iv) the terms of such Extension shall comply with Section 2.16(c).
extending Lenders and be set forth in an Additional Credit Extension Amendment, provided, that
(i) the final maturity date of any Extended Revolving Credit Commitment or Extended Incremental
Term Loan shall be no earlier than the Revolving Credit Termination Date or the maturity date
applicable to the existing Incremental Term Loans, (ii)(A) there shall be no scheduled amortization
of the Extended Revolving Credit Commitments and (B) the scheduled amortization of the
Extended Incremental Term Loans shall be as agreed among the Borrower and the Lenders
providing such Extended Incremental Term Loans, (iii)(A) the Extended Revolving Loans and the
Extended Incremental Term Loans will rank pari passu in right of payment with the Revolving
Loans and the Incremental Term Loans being extended, and (B) the borrower and the guarantors
of the Extended Revolving Credit Commitments or the Extended Incremental Term Loans, as
applicable, shall be the Borrower and the Guarantors, (iv) the interest rate margins and fees
applicable to any Extended Revolving Credit Commitments (and the Extended Revolving Loans
thereunder) and Extended Incremental Loans shall be determined by the Borrower and the
applicable extending Lenders, and (v) to the extent the terms of the Extended Revolving Credit
Commitments or Extended Incremental Term Loans are inconsistent with the terms set forth herein
(except as set forth in clauses (i) through (iv) above), such terms shall be reasonably satisfactory
to the Administrative Agent.
applicable extending Lender shall execute and deliver to the Administrative Agent an Additional
Credit Extension Amendment and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Extension. The Administrative Agent shall promptly notify
each Lender as to the effectiveness of each Extension. Notwithstanding anything herein to the
contrary, any Additional Credit Extension Amendment may, without the consent of any other
Lender, effect such amendment to this Agreement and the other Loan Documents as may be
necessary or appropriate (but only to such extent), in the reasonable opinion of the Administrative
Agent and the Borrower, to implement the terms of any such Extension Offer, including any
amendments necessary to establish Extended Revolving Credit Commitments or Extended
Incremental Term Loans as a new tranche of Revolving Credit Commitments or Incremental Term
Loan, as applicable, and such other technical amendments as may be necessary or appropriate in
-48-
the reasonable opinion of the Administrative Agent and the Borrower in connection with the
establishment of such new tranche (including to preserve the pro rata treatment of the extended
and non-extended tranches and to provide for the reallocation of any L/C Obligations or
obligations under Swingline Loans upon the expiration or termination of the commitments under
any tranche), in each case on terms consistent with this Section 2.16.
S
ECTION
EES
.
Section 3.1. Fees.
Revolving Credit Commitment Fee
. The Borrower shall pay to the Administrative
Agent for the ratable account of the Lenders in accordance with their Revolver Percentages a
commitment fee at the rate per annum equal to the Applicable Margin (computed on the basis of a
year of 360 days and the actual number of days elapsed) times the daily amount by which the
aggregate Revolving Credit Commitments exceeds the principal amount of Revolving Loans and
L/C Obligations then outstanding. For the avoidance of doubt, the principal amount of Swingline
Loans shall not be counted towards or considered usage of the Revolving Credit Commitments for
purposes of this Section. Such commitment fee shall be payable quarterly in arrears on the last
day of each March, June, September, and December in each year (commencing on the first such
date occurring after the Closing Date) and on the Revolving Credit Termination Date, unless the
Revolving Credit Commitments are terminated in whole on an earlier date, in which event the
commitment fee for the period to the date of such termination in whole shall be paid on the date
of such termination.
Letter of Credit Fees.
of any Letter of Credit pursuant to Section 1.3, the Borrower shall pay to the L/C Issuer for its own
account a fronting fee equal to 0.125% of the face amount of (or of the increase in the face amount
of) such Letter of Credit. Quarterly in arrears, on the last day of each March, June, September,
and December, commencing on the first such date occurring after the Closing Date, the Borrower
shall pay to the Administrative Agent, for the ratable benefit of the Lenders in accordance with
their Revolver Percentages, a letter of credit fee (the
“L/C Participation Fee”
) at a rate per annum
equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number
of days elapsed) in effect during each day of such quarter applied to the daily average face amount
of Letters of Credit outstanding during such quarter. In addition, the Borrower shall pay to the
L/C Issuer for its own account the L/C Issuer’s standard issuance, drawing, negotiation,
amendment, assignment, and other administrative fees for each Letter of Credit as established by
the L/C Issuer from time to time.
Administrative Agent Fees
. The Borrower shall pay to the Administrative Agent, for
its own use and benefit, the fees agreed to between the Administrative Agent and the Borrower in
a letter dated as of the date hereof, or as otherwise agreed to in writing between them.
-49-
S
ECTION
AXES
;
C
HANGE IN
C
IRCUMSTANCES
,
I
NCREASED
C
OSTS
,
F
UNDING
I
NDEMNITY
Certain Defined Terms.
For purposes of this Section, the term “Lender” includes any
L/C Issuer and the term “applicable law” includes FATCA.
Payments Free of Taxes.
Any and all payments by or on account of any obligation
of any Loan Party 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 and, if such
Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased
as necessary so that after such deduction or withholding has been made (including such deductions
and withholdings applicable to additional sums payable under this Section) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or
withholding been made.
Payment of Other Taxes by the Loan Parties.
The Loan Parties shall timely pay to
the relevant Governmental Authority in accordance with applicable law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
Indemnification by the Loan Parties.
The Loan Parties shall jointly and severally
indemnify each Recipient, within thirty (30) days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient or required to be withheld or
deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by
the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
Indemnification by the Lenders.
Each Lender shall severally indemnify the
Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
or Other Taxes attributable to such Lender (but only to the extent that any Loan Party has not
already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and
without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 13.2(d) relating to the maintenance of a
Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are
payable or paid by the Administrative Agent in connection with any Loan Document, and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
-50-
to the amount of such payment or liability delivered to any Lender by the Administrative Agent
shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the Lender from any other source
against any amount due to the Administrative Agent under this subsection (e).
Evidence of Payments.
As soon as practicable after any payment of Taxes by any
Loan Party to a Governmental Authority pursuant to this Section, such Loan Party shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction
of withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent
as will enable the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Notwithstanding anything
to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 4.1(g)(ii)(A), (ii)(B) and (ii)(D)
below) shall not be required if in the Lender’s reasonable judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender.
Administrative Agent on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding tax;
to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), whichever of the following is
applicable:
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN
-51-
establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
“business profits” or “other income” article of such tax treaty;
exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a
“U.S. Tax Compliance Certificate”
) and (y) executed originals of IRS
Form W-8BEN; or
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable;
provided
that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf
of each such direct and indirect partner;
to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), executed originals of any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be made; and
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower and the Administrative Agent at the time or times prescribed by law and at such
time or times reasonably requested by the Borrower or the Administrative Agent such
documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the
-52-
Borrower and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (D),
“FATCA”
shall include any amendments made to FATCA
after the date of this Agreement.
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 Borrower and the Administrative Agent in writing of its legal inability to do so.
Treatment of Certain Refunds.
If any party receives a refund of any Taxes as to which
it has been indemnified pursuant to this Section (including by the payment of additional amounts
pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified
party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party,
shall repay to such indemnified party the amount paid over pursuant to this subsection (h) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the
event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this subsection (h), in no event will the indemnified
party be required to pay any amount to an indemnifying party pursuant to this subsection (h) the
payment of which would place the indemnified party in a less favorable net after-Tax position than
the indemnified party would have been in if the Tax subject to indemnification had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
giving rise to such refund had never been paid. This subsection shall not be construed to require
any indemnified party to make available its Tax returns (or any other information relating to its
Taxes that it deems confidential) to the indemnifying party or any other Person.
Survival.
Each party’s obligations under this Section
shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document.
Section 4.2. Change of Law.
any other Loan Document, if at any time any Change in Law makes it unlawful for any Lender to
make or continue to maintain any Eurodollar Loans or to perform its obligations as contemplated
hereby, such Lender shall promptly give notice thereof to the Borrower and such Lender’s
obligations to make or maintain Eurodollar Loans under this Agreement shall be suspended until
it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. The Borrower
shall prepay on demand the outstanding principal amount of any such affected Eurodollar Loans,
together with all interest accrued thereon and all other amounts then due and payable to such
Lender under this Agreement;
provided, however,
Agreement, the Borrower may then elect to borrow the principal amount of the affected Eurodollar
Loans from such Lender by means of Base Rate Loans from such Lender, which Base Rate Loans
shall not be made ratably by the Lenders but only from such affected Lender.
-53-
Section 4.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR
. (a)
Reserved
.
Replacing USD LIBOR.
On March 5, 2021 the Financial Conduct Authority
(
“FCA”
), the regulatory supervisor of USD LIBOR’s administrator (
“IBA”
), announced in a
public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-
month, 3-month, 6-month and 12- month USD LIBOR tenor settings. On the earlier of (i) the date
that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be
provided by IBA or have been announced by the FCA pursuant to public statement or publication
of information to be no longer representative and (ii) the Benchmark Replacement Date relating
to an Early Opt-in Election, if the then-current Benchmark is USD LIBOR, the Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of any setting of such Benchmark on such day and all subsequent settings
without any amendment to, or further action or consent of any other party to this Agreement or
any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest
payments will be payable on a quarterly basis.
(c) Effect of Benchmark Transition Event.
(i) Notwithstanding anything to the contrary
herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt
-
in
Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the
Reference Time in respect of any setting of the then
-
current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark
Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace
such Benchmark for all purposes hereunder and under any Loan Document in respect of such
Benchmark setting and subsequent Benchmark settings without any amendment to, or further
action or consent of any other party to, this Agreement or any other Loan Document and (y) if a
Benchmark Replacement is determined in accordance with clause (3) of the definition of
“Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of any Benchmark setting at or after 5:00 p.m. (Chicago time) on the 5th
Business Day after the date notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other party to, this Agreement or
any other Loan Document so long as the Administrative Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders comprising the
Required Lenders.
Document and subject to the proviso below in this paragraph, if a Term SOFR Event and
its related Benchmark Replacement Date have occurred prior to the Reference Time in
respect of any setting of the then
-
current Benchmark, then the applicable Benchmark
Replacement will replace the then
-
current Benchmark for all purposes hereunder or under
any Loan Document in respect of such Benchmark setting and subsequent Benchmark
settings, without any amendment to, or further action or consent of any other party to, this
Agreement or any other Loan Document;
provided
unless the Administrative Agent has delivered to the Lenders and the Borrower a Term
SOFR Notice.
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Administrative Agent will have the right to make Benchmark Replacement Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent of any
other party to this Agreement or any other Loan Document.
Lenders of (A) any occurrence of a Benchmark Transition Event, Term SOFR Event or
Early Opt
-
in Election, as applicable, and its related Benchmark Replacement Date, (B) the
implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark
Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a
Benchmark pursuant to clause (v) below and (E) the commencement or conclusion of any
Benchmark Unavailability Period. Any determination, decision or election that may be
made by the Administrative Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 4.3(c), including any determination with respect to a tenor, rate or
adjustment or of the occurrence or non
-
occurrence of an event, circumstance or date and
any decision to take or refrain from taking any action or any selection, will be made in
good faith in its or their reasonable discretion giving due consideration to any selection or
recommendation by the Relevant Governmental Body and to any prevailing market
practices for U.S. Dollar-denominated syndicated credit facilities and shall be conclusive
and binding absent manifest error without consent from any other party to this Agreement
or any other Loan Document, except, in each case, as expressly required pursuant to this
Section 4.3(c). The parties hereto acknowledge that, on March 5, 2021, the ICE
Benchmark Administration (the
“IBA”
), the administrator of the London interbank offered
rate (
“LIBOR Rate”
), stated that as a result of its not having access to input data necessary
to calculate LIBOR Rate settings on a representative basis beyond the intended cessation
dates set forth in such statement, it would have to cease publication of all 35 LIBOR Rate
settings immediately after such dates. The IBA did not identify any successor
administrator in its announcement. The IBA also noted that the U.K. Financial Conduct
Authority (the
“FCA”
), the regulatory supervisor for the IBA, could, at a later date, use
proposed new powers to require the IBA to publish LIBOR Rate settings on a synthetic
basis. The FCA also issued a separate announcement confirming that the IBA had notified
the FCA of its intent to cease providing all LIBOR Rate settings. While the FCA stated
that, subject to the establishment of the new proposed powers, it would consult on the issue
of requiring the IBA to produce certain LIBOR Rate tenors on a synthetic basis, it
confirmed that all 35 LIBOR Rate settings will either cease to be provided by any
administrator or will no longer be representative as of the dates set forth in such statement.
Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (A) if the then
-
current Benchmark is a term rate (including Term SOFR or
LIBOR) and either (1) any tenor for such Benchmark is not displayed on a screen or other
information service that publishes such rate from time to time as selected by the
Administrative Agent in good faith and in its reasonable discretion giving due
consideration to any prevailing market practice for U.S. Dollar-denominated syndicated
-55-
credit facilities or (2) the regulatory supervisor for the administrator of such Benchmark
has provided a public statement or publication of information announcing that any tenor
for such Benchmark is or will be no longer representative, then the Administrative Agent
may modify the definition of “Interest Period” for any Benchmark settings at or after such
time to remove such unavailable or non
-
representative tenor and (B) if a tenor that was
removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or
information service for a Benchmark (including a Benchmark Replacement) or (2) is not,
or is no longer, subject to an announcement that it is or will no longer be representative for
a Benchmark (including a Benchmark Replacement), then the Administrative Agent may
modify the definition of “Interest Period” for all Benchmark settings at or after such time
to reinstate such previously removed tenor.
Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing
of, conversion to or continuation of Eurodollar Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrowers 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 or at any time that a
tenor for the then
-
current Benchmark is not an Available Tenor, the component of Base
Rate based upon the then
-
current Benchmark or such tenor for such Benchmark, as
applicable, will not be used in any determination of Base Rate.
(vii)
Certain Defined Terms
. As used in this Section 4.3(c):
respect to the then
-
current Benchmark, as applicable, any tenor for such
Benchmark or payment period for interest calculated with reference to such
Benchmark, as applicable, that is or may be used for determining the length
of an Interest Period pursuant to this Agreement as of such date and not
including, for the avoidance of doubt, any tenor for such Benchmark that is
then
-
removed from the definition of “Interest Period” pursuant to clause (v)
of this Section 4.3(c).
provided
if a Benchmark Transition Event, a Term SOFR Event or an Early Opt
-
in
Election, as applicable, and its related Benchmark Replacement Date have
occurred with respect to the LIBOR Index Rate or the then
-
current
Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced
such prior benchmark rate pursuant to clause (i) or (ii) of this Section 4.3(c).
means, for any Available Tenor, the
first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
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Replacement Adjustment;
Benchmark Replacement Adjustment;
selected by the Administrative Agent and the Borrower as the replacement
for the then
-
current Benchmark for the applicable Corresponding Tenor
giving due consideration to (i) any selection or recommendation of a
replacement benchmark rate or the mechanism for determining such a rate
by the Relevant Governmental Body or (ii) any evolving or then
-
prevailing
market convention for determining a benchmark rate as a replacement for
the then
-
current Benchmark for U.S. dollar
-
denominated syndicated credit
facilities at such time and (b) the related Benchmark Replacement
Adjustment;
provided
Replacement is displayed on a screen or other information service that
publishes such rate from time to time as selected by the Administrative
Agent in good faith and in its reasonable discretion giving due consideration
to any prevailing market practice for U.S. Dollar-denominated syndicated
credit facilities;
provided further
contrary in this Agreement or in any other Loan Document, upon the
occurrence of a Term SOFR Event, and the delivery of a Term SOFR
Notice, on the applicable Benchmark Replacement Date the “Benchmark
Replacement” shall revert to and shall be deemed to be the sum of (a) Term
SOFR and (b) the related Benchmark Replacement Adjustment, as set forth
in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or
(3) above would be less than the Floor, the Benchmark Replacement will be
deemed to be the Floor for the purposes of this Agreement and the other
Loan Documents.
means, with respect to any
replacement of the then current Benchmark with an Unadjusted Benchmark
Replacement for any applicable Interest Period and Available Tenor for any
setting of such Unadjusted Benchmark Replacement:
“Benchmark Replacement,” the first alternative set forth in the order below
that can be determined by the Administrative Agent:
determining such spread adjustment, (which may be a positive or negative
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value or zero) as of the Reference Time such Benchmark Replacement is
first set for such Interest Period that has been selected or recommended by
the Relevant Governmental Body for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for the applicable
Corresponding Tenor;
value or zero) as of the Reference Time such Benchmark Replacement is
first set for such Interest Period that would apply to the fallback rate for a
derivative transaction referencing the ISDA Definitions to be effective upon
an index cessation event with respect to such Benchmark for the applicable
Corresponding Tenor; and
Replacement,” the spread adjustment, or method for calculating or
determining such spread adjustment, (which may be a positive or negative
value or zero) that has been selected by the Administrative Agent and the
Borrower for the applicable Corresponding Tenor giving due consideration
to (i) any selection or recommendation of a spread adjustment, or method
for calculating or determining such spread adjustment, for the replacement
of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body on the applicable
Benchmark Replacement Date and/or (ii) any evolving or then-prevailing
market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of
such Benchmark with the applicable Unadjusted Benchmark Replacement
for U.S. dollar denominated syndicated credit facilities;
provided
on a screen or other information service that publishes such Benchmark
Replacement Adjustment from time to time as selected by the
Administrative Agent in its reasonable discretion.
respect to any Benchmark Replacement, any technical, administrative or
operational changes (including changes to the definition of “Base Rate,” the
definition of “Business Day,” the definition of “Interest Period,” the timing
and frequency of determining rates and making payments of interest, the
timing of borrowing requests or prepayment, conversion or continuation
notices, the length of lookback periods, the applicability of breakage
provisions, and other technical, administrative or operational matters) that
the Administrative Agent reasonably decides may be appropriate to reflect
the adoption and implementation of such Benchmark Replacement and to
permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative
Agent in good faith decides that adoption of any portion of such market
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practice is not administratively feasible or if the Administrative Agent
determines in good faith that no market practice for the administration of
such Benchmark Replacement exists, in such other manner of
administration as the Administrative Agent in good faith decides is
reasonably necessary in connection with the administration of this
Agreement and the other Loan Documents).
following events with respect to the then-current Benchmark:
“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 such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to
provide all Available Tenors of such Benchmark (or such component
thereof);
Transition Event,” the date of the public statement or publication of
information referenced therein;
after the date a Term SOFR Notice is provided to the Lenders and the
Borrower pursuant to this Section 4.3(c)(ii); or
-
in Election, the 6th Business Day
after the date notice of such Early Opt
-
in Election is provided to the
Lenders, so long as the Administrative Agent has not received, by 5:00 p.m.
(Chicago time) on the 5th Business Day after the date notice of such Early
Opt
-
in Election is provided to the Lenders, written notice of objection to
such Early Opt
-
in Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date
will be deemed to have occurred prior to the Reference Time for such
determination and (ii) the “Benchmark Replacement Date” will be deemed
to have occurred in the case of clause (1) or (2) with respect to any
Benchmark upon the occurrence of the applicable event or events set forth
therein with respect to all then
-
current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
means the occurrence of one or
more of the following events with respect to the then
-
current Benchmark:
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behalf of the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that such administrator has
ceased or will cease to provide all Available Tenors of such Benchmark (or
such component thereof), permanently or indefinitely;
provided
time of such statement or publication, there is no successor administrator
that will continue to provide any Available Tenor of such Benchmark (or
such component thereof);
regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof), the FRB, the
NYFRB, an insolvency official with jurisdiction over the administrator for
such Benchmark (or such component), a resolution authority with
jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over
the administrator for such Benchmark (or such component), which states
that the administrator of such Benchmark (or such component) has ceased
or will cease to provide all Available Tenors of such Benchmark (or such
component thereof) permanently or indefinitely,
provided
of such statement or publication, there is no successor administrator that
will continue to provide any Available Tenor of such Benchmark (or such
component thereof); or
regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof) announcing that all
Available Tenors of such Benchmark (or such component thereof) are no
longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be
deemed to have occurred with respect to any Benchmark if a public
statement or publication of information set forth above has occurred with
respect to each then
-
current Available Tenor of such Benchmark (or the
published component used in the calculation thereof).
means the period (if any) (x)
beginning at the time that a Benchmark Replacement Date pursuant to
clauses (1) or (2) of that definition has occurred if, at such time, no
Benchmark Replacement has replaced the then
-
current Benchmark for all
purposes hereunder and under any Loan Document in accordance with this
Section 4.3(c) and (y) ending at the time that a Benchmark Replacement has
replaced the then
-
current Benchmark for all purposes hereunder and under
any Loan Document in accordance with this Section 4.3(c).
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with respect to any Available Tenor means,
as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day
adjustment) as such Available Tenor.
means, for any day, SOFR, with the
conventions for this rate (which will include a lookback) being established
by the Administrative Agent in accordance with the conventions for this
rate selected or recommended by the Relevant Governmental Body for
determining “Daily Simple SOFR” for syndicated business loans;
provided
that if the Administrative Agent decides in good faith that any such
convention is not administratively feasible for the Administrative Agent,
then the Administrative Agent may establish another convention in good
faith and in its reasonable discretion giving due consideration to any
prevailing market practices for U.S. Dollar-denominated syndicated credit
facilities.
-
in Election”
means, if the then
-
current Benchmark is
the LIBOR Index Rate, the occurrence of:
by the Borrower to the Administrative Agent to notify) each of the other
parties hereto that at least five currently outstanding U.S.
dollar
-
denominated syndicated credit facilities at such time contain (as a
result of amendment or as originally executed) a SOFR
-
based rate
(including SOFR, a term SOFR or any other rate based upon SOFR) as a
benchmark rate (and such syndicated credit facilities are identified in such
notice and are publicly available for review), and
Borrower to trigger a fallback from LIBOR and the provision by the
Administrative Agent of written notice of such election to the Lenders.
Agreement initially (as of the execution of this Agreement, the
modification, amendment or renewal of this Agreement or otherwise) with
respect to LIBOR.
System of the United States.
means the 2006 ISDA Definitions published by
the International Swaps and Derivatives Association, Inc. or any successor
thereto, as amended or supplemented from time to time, or any successor
definitional booklet for interest rate derivatives published from time to time
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by the International Swaps and Derivatives Association, Inc. or such
successor thereto.
means the Federal Reserve Bank of New York.
means the website of the Federal Reserve Bank
of New York at http://www.newyorkfed.org, or any successor source.
with respect to any setting of the then
-
current
Benchmark means (1) if such Benchmark is the LIBOR Index Rate, 11:00
a.m. (London time) on the day that is two London banking days preceding
the date of such setting, and (2) if such Benchmark is not the LIBOR Index
Rate, the time determined by the Administrative Agent in good faith and in
its reasonable discretion giving due consideration to any prevailing market
practice for U.S. Dollar-denominated syndicated credit facilities.
” means the FRB and/or the NYFRB,
or a committee officially endorsed or convened by the FRB and/or the
NYFRB, or any successor thereto.
means, with respect to any Business Day, a rate per annum
equal to the secured overnight financing rate for such Business Day
published by the SOFR Administrator on the SOFR Administrator’s
Website on the immediately succeeding Business Day.
means the NYFRB (or a successor
administrator of the secured overnight financing rate).
means the NYFRB’s Website,
currently at http://www.newyorkfed.org, or any successor source for the
secured overnight financing rate identified as such by the SOFR
Administrator from time to time.
means, for the applicable Corresponding Tenor as of
the applicable Reference Time, the forward
-
looking term rate based on
SOFR that has been selected or recommended by the Relevant
Governmental Body.
means the determination by the Administrative
Agent that (a) Term SOFR has been recommended for use by the Relevant
Governmental Body, (b) the administration of Term SOFR is
administratively feasible for the Administrative Agent and (c) a Benchmark
Transition Event has previously occurred resulting in a Benchmark
Replacement in accordance with this Section 4.3(c) that is not Term SOFR.
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means a notification by the Administrative
Agent to the Lenders and the Borrower of the occurrence of a Term SOFR
Event.
means the applicable
Benchmark Replacement excluding the related Benchmark Replacement
Adjustment.
Section 4.4. Increased Costs
.
Increased Costs Generally.
If any Change in Law shall:
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 Adjusted LIBOR) or any L/C Issuer;
(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and
(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
or
any other condition, cost or expense (other than Taxes) affecting this Agreement or 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 or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such L/C Issuer or such
other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender, L/C Issuer or other Recipient hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, L/C Issuer or other
Recipient, the Borrower will pay to such Lender, L/C Issuer or other Recipient, as the case may
be, such additional amount or amounts as will compensate such Lender, L/C Issuer or other
Recipient, as the case may be, for such additional costs incurred or reduction suffered.
Capital Requirements.
If any Lender or L/C Issuer determines that any Change in
Law affecting such Lender or L/C Issuer or any lending office of such Lender or such Lender’s or
L/C Issuer’s holding company, if any, regarding capital or liquidity requirements, has or would
have the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the
capital of such Lender’s or 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 or Swingline Loans held by, such Lender, or the Letters of Credit issued by any L/C
Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s
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holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such
reduction suffered.
Certificates for Reimbursement.
A certificate of a Lender or L/C Issuer setting forth
the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company,
as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the
Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or L/C
Issuer, as the case may be, the amount shown as due on any such certificate within thirty (30) days
after receipt thereof.
Delay in Requests.
Failure or delay on the part of any Lender or L/C Issuer to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s or L/C Issuer’s
right to demand such compensation;
provided
compensate a Lender or L/C Issuer pursuant to this Section for any increased costs incurred or
reductions suffered more than six (6) months prior to the date that such Lender or L/C Issuer, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions, and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of retroactive effect
thereof).
Section 4.5. Funding Indemnity
. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund or maintain any
Eurodollar Loan or Swingline Loan bearing interest at the Swingline Lender’s Quoted Rate or the
relending or reinvesting of such deposits or amounts paid or prepaid to such Lender) as a result of:
Swingline Loan on a date other than the last day of its Interest Period,
otherwise) by the Borrower to borrow or continue a Eurodollar Loan or such Swingline
Loan, or to convert a Base Rate Loan into a Eurodollar Loan or such Swingline Loan on
the date specified in a notice given pursuant to Section 2.6(a) or 2.2(b),
Eurodollar Loan or such Swingline Loan when due (whether by acceleration or otherwise),
or
Loan as a result of the occurrence of any Event of Default hereunder,
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then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will
reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a
certificate setting forth the amount of such loss, cost or expense in reasonable detail and the
amounts shown on such certificate shall be conclusive
absent manifest error.
Section 4.6. Discretion of Lender as to Manner of Funding.
Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes
of this Agreement all determinations hereunder with respect to Eurodollar Loans shall be made as
if each Lender had actually funded and maintained each Eurodollar Loan through the purchase of
deposits in the interbank euro dollar market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest Period.
Section 4.7. Lending Offices; Mitigation Obligations.
Each Lender may, at its option,
elect to make its Loans hereunder at the branch, office or affiliate specified in its Administrative
Questionnaire (each a
“Lending Office”
) for each type of Loan available hereunder or at such other
of its branches, offices or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent.
If any Lender requests compensation under
Section 4.4, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1, then
such Lender shall (at the request of the Borrower) 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 4.1
or 4.4, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
S
ECTION
LACE AND
A
PPLICATION OF
P
AYMENTS
.
Section 5.1. Place and Application of Payments.
on the Loans and the Reimbursement Obligations, and all other Obligations payable by the
Borrower under this Agreement and the other Loan Documents, shall be made by the Borrower to
the Administrative Agent by no later than 2:00 p.m. (Chicago time) on the due date thereof at the
office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative
Agent may designate to the Borrower), for the benefit of the Lender(s) or L/C Issuer entitled
thereto. Any payments received after such time shall be deemed to have been received by the
Administrative Agent on the next Business Day. All such payments shall be made in U.S. Dollars,
in immediately available funds at the place of payment, in each case without set-off or
counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest on Loans and on Reimbursement Obligations in
which the Lenders have purchased Participating Interests ratably to the Lenders and like funds
relating to the payment of any other amount payable to any Lender to such Lender, in each case to
be applied in accordance with the terms of this Agreement. Unless the Administrative Agent shall
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have received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the L/C Issuers, as the case may be, the amount due. With respect to
any payment that the Administrative Agent makes to any Lender, L/C Issuer or other secured party
hereunder as to which Administrative Agent determines (in its sole and absolute discretion) that
any of the following applies (such payment referred to as the
“Rescindable Amount”
): (1) the
Borrowers have not in fact made the corresponding payment to the Administrative Agent; (2) the
Administrative Agent has made a payment in excess of the amount(s) received by it from the
Borrowers either individually or in the aggregate (whether or not then owed); or (3) the
Administrative Agent has for any reason otherwise erroneously made such payment; then each of
the Lenders, the L/C Issuer and the other Affiliates of the Lenders that are secured parties
hereunder severally agrees to repay to the Administrative Agent forthwith on demand the
Rescindable Amount so distributed to such Person, 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 Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
Section 5.2. Non-Business Days.
Subject to the definition of Interest Period, if any
payment hereunder becomes due and payable on a day which is not a Business Day, the due date
of such payment shall be extended to the next succeeding Business Day on which date such
payment shall be due and payable. In the case of any payment of principal falling due on a day
which is not a Business Day, interest on such principal amount shall continue to accrue during
such extension at the rate per annum then in effect, which accrued amount shall be due and payable
on the next scheduled date for the payment of interest.
. To the extent that any payment by or on behalf of the
Borrower or any other Loan Party is made to the Administrative Agent, any L/C Issuer or any
Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, such L/C Issuer or such Lender 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 Lender and each L/C
Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation for each such day.
. The Borrower hereby irrevocably authorizes the
Administrative Agent, upon at least two (2) business days prior notice to Borrower, to charge any
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of the Borrower’s deposit accounts maintained with the Administrative Agent for the amounts
from time to time necessary to pay any then due Obligations;
provided
the Borrower
acknowledges and agrees that the Administrative Agent shall not be under an obligation to do so
and the Administrative Agent shall not incur any liability to the Borrower or any other Person for
the Administrative Agent’s failure to do so.
S
ECTION
EPRESENTATIONS AND
W
ARRANTIES
.
Each Loan Party represents and warrants to the Administrative Agent and the Lenders as
follows:
Section 6.1. Organization and Qualification
. Each Loan Party is duly organized, validly
existing, and in good standing as a corporation, limited liability company, or partnership, as
applicable, under the laws of the jurisdiction in which it is organized, has the authority and power
to own its Property and conduct its business as now conducted, and is duly qualified and in good
standing in each jurisdiction in which the nature of the business conducted by it or the nature of
the Property owned or leased by it requires such qualifying, except where the failure to do so would
not have a Material Adverse Effect.
Section 6.2. Subsidiaries
. Each Subsidiary that is not a Loan Party is duly organized,
validly existing, and in good standing under the laws of the jurisdiction in which it is organized,
has the authority and power to own its Property and conduct its business as now conducted, and is
qualified and in good standing in each jurisdiction in which the nature of the business conducted
by it or the nature of the Property owned or leased by it requires such qualifying, except where the
failure to do so would not have a Material Adverse Effect. Schedule 6.2 hereto identifies each
Subsidiary (including Subsidiaries that are Loan Parties), the jurisdiction of its organization, the
percentage of issued and outstanding shares of each class of its capital stock or other equity
interests owned by any Loan Party and its Subsidiaries and, if such percentage is not 100%
(excluding directors’ qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of each class issued
and outstanding. All of the outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares
and other equity interests indicated on Schedule 6.2 as owned by the relevant Loan Party or another
Subsidiary are owned, beneficially and of record, by such Loan Party or such Subsidiary free and
clear of all Liens otherwise permitted by this Agreement. There are no outstanding commitments
or other obligations of any Subsidiary to issue, and no options, warrants or other rights of any
Person to acquire, any shares of any class of capital stock or other equity interests of any
Subsidiary.
Section 6.3. Authority and Validity of Obligations
. Each Loan Party has the right and
authority to enter into this Agreement and the other Loan Documents executed by it, to make the
borrowings herein provided for (in the case of the Borrower), to guarantee the Secured Obligations
(in the case of each Guarantor), to grant to the Administrative Agent the Liens described in the
Collateral Documents executed by such Loan Party, and to perform all of its obligations hereunder
and under the other Loan Documents executed by it. The Loan Documents delivered by the Loan
Parties and their Subsidiaries have been duly authorized, executed, and delivered by such Persons
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and constitute valid and binding obligations of such Loan Parties and their Subsidiaries enforceable
against each of them in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally
and general principles of equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law); and this Agreement and the other Loan Documents
do not, nor does the performance or observance by any Loan Party or any Subsidiary of any of the
matters and things herein or therein provided for, (a) contravene or constitute a default under any
provision of law or any judgment, injunction, order or decree binding upon any Loan Party or any
Subsidiary of a Loan Party or any provision of the organizational documents (
e.g.,
certificate or articles of incorporation and by-laws, certificate or articles of association and
operating agreement, partnership agreement, or other similar organizational documents) of any
Loan Party or any Subsidiary of a Loan Party, (b) contravene or constitute a default under any
covenant, indenture or agreement of or affecting any Loan Party or any Subsidiary of a Loan Party
or any of their respective Property, in each case where such contravention or default, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (c) result
in the creation or imposition of any Lien on any Property of any Loan Party or any Subsidiary of
a Loan Party other than the Liens granted in favor of the Administrative Agent pursuant to the
Collateral Documents.
Section 6.4. Use of Proceeds; Margin Stock
. The Borrower shall use the proceeds of the
Revolving Facility to finance Capital Expenditures, to finance Permitted Acquisitions and for its
general working capital purposes and for such other legal and proper purposes as are consistent
with all applicable laws and to pay certain fees and expenses associated with closing of this
Agreement. No Loan Party nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan
or any other extension of credit made hereunder will be used to purchase or carry any such margin
stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Margin stock (as hereinabove defined) constitutes less than 25% of the assets of the Loan Parties
and their Subsidiaries which are subject to any limitation on sale, pledge or other restriction
hereunder.
Section 6.5. Financial Reports
. The consolidated balance sheet of the Borrower and its
Subsidiaries as of May 29, 2021, and the related consolidated statements of operations,
comprehensive income (loss), stockholder’s equity and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, and accompanying notes thereto, which financial
statements are accompanied by the audit report of Frost, PLLC, independent public accountants,
and the unaudited interim consolidated balance sheet of the Borrower and its Subsidiaries as of
August 28, 2021, and the related consolidated statements of operations, comprehensive
income(loss), shareholder’s equity and cash flows of the Borrower and its Subsidiaries
for the
three (3) months then ended, heretofore furnished to the Administrative Agent and the Lenders,
fairly present in all material respects the consolidated financial condition of the Borrower and its
Subsidiaries
at said dates and the consolidated results of their operations and cash flows for the
periods then ended in conformity with GAAP applied on a consistent basis. Neither the Borrower
nor any of its Subsidiaries has contingent liabilities which are material to it other than as indicated
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on such financial statements or, with respect to future periods, on the financial statements furnished
pursuant to Section 8.5.
Section 6.6. No Material Adverse Change.
Since May 29, 2021, there has been no change
in the condition (financial or otherwise) or business prospects of any Loan Party or any Subsidiary
of a Loan Party except those occurring in the ordinary course of business or as disclosed in its
filings with the SEC, none of which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
Section 6.7. Full Disclosure
. The statements and information furnished to the
Administrative Agent and the Lenders in connection with the negotiation of this Agreement and
the other Loan Documents and the commitments by the Lenders to provide all or part of the
financing contemplated hereby do not contain any untrue statements of a material fact or omit a
material fact necessary to make the material statements contained herein or therein not misleading,
the Administrative Agent and the Lenders acknowledging that as to any projections furnished to
the Administrative Agent and the Lenders, the Loan Parties only represent that the same were
prepared on the basis of information and estimates the Loan Parties believed to be reasonable in
light of the then existing conditions. The Administrative Agent and Lenders recognize that any
projections are not to be viewed as facts and that the actual results during the period or periods
covered by such projections may vary from such projections. Notwithstanding the foregoing, it is
understood and agreed that the periodic reports and other information of Borrower filed with the
SEC pursuant to Section 13 of the Exchange Act speak as of the date of such reports or other filings
and not of any subsequent time and, therefore, the representation set forth in the first sentence of
this paragraph is applicable to the information contained in such reports or other filings only as of
the date of such reports or other filings. Additionally, notwithstanding anything to the contrary
contained herein, the representation in the first sentence of this paragraph shall not apply to
forward-looking information contained in the filings made by Borrower with the SEC pursuant to
Section 13 of the Exchange Act, and the Borrowers shall have no liability with respect to such
forward-looking information, except to the extent that Borrower would have liability to investors
in its public securities under the Exchange Act after the application of Section 21E of the Exchange
Act.
Section 6.8. Trademarks, Franchises, and Licenses
. The Loan Parties and their
Subsidiaries own, possess, or have the right to use all necessary patents, licenses, franchises,
trademarks, trade names, trade styles, copyrights, trade secrets, know how, and confidential
commercial and proprietary information to conduct their businesses as now conducted, without
known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright
or other proprietary right of any other Person.
Section 6.9. Governmental Authority and Licensing.
Subsidiaries have received all licenses, permits, and approvals of all federal, state, and local
governmental authorities, if any, necessary to conduct their businesses, in each case where the
failure to obtain or maintain the same could reasonably be expected to have a Material Adverse
Effect. No investigation or proceeding which, if adversely determined, could reasonably be
expected to result in revocation or denial of any material license, permit or approval is pending or,
to the knowledge of any Loan Party, threatened in writing.
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Section 6.10. Good Title
. The Borrower and its Subsidiaries have good and defensible title
(or valid leasehold interests) to their assets as reflected on the most recent consolidated balance
sheet of the Borrower and its Subsidiaries furnished to the Administrative Agent and the Lenders
(except for sales of assets in the ordinary course of business), subject to no Liens other than such
thereof as are permitted by Section 8.8.
Section 6.11. Litigation and Other Controversies.
Except as set forth in Schedule 6.11,
there is no litigation or governmental or arbitration proceeding or labor controversy pending, nor
to the knowledge of any Loan Party threatened, against any Loan Party or any Subsidiary of a
Loan Party or any of their respective Property which if adversely determined, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 6.12. Taxes
. All federal and material state, local, and foreign Tax returns required
to be filed by any Loan Party or any Subsidiary of a Loan Party in any jurisdiction have, in fact,
been filed, and all Taxes upon any Loan Party or any Subsidiary of a Loan Party or upon any of
their respective Property, income or franchises, which are shown to be due and payable in such
returns, have been paid, except such Taxes, if any, as are being contested in good faith and by
appropriate proceedings which prevent enforcement of the matter under contest and as to which
adequate reserves established in accordance with GAAP have been provided. No Loan Party
knows of any proposed additional Tax assessment against it or its Subsidiaries for which adequate
provisions in accordance with GAAP have not been made on their accounts. Adequate provisions
in accordance with GAAP for Taxes on the books of each Loan Party and each of its Subsidiaries
have been made for all open years, and for its current fiscal period.
Section 6.13. Approvals
. No authorization, consent, license or exemption from, or filing
or registration with, any court or governmental department, agency or instrumentality, nor any
approval or consent of any other Person, is or will be necessary to the valid execution, delivery or
performance by any Loan Party or any Subsidiary of a Loan Party of any Loan Document, except
for (i) such approvals which have been obtained prior to the date of this Agreement and remain in
full force and effect and (ii) filings which are necessary to perfect the security interests under the
Collateral Documents.
Section 6.14. Affiliate Transactions .
No Loan Party nor any of its Subsidiaries is a party
to any contracts or agreements with any of its Affiliates on terms and conditions which are less
favorable to such Loan Party or such Subsidiary than would be usual and customary in similar
contracts or agreements between Persons not affiliated with each other.
Section 6.15. Investment Company.
No Loan Party nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
. Except as would not reasonably be expected to result in a Material
Adverse Effect, each Loan Party and each other member of its Controlled Group has fulfilled its
obligations under the minimum funding standards of and is in compliance in all material respects
with ERISA and the Code to the extent applicable to it and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA other than a liability to the PBGC for premiums under
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Section 4007 of ERISA. Except as would not reasonably be expected to result in a Material
Adverse Effect, no Loan Party or any of its Subsidiaries has any contingent liabilities with respect
to any post-retirement benefits under a Welfare Plan, other than liability for continuation coverage
described in article 6 of Title I of ERISA.
Section 6.17. Compliance with Laws
. (a) The Loan Parties and their Subsidiaries are in
compliance with all Legal Requirements applicable to or pertaining to their Property or business
operations, where any such non-compliance, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
be expected to result in a Material Adverse Effect, the Loan Parties represent and warrant that:
(i) the Loan Parties and their Subsidiaries, and each of the Premises, comply in all material respects
with all applicable Environmental Laws; (ii) the Loan Parties and their Subsidiaries have obtained,
maintain and are in compliance with all approvals, permits, or authorizations of Governmental
Authorities required for their operations and each of the Premises; (iii) the Loan Parties and their
Subsidiaries have not, and no Loan Party has knowledge of any other Person who has, caused any
Release, threatened Release or disposal of any Hazardous Material or any other waste or product,
including manure, at, on, or from any of the Premises in violation of any Environmental Laws;
(iv) the Loan Parties and their Subsidiaries are not subject to and have not received written notice
of any material Environmental Claim involving any Loan Party or any Subsidiary of a Loan Party
or any of the Premises, and, to the knowledge of the Loan Parties and their Subsidiaries, there are
no conditions or occurrences at any of the Premises which could reasonably be anticipated to form
the basis for such a material Environmental Claim; (v) none of the Premises contain and have
contained any sites on or nominated for the National Priority List or similar state list; (vi) the Loan
Parties and their Subsidiaries have conducted no Hazardous Material Activity at any of the
Premises except in compliance with Environmental Laws; (vii) except for permits, licenses and
other legal requirements required in the ordinary course of business none of the Premises are
subject to any, and no Loan Party has knowledge of any imminent, restriction on the ownership,
occupancy, use or transferability of the Premises in connection with any (1) Environmental Law
or (2) Release, threatened Release or disposal of a Hazardous Material, waste or product; and
(viii) the Loan Parties and their Subsidiaries have no knowledge of any material capital
expenditures necessary to bring the Premises or their respective businesses or equipment into
compliance with Environmental Laws.
Anti-Corruption Laws. To the knowledge of the Responsible Officers of the Loan Parties, no Loan
Party nor any Subsidiary has made a payment, offering, or promise to pay, or authorized the
payment of, money or anything of value (a) in order to assist in obtaining or retaining business for
or with, or directing business to, any foreign official, foreign political party, party official or
candidate for foreign political office, (b) to a foreign official, foreign political party or party
official or any candidate for foreign political office, and (c) with the intent to induce the recipient
to misuse his or her official position to direct business wrongfully to such Loan Party or such
Subsidiary or to any other Person, in violation of any Anti-Corruption Laws, which could
reasonably be expected to result in a Material Adverse Effect.
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Section 6.18. OFAC
. (a) Each Loan Party is in compliance in all material respects with the
requirements of all OFAC Sanctions Programs applicable to it, (b) each Subsidiary of each Loan
Party is in compliance in all material respects with the requirements of all OFAC Sanctions
Programs applicable to such Subsidiary, (c) each Loan Party has provided to the Administrative
Agent, the L/C Issuer, and the Lenders all information requested by them regarding such Loan
Party and its Affiliates and Subsidiaries necessary for the Administrative Agent, the L/C Issuer,
and the Lenders to comply with all applicable OFAC Sanctions Programs, and (d) no Loan Party
nor any of its Subsidiaries nor, to the knowledge of any Loan Party, any officer, director or Affiliate
of any Loan Party or any of its Subsidiaries, is a Person, that is, or is owned or controlled by
Persons that are, (i) the target of any OFAC Sanctions Programs or (ii) located, organized or
resident in a country or territory that is, or whose government is, the subject of any OFAC
Sanctions Programs.
Section
6.19.
Labor Matters.
There are no strikes, lockouts or slowdowns against any Loan
Party or any Subsidiary of a Loan Party pending or, to the knowledge of any Loan Party,
threatened. There are no collective bargaining agreements in effect between any Loan Party or
any Subsidiary of a Loan Party and any labor union; and no Loan Party nor any of its Subsidiaries
is under any obligation to assume any collective bargaining agreement to or conduct any
negotiations with any labor union with respect to any future agreements. Each Loan Party and its
Subsidiaries have remitted on a timely basis all amounts required to have been withheld and
remitted (including withholdings from employee wages and salaries relating to income tax,
employment insurance, and pension plan contributions), goods and services tax and all other
amounts which if not paid when due could result in the creation of a Lien against any of its
Property, except for Liens permitted by Section 8.8, or which would not reasonably be expected
to result in a Material Adverse Effect or which are being contested in good faith by appropriate
proceedings which prevent enforcement of any Lien with respect thereto.
Section 6.20. Other Agreements
. No Loan Party nor any of its Subsidiaries is in default
under the terms of any covenant, indenture or agreement of or affecting such Person or any of its
Property, which default if uncured could reasonably be expected to have a Material Adverse Effect.
Section 6.21. Solvency
. The Loan Parties and their Subsidiaries are solvent, able to pay
their debts as they become due, and have sufficient capital to carry on their business and all
businesses in which they are about to engage.
Section 6.22. No Default.
No Default has occurred and is continuing.
Section 6.23. No Broker Fees.
No broker’s or finder’s fee or commission will be payable
with respect hereto or any of the transactions contemplated thereby; and the Loan Parties hereby
agree to indemnify the Administrative Agent, the L/C Issuer, and the Lenders against, and agree
that they will hold the Administrative Agent, the L/C Issuer, and the Lenders harmless from, any
claim, demand, or liability for any such broker’s or finder’s fees alleged to have been incurred in
connection herewith or therewith and any expenses (including reasonable attorneys’ fees) arising
in connection with any such claim, demand, or liability.
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S
ECTION
ONDITIONS
P
RECEDENT
.
Section 7.1. All Credit Events
. At the time of each Credit Event hereunder:
Loan Documents shall be and remain true and correct in all material respects as of said
time (where not already qualified by materiality, otherwise in all respects), except to the
extent the same expressly relate to an earlier date, in which case they shall be true and
correct in all material respects (where not already qualified by materiality, otherwise in all
respects) as of such earlier date;
of such Credit Event;
of all Swingline Loans, Revolving Loans and L/C Obligations outstanding under this
Agreement shall not exceed the Revolving Credit Commitments;
notice required by Section 2.6, in the case of the issuance of any Letter of Credit the
L/C Issuer shall have received a duly completed Application for such Letter of Credit
together with any fees called for by Section 3.1, and, in the case of an extension or increase
in the amount of a Letter of Credit, a written request therefor in a form acceptable to the
L/C Issuer together with fees called for by Section 3.1; and
court or other authority or any provision of law or regulation applicable to the
Administrative Agent, the L/C Issuer or any Lender (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder and each request for the issuance of, increase in
the amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date on such Credit Event as to the facts
specified in subsections (a) through (d), both inclusive, of this Section;
provided, however,
that the
Lenders may continue to make advances under the Revolving Facility, in the sole discretion of the
Lenders with Revolving Credit Commitments, notwithstanding the failure of the Borrower to
satisfy one or more of the conditions set forth above and any such advances so made shall not be
deemed a waiver of any Default or other condition set forth above that may then exist.
Section 7.2. Initial Credit Event.
Before or concurrently with the Initial Credit Event:
by the Borrower and its Wholly-owned Subsidiaries that are Domestic Subsidiaries, as
Guarantors, the L/C Issuer, and the Lenders;
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for such Lender such Lender’s duly executed Notes of the Borrower dated the date hereof
and otherwise in compliance with the provisions of Section 2.10;
Modification and Omnibus Joinder Agreement dated as of the date hereof, duly executed
by the Loan Parties, together with (i) UCC financing statements to be filed against each
Loan Party, as debtor, in favor of the Administrative Agent, as secured party, and
(ii) deposit account control agreements to the extent requested by the Administrative
Agent;
and substance satisfactory to the Administrative Agent;
articles of incorporation and bylaws (or comparable organizational documents) and any
amendments thereto, certified in each instance by its Secretary or Assistant Secretary (or
comparable Responsible Officer);
Loan Party’s Board of Directors (or similar governing body) authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents to which it is
a party and the consummation of the transactions contemplated hereby and thereby,
together with specimen signatures of the persons authorized to execute such documents on
each Loan Party’s behalf, all certified in each instance by its Secretary or Assistant
Secretary (or comparable Responsible Officer);
good standing for each Loan Party (dated no earlier than 30 days prior to the date hereof)
from the office of the secretary of the state of its incorporation or organization;
Authorized Representatives, which may be included in the certificate of the Secretary or
Assistant Secretary (or comparable Responsible Officer) referenced in Sections 7.1(e) and
(f);
Reserved
;
Section 3.1;
unaudited monthly financial statements (including an income statement, a balance sheet,
and a cash flow statement) of the Loan Parties for the prior 3 years, including unaudited
quarterly financial statements for the period ended August 28, 2021, and 5-year projected
financial statements, certified to by a Financial Officer of the Borrower (and each Lender
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hereby acknowledges that it has received copies of each of the foregoing items); and (ii) a
certificate from a Responsible Officer of the Borrower certifying that since May 29, 2021,
no Material Adverse Effect has occurred;
judgment lien search results against each Loan Party and its Property evidencing the
absence of Liens thereon except as permitted by Section 8.8;
of counsel to each Loan Party, in form and substance satisfactory to the Administrative
Agent;
Closing Date, all documentation and other information requested by any such Lender
required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including without limitation, the United
States Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
including, without limitation, the information described in Section 13.24; and the
Administrative Agent shall have received a fully executed Internal Revenue Service Form
W-9 (or its equivalent) for the Borrower and each other Loan Party;
“legal entity customer” under the Beneficial Ownership Regulation shall deliver a
Beneficial Ownership Certification in relation to such Borrower; and
instruments, documents, certificates, and opinions as the Administrative Agent may
reasonably request.
S
ECTION
OVENANTS
.
Each Loan Party agrees that, so long as any credit is available to or in use by the Borrower
hereunder, except to the extent compliance in any case or cases is waived in writing pursuant to
the terms of Section 13.3.
Section 8.1. Maintenance of Business.
maintain its existence, except as otherwise provided in Section 8.10(c);
provided, however,
nothing in this Section shall prevent the Borrower from dissolving any of its Subsidiaries if such
action is, in the reasonable business judgment of the Borrower, desirable in the conduct of its
business and is not disadvantageous in any material respect to the Lenders.
in force and effect all licenses, permits, franchises, approvals, patents, trademarks, trade names,
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trade styles, copyrights, and other proprietary rights necessary to the proper conduct of its business
where the failure to do so could reasonably be expected to have a Material Adverse Effect.
Each Loan Party shall, and shall cause each of
its Subsidiaries to, maintain, preserve, and keep its property, plant, and equipment in good repair,
working order and condition (ordinary wear and tear excepted), and shall from time to time make
such repairs, renewals, replacements, additions, and betterments thereto as it deems appropriate in
its reasonable business judgment so that the usefulness thereof shall be preserved and maintained,
except to the extent that, in the reasonable business judgment of such Person, any such Property is
no longer necessary for the proper conduct of the business of such Person.
Section 8.3. Taxes and Assessment
s. Each Loan Party shall duly pay and discharge, and
shall cause each of its Subsidiaries to duly pay and discharge, all federal and material state, local,
and foreign Taxes, rates, assessments, fees, and governmental charges upon or against it or its
Property, in each case before the same become delinquent and before penalties accrue thereon,
unless and to the extent that the same are being contested in good faith and by appropriate
proceedings which prevent enforcement of the matter under contest and adequate reserves are
provided therefor.
Section 8.4. Insurance.
Each Loan Party shall insure and keep insured, and shall cause
each of its Subsidiaries to insure and keep insured, with good and responsible insurance
companies, all insurable Property owned by it which is of a character usually insured by Persons
similarly situated and operating like Properties against loss or damage from such hazards and risks
(including flood insurance with respect to any improvements on real Property consisting of
building or parking facilities in an area designated by a governmental body as having special flood
hazards), and in such amounts and with such deductibles, as are insured by Persons similarly
situated and operating like Properties, but in no event at any time in an amount less than the
replacement value of the Collateral, subject to deductibles. Each Loan Party shall also maintain,
and shall cause each of its Subsidiaries to maintain, insurance with respect to the business of such
Loan Party and its Subsidiaries, covering commercial general liability, statutory worker’s
compensation and occupational disease, statutory structural work act liability, and business
interruption and such other risks with good and responsible insurance companies, in such amounts
and on such terms as the Administrative Agent or the Required Lenders shall reasonably request,
but in any event as and to the extent usually insured by Persons similarly situated and conducting
similar businesses. The Loan Parties shall in any event maintain insurance on the Collateral to the
extent required by the Collateral Documents. All such policies of insurance shall contain
satisfactory mortgagee/lender’s loss payable endorsements, naming the Administrative Agent (or
its security trustee) as mortgagee or a loss payee, assignee or additional insured, as appropriate, as
its interest may appear, and showing only such other loss payees, assignees and additional insureds
as are satisfactory to the Administrative Agent. Each policy of insurance or endorsement shall
contain a clause requiring the insurer to give not less than thirty (30) days’ (ten (10) days’ in the
case of nonpayment of insurance premiums) prior written notice to the Administrative Agent in
the event of cancellation of the policy for any reason whatsoever. The Borrower shall deliver to
the Administrative Agent (a) on the Closing Date and at such other times as the Administrative
Agent shall reasonably request, certificates evidencing the maintenance of insurance required
hereunder, (b) prior to the termination of any such policies, certificates evidencing the renewal
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thereof, and (c) promptly following request by the Administrative Agent, copies of all insurance
policies of the Loan Parties and their Subsidiaries. The Borrower also agrees to deliver to the
Administrative Agent, promptly as rendered, true copies of all reports made in any reporting forms
to insurance companies.
Section 8.5. Financial Reports.
The Loan Parties shall, and shall cause each of their
Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare
financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP
and shall furnish to the Administrative Agent and each Lender:
of each fiscal quarter of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its Subsidiaries
as of the last day of such fiscal quarter and the
related consolidated statement of operations, comprehensive income (loss), shareholder’s
equity, and cash flows of the Borrower and its Subsidiaries for the fiscal quarter and for
the fiscal year-to-date period then ended, each in reasonable detail showing in comparative
form the figures for the corresponding date and period in the previous fiscal year, prepared
by the Borrower in accordance with GAAP (subject to the absence of footnote disclosures
and year-end audit adjustments) and certified to by a Financial Officer of the Borrower;
of each fiscal year of the Borrower, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the related
consolidated statement of operations, comprehensive income (loss), shareholder’s equity,
and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and
accompanying notes thereto, each in reasonable detail showing in comparative form the
figures for the previous fiscal year, accompanied in the case of the consolidated financial
statements by an unqualified opinion of Frost, PLLC or another firm of independent public
accountants of recognized standing, selected by the Borrower and reasonably satisfactory
to the Administrative Agent, to the effect that the consolidated financial statements have
been prepared in accordance with GAAP and present fairly in all material respects in
accordance with GAAP the consolidated financial condition of the Borrower and its
Subsidiaries as of the close of such fiscal year and the results of their operations for the
fiscal year then ended and that an examination of such accounts in connection with such
financial statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the accounting records
and such other auditing procedures as were considered necessary in the circumstances;
letters or other detailed information contained in writing concerning significant aspects of
any Loan Party’s or any of its Subsidiary’s operations and financial affairs given to it by
its independent public accountants;
statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a
Loan Party to its stockholders or other equity holders, and copies of each regular, periodic
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or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q
and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any
securities exchange or the SEC or any successor agency;
any regulatory agency of the books and records of any Loan Party or any Subsidiary of a
Loan Party that gives notice of any noncompliance with any applicable law, regulation or
guideline relating to any Loan Party or any Subsidiary of a Loan Party or their respective
business which could reasonably be expected to have a Material Adverse Effect;
each fiscal year of the Borrower, a copy of the consolidated and consolidating business
plan for the Borrower and its Subsidiaries for the following fiscal year, such business plan
to show the projected consolidated and consolidating revenues, expenses and balance sheet
of the Borrower and its Subsidiaries on a quarter-by-quarter basis, such business plan to be
in reasonable detail prepared by the Borrower and in form satisfactory to the
Administrative Agent (which shall include a summary of all assumptions made in
preparing such business plan);
Responsible Officer of any Loan Party, written notice of (i) any threatened or pending
litigation or governmental or arbitration proceeding or labor controversy against any Loan
Party or any Subsidiary of a Loan Party or any of their Property which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect and would
require disclosure in a report to be filed with the SEC under the Exchange Act, (ii) the
occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default;
and (b) above, a written certificate in the form attached hereto as Exhibit E signed by a
Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge
and belief no Default has occurred during the period covered by such statements or, if any
such Default has occurred during such period, setting forth a description of such Default
and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to
remedy the same. Such certificate shall also set forth the calculations supporting such
statements in respect of Section 8.22
(Financial Covenants);
Reserved
; and
operations, business affairs and financial condition of any Loan Party or any Subsidiary of
a Loan Party, or compliance with the terms of any Loan Document, as the Administrative
Agent or any Lender may reasonably request.
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Section 8.6. Inspection; Field Audits
. Each Loan Party shall, and shall cause each of its
Subsidiaries to, permit the Administrative Agent and each Lender, and each of their duly
authorized representatives and agents to visit and inspect any of its Property, corporate books, and
financial records, to examine and make copies of its books of accounts and other financial records,
and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its
officers, employees and independent public accountants (and by this provision the Loan Parties
hereby authorize such accountants to discuss with the Administrative Agent and such Lenders the
finances and affairs of the Loan Parties and their Subsidiaries) at such reasonable times and
intervals as the Administrative Agent or any such Lender may designate and, so long as no Default
exists, with reasonable prior notice to the Borrower and compliance with the Borrower’s
customary on-site policies applicable to visitors (bio-security, etc.). The Borrower shall pay to the
Administrative Agent charges for field audits of the Collateral, inspections and visits to Property,
inspections of corporate books and financial records, examinations and copies of books of accounts
and financial record and other activities permitted in this Section performed by the Administrative
Agent or its agents or third party firms, in such amounts as the Administrative Agent may from
time to time request (the Administrative Agent acknowledging and agreeing that any internal
charges for such audits and inspections shall be computed in the same manner as it at the time
customarily uses for the assessment of charges for similar collateral audits);
provided, however,
that in the absence of any Default, the Borrower shall not be required to pay the Administrative
Agent for more than one (1) such audit per calendar year.
Section 8.7.
Borrowings and Guaranties.
No Loan Party shall, nor shall it permit any of
its Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness, or incur
liabilities under any Hedging Agreement, or be or become liable as endorser, guarantor, surety or
otherwise for any Indebtedness or undertaking of any Person, or otherwise agree to provide funds
for payment of the obligations of another, or supply funds thereto or invest therein or otherwise
assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of
credit which supports an obligation of another, or subordinate any claim or demand it may have to
the claim or demand of any Person;
provided, however,
operate to prevent:
of the Loan Parties and their Subsidiaries owing to
the Administrative Agent and the Lenders (and their Affiliates);
Loan Parties and their Subsidiaries in an amount not to exceed $20,000,000 in the
aggregate at any one time outstanding;
rate, foreign currency, and commodity Hedging Agreements entered into with financial
institutions in connection with bona fide hedging activities in the ordinary course of
business and not for speculative purposes;
in the ordinary course of business;
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Parties and/or any of their Subsidiaries in the ordinary course of business, provided that
the aggregate amount of all such intercompany advances made to Subsidiaries of a Loan
Party that are not Loan Parties or Subsidiaries of a Loan Party that are not Wholly-owned
Subsidiaries shall not exceed an aggregate amount of $20,000,000 during any fiscal year
of the Borrower;
disability or other employee benefits (including contractual and statutory benefits) or
property, casualty, liability or credit insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the ordinary course of
business;
borrowed money), leases (other than Capitalized Lease Obligations), statutory obligations,
surety, stay, customs and appeal bonds, performance, performance and completion and
return of money bonds, government contracts and similar obligations, in each case,
provided in the ordinary course of business;
arrangements, in each case, in connection with cash management and deposit accounts;
employees of any Loan Party or any Subsidiary of a Loan Party incurred in the ordinary
course of business; and
ordinary course of business;
otherwise permitted under this Section;
providing for indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with a Permitted Acquisition;
Date and Indebtedness acquired or assumed in connection with Permitted Acquisitions, in
an amount not to exceed $50,000,000 in the aggregate at any one time outstanding,
provided
the time of such Permitted Acquisition and is not created in contemplation of or in
connection therewith;
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described in this Section that (i) does not exceed the aggregate principal amount (plus
accrued interest and applicable premium and associated fees and expenses) of the
Indebtedness being replaced, renewed, refinanced or extended, (ii) does not have a
weighted average life to maturity at the time of such replacement, renewal, refinancing or
extension that is less than the weighted average life to maturity of the Indebtedness being
replaced, renewed, refinanced or extended, and (iii) does not rank at the time of such
replacement, renewal, refinancing or extension senior to the Indebtedness being replaced,
renewed, refinanced or extended;
otherwise permitted by this Section in an amount not to exceed $400,000,000 in the
aggregate at any one time outstanding; and
(other than the Collateral) in an amount not to exceed $200,000,000 in the aggregate at any
one time outstanding.
Section 8.8. Liens.
No Loan Party shall, nor shall it permit any of its Subsidiaries to,
create, incur or permit to exist any Lien of any kind on any Property owned by any such Person;
provided, however,
unemployment insurance, old age benefits, social security obligations, Taxes, assessments,
statutory obligations or other similar charges (other than Liens arising under ERISA), good
faith cash deposits in connection with tenders, contracts or leases to which any Loan Party
or any Subsidiary of a Loan Party is a party or other cash deposits required to be made in
the ordinary course of business, provided in each case that the obligation is not for
borrowed money and that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves have been established therefor;
similar Liens arising in the ordinary course of business with respect to obligations which
are not due or which are being contested in good faith by appropriate proceedings which
prevent enforcement of the matter under contest;
Default under Section 9.1(g) and the pledge of assets for the purpose of securing an appeal,
stay or discharge in the course of any legal proceeding, provided that the aggregate amount
of such judgment liens and attachments and liabilities of the Loan Parties and their
Subsidiaries secured by a pledge of assets permitted under this subsection, including
interest and penalties thereon, if any, shall not be in excess of $25,000,000 at any one time
outstanding;
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created solely for the purpose of securing indebtedness permitted by Section 8.7(b),
representing or incurred to finance the purchase price of such Property, provided that no
such Lien shall extend to or cover other Property of such Loan Party or such Subsidiary
other than the respective Property so acquired, and the principal amount of indebtedness
secured by any such Lien shall at no time exceed the purchase price of such Property, as
reduced by repayments of principal thereon;
of Uniform Commercial Code financing statements solely as a precautionary measure in
connection with operating leases entered into by any Loan Party or any Subsidiary of a
Loan Party in the ordinary course of its business;
encumbrances against real property incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not materially detract from the
value of the Property subject thereto or materially interfere with the ordinary conduct of
the business of any Loan Party or any Subsidiary of a Loan Party;
Section 4-210 of the Uniform Commercial Code) in one or more deposit accounts
maintained by any Loan Party or any Subsidiary of a Loan Party, in each case granted in
the ordinary course of business in favor of the bank or banks with which such accounts are
maintained, securing amounts owing to such bank with respect to cash management and
operating account arrangements, including those involving pooled accounts and netting
arrangements;
provided
of law, in no case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness;
Collateral Documents.
course of business and not interfering in any material respect with the ordinary conduct of
business of any Loan Party or any Subsidiary of a Loan Party;
of the premiums with respect thereto permitted by Section 8.7(k);
acquired in a Permitted Acquisition to be applied against the purchase price for such
Property, or (ii) consisting of an agreement to dispose of any Property in a disposition
permitted under Section 8.10, in each case, solely to the extent such Acquisition or
disposition, as the case may be, would have been permitted on the date of the creation of
such Lien;
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or merged with or into or consolidated with any Loan Party or any Subsidiary of a Loan
Party to the extent permitted hereunder (and not created in anticipation or contemplation
thereof) and securing Indebtedness permitted under Section 8.7(n);
provided
Liens do not extend to Property not subject to such Liens at the time of acquisition and are
no more favorable to the lienholders than such existing Lien;
support obligations under or in respect of interest rate, foreign currency, and commodity
Hedging Agreements entered into with financial institutions in connection with bona fide
hedging activities in the ordinary course of business and not for speculative purposes;
listed and identified on Schedule 8.8;
property and assets relating to any lease agreement with such landlord and contractual
Liens of suppliers (including sellers of goods) or customers granted in the ordinary course
of business to the extent limited to the property or assets related to such contract;
securing indebtedness permitted by Section 8.7(q) and which do not encumber any
Collateral; and
with respect to obligations that do not in the aggregate exceed $10,000,000 at any time
outstanding, and which do not encumber any Collateral.
Section 8.9. Investments, Acquisitions, Loans and Advances
. No Loan Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, make, retain or have outstanding
any investments (whether through purchase of stock or obligations or otherwise) in, or loans or
advances to (other than for travel advances and other similar cash advances made to employees in
the ordinary course of business), any other Person, or acquire all or any substantial part of the
assets or business of any other Person or division thereof;
provided, however,
shall not apply to nor operate to prevent:
outstanding on the Closing Date;
Subsidiary of any Loan Party and any other Loan Party or Subsidiary of any Loan Party in
the ordinary course of business, provided that the aggregate amount of all such
intercompany advances made to Subsidiaries of a Loan Party that are not Loan Parties or
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Subsidiaries of a Loan Party that are not Wholly-owned Subsidiaries shall not exceed an
aggregate amount of $20,000,000 during any fiscal year of the Borrower;
interest rate, foreign currency, and commodity Hedging Agreements entered into with
financial institutions in connection with bona fide hedging activities in the ordinary course
of business and not for speculative purposes;
with dispositions permitted by Section 8.10;
connection with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business and upon the foreclosure with respect to any
secured investment or other transfer of title with respect to any secured investment;
leases or other obligations as permitted by Section 8.8;
above and listed and identified on Schedule 8.9;
time outstanding, provided that (i) no Default exists both immediately before and after
giving effect to such investment, (ii) after giving pro forma effect to such investment, the
Borrower and its Subsidiaries are in compliance with Section 8.22, and (iii) cash and Cash
Equivalents of the Borrower and its Subsidiaries plus availability under the Revolving
Facility shall equal at least $50,000,000; and
permitted by this Section in an amount not to exceed $25,000,000 in the aggregate at any
one time outstanding.
In determining the amount of investments, acquisitions, loans, and advances permitted under this
Section, investments and acquisitions shall always be taken at the original cost thereof (regardless
of any subsequent appreciation or depreciation therein), less any amount in respect of such
investment upon sale, collection or return (not to exceed the original cost thereof) and loans and
advances shall be taken at the principal amount thereof then remaining unpaid.
Section 8.10. Mergers, Consolidations and Sales.
No Loan Party shall, nor shall it permit
any of its Subsidiaries to, be a party to any merger or consolidation or amalgamation, or sell,
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transfer, lease or otherwise dispose of all or any material part of its Property, including any
disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount
(with or without recourse) any of its notes or accounts receivable;
provided, however,
Section shall not apply to nor operate to prevent:
one another in the ordinary course of its business;
into the Borrower or any other Loan Party, provided that, in the case of any merger
involving the Borrower or involving a Subsidiary of a Loan Party which is not a Loan
Party, the Borrower, if the Borrower is a party to the merger, or a Loan Party, if the
Borrower is not a party to the merger, is the corporation surviving the merger;
business for purposes of collection only (and not for the purpose of any bulk sale or
securitization transaction);
in the reasonable business judgment of the relevant Loan Party or its Subsidiary, has
become obsolete or worn out, and which is disposed of in the ordinary course of business;
Party (including any Disposition of Property as part of a sale and leaseback transaction)
aggregating for all Loan Parties and their Subsidiaries not more than $30,000,000 during
any fiscal year of the Borrower,
provided
fair value and (ii) at least 80% of the total consideration received at the closing of such
Disposition shall consist of cash and at least 80% of the total consideration received after
taking into account all final purchase price adjustments and/or contingent payments
(including working capital adjustment or earn-out provisions) expressly contemplated by
the transaction documents, when received shall consist of cash; and
of business.
Section 8.11. Maintenance of Subsidiaries.
No Loan Party shall assign, sell or transfer, nor
shall it permit any of its Subsidiaries to issue, assign, sell or transfer, any shares of capital stock or
other equity interests of a Subsidiary;
provided, however,
prevent (a) the issuance, sale, and transfer to any person of any shares of capital stock of a
Subsidiary solely for the purpose of qualifying, and to the extent legally necessary to qualify, such
person as a director of such Subsidiary, (b) any transaction permitted by Section 8.10(c) above,
and (c) the issuance of shares of the Borrower’s capital stock pursuant to the Borrower’s KSOP,
or (d) any Excluded Equity Issuances.
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Section 8.12. Dividends and Certain Other Restricted Payments.
No Loan Party shall, nor
shall it permit any of its Subsidiaries to, (a) declare or pay any dividends on or make any other
distributions in respect of any class or series of its capital stock or other equity interests (other than
dividends or distributions payable solely in its capital stock or other equity interests), or (b) directly
or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity
interests or any warrants, options, or similar instruments to acquire the same (collectively referred
to herein as
“Restricted Payments”
);
provided, however,
prevent:
dividend policy as in effect on the Closing Date or any employee stock option plans or
employee incentive plans or other compensation arrangements, or SAR plans; provided
that no Default exists or will arise after giving effect to such other Restricted Payment; and
giving effect to such Restricted Payment (A) no Default has occurred and is continuing and
(B) the sum of cash and Cash Equivalents of the Borrower and its Subsidiaries plus
availability under the Revolving Facility shall equal at least $50,000,000.
Section 8.13. ERISA.
Each Loan Party shall, and shall cause each of its Subsidiaries to,
promptly pay and discharge all obligations and liabilities arising under ERISA of a character which
if unpaid or unperformed could reasonably be expected to result in the imposition of a Lien against
any of its Property, unless being contested in good faith by appropriate proceedings which prevents
the enforcement of any Lien with respect thereto. Each Loan Party shall, and shall cause each of
its Subsidiaries to, promptly notify the Administrative Agent and each Lender of: (a) the
occurrence of any reportable event (as defined in ERISA) with respect to a Plan, which individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, (b) receipt
of any notice from the PBGC of its intention to seek termination of any Plan or appointment of a
trustee therefor, (c) its intention to terminate or withdraw from any Plan, and (d) the occurrence of
any event with respect to any Plan which would result in the incurrence by any Loan Party or any
Subsidiary of a Loan Party of any material liability, fine or penalty, or any material increase in the
contingent liability of any Loan Party or any Subsidiary of a Loan Party with respect to any
post-retirement Welfare Plan benefit, which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
Section 8.14. Compliance with Laws.
(a) Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply in all respects with all Legal Requirements applicable to or pertaining to
its Property or business operations, where any such non-compliance, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or result in a Lien upon
any of its Property.
of its Subsidiaries to, at all times, do the following to the extent the failure to do so, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect: (i) comply
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in all material respects with, and maintain each of the Premises in compliance in all material
respects with, all applicable Environmental Laws; (ii) require that each tenant and subtenant, if
any, of any of the Premises or any part thereof comply in all material respects with all applicable
Environmental Laws; (iii) obtain and maintain in full force and effect all material governmental
approvals required by any applicable Environmental Law for the operation of their business and
each of the Premises; (iv) cure any material violation by it or at any of the Premises of applicable
Environmental Laws unless and except to the extent being contested in good faith by appropriate
proceedings which prevents the enforcement of any Lien with respect thereto; (v) not
manufacture, use, generate, transport, treat, store, Release, dispose or handle any Hazardous
Material (or allow any tenant or subtenant to do any of the foregoing) at any of the Premises except
in the ordinary course of its live animal agricultural business and in material compliance with all
applicable Environmental Laws; (vi) within ten (10) Business Days notify the Administrative
Agent in writing and provide the disclosure filing made by the Borrower with the SEC of any of
the following in connection with any Loan Party or any Subsidiary of a Loan Party or any of the
Premises which would be required to be disclosed in an 8-K or 10-Q filing with the SEC: (1) any
Environmental Liability; (2) any Environmental Claim; or (3) any violation of an Environmental
Law or Release, threatened Release or disposal, placement or land application of a Hazardous
Material, product, or waste, including manure, that is not in compliance with applicable
Environmental Laws; or (4) any restriction on the ownership, occupancy, use or transferability of
any Premises arising from or in connection with any (x) Release, threatened Release or disposal
of a Hazardous Material, waste or product, including manure, or (y) Environmental Law;
(vii) conduct at its expense any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other corrective or response action necessary to remove, remediate, clean
up, correct or abate any material Release, threatened material Release or material violation of any
applicable Environmental Law unless and except to the extent being contested in good faith by
appropriate proceedings which prevents the enforcement of any Lien with respect thereto,
(viii) abide by and observe any restrictions on the use of the Premises imposed by any
Governmental Authority as set forth in a deed or other instrument affecting any Loan Party’s or
any of its Subsidiary’s interest therein unless being contested in good faith by appropriate
proceedings which prevents the enforcement of any Lien with respect thereto; (ix) promptly
provide or otherwise make available to the Administrative Agent any reasonably requested
environmental record concerning the Premises which any Loan Party or any Subsidiary of a Loan
Party possesses or controls other than records subject to work product or attorney-client or other
confidentiality privilege pursuant to applicable law; and (x) perform, satisfy, and implement any
operation, maintenance or corrective actions or other requirements of any Governmental Authority
or Environmental Law, or included in any no further action letter or covenant not to sue issued by
any Governmental Authority under any Environmental Law unless and except to the extent being
contested in good faith by appropriate proceedings which prevents the enforcement of any Lien
with respect thereto.
Section 8.15. Compliance with OFAC Sanctions Programs and Anti-Corruption Laws.
(a) Each Loan Party shall at all times comply in all material respects with the requirements of all
OFAC Sanctions Programs applicable to such Loan Party and shall cause each of its Subsidiaries
to comply in all material respects with the requirements of all OFAC Sanctions Programs
applicable to such Subsidiary.
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information regarding the Loan Parties, their Affiliates, and their Subsidiaries necessary for the
Administrative Agent and the Lenders to comply with all applicable OFAC Sanctions Programs;
subject however, in the case of Affiliates, to such Loan Party’s ability to provide information
applicable to them.
Loan Party, any Subsidiary of any Loan Party, or any officer, director or Affiliate of any Loan
Party or that any Person that owns or controls any such Person is the target of any OFAC Sanctions
Programs or is located, organized or resident in a country or territory that is, or whose government
is, the subject of any OFAC Sanctions Programs (such occurrence, an
“OFAC Event”
), such Loan
Party shall promptly (i) give written notice to the Administrative Agent and the Lenders of such
OFAC Event, and (ii) comply in all material respects with all applicable laws with respect to such
OFAC Event (regardless of whether the target Person is located within the jurisdiction of the
United States of America), including the OFAC Sanctions Programs, and each Loan Party hereby
authorizes and consents to the Administrative Agent and the Lenders taking any and all steps the
Administrative Agent or the Lenders deem necessary, in their sole but reasonable discretion, to
avoid violation of all applicable laws with respect to any such OFAC Event, including the
requirements of the OFAC Sanctions Programs (including the freezing and/or blocking of assets
and reporting such action to OFAC).
proceeds of the Revolving Facility of an Incremental Term Loan (if any), or lend, contribute or
otherwise make available such proceeds to any other Person, (i) to fund any activities or business
of or with any Person or in any country or territory, that, at the time of such funding, is, or whose
government is, the subject of any OFAC Sanctions Programs, or (ii) in any other manner that
would result in a violation of OFAC Sanctions Programs or Anti-Corruption Laws by any Person
(including any Person participating in the Revolving Facility or any Incremental Term Loan,
whether as underwriter, lender, advisor, investor, or otherwise).
Law in any material respect.
compliance by the Loan Parties, their Subsidiaries, and their respective directors, officers,
employees, and agents with applicable Anti-Corruption Laws.
Section 8.16. Burdensome Contracts With Affiliates.
permit any of its Subsidiaries to, enter into any material contract, agreement or business
arrangement with any of its Affiliates on terms and conditions which are less favorable to such
Loan Party or such Subsidiary than would be usual and customary in similar contracts, agreements
or business arrangements between Persons not affiliated with each other;
provided
that the
foregoing restriction shall not apply to transactions between or among the Loan Parties.
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Section 8.17. No Changes in Fiscal Year.
Subsidiaries ends on or about May 31 of each year; and the Borrower shall not, nor shall it permit
any Subsidiary to, change its fiscal year from its present basis.
Section 8.18. Formation of Subsidiaries.
any Subsidiary, the Loan Parties shall provide the Administrative Agent and the Lenders notice
thereof (at which time Schedule 6.2 shall be deemed amended to include reference to such
Subsidiary. The Loan Parties shall, and shall cause their Wholly-owned Subsidiaries that are
Domestic Subsidiaries to, timely comply with the requirements of Sections 11 and 12
with respect
to any Subsidiary that is required to become a Guarantor hereunder.
Section 8.19. Change in the Nature of Business.
No Loan Party shall, nor shall it permit
any of its Subsidiaries to, engage in any business or activity if as a result the general nature of the
business of such Loan Party or any of its Subsidiaries would be changed in any material respect
from the general nature of the business engaged in by it as of the Closing Date or an Eligible Line
of Business.
Section 8.20. Use of Proceeds
. The Borrower shall use the credit extended under this
Agreement solely for the purposes set forth in, or otherwise permitted by, Section 6.4.
Section 8.21. No Restrictions
. Except as provided herein or exist as of the date hereof, no
Loan Party shall, nor shall it permit any of its Wholly-owned Subsidiaries to, directly or indirectly
create or otherwise cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Loan Party or any Wholly-owned Subsidiary of a Loan
Party to: (a) pay dividends or make any other distribution on any such Subsidiary’s capital stock
or other equity interests owned by such Loan Party or any of its Wholly-owned Subsidiaries,
(b) pay any indebtedness owed to any Loan Party or any of its Wholly-owned Subsidiaries,
(c) make loans or advances to any Loan Party or any of its Wholly-owned Subsidiaries, (d) transfer
any of its Property to any Loan Party or any of its Wholly-owned Subsidiaries, or (e) guarantee
the Secured Obligations and/or grant Liens on its assets to the Administrative Agent as required
by the Loan Documents.
Section 8.22. Financial Covenants.
Total Funded Debt to Capitalization Ratio
. As of the last day of each fiscal quarter
of the Borrower ending on or after November 27, 2021, the Borrower shall not permit the Total
Funded Debt to Capitalization Ratio to be greater than 50.0%.
Minimum Tangible Net Worth
. The Borrower shall not permit Tangible Net Worth
to be less than (i) $700,000,000 for the fiscal quarter ended November 27, 2021, plus (ii) for each
fiscal quarter ending thereafter, 50% of Net Income for such fiscal quarter (if Net Income is
positive) less Restricted Payments permitted to be made pursuant to Section 8.12 during such fiscal
quarter.
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S
ECTION
VENTS OF
D
EFAULT AND
R
EMEDIES
.
Section 9.1.
Events of Default.
“Event of Default”
part of the principal of any Loan (whether at the stated maturity thereof or at any other time
provided for in this Agreement) or of any Reimbursement Obligation, or default for a
period of five (5) Business Days in the payment when due of any interest,
fee or other
Obligation payable hereunder or under any other Loan Document;
Sections 8.1(a), 8.10, 8.12, 8.17, 8.20 or 8.22 of this Agreement;
of any other Loan Document which is not remedied within thirty (30) days after the earlier
of (i) the date on which such failure shall first become known to any Responsible Officer
of any Loan Party or (ii) written notice thereof is given to the Borrower by the
Administrative Agent;
or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto
or thereto or in connection with any transaction contemplated hereby or thereby proves
untrue in any material respect as of the date of the issuance or making or deemed making
thereof;
subsections (a) through (d) above) which is specified as an event of default under any of
the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be
or shall cease to be in full force and effect or is declared to be null and void, or (iii) any of
the Collateral Documents shall for any reason fail to create a valid and perfected first
priority Lien in favor of the Administrative Agent in any Collateral purported to be covered
thereby except as expressly permitted by the terms hereof, or (iv) any Loan Party takes any
action for the purpose of terminating, repudiating or rescinding any Loan Document
executed by it or any of its obligations thereunder;
guaranteed by any Loan Party or any Subsidiary of a Loan Party, or under any indenture,
agreement or other instrument under which the same may be issued, and such default shall
continue for a period of time sufficient to permit the acceleration of the maturity of any
such Material Indebtedness (whether or not such maturity is in fact accelerated), or any
such Material Indebtedness shall not be paid when due (whether by demand, lapse of time,
acceleration or otherwise);
attachment, or any similar process or processes, shall be entered or filed against any Loan
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Party or any Subsidiary of a Loan Party, or against any of their respective Property, in an
aggregate amount for all such Persons in excess of $25,000,000 (except to the extent fully
covered by insurance pursuant to which the insurer has accepted liability therefor in
writing), and which remains undischarged, unvacated, unbonded or unstayed for a period
of 30 days, or any action shall be legally taken by a judgment creditor to attach or levy
upon any Property of any Loan Party or any Subsidiary of a Loan Party to enforce any such
judgment, or (ii) any Loan Party or any Subsidiary of a Loan Party shall fail within
thirty (30) days to discharge one or more non-monetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise
being appropriately contested in good faith by proper proceedings diligently pursued;
Controlled Group, shall fail to pay when due an amount or amounts aggregating for all
such Persons in excess of $20,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $20,000,000 (collectively, a
“Material Plan”
) shall be filed under Title IV of ERISA by any Loan Party or any
Subsidiary of a Loan Party, or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer
any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan
against any Loan Party or any Subsidiary of a Loan Party, or any member of its Controlled
Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within ninety (90) days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan
must be terminated;
involuntarily against it an order for relief under the United States Bankruptcy Code, as
amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek,
consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its Property, (v) institute any
proceeding seeking to have entered against it an order for relief under the United States
Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material allegations of any such
proceeding filed against it, (vi) take any corporate or similar action in furtherance of any
matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any
appointment or proceeding described in Section 9.1(k); or
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be appointed for any Loan Party or any Subsidiary of a Loan Party, or any substantial part
of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted
against any Loan Party or any Subsidiary of a Loan Party, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period of
60 days.
Section 9.2.
Non-Bankruptcy Defaults.
described in subsection (j) or (k) of Section 9.1 with respect to the Borrower) has occurred and is
continuing, the Administrative Agent shall, by written notice to the Borrower: (a) if so directed by
the Required Lenders, terminate the remaining Commitments and all other obligations of the
Lenders hereunder on the date stated in such notice (which may be the date thereof); (b) if so
directed by the Required Lenders, declare the principal of and the accrued interest on all
outstanding Loans to be forthwith due and payable and thereupon all outstanding Loans, including
both principal and interest thereon, shall be and become immediately due and payable together
with all other amounts payable under the Loan Documents without further demand, presentment,
protest or notice of any kind; and (c) if so directed by the Required Lenders, demand that the
Borrower immediately deliver to the Administrative Agent Cash Collateral in an amount equal to
105% of the aggregate amount of each Letter of Credit then outstanding, and the Borrower agrees
to immediately make such payment and acknowledges and agrees that the Lenders would not have
an adequate remedy at law for failure by the Borrower to honor any such demand and that the
Administrative Agent, for the benefit of the Lenders, shall have the right to require the Borrower
to specifically perform such undertaking whether or not any drawings or other demands for
payment have been made under any Letter of Credit. In addition, the Administrative Agent may
exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it,
the Lenders and the L/C Issuer under the Loan Documents or applicable law or equity when any
such Event of Default has occurred and is continuing. The Administrative Agent shall give notice
to the Borrower under Section 9.1(c) promptly upon being requested to do so by any Lender. The
Administrative Agent, after giving notice to the Borrower pursuant to Section 9.1(c) or this
Section 9.2, shall also promptly send a copy of such notice to the other Lenders, but the failure to
do so shall not impair or annul the effect of such notice.
Section 9.3. Bankruptcy Defaults
. When any Event of Default described in subsections (j)
or (k) of Section 9.1 with respect to the Borrower has occurred and is continuing, then all
outstanding Loans shall immediately become due and payable together with all other amounts
payable under the Loan Documents without presentment, demand, protest or notice of any kind,
the obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall
immediately terminate and the Borrower shall immediately deliver to the Administrative Agent
Cash Collateral in an amount equal to 105% of the aggregate amount of each Letter of Credit then
outstanding, the Borrower acknowledging and agreeing that the Lenders would not have an
adequate remedy at law for failure by the Borrower to honor any such demand and that the Lenders,
and the Administrative Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands for payment
have been made under any of the Letters of Credit. In addition, the Administrative Agent may
exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it,
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the Lenders and the L/C Issuer under the Loan Documents or applicable law or equity when any
such Event of Default has occurred and is continuing.
Section 9.4. Collateral for Undrawn Letters of Credit
. (a) If the prepayment of the
amount available for drawing under any or all outstanding Letters of Credit is required under any
of Sections 2.3(b), 2.8(b), Section 2.13, 2.14, 9.2 or 9.3 above, the Borrower shall forthwith pay
the amount required to be so prepaid, to be held by the Administrative Agent as provided in
subsection (b) below.
Administrative Agent in one or more separate collateral accounts (each such account, and the credit
balances, properties, and any investments from time to time held therein, and any substitutions for
such account, any certificate of deposit or other instrument evidencing any of the foregoing and
all proceeds of and earnings on any of the foregoing being collectively called the
“Collateral
Account”
) as security for, and for application by the Administrative Agent (to the extent available)
to, the reimbursement of any payment under any Letter of Credit then or thereafter made by the
L/C Issuer, and to the payment of the unpaid balance of all other Secured Obligations. The
Collateral Account shall be held in the name of and subject to the exclusive dominion and control
of the Administrative Agent for the benefit of the Administrative Agent, the Lenders, and the
L/C Issuer. If and when requested by the Borrower, the Administrative Agent shall invest funds
held in the Collateral Account from time to time in direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the United States of America with a
remaining maturity of one year or less,
provided
authorized to sell investments held in the Collateral Account when and as required to make
payments out of the Collateral Account for application to amounts due and owing from the
Borrower to the L/C Issuer, the Administrative Agent or the Lenders. Subject to the terms of
Sections 2.13 and 2.14, if the Borrower shall have made payment of all obligations referred to in
subsection (a) above required under Section 2.8(b), at the request of the Borrower the
Administrative Agent shall release to the Borrower amounts held in the Collateral Account so long
as at the time of the release and after giving effect thereto no Default exists. After all Letters of
Credit have expired or been cancelled and the expiration or termination of all Commitments, at the
request of the Borrower, the Administrative Agent shall release any remaining amounts held in the
Collateral Account following payment in full in cash of all Secured Obligations.
Section 9.5. Post-Default Collections
. Anything contained herein or in the other Loan
Documents to the contrary notwithstanding (including, without limitation, Section 2.8(b)), all
payments and collections received in respect of the Obligations and all proceeds of the Collateral
and payments made under or in respect of the Guaranty Agreements received, in each instance, by
the Administrative Agent or any of the Lenders after acceleration or the final maturity of the
Obligations or termination of the Commitments as a result of an Event of Default shall be remitted
to the Administrative Agent and distributed as follows:
Administrative Agent, and any security trustee therefor, in monitoring, verifying,
protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving or
enforcing rights under the Loan Documents, and in any event including all costs and
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expenses of a character which the Loan Parties have agreed to pay the Administrative
Agent under Section 13.4 (such funds to be retained by the Administrative Agent for its
own account unless it has previously been reimbursed for such costs and expenses by the
Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them
for payments theretofore made to the Administrative Agent);
Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts
owing to each holder thereof;
Obligations, together with amounts to be held by the Administrative Agent as collateral
security for any outstanding L/C Obligations pursuant to Section 9.4 (until the
Administrative Agent is holding an amount of cash equal to 105% of the then outstanding
amount of all such L/C Obligations), and Hedging Liability, the aggregate amount paid to,
or held as collateral security for, the Lenders and L/C Issuer and, in the case of Hedging
Liability, their Affiliates to be allocated pro rata in accordance with the aggregate unpaid
amounts owing to each holder thereof;
indebtedness, obligations, and liabilities of the Borrower and its Subsidiaries secured by
the Loan Documents (including, without limitation, Bank Product Obligations) to be
allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder
thereof; and
S
ECTION
HE
A
DMINISTRATIVE
A
GENT
.
. Each of the Lenders and the L/C Issuers hereby
irrevocably appoints BMO Harris Bank N.A.
to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Section 10 are solely for the benefit of the Administrative Agent,
the Lenders and the L/C Issuers, and neither the Borrower nor any other Loan Party shall have
rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the
use of the term “agent” herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative 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 is
used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.
. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender”
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or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the
financial advisor or in any other advisory capacity for, and generally engage in any kind of business
with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 10.3. Action by Administrative Agent; Exculpatory Provisions
. (a) The
Administrative Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.
Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:
whether a Default has occurred and is continuing;
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative 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
opinion or the opinion of its counsel, may expose the Administrative Agent to liability or
that is contrary to any Loan Document or applicable law, including for the avoidance of
doubt any action that may be in violation of the automatic stay under any Debtor Relief
Law or that may effect a forfeiture, modification or termination of property of a Defaulting
Lender in violation of any Debtor Relief Law. The Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder or under any other Loan Document
unless it first receives any further assurances of its indemnification from the Lenders that
it may require, including prepayment of any related expenses and any other protection it
requires against any and all costs, expense, and liability which may be incurred by it by
reason of taking or continuing to take any such action; and
Documents, have any duty or responsibility to disclose, and shall not be liable for the
failure to disclose, any information relating to any Loan Party or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent or any
of its Affiliates in any capacity.
action taken or not taken by the Administrative Agent under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby or thereby (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 Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 9.2, 9.3, 9.4, 9.5 and 13.3), or (ii) in
the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. Any such action taken or failure to
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act pursuant to the foregoing shall be binding on all Lenders. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent in writing by the Borrower, a Lender, or the L/C Issuer.
for or have any duty or obligation to any Lender or L/C Issuer or participant or any other Person
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 Collateral Documents, (v) the value or sufficiency of any Collateral, or (vi) the satisfaction
of any condition set forth in Section 7.1 or 7.2 or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
. The Administrative Agent shall be
entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for
relying upon, any notice, request, certificate, communication, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall be fully protected in relying 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,
extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or L/C Issuer prior to the making of such Loan
or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel
(who may be counsel for the Loan Parties), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Section
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication of
the Revolving Facility and any Incremental Term Loans as well as activities as Administrative
Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any
sub-agents except to the extent that a court of competent jurisdiction determines in a final and
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nonappealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agents.
. (a) The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office in the United States
of America, or an Affiliate of any such bank with an office in the United States of America. 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 Administrative Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the
“Resignation
Effective Date”
), then the retiring Administrative Agent may (but shall not be obligated to), on
behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the
qualifications set forth above. Whether or not a successor has been appointed, such resignation
shall become effective in accordance with such notice on the Resignation Effective Date.
shall be discharged from its duties and obligations hereunder and under the other Loan Documents,
and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent,
all payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and L/C Issuer directly, until
such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided
for above.
If on the Resignation Effective Date no successor has been appointed and accepted
such appointment, the Administrative Agent’s rights in the Collateral Documents shall be assigned
without representation, recourse or warranty to the Lenders and L/C Issuer as their interests may
appear. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Administrative Agent (other than any rights to indemnity payments or other
amounts owed to the retiring Administrative Agent), and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under 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.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Section 10 and Section 13.4 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
. Each Lender and
L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative
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 L/C Issuer also acknowledges that it will, independently and
without reliance upon the Administrative 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
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Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Upon a Lender’s written request, the Administrative Agent agrees to forward to such
Lender, when complete, copies of any field audit, examination, or appraisal report prepared by or
for the Administrative Agent with respect to the Borrower or any Loan Party or the Collateral
(herein,
“Reports”
). Each Lender hereby agrees that (a) it has requested a copy of each Report
prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no
representation or warranty, express or implied, as to the completeness or accuracy of any Report
or any of the information contained therein or any inaccuracy or omission contained in or relating
to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports
are not comprehensive audits or examinations, and that any Person performing any field
examination will inspect only specific information regarding the Borrower and the other Loan
Parties and will rely significantly upon the books and records of Borrower and the other Loan
Parties, as well as on representations of personnel of the Borrower and the other Loan Parties, and
that the Administrative Agent undertakes no obligation to update, correct or supplement the
Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report
with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without
limiting the generality of any other indemnification provision contained in this Agreement, it will
pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other
Person preparing a Report harmless from and against, the claims, actions, proceedings, damages,
costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct
or indirect result of any third parties who might obtain all or part of any Report through the
indemnifying Lender.
Section 10.8. L/C Issuer and Swingline Lender.
Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and the Swingline Lender shall act on behalf of the Lenders with respect to the Swingline Loans
made hereunder. The L/C Issuer and the Swingline Lender shall each have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 10 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 the Applications pertaining to such Letters of Credit or by the
Swingline Lender in connection with Swingline Loans made or to be made hereunder as fully as
if the term “Administrative Agent”, as used in this Section 10, included the L/C Issuer and the
Swingline Lender with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to such L/C Issuer or Swingline Lender, as applicable. Any resignation
by the Person then acting as Administrative Agent pursuant to Section 10.6 shall also constitute
its resignation or the resignation of its Affiliate as L/C Issuer and Swingline Lender except as it
may otherwise agree. If such Person then acting as L/C Issuer so resigns, 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 Lenders to make Loans or fund risk participations
in Reimbursement Obligations pursuant to Section 2.3. If such Person then acting as Swingline
Lender resigns, it shall retain all the rights of the Swingline Lender provided for hereunder with
respect to Swingline Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Loans or fund risk participations in outstanding
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Swingline Loans pursuant to Section 2.2(b). Upon the appointment by the Borrower of a successor
L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other
than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable
(other than any rights to indemnity payments or other amounts that remain owing to the retiring
L/C Issuer or Swingline Lender), and (ii) the retiring L/C Issuer and Swingline Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents other than with respect to its outstanding Letters of Credit and Swingline Loans, and
(iii) upon the request of the resigning L/C Issuer, 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 resigning L/C Issuer to effectively assume the
obligations of the resigning L/C Issuer with respect to such Letters of Credit.
Section 10.9. Hedging Liability and Bank Product Obligations
. By virtue of a Lender’s
execution of this Agreement or an assignment agreement pursuant to Section 13.2, as the case may
be, any Affiliate of such Lender with whom the Borrower or any other Loan Party has entered into
an agreement creating Hedging Liability or Bank Product Obligations shall be deemed a Lender
party hereto for purposes of any reference in a Loan Document to the parties for whom the
Administrative Agent is acting, it being understood and agreed that the rights and benefits of such
Affiliate under the Loan Documents consist exclusively of such Affiliate’s right to share in
payments and collections out of the Collateral and the Guaranty Agreements as more fully set forth
in Section 9.5. Without limiting the generality of the foregoing, (i) each such Affiliate of any
Lender that has entered into an agreement creating Hedging Liability or Bank Product Obligations
shall, for the avoidance of doubt, be deemed to have agreed to the provisions of Section 10.15 and
(ii) no such Affiliate of any Lender shall have any right to notice of any action or to consent to,
direct or object to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral). In connection with any
such distribution of payments and collections, or any request for the release of the Guaranty
Agreements and the Administrative Agent’s Liens in connection with the termination of the
Commitments and the payment in full of the Obligations, the Administrative Agent shall be
entitled to assume no amounts are due to any Lender or its Affiliate with respect to Hedging
Liability or Bank Product Obligations unless such Lender has notified the Administrative Agent
in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution or
payment or release of Guaranty Agreements and Liens.
Section 10.10. Designation of Additional Agents
. The Administrative Agent shall have the
continuing right, for purposes hereof, at any time and from time to time to designate one or more
of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,”
“book runners,” “lead arrangers,” “arrangers,” or other designations for purposes hereto, but such
designation shall have no substantive effect, and such Lenders and their Affiliates shall have no
additional powers, duties or responsibilities as a result thereof.
Section 10.11. Authorization to Enter into, and Enforcement of, the Collateral Documents;
Possession of Collateral
. The Administrative Agent is hereby irrevocably authorized by each of
the Lenders and the L/C Issuer to execute and deliver the Collateral Documents on behalf of each
of the Lenders, the L/C Issuer, and their Affiliates and to take such action and exercise such powers
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under the Collateral Documents as the Administrative Agent considers appropriate;
provided
Administrative Agent shall not amend the Collateral Documents unless such amendment is agreed
to in writing by the Required Lenders. Upon the occurrence of an Event of Default, the
Administrative Agent shall take such action to enforce its Lien on the Collateral and to preserve
and protect the Collateral as may be directed by the Required Lenders. Unless and until the
Required Lenders give such direction, the Administrative Agent may (but shall not be obligated
to) take or refrain from taking such actions as it deems appropriate and in the best interest of all
the Lenders and L/C Issuer. Each Lender and L/C Issuer acknowledges and agrees that it will be
bound by the terms and conditions of the Collateral Documents upon the execution and delivery
thereof by the Administrative Agent. The Administrative Agent shall not be responsible for or
have a duty to ascertain or inquire into any representation or warranty regarding the existence,
value or collectability of the Collateral, the existence, priority or perfection of the Administrative
Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor
shall the Administrative Agent be responsible or liable to the Lenders, the L/C Issuer or their
Affiliates for any failure to monitor or maintain any portion of the Collateral. The Lenders and
L/C Issuer hereby irrevocably authorize (and each of their Affiliates holding any Bank Product
Obligations and Hedging Liability entitled to the benefits of the Collateral shall be deemed to
authorize) the Administrative Agent, based upon the instruction of the Required Lenders, to credit
bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of
the Collateral at any sale thereof conducted by the Administrative Agent (or any security trustee
therefore) under the provisions of the Uniform Commercial Code, including pursuant to Sections
9-610 or 9-620 of the Uniform Commercial Code, at any sale thereof conducted under the
provisions of the United States Bankruptcy Code, including Section 363 of the United States
Bankruptcy Code, or at any sale or foreclosure conducted by the Administrative Agent or any
security trustee therefore (whether by judicial action or otherwise) in accordance with applicable
law. Except as otherwise specifically provided for herein, no Lender, L/C Issuer, or their
Affiliates, other than the Administrative Agent, shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon any Collateral or for
the execution of any trust or power in respect of the Collateral or for the appointment of a receiver
or for the enforcement of any other remedy under the Collateral Documents; it being understood
and intended that no one or more of the Lenders or L/C Issuer or their Affiliates shall have any
right in any manner whatsoever to affect, disturb or prejudice the Lien of the Administrative Agent
(or any security trustee therefor) under the Collateral Documents by its or their action or to enforce
any right thereunder, and that all proceedings at law or in equity shall be instituted, had, and
maintained by the Administrative Agent (or its security trustee) in the manner provided for in the
relevant Collateral Documents for the benefit of the Lenders, the L/C Issuer, and their Affiliates.
Each Lender and L/C Issuer is hereby appointed agent for the purpose of perfecting the
Administrative Agent’s security interest in assets which, in accordance with Article 9 of the
Uniform Commercial Code or other applicable law can be perfected only by possession. Should
any Lender or L/C Issuer (other than the Administrative Agent) obtain possession of any
Collateral, such Lender or L/C Issuer shall notify the Administrative Agent thereof, and, promptly
upon the Administrative Agent’s request therefor shall deliver such Collateral to the
Administrative Agent or in accordance with the Administrative Agent’s instructions.
Guaranties.
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the L/C Issuer, and their Affiliates to (a) release any Lien covering any Collateral that is sold,
transferred, or otherwise disposed of in accordance with the terms and conditions of this
Agreement and the relevant Collateral Documents (including a sale, transfer, or disposition
permitted by the terms of Section 8.10 or which has otherwise been consented to in accordance
with Section 13.3), (b) release or subordinate any Lien on Collateral consisting of goods financed
with purchase money indebtedness or under a Capital Lease to the extent such purchase money
indebtedness or Capitalized Lease Obligation, and the Lien securing the same, are permitted by
Sections 8.7(b) and 8.8(d), (c) reduce or limit the amount of the indebtedness secured by any
particular item of Collateral to an amount not less than the estimated value thereof to the extent
necessary to reduce mortgage registry, filing and similar tax, (d) release Liens on the Collateral
following termination or expiration of the Commitments and payment in full in cash of the
Obligations (other than contingent indemnification obligations) and the expiration or termination
of all Letters of Credit (other than Letters of Credit that have been Cash Collateralized to the
satisfaction of the Administrative Agent and relevant L/C Issuer) and, if then due, Hedging
Liability and Bank Product Obligations, and (e) release any Subsidiary from its obligations as a
Guarantor if such Person ceases to be a Subsidiary as a result of a transaction permitted under the
Loan Documents. Upon the Administrative Agent’s request, the Required Lenders will confirm
in writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Property or to release any Person form its obligations as a Guarantor under the
Loan Documents.
Section 10.13. Authorization of Administrative Agent to 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 Administrative 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 Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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 Lenders, the L/C Issuer and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under the Loan Documents including, but not limited to,
Sections 3.1, 4.4, 4.5, and 13.4) allowed in such judicial proceeding; and
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 L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
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and advances of the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 3.1 and 13.4. Nothing contained herein shall be deemed
to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or L/C Issuer or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such
proceeding.
(a) Each Lender (x) represents and warrants, as of
the date such Person became a Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt,
to or for the benefit of any Borrower or any other Loan Party, that at least one of the following is
and will be true:
of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments or this Agreement;
14 (a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE 96-
23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender’s entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;
or
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,
the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement; or
writing between the Administrative Agent, in its sole discretion, and such Lender.
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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, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the
avoidance of doubt, to or for the benefit of any Borrower or any other Loan Party, that the
Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such
Lender’s entrance into, participation in, administration of and performance of the Loans, the
Letters of Credit, the Commitments and this Agreement (including in connection with the
reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan
Document or any documents related hereto or thereto).
. Notwithstanding anything to the contrary
in this Agreement, if at any time the Administrative Agent determines (in its sole and absolute
discretion) that it has made a payment hereunder in error to any Lender, L/C Issuer or other secured
party hereunder, whether or not in respect of an Obligation due and owing by the Borrowers at
such time, where such payment is a Rescindable Amount, then in any such event, each such Person
receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith
on demand the Rescindable Amount received by such Person in immediately available funds in
the currency so received, with interest thereon, for each day from and including the date such
Rescindable Amount is received by it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation. Each Lender, each L/C
Issuer and each other secured party hereunder irrevocably waives any and all defenses, including
any “discharge for value” (under which a creditor might otherwise claim a right to retain funds
mistakenly paid by a third party in respect of a debt owed by another), “good consideration”,
“change of position” or similar defenses (whether at law or in equity) to its obligation to return
any Rescindable Amount. The Administrative Agent shall inform each Lender, L/C Issuer or other
secured party hereunder that received a Rescindable Amount promptly upon determining that any
payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each
Person’s obligations, agreements and waivers under this Section 10.16 shall survive the resignation
or replacement of the Administrative Agent, any transfer of rights or obligations by, or the
replacement of, a Lender or L/C Issuer, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
S
ECTION
HE
G
UARANTEES
.
Section 11.1. The Guarantees
. To induce the Lenders and L/C Issuer to provide the credits
described herein and in consideration of benefits expected to accrue to the Borrower by reason of
the Commitments and for other good and valuable consideration, receipt of which is hereby
acknowledged, each Wholly-owned Subsidiary party hereto (including any Wholly-owned
Subsidiary executing an Additional Guarantor Supplement in the form attached hereto as Exhibit F
or such other form acceptable to the Administrative Agent) and the Borrower (as to the Secured
Obligations of another Loan Party) hereby unconditionally and irrevocably guarantees jointly and
severally to the Administrative Agent, the Lenders, and the L/C Issuer and their Affiliates, the due
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and punctual payment of all present and future Secured Obligations, including, but not limited to,
the due and punctual payment of principal of and interest on the Loans, the Reimbursement
Obligations, and the due and punctual payment of all other Obligations now or hereafter owed by
the Borrower under the Loan Documents and the due and punctual payment of all Hedging
Liability and Bank Product Obligations, in each case as and when the same shall become due and
payable, whether at stated maturity, by acceleration, or otherwise, according to the terms hereof
and thereof (including all interest, costs, fees, and charges after the entry of an order for relief
against the Borrower or such other obligor in a case under the United States Bankruptcy Code or
any similar proceeding, whether or not such interest, costs, fees and charges would be an allowed
claim against the Borrower or any such obligor in any such proceeding);
provided, however,
with respect to any Guarantor, Hedging Liability guaranteed by such Guarantor shall exclude all
Excluded Swap Obligations. In case of failure by the Borrower or other obligor punctually to pay
any Secured Obligations guaranteed hereby, each Guarantor hereby unconditionally agrees to
make such payment or to cause such payment to be made punctually as and when the same shall
become due and payable, whether at stated maturity, by acceleration, or otherwise, and as if such
payment were made by the Borrower or such obligor. Only direct and indirect Wholly-owned
Subsidiaries of the Borrower that are Domestic Subsidiaries shall be required to be a Guarantor
and bound by the guaranty provisions of this Section 11.
Section 11.2. Guarantee Unconditional
. The obligations of each Guarantor under this
Section 11 shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged, or otherwise affected by:
respect of any obligation of any Loan Party or other obligor or of any other guarantor under
this Agreement or any other Loan Document or by operation of law or otherwise;
other Loan Document or any agreement relating to Hedging Liability or Bank Product
Obligations;
insolvency, bankruptcy, reorganization, or other similar proceeding affecting, any Loan
Party or other obligor, any other guarantor, or any of their respective assets, or any resulting
release or discharge of any obligation of any Loan Party or other obligor or of any other
guarantor contained in any Loan Document;
other obligor or any other guarantor may have at any time against the Administrative
Agent, any Lender, the L/C Issuer or any other Person, whether or not arising in connection
herewith;
exercise of, or failure to exercise, any rights or remedies against any Loan Party or other
obligor, any other guarantor, or any other Person or Property;
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any obligation of any Loan Party or other obligor, regardless of what obligations of any
Loan Party or other obligor remain unpaid;
other obligor or any other guarantor for any reason of this Agreement or of any other Loan
Document or any agreement relating to Hedging Liability or Bank Product Obligations or
any provision of applicable law or regulation purporting to prohibit the payment by any
Loan Party or other obligor or any other guarantor of the principal of or interest on any
Loan or any Reimbursement Obligation or any other amount payable under the Loan
Documents or any agreement relating to Hedging Liability or Bank Product Obligations;
or
Agent, any Lender, the L/C Issuer, or any other Person or any other circumstance
whatsoever that might, but for the provisions of this subsection, constitute a legal or
equitable discharge of the obligations of any Guarantor under this Section 11.
Section 11.3. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances
. Each Guarantor’s obligations under this Section 11 shall remain in full force and
effect until the Commitments are terminated, all Letters of Credit have expired, and the principal
of and interest on the Loans and all other amounts payable by the Borrower and the other Loan
Parties under this Agreement and all other Loan Documents and, if then outstanding and unpaid,
all Hedging Liability and Bank Product Obligations shall have been paid in full. If at any time any
payment of the principal of or interest on any Loan or any Reimbursement Obligation or any other
amount payable by any Loan Party or other obligor or any guarantor under the Loan Documents
or any agreement relating to Hedging Liability or Bank Product Obligations is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy, or reorganization of such Loan
Party or other obligor or of any guarantor, or otherwise, each Guarantor’s obligations under this
Section 11 with respect to such payment shall be reinstated at such time as though such payment
had become due but had not been made at such time.
Section 11.4. Subrogation
. Each Guarantor agrees it will not exercise any rights which it
may acquire by way of subrogation by any payment made hereunder, or otherwise, until all the
Secured Obligations shall have been paid in full subsequent to the termination of all the
Commitments and expiration of all Letters of Credit. If any amount shall be paid to a Guarantor
on account of such subrogation rights at any time prior to the later of (x) the payment in full of the
Secured Obligations and all other amounts payable by the Loan Parties hereunder and the other
Loan Documents and (y) the termination of the Commitments and expiration of all Letters of
Credit, such amount shall be held in trust for the benefit of the Administrative Agent, the Lenders,
and the L/C Issuer (and their Affiliates) and shall forthwith be paid to the Administrative Agent
for the benefit of the Lenders and L/C Issuer (and their Affiliates) or be credited and applied upon
the Secured Obligations, whether matured or unmatured, in accordance with the terms of this
Agreement.
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Section 11.5. Subordination
. Each Guarantor (each referred to herein as a
“Subordinated
Creditor”
) hereby subordinates the payment of all indebtedness, obligations, and liabilities of the
Borrower or other Loan Party owing to such Subordinated Creditor, whether now existing or
hereafter arising, to the indefeasible payment in full in cash of all Secured Obligations. During
the existence of any Event of Default, subject to Section 11.4, any such indebtedness, obligation,
or liability of the Borrower or other Loan Party owing to such Subordinated Creditor shall be
enforced and performance received by such Subordinated Creditor as trustee for the benefit of the
holders of the Secured Obligations and the proceeds thereof shall be paid over to the
Administrative Agent for application to the Secured Obligations (whether or not then due), but
without reducing or affecting in any manner the liability of such Guarantor under this Section 11.
Section 11.6. Waivers
. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest, and any notice not provided for herein, as well as any requirement
that at any time any action be taken by the Administrative Agent, any Lender, the L/C Issuer, or
any other Person against the Borrower or any other Loan Party or other obligor, another guarantor,
or any other Person.
. Notwithstanding any other provision hereof, the right of
recovery against each Guarantor under this Section 11 shall not exceed $1.00 less than the lowest
amount which would render such Guarantor’s obligations under this Section 11 void or voidable
under applicable law, including, without limitation, fraudulent conveyance law.
Section 11.8. Stay of Acceleration
. If acceleration of the time for payment of any amount
payable by the Borrower or other Loan Party or other obligor under this Agreement or any other
Loan Document, or under any agreement relating to Hedging Liability or Bank Product
Obligations, is stayed upon the insolvency, bankruptcy or reorganization of the Borrower or such
other Loan Party or obligor, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Loan Documents, or under any agreement relating to Hedging Liability
or Bank Product Obligations, shall nonetheless be payable by the Guarantors hereunder forthwith
on demand by the Administrative Agent made at the request or otherwise with the consent of the
Required Lenders.
Section 11.9. Benefit to Guarantors
. The Loan Parties are engaged in related businesses
and integrated to such an extent that the financial strength and flexibility of the Borrower and the
other Loan Parties has a direct impact on the success of each other Loan Party. Each Guarantor
will derive substantial direct and indirect benefit from the extensions of credit hereunder, and each
Guarantor acknowledges that this guarantee is necessary or convenient to the conduct, promotion
and attainment of its business.
Section 11.10. 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
this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP
Guarantor shall only be liable under this Section for the maximum amount of such liability that
can be hereby incurred without rendering its obligations under this Section, or otherwise under this
Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,
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and not for any greater amount). The obligations of each Qualified ECP Guarantor under this
Section shall remain in full force and effect until discharged in accordance with Section 11.3. Each
Qualified ECP Guarantor intends that this Section constitute, and this Section 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.
S
ECTION
OLLATERAL
.
Section 12.1. Collateral
. The Secured Obligations shall be secured by valid, perfected, and
enforceable Liens on all right, title, and interest of each Loan Party in all of its accounts, chattel
paper, instruments, documents, payment intangibles,
letter-of-credit rights, supporting obligations,
deposit accounts, inventory and farm products and certain other Property as specifically set forth
in the Collateral Documents whether now owned or hereafter acquired or arising, and all proceeds
thereof;
provided, however,
that: (i) the Collateral shall not include Excluded Property, and
(ii) the Collateral need not include (or be perfected if a Lien is granted) those assets of any Loan
Party as to which the Administrative Agent in its sole discretion determines that the cost of
obtaining a security interest in or perfection thereof are excessive in relation to the value of the
security to be afforded thereby. Each Loan Party acknowledges and agrees that the Liens on the
Collateral shall be granted to the Administrative Agent for the benefit of the holders of the Secured
Obligations and shall be valid and perfected first priority Liens (to the extent perfection by filing,
registration, recordation, possession or control is required herein or in any other Loan Document)
subject to the proviso appearing at the end of the preceding sentence and to Liens permitted by
Section 8.8, in each case pursuant to one or more Collateral Documents from such Persons, each
in form and substance satisfactory to the Administrative Agent.
Section 12.2. Depository Banks
. Each Loan Party shall maintain the Administrative Agent
(or one of its Affiliates) as its primary depository bank, including for its principal operating,
administrative, cash management, lockbox arrangements, collection activity, and other deposit
accounts for the conduct of its business.
Section 12.3. Further Assurances
. Each Loan Party agrees that it shall, from time to time
at the request of the Administrative Agent, execute and deliver such documents and do such acts
and things as the Administrative Agent may reasonably request in order to provide for or perfect
or protect such Liens on the Collateral. In the event any Loan Party forms or acquires any other
Subsidiary after the date hereof, except as otherwise provided in the definition of Guarantor, the
Loan Parties shall promptly upon such formation or acquisition cause such newly formed or
acquired Subsidiary to execute a Guaranty Agreement and such Collateral Documents as the
Administrative Agent may then require, and the Loan Parties shall also deliver to the
Administrative Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the
Borrower’s cost and expense, such other instruments, documents, certificates, and opinions
reasonably required by the Administrative Agent in connection therewith.
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S
ECTION
ISCELLANEOUS
.
.
Notices Generally.
Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below), all notices
and other communications provided for herein shall be in writing and shall be delivered by hand
or overnight courier services or mailed by certified or registered mail as follows:
Parkway, Suite 200, Ridgeland, MS 39157, Attention of Max Bowman, Vice President and
Chief Financial Officer; Telephone No. (601) 718-4238 with a copy to the same address to
the attention of Robert Holladay, General Counsel; Telephone No. (601) 948-6813;
as L/C Issuer, to BMO Harris Bank N.A. at 111 West Monroe Street, Chicago, Illinois
60603, Attention of David J. Bechstein; Telephone No. (312) 461-5174);
Questionnaire.
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 delivered through electronic
communications, to the extent provided in subsection (b) below, shall be effective as provided in
said subsection (b).
Electronic Communications.
Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent,
provided
that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant
to Sections 2.2, 2.3 and 2.6 if such Lender or L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Sections by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it;
provided
that approval of such procedures may be limited to particular
notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), 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;
provided
that, for both clauses (i) and (ii) above, if such notice, email or
other communication is not sent during the normal business hours of the recipient, such notice or
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communication shall be deemed to have been sent at the opening of business on the next business
day for the recipient.
Change of Address, etc.
Any party hereto may change its address or facsimile number
for notices and other communications hereunder by notice to the other parties hereto.
Platform.
(i) Each Loan Party agrees that the Administrative Agent may, but shall
not be obligated to, make the Communications (as defined below) available to the L/C Issuers and
the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a
substantially similar electronic transmission system (the
“Platform”
).
defined below) do not warrant the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the Communications. No warranty of any kind, express, implied
or statutory, including, without limitation, 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 Communications or the
Platform. In no event shall the Administrative Agent or any of its Related Parties
(collectively, the
“Agent Parties”
) have any liability to the Borrower or the other Loan
Parties, any Lender or any other Person or entity for damages of any kind, including,
without limitation, direct or indirect, special, incidental or consequential damages, losses
or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan
Party’s or the Administrative Agent’s transmission of communications through the
Platform, except to the extent that such losses, claims, damages and liabilities or expenses
are determined by a court of competent jurisdiction by final and non-appealable judgment
to have resulted from the gross negligence or willful misconduct of the Agent Parties.
“Communications”
document or other material provided by or on behalf of any Loan Party pursuant to any
Loan Document or the transactions contemplated therein which is distributed to the
Administrative Agent, any Lender or any L/C Issuer by means of electronic
communications pursuant to this Section, including through the Platform.
Private Side Designation
. Each public Lender agrees to cause at least one individual
at or on behalf of such public Lender to all times have selected the “Private Side Information” or
similar designation on the content declaration screen of the Platform in order to enable such public
Lender or its delegate, in accordance with such public Lender’s compliance procedures and
applicable laws, including United States Federal and state securities applicable laws, to make
reference to Borrower or any Loan Party materials that are not made available through the “Public
Side Information” portion of the Platform and that may contain material non-public information
with respect to the Borrower or any Loan Party or their securities for purposes of United States
Federal or state securities applicable laws.
Section 13.2. Successors and Assigns
.
Successors and Assigns Generally.
upon and inure to the benefit of the parties hereto and their respective successors and assigns
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permitted hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of paragraph (e) of this Section (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 paragraph (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
Assignments by Lenders.
Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it);
provided
any Facility) any such assignment shall be subject to the following conditions:
Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitments and the Loans at the time owing to it (in
each case with respect to any Facility) or in the case of an assignment to a Lender or an
Affiliate of a Lender, no minimum amount need be assigned; and
aggregate amount of the relevant Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable 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 Administrative Agent or, if
“Trade Date”
is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed).
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 Loan or the Commitment assigned.
Required Consents.
No consent shall be required for any assignment except
to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender or an Affiliate of a Lender;
provided
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have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after having
received notice thereof;
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) the Revolving Facility if such assignment is to a Person that is not a Lender with
a Commitment in respect of the Revolving Facility or an Affiliate of such Lender,
or (ii) any Incremental Term Loans to a Person who is not a Lender or an Affiliate
of a Lender; and
required for any assignment in respect of the Revolving Facility.
Assignment and Assumption.
The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
provided
that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment
.
an Administrative Questionnaire.
No Assignment to Certain Persons.
No such assignment shall be made to
(A) the Borrower or any other Loan Party or any Loan Party’s Affiliates or Subsidiaries or
(B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming
a Lender hereunder, would constitute any of the foregoing Persons described in this
clause (B).
No Assignment to Natural Persons.
No such assignment shall be made to a
natural Person (or a holding company, investment vehicle or trust for or owned and
operated for the primary benefit of a natural person) (herein any of the foregoing is a
“natural Person”).
Certain Additional Payments.
In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to
the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed
by such Defaulting Lender to the Administrative Agent, each L/C Issuer, the Swingline
Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire
(and fund as appropriate) its full pro rata share of all Loans and participations in Letters of
Credit and Swingline Loans in accordance with its Percentage. Notwithstanding the
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foregoing, in the event that any assignment of rights and obligations of any Defaulting
Lender hereunder shall become effective under applicable law without compliance with
the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning 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 13.4 and 13.6 with respect to facts and circumstances
occurring prior to the effective date of such assignment;
provided
that except to the extent
otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (d) of this Section.
Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Chicago, Illinois
a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts (and stated interest) of the 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. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
Participations.
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any other Loan Party or any Loan Party’s Affiliates or Subsidiaries or
any other Person prohibited under Section 13.2 (b)(v) (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
Commitments and/or the Loans owing to it);
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative
Agent, the L/C Issuers and Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. For the avoidance of
doubt, each Lender shall be responsible for the indemnity under Section 10.8 with respect to any
payments made by such Lender to its Participant(s).
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Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided
that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 13.3 that
expressly relate to amendments requiring the unanimous consent of the Lenders in the Revolving
Facility in which such Participant participates. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 4.1, 4.4, and 4.5 (subject to the requirements and limitations
therein, including the requirements under Section 4.1(g) (it being understood that the
documentation required under Section 4.1(g) shall be delivered to the participating Lender)) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section;
provided
that such Participant (A) agrees to be subject to the
provisions of Sections 2.12 and 4.7 as if it were an assignee under paragraph (b) of this Section;
and (B) shall not be entitled to receive any greater payment under Sections 4.1
or 4.4, with respect
to any participation, than its participating Lender would have been entitled to receive, except to
the extent such entitlement to receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each Lender that sells a participation
agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the
Borrower to effectuate the provisions of Section 2.12 with respect to any Participant. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 13.6 (Right of
Setoff) as though it were a Lender; provided that such Participant agrees to be subject to
Section 13.7 (Sharing of Payments by Lenders) as though it were a Lender. Each Lender that sells
a participation shall, acting 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
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. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
Certain Pledges.
Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided
that no such
pledge or assignment shall release such Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
Section 13.3. Amendments.
may be amended or waived if, but only if, such amendment or waiver is in writing and is signed
by (a) the Borrower, (b) the Required Lenders (or the Administrative Agent acting at the direction
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of the Required Lenders) (except as otherwise stated below to require only the consent of the
Lenders affected thereby), and (c) if the rights or duties of the Administrative Agent, the
L/C Issuer, or the Swingline Lender are affected thereby, the Administrative Agent, the L/C Issuer,
or the Swingline Lender, as applicable;
provided
any Commitment of any Lender without the consent of such Lender or (B) reduce the
amount of or postpone the date for any scheduled payment of any principal of or interest
on any Loan or of any Reimbursement Obligation or of any fee payable hereunder without
the consent of the Lender to which such payment is owing or which has committed to make
such Loan or Letter of Credit (or participate therein) hereunder;
provided, however,
only the consent of the Required Lenders shall be necessary (i) to amend the default rate
provided in Section 2.9 or to waive any obligation of the Borrower to pay interest or fees
at the default rate as set forth therein or (ii) to amend any financial covenant hereunder (or
any defined term used therein) even if the effect of such amendment would be to reduce
the rate of interest or any fee payable hereunder;
by each Lender, change the definition of Required Lenders, change the provisions of this
Section 13.3, change Section 13.7 in a manner that would affect the ratable sharing of
setoffs required thereby, change the application of payments contained in Section 3.1 or
9.5, release any material Guarantor or all or substantially all of the Collateral (except as
otherwise provided for in the Loan Documents), or affect the number of Lenders required
to take any action hereunder or under any other Loan Document;
by each Lender affected thereby, extend the Revolving Credit Termination Date, or extend
the stated expiration date of any Letter of Credit beyond the Revolving Credit Termination
Date; and
Guarantor(s) affected thereby.
Notwithstanding anything to the contrary herein, (1) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver
or consent which by its terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent
of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders
or each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender, (2) if the Administrative
Agent and the Borrower have jointly identified an obvious error or any error or omission of a
technical nature, in each case, in any provision of the Loan Documents, then the Administrative
Agent and the Borrower shall be permitted to amend such provision, (3) guarantees, collateral
security documents and related documents executed by the Borrower or any other Loan Party in
connection with this Agreement may be in a form reasonably determined by the Administrative
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Agent and may be amended, supplemented or waived without the consent of any Lender if such
amendment, supplement or waiver is delivered in order to (x) comply with local law or advice of
local counsel, (y) cure ambiguities, omissions, mistakes or defects or (z) cause such guarantee,
collateral security document or other document to be consistent with this Agreement and the other
Loan Documents, (4) the Borrower and the Administrative Agent may, without the input or
consent of any other Lender, effect amendments to this Agreement and the other Loan Documents
as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to
effect the provisions of Section 2.15, and (5) this Section 13.3 shall be subject to the terms of
Section 4.3(c) in all respects.
Section 13.4. Costs and Expenses; Indemnification
.
Costs and Expenses.
The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of outside counsel for the Administrative Agent), in
connection with the syndication of the Revolving Facility of any Incremental Term Loan, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), including,
without limitation, such documented fees and expenses incurred in connection with (x) the
creation, perfection or protection of the Liens under the Loan Documents (including all title
insurance fees and all search, filing and recording fees) and (y) environmental assessments,
insurance reviews, collateral audits and valuations, and field exams as provided herein, (ii) all
documented reasonable out-of-pocket expenses incurred by any L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder, and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent,
any Lender or any L/C Issuer (including the fees, charges and disbursements of any outside counsel
for the Administrative Agent, any Lender or any L/C Issuer), and shall pay all fees and time
charges for attorneys who may be employees of the Administrative Agent, any Lender or any L/C
Issuer, in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit (including all such costs and expenses incurred in
connection with any proceeding under the United States Bankruptcy Code involving the Borrower
or any other Loan Party as a debtor thereunder).
Indemnification by the Loan Parties.
Each Loan Party shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”
)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any outside counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person
(including any third party or the 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
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hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any
sub-agent thereof), any Swingline Lender and L/C Issuer, and their Related Parties, the
administration and enforcement of this Agreement and the other Loan Documents (including all
such costs and expenses incurred in connection with any proceeding under the United States
Bankruptcy Code involving the Borrower or any other Loan Party as a debtor thereunder), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal
by any 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), (iii) any Environmental Claim or Environmental Liability, including with respect to the
actual or alleged presence or Release of Hazardous Materials, wastes, or products, including
manure, at, on or from any property owned or operated by any Loan Party or any of its Subsidiaries
or at any off-site location, related in any way to any Loan Party or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto (including, without limitation, any settlement arrangement arising from or relating to the
foregoing);
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower 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 Borrower 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. This subsection (b) shall not apply with respect
to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim.
Reimbursement by Lenders.
To the extent that (i) the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
any of them to the Administrative Agent (or any sub-agent thereof), any L/C Issuer, any Swingline
Lender or any Related Party or (ii) any liabilities, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever are imposed on, incurred
by, or asserted against, Administrative Agent, the L/C Issuer, any Swingline Lender or a Related
Party 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 Administrative Agent, the L/C Issuer, any Swingline Lender
or a Related Party in connection therewith, then, in each case, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), such L/C Issuer, such Swingline Lender or
such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s
share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid
amount in respect of a claim asserted by such Lender);
provided
amounts owed to any L/C Issuer or Swingline Lender solely in its capacity as such, only the
Lenders party to the Revolving Facility shall be required to pay such unpaid amounts, such
payment to be made severally among them based on such Lenders’ pro rata share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought based on
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each such Lender’s share of the Revolving Credit Exposure at such time); and
provided, further,
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Swingline Lender in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such
L/C Issuer or any such Swingline Lender in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 13.15.
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by applicable
law, the Loan Parties shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit, or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it 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.
Payments.
All amounts due under this Section shall be payable not later than 30 days
after demand therefor.
Survival.
Each party’s obligations under this Section shall survive the termination of
the Loan Documents and payment of the obligations hereunder.
Section 13.5. No Waiver, Cumulative Remedies.
Administrative Agent, the L/C Issuer, or any Lender, or on the part of the holder or holders of any
of the Obligations, in the exercise of any power or right under any Loan Document shall operate
as a waiver thereof or as an acquiescence in any default, nor shall any single or partial exercise of
any power or right preclude any other or further exercise thereof or the exercise of any other power
or right. The rights and remedies hereunder of the Administrative Agent, the L/C Issuer, the
Lenders, and of the holder or holders of any of the Obligations are cumulative to, and not exclusive
of, any rights or remedies which any of them would otherwise have.
Loan Documents or applicable law and not by way of limitation of any such rights, if an Event of
Default shall have occurred and be continuing, each Lender, each L/C Issuer, and each of their
respective Affiliates is hereby authorized at any time and from time to time, 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, such L/C Issuer or any such Affiliate, to
or for the credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates,
irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand
under this Agreement or any other Loan Document and although such obligations of the Borrower
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or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of
such Lender or such L/C Issuer different from the branch, office or Affiliate holding such deposit
or obligated on such indebtedness;
provided
that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section 2.13
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds
and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers, and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. The rights of each Lender, each 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, such L/C Issuer or their respective Affiliates may have. Each
Lender and L/C Issuer agrees to notify the Borrower and the Administrative 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.
Section 13.7. Sharing of Payments by Lenders.
of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or other such
obligations greater than its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Loans and such other obligations of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided
that:
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in L/C
Obligations to any assignee or participant, other than to any Loan Party 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 each Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of
such participation.
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Section 13.8. Survival of Representations.
or in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the other Loan Documents, and shall continue in
full force and effect with respect to the date as of which they were made as long as any credit is in
use or available hereunder.
Section 13.9.
Survival of Indemnities.
reimbursement to the Lenders and L/C Issuer of amounts sufficient to protect the yield of the
Lenders and L/C Issuer with respect to the Loans and Letters of Credit, including, but not limited
to, Sections 4.1, 4.4, 4.5, and 13.4, shall survive the termination of this Agreement and the other
Loan Documents and the payment of the Obligations.
Section 13.10. Counterparts; Integration; Effectiveness
.
Counterparts; Integration; Effectiveness.
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, and any separate letter agreements with respect to fees
payable to the Administrative Agent, constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 7.2, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof 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 or in electronic (e.g., “pdf” or “tif”) format shall be effective
as delivery of a manually executed counterpart of this Agreement.
Electronic Execution of Assignments.
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 Illinois
State Electronic Commerce Security Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 13.11. Headings.
and shall not affect the construction of this Agreement.
Section 13.12. Severability of Provisions.
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies and powers
provided in this Agreement and the other Loan Documents may be exercised only to the extent
that the exercise thereof does not violate any applicable mandatory provisions of law, and all the
provisions of this Agreement and other Loan Documents are intended to be subject to all applicable
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mandatory provisions of law which may be controlling and to be limited to the extent necessary
so that they will not render this Agreement or the other Loan Documents invalid or unenforceable.
Section 13.13. Construction
. The parties acknowledge and agree that the Loan Documents
shall not be construed more favorably in favor of any party hereto based upon which party drafted
the same, it being acknowledged that all parties hereto contributed substantially to the negotiation
of the Loan Documents. The provisions of this Agreement relating to Subsidiaries shall only apply
during such times as the Borrower has one or more Subsidiaries. N
OTHING CONTAINED HEREIN
SHALL BE DEEMED OR CONSTRUED TO PERMIT ANY ACT OR OMISSION WHICH IS PROHIBITED BY THE
TERMS OF ANY
C
OLLATERAL
D
OCUMENT
,
BEING IN ADDITION TO AND NOT IN SUBSTITUTION FOR THE COVENANTS AND AGREEMENTS
CONTAINED IN THE
C
OLLATERAL
D
OCUMENTS
.
Section 13.14. Excess Interest
. Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance in the collection, of all or
any portion of the Loans or other obligations outstanding under this Agreement or any other Loan
Document (
“Excess Interest”
). If any Ex
cess Interest is provided for, or is adjudicated to be
provided for, herein or in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither the Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied
as a credit against the then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by applicable law),
(ii) refunded to the Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable
hereunder or under any other Loan Document shall be automatically subject to reduction to the
maximum lawful contract rate allowed under applicable usury laws (the
“Maximum Rate”
), and
this Agreement and the other Loan Documents shall be deemed to have been, and shall be,
reformed and modified to reflect such reduction in the relevant interest rate, and (e) neither the
Borrower nor any guarantor or endorser shall have any action against the Administrative Agent or
any Lender for any damages whatsoever arising out of the payment or collection of any Excess
Interest. Notwithstanding the foregoing, if for any period of time interest on any of Borrower’s
Obligations is calculated at the Maximum Rate rather than the applicable rate under this
Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of
interest payable on the Borrower’s Obligations shall remain at the Maximum Rate until the
Lenders have received the amount of interest which such Lenders would have received during such
period on the Borrower’s Obligations had the rate of interest not been limited to the Maximum
Rate during such period.
Section 13.15. Lender’s and L/C Issuer’s Obligations Several
. The obligations of the
Lenders and L/C Issuer hereunder are several and not joint. Nothing contained in this Agreement
and no action taken by the Lenders or L/C Issuer pursuant hereto shall be deemed to constitute the
Lenders and L/C Issuer a partnership, association, joint venture or other entity.
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Section 13.16. No Advisory or Fiduciary Responsibility
. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), each Loan Party acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or
agency relationship between any Loan Party and its Subsidiaries and the Administrative Agent,
the L/C Issuer, or any Lender is intended to be or has been created in respect of the transactions
contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative
Agent, the L/C Issuer, or any Lender has advised or is advising any Loan Party or any of its
Subsidiaries on other matters, (ii) the arranging and other services regarding this Agreement
provided by the Administrative Agent, the L/C Issuer, and the Lenders are arm’s-length
commercial transactions between such Loan Parties and their Affiliates, on the one hand, and the
Administrative Agent, the L/C Issuer, and the Lenders, on the other hand, (iii) each Loan Party has
consulted its own legal, accounting, regulatory and tax advisors to the extent that it has deemed
appropriate and (iv) each Loan Party is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; and (b) (i) the Administrative Agent, the L/C Issuer, and the Lenders each is and has
been acting solely as a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or
any of its Affiliates, or any other Person; (ii) none of the Administrative Agent, the L/C Issuer,
and the Lenders 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; and (iii) the Administrative Agent, the L/C Issuer, and the Lenders and
their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in
a broad range of transactions that involve interests that differ from those of any Loan Party and its
Affiliates, and none of the Administrative Agent, the L/C Issuer, and the Lenders has any
obligation to disclose any of such interests to any Loan Party or its Affiliates. To the fullest extent
permitted by law, each Loan Party hereby waives and releases any claims that it may have against
the Administrative Agent, the L/C Issuer, and the Lenders with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
Section 13.17. Governing Law; Jurisdiction; Consent to Service of Process
. (a) This
Agreement, the Notes and the other Loan Documents (except as otherwise specified therein), and
the rights and duties of the parties hereto, shall be construed and determined in accordance with
the laws of the State of Illinois
without regard to conflicts of law principles that would require
application of the laws of another jurisdiction.
property, to the nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois State court sitting in the City of Chicago, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each party hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such Illinois State court or, to the extent permitted by applicable
Legal Requirements, in such federal court. Each party hereto hereby agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
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suit on the judgment or in any other manner provided by applicable Legal Requirements. Nothing
in this Agreement or any other Loan Document or otherwise shall affect any right that the
Administrative Agent, the L/C Issuer or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the Borrower or any
Guarantor or its respective properties in the courts of any jurisdiction.
permitted by applicable Legal Requirements, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in Section 13.17(b). Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
or proceeding arising out of or relating to any Loan Document, in the manner provided for notices
(other than telecopy or e-mail) in Section 13.1. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process in any other manner
permitted by applicable Legal Requirements.
Section 13.18. Waiver of Jury Trial
. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable Legal Requirements, any right it may have to a trial by jury
in any legal proceeding directly or indirectly arising out of or relating to any Loan Document or
the transactions contemplated thereby (whether based on contract, tort or any other theory). Each
party hereto (a) certifies that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced
to enter into this Agreement by, among other things, the mutual waivers and certifications in this
Section.
Section 13.19. USA Patriot Act
. Each Lender and L/C Issuer that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the
“Act”
) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify, and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender
or L/C Issuer to identify the Borrower in accordance with the Act.
Section 13.20. Confidentiality
. Each of the Administrative Agent, the Lenders and the L/C
Issuers agree to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed and agrees to keep such Information confidential); (b) to the extent
required by any regulatory authority purporting to have jurisdiction over such Person or its Related
Parties (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
-122-
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 and obligations under this Agreement, or (ii) any actual or prospective party (or its Related
Parties) to any swap, derivative or other transaction under which payments are to be made by
reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a
confidential basis to (i) any rating agency in connection with rating any Loan Party or its
Subsidiaries or the Revolving Facility or any Incremental Term Loan or (ii) the CUSIP Service
Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers
with respect to the Revolving Facility or Incremental Term Loan; (h) with the consent of the
Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result
of a breach of this Section, or (y) becomes available to the Administrative Agent, any Lender, any
L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower. For purposes of this Section,
“Information”
Loan Party or any of its Subsidiaries relating to a Loan Party or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by a Loan Party
or any of its Subsidiaries;
provided
any of its Subsidiaries after the date hereof, such information is clearly identified at the time of
delivery as confidential or is information that is not made available to the public and as such
whether or not marked as confidential is to be held in confidence by the recipient. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto (including any party
becoming a party hereto by virtue of an Assignment and Assumption) acknowledges that any
liability of any 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:
Resolution Authority to any such liabilities arising hereunder which may be payable to it
by any party hereto that is an EEA Financial Institution; and
applicable:
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
-123-
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
exercise of the write-down and conversion powers of any EEA Resolution
Authority.
. This Agreement amends and restates the
Existing Credit Agreement and is not intended to be or operate as a novation or an accord and
satisfaction of the Existing Credit Agreement or the indebtedness, obligations and liabilities of the
Loan Parties evidenced or provided for thereunder. Without limiting the generality of the
foregoing, each Loan Party agrees that notwithstanding the execution and delivery of this
Agreement, the Liens previously granted to the Administrative Agent pursuant to the Collateral
Documents shall be and remain in full force and effect and that any rights and remedies of the
Administrative Agent thereunder and obligations of the Loan Parties thereunder shall be and
remain in full force and effect, shall not be affected, impaired or discharged thereby (except as
expressly amended by the Loan Documents) and shall secure all of the Borrower’s indebtedness,
obligations and liabilities to the Administrative Agent and the Lenders under the Existing Credit
Agreement as amended and restated hereby. Without limiting the foregoing, the parties to this
Agreement hereby acknowledge and agree that the “Credit Agreement” and the “Notes” referred
to in the Collateral Documents shall from and after the date hereof be deemed references to this
Agreement and the Notes issued hereunder.
the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or
any other agreement or instrument that is a QFC (such support,
“QFC Credit Support”
, and each
such QFC, a
“Supported QFC”
), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title II of the 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):
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
-124-
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.
Certain Defined Terms.
BHC Act Affiliate”
term is defined under, and interpreted in accordance with, 12 U.S.C.
1841(k)) of such party.
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).
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“QFC”
interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[S
IGNATURE
P
AGES TO
F
OLLOW
]
-1-
This Amended and Restated Credit Agreement is entered into between us for the uses and
purposes hereinabove set forth as of the date first above written.
“B
ORROWER
”
C
AL
-M
AINE
F
OODS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer
“G
UARANTORS
”
A
MERICAN
E
GG
P
RODUCTS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
B
ENTON
C
OUNTY
F
OODS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
W
HARTON
C
OUNTY
F
OODS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
-2-
S
OUTHERN
E
QUIPMENT
D
ISTRIBUTORS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
S
OUTH
T
EXAS
A
PPLICATORS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
R
ED
R
IVER
V
ALLEY
E
GG
F
ARM
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
C
AL
-M
AINE
R
EAL
E
STATE
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
T
EXAS
E
GG
P
RODUCTS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
-3-
“A
DMINISTRATIVE
A
GENT AND
L/C I
SSUER
”
BMO
H
ARRIS
B
ANK
N.A., as L/C Issuer and as
Administrative Agent
By: ____________________________________
-4-
“L
ENDERS
”
BMO
H
ARRIS
B
ANK
N.A.
By: ____________________________________
G
REEN
S
TONE
F
ARM
C
REDIT
S
ERVICES
,
ACA
By ____________________________________
-1-
A
G
F
IRST
F
ARM
C
REDIT
B
ANK
By ____________________________________
-1-
C
OMPEER
F
INANCIAL
,
ACA
By ____________________________________
-1-
F
ARM
C
REDIT
B
ANK OF
T
EXAS
By ____________________________________
-1-
E
XHIBIT
N
OTICE OF
P
AYMENT
R
EQUEST
[Date]
[Name of Lender]
[Address]
Attention:
Reference is made to the Amended and Restated Credit Agreement, dated as of November
15, 2021 among Cal-Maine Foods, Inc., the Lenders party thereto, and BMO Harris Bank N.A., as
Administrative Agent (as extended, renewed, amended or restated from time to time, the
“Credit
Agreement”
). Capitalized terms used herein and not defined herein have the meanings assigned
to them in the Credit Agreement. [The Borrower has failed to pay its Reimbursement Obligation
in the amount of $____________. Your Revolver Percentage of the unpaid Reimbursement
Obligation is $_____________] or [__________________________ has been required to return a
payment by the Borrower of a Reimbursement Obligation in the amount of $_______________.
Your Revolver Percentage of the returned Reimbursement Obligation is $_______________.]
Very truly yours,
BMO Harris Bank N.A., as L/C Issuer
By
-1-
E
XHIBIT
N
OTICE OF
B
ORROWING
Date: ____________, ____
To: BMO Harris Bank N.A., as Administrative Agent for
the Lenders party to the Amended and Restated Credit
Agreement dated as of November 15, 2021 (as
extended, renewed, amended or restated from time to
time, the
“Credit Agreement”
), among Cal-Maine
Foods, Inc., certain Lenders which are signatories
thereto, and BMO Harris Bank N.A., as
Administrative Agent
Ladies and Gentlemen:
The undersigned, Cal-Maine Foods, Inc. (the
“Borrower”
), refers to the Credit Agreement,
the terms defined therein being used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.6 of the Credit Agreement, of the Borrowing specified below:
[Base Rate]
[Eurodollar]
[4. The duration of the Interest Period for the Eurodollar Loans included
in the Borrowing shall be ____________ months.]
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the proposed Borrowing, before and after giving effect thereto and
to the application of the proceeds therefrom:
Agreement are true and correct in all material respects (where not already qualified by
materiality, otherwise in all respects) as though made on and as of such date (except to the
extent such representations and warranties relate to an earlier date, in which case they are
true and correct in all material respects (where not already qualified by materiality,
otherwise in all respects) as of such earlier date); and
-2-
proposed Borrowing.
C
AL
-M
AINE
F
OODS
,
I
NC
.
By
-1-
E
XHIBIT
N
OTICE OF
C
ONTINUATION
/C
ONVERSION
Date: ____________, ____
To: BMO Harris Bank N.A, as Administrative Agent for
the Lenders party to the Amended and Restated Credit
Agreement dated as of November 15, 2021, (as
extended, renewed, amended or restated from time to
time, the
“Credit Agreement”
) among Cal-Maine
Foods, Inc., certain Lenders which are signatories
thereto, and BMO Harris Bank N.A., as Administrative
Agent
Ladies and Gentlemen:
The undersigned, Cal-Maine Foods, Inc. (the
“Borrower”
), refers to the Credit Agreement,
the terms defined therein being used herein as therein defined, and hereby gives you notice
irrevocably, pursuant to Section 2.6 of the Credit Agreement, of the
[conversion] [continuation]
of the Loans specified herein, that:
Loans to be
[converted]
[continued]
converted into] [continued as] [Eurodollar] [Base
Rate]
[If applicable:]
[Incremental Term]
Loans included in the
[conversion] [continuation]
_________ months.
C
AL
-M
AINE
F
OODS
,
I
NC
.
By
-1-
E
XHIBIT
R
EVOLVING
N
OTE
U.S.
$_______________ ____________, ______
F
OR
ALUE
ECEIVED
, the undersigned, Cal-Maine Foods, Inc., a Delaware corporation
(the
“Borrower”
), hereby promises to pay to ____________________ (the
“Lender”
) or its
registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit
Agreement, at the principal office of the Administrative Agent in Chicago, Illinois (or such other
location as the Administrative Agent may designate to the Borrower), in immediately available
funds, the principal sum of ___________________ Dollars ($__________) or, if less, the
aggregate unpaid principal amount of all Revolving Loans made by the Lender to the Borrower
pursuant to the Credit Agreement, together with interest on the principal amount of each Revolving
Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the
dates, specified in the Credit Agreement.
This Note is one of the Revolving Notes referred to in the Amended and Restated Credit
Agreement dated as of November 15, 2021, among the Borrower, the Guarantors party thereto, the
Lenders and L/C Issuer party thereto, and BMO Harris Bank N.A., as Administrative Agent (as
extended, renewed, amended or restated from time to time, the
“Credit Agreement”
), and this Note
and the holder hereof are entitled to all the benefits and security
provided for thereby or referred
to therein, to which Credit Agreement reference is hereby made for a statement thereof. All
defined terms used in this Note, except terms otherwise defined herein, shall have the same
meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance
with the internal laws of the State of Illinois.
Voluntary prepayments may be made hereon, certain prepayments are required to be made
hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events,
on the terms and in the manner as provided for in the Credit Agreement.
[This Note amends and restates in its entirety that certain Revolving Note dated as of
July 10, 2018, in the original principal amount of $[_______] made by the Borrower to the Lender
(the “
Prior Note
”) and is issued in substitution and replacement for, and evidences all of the
indebtedness previously evidenced by, the Prior Note. This Note supersedes the Prior Note and
shall not be deemed to constitute a novation.]
The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
C
AL
-M
AINE
F
OODS
,
I
NC
.
-2-
By
-1-
E
XHIBIT
S
WING
N
OTE
U.S.
$_____________ ____________, ___
F
OR
ALUE
ECEIVED
, the undersigned, Cal-Maine Foods, Inc., a Delaware corporation
(the
“Borrower”
), hereby promises to pay to ___________________ (the
“Lender”
) or its
registered assigns on the Revolving Credit Termination Date of the hereinafter defined Credit
Agreement, at the principal office of the Administrative Agent in Chicago, Illinois (or such other
location as the Administrative Agent may designate to the Borrower), in immediately available
funds, the principal sum of _______________________________ Dollars ($____________) or, if
less, the aggregate unpaid principal amount of all Swingline Loans made by the Lender to the
Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each
Swingline Loan from time to time outstanding hereunder at the rates, and payable in the manner
and on the dates, specified in the Credit Agreement.
This Note is the Swing Note referred to in the Amended and Restated Credit Agreement
dated as of November 15, 2021, among the Borrower, the Guarantors party thereto, the Lenders
and L/C Issuer party thereto, and BMO Harris Bank N.A., as Administrative Agent (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”
), and this Note and the
holder hereof are entitled to all the benefits and security provided for thereby or referred to therein,
to which Credit Agreement reference is hereby made for a statement thereof. All defined terms
used in this Note, except terms otherwise defined herein, shall have the same meaning as in the
Credit Agreement. This Note shall be governed by and construed in accordance with the internal
laws of the State of Illinois.
Voluntary prepayments may be made hereon, certain prepayments are required to be made
hereon, and this Note may be declared due prior to the expressed maturity hereof, all in the events,
on the terms and in the manner as provided for in the Credit Agreement.
This Note amends and restates in its entirety that certain Swing Note dated as of
July 10, 2018, in the original principal amount of $7,500,000 made by the Borrower to the Lender
(the “
Prior Note
”) and is issued in substitution and replacement for, and evidences all of the
indebtedness previously evidenced by, the Prior Note. This Note supersedes the Prior Note and
shall not be deemed to constitute a novation.
The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder.
C
AL
-M
AINE
F
OODS
,
I
NC
.
-2-
By
-1-
E
XHIBIT
C
AL
-M
AINE
F
OODS
,
I
NC
.
C
OMPLIANCE
C
ERTIFICATE
To: BMO Harris Bank N.A., as Administrative Agent
under, and the Lenders and L/C Issuer party to, the
Credit Agreement described below
This Compliance Certificate is furnished to the Administrative Agent, the L/C Issuer, and
the Lenders pursuant to that certain Amended and Restated Credit Agreement dated as of
November 15, 2021, among Cal-Maine Foods, Inc., as Borrower, the Guarantors referred to
therein, the Lenders and L/C Issuer party thereto from time to time, and BMO Harris Bank N.A.,
as Administrative Agent (as extended, renewed, amended or restated from time to time, the
“Credit
Agreement”
). Unless otherwise defined herein, the terms used in this Compliance Certificate have
the meanings ascribed thereto in the Credit Agreement.
T
HE
U
NDERSIGNED HEREBY CERTIFIES THAT
:
to be made under my supervision, a detailed review of the transactions and conditions of the
Borrower and its Subsidiaries during the accounting period covered by the attached financial
statements;
of, the existence of any condition or the occurrence of any event which constitutes a Default during
or at the end of the accounting period covered by the attached financial statements or as of the date
of this Compliance Certificate, except as set forth below;
furnished to you concurrently with this Compliance Certificate are true, correct and complete in
all material respects as of the date and for the periods covered thereby; and
Borrower’s compliance with certain covenants of the Credit Agreement, all of which data and
computations are, to the best of my knowledge, true, complete and correct and have been made in
accordance with the relevant Sections of the Credit Agreement. In the event of a conflict between
the attached spreadsheet and any certifications relating thereto and the Credit Agreement and
related definitions used in calculating such covenants, the Credit Agreement and such related
definitions shall govern and control.
-2-
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature
of the condition or event, the period during which it has existed and the action which the Borrower
has taken, is taking, or proposes to take with respect to each such condition or event:
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
The foregoing certifications, together with the computations set forth in Schedule I hereto
and the financial statements delivered with this Certificate in support hereof, are made and
delivered this ______ day of __________________ 20___.
C
AL
-M
AINE
F
OODS
,
I
NC
.
By
-1-
S
CHEDULE
I
TO
C
OMPLIANCE
C
ERTIFICATE
C
AL
-M
AINE
F
OODS
,
I
NC
.
C
OMPLIANCE
C
ALCULATIONS
FOR
C
REDIT
A
GREEMENT DATED AS OF
N
OVEMBER
15,
2021
C
ALCULATIONS AS OF
_____________,
_______
A. Total Funded Debt to Capitalization Ratio (Section 8.22(a)) (as of
the last day of the fiscal quarter indicated above)
1. all indebtedness created, assumed or incurred by the
Borrower and its Subsidiaries representing money borrowed
$___________
2. all indebtedness of the Borrower and its Subsidiaries for the
deferred purchase price of property or services (other than
trade accounts payable arising in the ordinary course of
business)
$___________
3. all indebtedness secured by any Lien upon Property of the
Borrower and its Subsidiaries, whether or not such Person
has assumed or become liable for the payment of such
indebtedness
$___________
4. all Capitalized Lease Obligations of the Borrower and its
Subsidiaries
$___________
5. all obligations of the Borrower and its Subsidiaries on or
with respect to letters of credit, bankers’ acceptances and
other extensions of credit whether or not representing
obligations for borrowed money
$___________
6. all obligations of the Borrower and its Subsidiaries to
purchase, redeem, retire, defease or otherwise make any
payment in respect of any equity interest in such Person or
any other Person or any warrant, right or option to acquire
such equity interest, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid
dividend
$___________
7. all Indebtedness of any other Person which is directly or
indirectly Guaranteed by the Borrower or any of its
Subsidiaries or which the Borrower or any of its Subsidiaries
has agreed (contingently or otherwise) to purchase or
$___________
-2-
otherwise acquire or in respect of which the Borrower or any
of its Subsidiaries has otherwise assured a creditor against
loss
8. Total Funded Debt (Sum of Lines A1 – A7)
$___________
9. Total shareholder’s equity (including capital stock,
additional paid in capital, and retained earnings after
deducting treasury stock) that would appear on the balance
sheet of the Borrower and its Subsidiaries, determined in
accordance with GAAP on a consolidated basis
$___________
10. Total Capitalization (Sum of Lines A8 and A9)
$___________
11. Ratio of Line A8 to A10
________ to 1.0
11. Line A10 must be equal to or less than
0.5 to 1.0
12. The Borrower is in compliance (circle yes or no)
yes/no
B. Minimum Tangible Net Worth (Section 8.22(b)) (as of the last day
of the fiscal quarter indicated above)
1. total shareholder’s equity that would appear on the balance
sheet of the Borrower and its Subsidiaries minus the sum of
(a) all assets which would be classified as intangible assets
under GAAP, including, without limitation, goodwill,
patents, trademarks, trade names, copyrights, franchises and
deferred charges (including, without limitation, unamortized
debt discount and expense, organization costs and deferred
research and development expense) and similar assets, and
(b) the write up of assets above cost; provided, however, that
intangible assets shall not include prepaid expenses
(including, without limitation, prepaid insurance, software
licenses and support agreements, consulting contracts and
prepaid financing fees) carried on the consolidated balance
sheet, in each case determined on a consolidated basis in
accordance with GAAP
$___________
2. Line B1 must be equal to or greater than (i) $700,000,000
for the fiscal quarter ended November 27, 2021, plus (ii) for
each fiscal quarter ending thereafter, 50% of Net Income
2
$___________
2
for such period computed on a consolidated basis in accordance with GAAP;
provided
excluded from Net Income (a) the net income (or net loss) of any Person accrued prior to the date it becomes
a Subsidiary of, or has merged into or consolidated with, the Borrower or another Subsidiary, (b) the net
income (or net loss) of any Person (other than a Subsidiary) in which the Borrower or any of its Subsidiaries
has an equity interest, except to the extent of the amount of dividends or other distributions actually paid to
the Borrower or any of its Subsidiaries during such period, and (c) the undistributed earnings of any
-3-
for such fiscal quarter (if Net Income is positive) less
Restricted Payments permitted to be made pursuant to
Section 8.12 during such fiscal quarter
3. The Borrower is in compliance (circle yes or no)
yes/no
Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any contractual obligation (other than under any Loan
Document) or requirement of law applicable to such Subsidiary.
-1-
E
XHIBIT
A
DDITIONAL
G
UARANTOR
S
UPPLEMENT
______________, ___
BMO Harris Bank N.A., as Administrative Agent for the
Lenders and L/C Issuer party to the Amended and Restated
Credit Agreement dated as of November 15, 2021, among
Cal-Maine Foods, Inc., as Borrower, the Guarantors
referred to therein, the Lenders and L/C Issuer party thereto
from time to time, and the Administrative Agent (as
extended, renewed, amended or restated from time to time,
the
“Credit Agreement”
)
Ladies and Gentlemen:
Reference is made to the Credit Agreement described above. Terms not defined herein
which are defined in the Credit Agreement shall have for the purposes hereof the meaning provided
therein.
The undersigned,
[name of Subsidiary Guarantor]
, a
[jurisdiction of incorporation or
organization]
“Guarantor”
effective from the date hereof. The undersigned confirms that the representations and warranties
set forth in Section 6 of the Credit Agreement are true and correct in all material respects (where
not already qualified by materiality, otherwise in all respects) as to the undersigned as of the date
hereof (except to the extent such representations and warranties relate to an earlier date, in which
case they are true and correct in all material respects (where not already qualified by materiality,
otherwise in all respects) as of such earlier date) and the undersigned shall comply with each of
the covenants set forth in Section 8 of the Credit Agreement applicable to it.
Without limiting the generality of the foregoing, the undersigned hereby agrees to perform
all the obligations of a Guarantor under, and to be bound in all respects by the terms of, the Credit
Agreement, including without limitation Section 11 thereof, to the same extent and with the same
force and effect as if the undersigned were a signatory party thereto.
-2-
The undersigned acknowledges that this Agreement shall be effective upon its execution
and delivery by the undersigned to the Administrative Agent, and it shall not be necessary for the
Administrative Agent, the L/C Issuer, or any Lender, or any of their Affiliates entitled to the
benefits hereof, to execute this Agreement or any other acceptance hereof. This Agreement shall
be construed in accordance with and governed by the internal laws of the State of Illinois.
Very truly yours,
[N
AME OF
S
UBSIDIARY
G
UARANTOR
]
By ____________________________________
-1-
E
XHIBIT
A
SSIGNMENT AND
A
SSUMPTION
This Assignment and Assumption (the
“Assignment and Assumption”
) is dated as of the
Effective Date set forth below and is entered into by and between
[the][each]
1
in item 1 below (
[the][each, an]
“Assignor”
) and
[the][each]
2
([the][each, an]
“Assignee”
).
[It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees]
3
4
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the
“Credit Agreement”
), receipt of a copy of which is hereby acknowledged
by
[the][each]
are hereby agreed to and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration,
[the][each]
[the Assignee][the respective Assignees]
, and
[the][each]
and assumes from
[the Assignor][the respective Assignors]
, subject to and in accordance with
the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of
[the Assignor’s][the respective
Assignors’]
[its capacity as a Lender][their respective capacities as
Lenders]
thereto to the extent related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of
[the Assignor][the respective Assignors]
respective facilities identified below (including without limitation any letters of credit, guarantees,
and swingline loans included in such facilities), and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right of
[the Assignor (in
its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection with the Credit
Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions
governed thereby or in any way based on or related to any of the foregoing, including, but not
limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at
law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above
(the rights and obligations sold and assigned by
[the][any]
[the][any]
1
a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose
the second bracketed language.
2
single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
3
4
-2-
pursuant to clauses (i) and (ii) above being referred to herein collectively as
[the][an]
“Assigned
Interest”
). Each such sale and assignment is without recourse to
[the][any]
as expressly provided in this Assignment and Assumption, without representation or warranty by
[the][any]
1. Assignor
[s]
: ________________________________
[Assignor [is] [is not] a Defaulting Lender]
2. Assignee
[s]
: ________________________________
[for each Assignee, indicate [Affiliate] of [
identify Lender
]
3. Borrower(s): Cal-Maine Foods, Inc.
4. Administrative Agent: BMO Harris Bank, N.A., as the administrative agent under
the Credit Agreement
5. Credit Agreement: Amended and Restated Credit Agreement dated as of
November 15, 2021, among Cal-Maine Foods, Inc., the Lenders parties thereto, and
BMO Harris Bank N.A., as Administrative Agent
6. Assigned Interest[s]:
A
SSIGNOR
[
S
]
5
A
SSIGNEE
[
S
]
6
F
ACILITY
A
SSIGNED
7
A
GGREGATE
A
MOUNT
OF
C
OMMITMENT
/L
OANS
FOR ALL
L
ENDERS
8
A
MOUNT OF
C
OMMITMENT
/L
OANS
A
SSIGNED
8
P
ERCENTAGE
A
SSIGNED OF
C
OMMITMENT
/
L
OANS
9
$
$
%
$
$
%
$
$
%
5
6
7
assigned under this Assignment (e.g., “Revolving Credit Commitment,” “Term Loan Commitment,” etc.)
8
the Trade Date and the Effective Date.
9
-3-
7. Trade Date: ______________]
10
[P
AGE
B
REAK
]
10
determined as of the Trade Date.
-4-
Effective Date: ________________, 20___
[To be inserted by Administrative Agent
and which shall be the effective date of recordation of transfer in the register therefor.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
A
SSIGNOR
[
S
]
11
[N
AME OF
A
SSIGNOR
]
By ____________________________________
[N
AME OF
A
SSIGNOR
]
By ____________________________________
A
SSIGNEE
[
S
]
12
[N
AME OF
A
SSIGNEE
]
By ____________________________________
[N
AME OF
A
SSIGNEE
]
By ____________________________________
11
(if applicable).
12
(if applicable).
-5-
[Consented to and]
13
Accepted:
BMO
H
ARRIS
B
ANK
N.A., as
By _________________________________
[Consented to:]
14
[N
AME OF
R
ELEVANT
P
ARTY
]
By _________________________________
13
14
required by the terms of the Credit Agreement.
-1-
A
NNEX
1
S
TANDARD
T
ERMS AND
C
ONDITIONS FOR
A
SSIGNMENT AND
A
SSUMPTION
S
ECTION
EPRESENTATIONS AND
W
ARRANTIES
.
Section 1.1.
Assignor[s].
[The][Each]
Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii)
[the][such]
Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and (iv) it is
[not]
Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties
or representations made in or in connection with the Credit Agreement or any other Loan
Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document,
or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Loan Document.
Section 1.2. Assignee[s].
[The][Each]
full power and authority, and has taken all action necessary, to execute and deliver this Assignment
and Assumption and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section 13.2(b)(iii), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may
be required under Section 13.2(b)(iii) of the Credit Agreement), (iii) from and after the Effective
Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to
the extent of
[the][the relevant]
thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented
by the Assigned Interest and either it, or the Person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a
copy of the Credit Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section 8.5 thereof, as
applicable, and such other documents and information as it deems appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase
[the][such]
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase
[the][such]
and Assumption is any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by
[the][such]
will, independently and without reliance on the Administrative Agent,
[the][any]
other Lender, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action under the Loan
-2-
Documents, and (ii) it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender.
S
ECTION
AYMENTS
.
From and after the Effective Date, the Administrative Agent shall make all payments in
respect of
[the][each]
amounts) to
[the][the relevant]
the Effective Date. The Assignor
[s]
and the Assignee
[s]
payments by the Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves. Notwithstanding the foregoing, the
Administrative Agent shall make all payments of interest, fees or other amounts paid or payable
in kind from and after the Effective Date to
[the][the relevant]
S
ECTION
ENERAL
P
ROVISIONS
.
This Assignment and Assumption shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and assigns. This Assignment and Assumption may
be executed in any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed in accordance
with, the law of the State of Illinois.
-1-
E
XHIBIT
H-1
[F
ORM OF
]
U.S.
T
AX
C
OMPLIANCE
C
ERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement dated as of
November 15, 2021
“Credit
Agreement”
) among Cal-Maine Foods, Inc., the Guarantors party thereto, the Lenders and L/C Issuer party
thereto, and BMO Harris Bank N.A., as Administrative Agent (the
“Administrative Agent”
). Terms defined
in the Credit Agreement are used herein with the same meaning.
Pursuant to the provisions of Section 4.1 of the Credit Agreement, the undersigned hereby certifies
that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such
Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the
Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its
non-U.S. Person status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so inform the
Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the
Borrower and the Administrative Agent with a properly completed and currently effective certificate in
either the calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
[N
AME OF
L
ENDER
]
By:
Date: ______________________________ , 20[_]
-1-
E
XHIBIT
H-2
[F
ORM OF
]
U.S.
T
AX
C
OMPLIANCE
C
ERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement dated as of
November 15, 2021
“Credit
Agreement”
) among Cal-Maine Foods, Inc., the Guarantors party thereto, the Lenders and L/C Issuer party
thereto, and BMO Harris Bank N.A., as Administrative Agent (the
“Administrative Agent”
). Terms defined
in the Credit Agreement are used herein with the same meaning.
Pursuant to the provisions of Section 4.1 of the Credit Agreement, the undersigned hereby certifies
that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this
certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten
percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is
not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the
Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person
status on IRS Form W-8BEN. By executing this certificate, the undersigned agrees that (1) if the
information provided on this certificate changes, the undersigned shall promptly so inform such Lender in
writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed
and currently effective certificate in either the calendar year in which each payment is to be made to the
undersigned, or in either of the two calendar years preceding such payments.
[N
AME OF
P
ARTICIPANT
]
By:
Date: ______________________________ , 20[_]
-1-
E
XHIBIT
H-3
[F
ORM OF
]
U.S.
T
AX
C
OMPLIANCE
C
ERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement dated as of
November 15, 2021
“Credit
Agreement”
) among Cal-Maine Foods, Inc., the Guarantors party thereto, the Lenders and L/C Issuer party
thereto, and BMO Harris Bank N.A., as Administrative Agent (the
“Administrative Agent”
). Terms defined
in the Credit Agreement are used herein with the same meaning.
Pursuant to the provisions of Section 4.1 of the Credit Agreement, the undersigned hereby certifies
that (i) it is the sole record owner of the participation in respect of which it is providing this certificate,
(ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with
respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a
bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B)
of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related
to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by
one of the following forms from each of its partners/members that is claiming the portfolio interest
exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN
from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption.
By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all
times furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years
preceding such payments.
[N
AME OF
P
ARTICIPANT
]
By:
Date: ______________________________ , 20[_]
-1-
E
XHIBIT
H-4
[F
ORM OF
]
U.S.
T
AX
C
OMPLIANCE
C
ERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to the Amended and Restated Credit Agreement dated as of
November 15, 2021
“Credit
Agreement”
) among Cal-Maine Foods, Inc., the Guarantors party thereto, the Lenders and L/C Issuer party
thereto, and BMO Harris Bank N.A., as Administrative Agent (the
“Administrative Agent”
). Terms defined
in the Credit Agreement are used herein with the same meaning.
Pursuant to the provisions of Section 4.1 of Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of
which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial
owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension
of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any
of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the
meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a
controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form
W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming
the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by
an IRS Form W-8BEN from each of such partner’s/member’s beneficial owners that is claiming the
portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information
provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the
Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the
Administrative Agent with a properly completed and currently effective certificate in either the calendar
year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding
such payments.
[N
AME OF
L
ENDER
]
By:
Date: ______________________________ , 20[_]
-1-
E
XHIBIT
I
NCREASE
R
EQUEST
Dated _____________, _______
To: BMO Harris Bank N.A.,
as Administrative Agent for
the Lenders and L/C Issuer party to the Amended and
Restated Credit Agreement dated as of
November 15, 2021, among Cal-Maine Foods, Inc.,
as Borrower, the Guarantors referred to therein, the
Lenders and L/C Issuer party thereto from time to
time, and the Administrative Agent (as extended,
renewed, amended or restated from time to time, the
“Credit Agreement”
)
Ladies and Gentlemen:
The undersigned, Cal-Maine Foods, Inc. (the
“Borrower”
), hereby refers to the Credit
Agreement and requests that the Administrative Agent consent to [an increase in the aggregate
Revolving Credit Commitments] [the making of Incremental Term Loans] (the
“Increase”
), in
accordance with
Section 2.15
[[an increase in the
Revolving Credit Commitment of] [addition of a commitment to make an Incremental Term
Loan by]] [name of existing Lender]] [the addition of [name of new Lender] (the
“New
Lender”
), as a Lender under the terms of the Credit Agreement]
. Capitalized terms used
herein without definition shall have the same meanings herein as such terms have in the Credit
Agreement.
After giving effect to such Increase, the [Revolving Credit Commitment] [Incremental
Term Loan] of the
[Lender] [New Lender]
shall be $_____________.
[Include paragraphs 1-4 for a New Lender]
hereby confirms that it has received a copy of the Loan Documents
and the exhibits related thereto, together with copies of the documents which were required to be
delivered under the Credit Agreement as a condition to the making of the Loans and other
extensions of credit thereunder. The New Lender
acknowledges and agrees that it has made and
will continue to make, independently and without reliance upon the Administrative Agent or any
other Lender
and based on such documents and information as it has deemed appropriate, its own
credit analysis and decisions relating to the Credit Agreement. The New Lender
further
acknowledges and agrees that the Administrative Agent has not made any representations or
warranties about the credit worthiness of any Loan Party or any of its Subsidiaries or any other
party to the Credit Agreement or any other Loan Document or with respect to the legality, validity,
sufficiency or enforceability of the Credit Agreement or any other Loan Document or the value of
any security therefor.
-2-
acceptance hereof by the Administrative Agent, the New Lender
(i) shall be deemed automatically
to have become a party to Credit Agreement and have all the rights and obligations of a
“Lender
”
by the terms and conditions set forth in the Credit Agreement as if it were an original signatory
thereto.
shall deliver to the Administrative Agent a completed
Administrative Questionnaire.
delivering to the Borrower and the Administrative Agent concurrently herewith), as required, the
Tax forms referred to in Section 4.1 of the Credit Agreement.
T
HIS
A
GREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER
,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
,
I
LLINOIS
.
The Increase shall be effective when the executed consent of the Administrative Agent is
received or otherwise in accordance with Section 2.15 of the Credit Agreement, but not in any case
prior to ___________________, ____. It shall be a condition to the effectiveness of the Increase
that all expenses referred to in Section 2.15 of the Credit Agreement shall have been paid.
The Borrower hereby certifies that (a) no Default has occurred and is continuing and
(b) each of the representations and warranties set forth in Section 6 of the Credit Agreement and
in the other Loan Documents are and remain true and correct in all material respects on the
effective date of this Increase (where not already qualified by materiality, otherwise in all respects),
except to the extent the same expressly relate to an earlier date, in which case they shall be true
and correct in all material respects (where not already qualified by materiality, otherwise in all
respects)
as of such earlier date.
[S
IGNATURE
P
AGES TO
F
OLLOW
]
-1-
Please indicate your consent to such Increase by signing the enclosed copy of this letter in
the space provided below.
Very truly yours,
C
AL
-M
AINE
F
OODS
,
I
NC
.
By ____________________________________
[N
EW OR EXISTING
L
ENDER
]
By ____________________________________
The undersigned hereby consents on this
____ day of _________, 20___, to the
above-requested Increase
BMO
H
ARRIS
B
ANK
N.A.,
as Administrative
Agent, L/C Issuer, and Swingline Lender
By _________________________________
-1-
S
CHEDULE
1.1.
C
AL
-M
AINE
F
OODS
,
I
NC
.
S
HORT
D
URATION
F
IXED
I
NCOME
I
NVESTMENT
G
UIDELINES
Summary of Changes effective July 21, 2017
General Portfolio Parameters:
Allow for purchase of A3 / P3 / F3 Commercial Paper with 1 – 7 day maturity
-2-
Investment Objectives:
●
Preservation of principal
●
Short-term liquidity
●
Competitive returns when measured against comparable benchmarks / indices
●
Diversification across permitted asset categories
G
ENERAL
P
ORTFOLIO
P
ARAMETERS
:
Maximum average maturity of any portfolio: 20 months.
Minimum average credit quality of any portfolio measured by S&P, Moody’s, Fitch composite rating:
◾
Short Term A-2 / P2 / F2
◾
Long Term A- / A3/ A-
Maintain diversification across the permitted asset categories by (1) diversifying the self-directed Wells
Fargo portfolio; and (2) allocating funds to outside managers.
M
INIMUM
C
REDIT
R
ATINGS
:
At time of purchase, all investments must carry a short / long term rating by at least one of Moody’s,
S&P or Fitch. If there are split ratings, at least one rating must meet the minimum per this guideline.
Maximum maturity at time of purchase:
◾
1 – 7 days - A3 / P3 / F3
◾
8 – 365 days - A2 / P2 / F2, BBB- / Baa3
◾
2 Years - BBB / Baa2
◾
3 Years - A- / A3 or better
A
CCEPTABLE
A
SSET
C
ATEGORIES
:
U.S. Government Obligations
such as those listed below
◾
Direct obligations of the US Government
◾
Government-sponsored Agency Entities (GSE):
◾
Federal National Mortgage Association [FNMA]
◾
Federal Home Loan Bank [FHLB]
◾
Federal Home Loan Mortgage Corp [FHLMC]
◾
Federal Farm
Bank Deposits of Major US and Foreign Commercial Banks
rated A- / A3 / F2, or FDIC guaranteed
◾
Bankers Acceptances
◾
Certificates of Deposit (Domestic/Yankee)
◾
Commercial Paper Floating Rate Notes
◾
Medium Term Notes
◾
Time Deposits
Institutional Prime Money Market Funds
Corporate Debt
-3-
●
Asset Backed Securities AA / Aa2 / AA
◾
Commercial Paper 1 – 7 days – A3 / P3 / F3
◾
Commercial Paper GT 7 days – A2 / P2 / F2
◾
Corporate Bonds - 2 years BBB- / Baa3 / BBB-
◾
Corporate Bonds – 3 years A- / A3 / A-,
◾
Medium-Term Notes – A / A2 / A
Sovereign/Supranational Debt
Municipal Debt Securities
◾
Taxable or tax-exempt municipal bonds – 2 years; BBB+ / Baa1 / BBB+, 3 years; A- / A3/ A-,
◾
Short-Term Notes; A2 / P2 / F2, SP-1 / MIG 1
◾
Variable Rate Demand Notes with daily or weekly mandatory puts; A2 / P2 / F2, SP-1 / MIG 1
M
UTUAL
F
UNDS
S
HARES OF OPEN
-
END INVESTMENT COMPANIES
,
MEETING THE GUIDELINES LISTED ABOVE
.
Downgrades Subsequent to Purchase
If a security’s credit rating is downgraded below the minimum acceptable rating, the Investment
Manager will notify Cal-Maine of the change with a recommendation as to whether the security should
be held or sold. Cal-Maine will make the final decision.
E
FFECTIVE
D
ATE
:
J
ULY
21,
2017
A
PPROVED BY
A
UDIT
C
OMMITTEE
:
07/21/2017
-4-
-1-
Rating Tier Definitions
Moody's
S
Fitch
Credit worthiness
Aaa
AAA
AAA
Obligor has EXTREMELY STRONG capacity to meet financial commitment.
Aa1
AA+
AA+
Obligor has VERY STRONG capacity to meet its financial commitments. It differs from the highest
rated obligors only in small degree.
Aa2
AA
AA
Aa3
AA−
AA−
A1
A+
A+
Obligor has STRONG capacity to meet financial commitments but is somewhat more susceptible to
the adverse effect of changes in economic conditions and circumstances than obligors in higher-rated
categories.
A2
A
A
A3
A−
A−
Baa1
BBB+
BBB+
Obligor has ADEQUATE capacity to meet its financial commitments, but adverse economic
conditions or changing circumstances are likely to lead to a weakened capacity of the obligor to meet
its financial commitments.
Baa2
BBB
BBB
Baa3
BBB−
BBB−
Ba1
BB+
BB+
Obligor is LESS VULNERABLE in the near term than other lower-rated obligors. However, it faces
major ongoing uncertainties and exposure to adverse business, financial, or economic conditions
which could lead to the obligor's inadequate capacity to meet its financial commitments.
Ba2
BB
BB
Ba3
BB−
BB−
B1
B+
B+
Obligor is MORE VULNERABLE than the obligors rated 'BB', but the obligor currently has the
capacity to meet its financial commitments. Adverse business, financial, or economic conditions will
likely impair the obligor's capacity or willingness to meet its financial commitments.
B2
B
B
B3
B−
B−
Caa
CCC
CCC
Obligor is CURRENTLY VULNERABLE, and dependent upon favorable business, financial and
economic conditions to meet financial commitments.
Ca
CC
CC
Obligor is CURRENTLY HIGHLY -VULNERABLE.
C
C
Obligor is CURRENTLY HIGHLY -VULNERABLE to nonpayment. Bankruptcy petition might have
been filed.
C
D
D
Obligor failed to pay one or more of its financial obligations (rated or unrated) when it became due.
e, p
pr
Expected
Preliminary ratings assigned to obligations pending receipt of final documentation and legal opinions
that may differ from the final rating.
WR
Rating withdrawn for reasons including: debt maturity, calls, puts, conversions, etc., or business
reasons (e.g. change in the size of debt issue), or issuer default.
Unsolicited
Unsolicited
Rating initiated by the ratings agency and not requested by the issuer.
SD
RD
Agency believes obligor selectively defaulted on a specific issue or class of obligations but will
NR
NR
NR
No rating has been requested or insufficient information on which to base a rating.
-1-
S
CHEDULE
2.1/2.2
C
OMMITMENTS
N
AME OF
L
ENDER
R
EVOLVING
C
REDIT
C
OMMITMENT
BMO Harris Bank N.A.
$ 86,000,000.00
GreenStone Farm Credit Services, ACA
$ 65,000,000.00
AgFirst Farm Credit Bank
$ 33,000,000.00
Compeer Financial, PCA
$ 33,000,000.00
Farm Credit Bank of Texas
$ 33,000,000.00
T
OTAL
$250,000,000.00
-1-
S
CHEDULE
S
UBSIDIARIES
N
AME
J
URISDICTION OF
O
RGANIZATION
P
ERCENTAGE
O
WNERSHIP
American Egg Products, LLC
Georgia
100%
Texas Egg Products, LLC
Texas
Borrower 78.2%
Wharton County Foods, LLC
21.8%
Benton County Foods, LLC
Arkansas
100%
Southern Equipment Distributors, Inc.
Mississippi
100%
South Texas Applicators, Inc.
Delaware
100%
Wharton County Foods, LLC
Texas
100%
Red River Valley Egg Farm, LLC
Mississippi
100%
Cal-Maine Real Estate LLC
Mississippi
100%
-1-
S
CHEDULE
6.11
LITIGATION
Refer to the discussion of certain legal proceedings involving the Borrower and/or its subsidiaries
in our Quarterly Reports on Form 10-Q for the period August 28, 2021 and Notes to Consolidated
Financial Statements on Contingencies, which discussions are incorporated herein by reference,
and include the following:
State of Texas v. Cal-Maine Foods, Inc. d/b/a Wharton; and Wharton County Foods, LLC
On April 23, 2020, the Company and its subsidiary Wharton County Foods, LLC (“WCF”) were
named as defendants in State of Texas v. Cal-Maine Foods, Inc. d/b/a Wharton; and Wharton
County Foods, LLC, Cause No. 2020-25427, in the District Court of Harris County, Texas. The
State of Texas (the “State”) asserted claims based on the Company’s and WCF’s alleged violation
of the Texas Deceptive Trade Practices—Consumer Protection Act, Tex. Bus. & Com. Code §§
17.41-17.63 (“DTPA”). The State claimed that the Company and WCF offered shell eggs at
excessive or exorbitant prices during the COVID-19 state of emergency and made misleading
statements about shell egg prices. The State sought temporary and permanent injunctions against
the Company and WCF to prevent further alleged violations of the DTPA, along with over
$100,000 in damages. On August 13, 2020, the court granted the defendants’ motion to dismiss
the State’s original petition with prejudice. On September 11, 2020, the State filed a notice of
appeal, which was assigned to the Texas Court of Appeals for the First District. The State filed its
opening brief on December 7, 2020. The Company and WCF filed their response on February 8,
2021. The Texas Court of Appeals has not ruled on these submissions. Management believes the
risk of material loss related to this matter to be remote.
Bell et al. v. Cal-Maine Foods et al.
On April 30, 2020, the Company was named as one of several defendants in Bell et al. v. Cal-
Maine Foods et al., Case No. 1:20-cv-461, in the Western District of Texas, Austin Division. The
defendants include numerous grocery stores, retailers, producers, and farms. Plaintiffs assert that
defendants violated the DTPA by allegedly demanding exorbitant or excessive prices for eggs
during the COVID-19 state of emergency. Plaintiffs request certification of a class of all consumers
who purchased eggs in Texas sold, distributed, produced, or handled by any of the defendants
during the COVID-19 state of emergency. Plaintiffs seek to enjoin the Company and other
defendants from selling eggs at a price more than 10% greater than the price of eggs prior to the
declaration of the state of emergency and damages in the amount of $10,000 per violation, or
$250,000 for each violation impacting anyone over 65 years old. On December 1, 2020, the
Company and certain other defendants filed a motion to dismiss the plaintiffs’ amended class
action complaint. The plaintiffs subsequently filed a motion to strike, and the motion to dismiss
and related proceedings were referred to a United States magistrate judge. On July 14, 2021, the
magistrate judge issued a report and recommendation to the court that the defendants’ motion to
dismiss be granted and the case be dismissed without prejudice for lack of subject matter
jurisdiction. On September 20, 2021, the court adopted the magistrate’s report and
-2-
recommendation in its entirety and granted defendants’ motion to dismiss plaintiffs’ first amended
class action complaint; thereafter, the court entered a final judgment in favor of the Company and
certain other defendants dismissing the case without prejudice. The plaintiffs filed a Motion to
Alter or Amend Judgment seeking the court’s permission to file a second amended complaint, and
on November 1, 2021, the Company filed its Opposition to the Plaintiffs’ motion.
Kraft Foods Global, Inc. et al. v. United Egg Producers, Inc. et al.
As previously reported, on September 25, 2008, the Company was named as one of several
defendants in numerous antitrust cases involving the United States shell egg industry. The
Company settled all of these cases, except for the claims of certain plaintiffs who sought substantial
damages allegedly arising from the purchase of egg products (as opposed to shell eggs). These
remaining plaintiffs are Kraft Food Global, Inc., General Mills, Inc., and Nestle USA, Inc. (the
“Egg Products Plaintiffs”) and The Kellogg Company.
On September 13, 2019, the case with the Egg Products Plaintiffs was remanded from a multi-
district litigation proceeding in the United States District Court for the Eastern District of
Pennsylvania, In re Processed Egg Products Antitrust Litigation, MDL No. 2002, to the United
States District Court for the Northern District of Illinois, Kraft Foods Global, Inc. et al. v. United
Egg Producers, Inc. et al., Case No. 1:11-cv-8808, for trial. The Egg Products Plaintiffs allege that
the Company and other defendants violated Section 1 of the Sherman Act, 15. U.S.C. § 1, by
agreeing to limit the production of eggs and thereby illegally to raise the prices that plaintiffs paid
for processed egg products. In particular, the Egg Products Plaintiffs are attacking certain features
of the United Egg Producers animal-welfare guidelines and program used by the Company and
many other egg producers. The Egg Products Plaintiffs seek to enjoin the Company and other
defendants from engaging in antitrust violations and seek treble money damages. The parties filed
a joint status report on May 18, 2020. On August 4, 2021, by docket entry, the court instructed the
parties to jointly submit a second status report to the court that included a proposed schedule for
preparing a final pretrial order. On August 25, 2021, the parties filed a joint status report, and on
August 26, 2021, the court, by docket entry, informed the parties that the need to discuss issues
was no longer necessary and that a scheduled August 30, 2021, status hearing was stricken. No
trial schedule has yet been entered by the court.
In addition, on October 24, 2019, the Company entered into a confidential settlement agreement
with The Kellogg Company dismissing all claims against the Company for an amount that did not
have a material impact on the Company’s financial condition or results of operations. On
November 11, 2019, a stipulation for dismissal was filed with the court, but the court has not yet
entered a judgment on the filing.
The Company intends to continue to defend the remaining case with the Egg Products Plaintiffs
as vigorously as possible based on defenses which the Company believes are meritorious and
provable. Adjustments, if any, which might result from the resolution of this remaining matter with
the Egg Products Plaintiffs have not been reflected in the financial statements. While management
believes that there is still a reasonable possibility of a material adverse outcome from the case with
the Egg Products Plaintiffs, at the present time, it is not possible to estimate the amount of
monetary exposure, if any, to the Company due to a range of factors, including the following,
-3-
among others: the matter is in the early stages of preparing for trial following remand; any trial
will be before a different judge and jury in a different court than prior related cases; there are
significant factual issues to be resolved; and there are requests for damages other than
compensatory damages (i.e., injunction and treble money damages).
State of Oklahoma Watershed Pollution Litigation
On June 18, 2005, the State of Oklahoma filed suit, in the United States District Court for the
Northern District of Oklahoma, against Cal-Maine Foods, Inc. and Tyson Foods, Inc. and affiliates,
Cobb-Vantress, Inc., Cargill, Inc. and its affiliate, George’s, Inc. and its affiliate, Peterson Farms,
Inc. and Simmons Foods, Inc. The State of Oklahoma claims that through the disposal of chicken
litter the defendants have polluted the Illinois River Watershed. This watershed provides water to
eastern Oklahoma. The complaint seeks injunctive relief and monetary damages, but the claim for
monetary damages has been dismissed by the court. Cal-Maine Foods, Inc. discontinued operations
in the watershed. Accordingly, we do not anticipate that Cal-Maine Foods, Inc. will be materially
affected by the request for injunctive relief unless the court orders substantial affirmative
remediation. Since the litigation began, Cal-Maine Foods, Inc. purchased 100% of the membership
interests of Benton County Foods, LLC, which is an ongoing commercial shell egg operation
within the Illinois River Watershed. Benton County Foods, LLC is not a defendant in the litigation.
The trial in the case began in September 2009 and concluded in February 2010. The case was
tried without a jury, and the court has not yet issued its ruling. Management believes the risk of
material loss related to this matter to be remote.
-1-
S
CHEDULE
8.7
E
XISTING
I
NDEBTEDNESS
1. Other Indebtedness.
P
AYEE
%
R
ATE
I
NSTALLMENT
T
OTAL
C
URRENT
L
ONG
-T
ERM
Farm Credit (MOBA)
4.90
Variable
$524,316
$218,561
$305,755
-1-
S
CHEDULE
8.8
E
XISTING
L
IENS
UCC,
T
AX
,
J
UDGMENT
&
O
THER
L
IEN
S
EARCH
R
ESULTS
C
AL
-M
AINE
F
OODS
,
I
NC
.
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Delaware Secretary of
State
10/28/2021
Federal Tax
Lien
Clear
UCC Lien
20040026486
1/6/04
Metropolitan Life
Insurance Company
Specific assets
20084305700
12/30/08
Continuation of 20040026486
20133221661
8/16/13
Continuation of 20040026486
2018 4896268
07/17/18
Continuation of 20040026486
2019 8532546
12/03/19
Termination of 20040026486
20064287603
12/1/06
Metropolitan Life
Insurance Company
Specific equipment and property
20112956848
8/1/11
Continuation of 20064287603
20150287457
1/22/15
Termination of 20064287603
20166699613
10/31/16
Continuation of 20064287603
20141235852
3/31/14
Metropolitan Life
Insurance Company
Specific personal property
-2-
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
2018 6708107
09/28/18
Partial release collateral of
20141235852
2018 6960070
10/08/18
Continuation of 20141235852
2019 8532538
12/03/19
Termination of 20141235852
20141238401
3/31/14
Metropolitan Life
Insurance Company
Specific equipment and property
20173735385
6/7/17
Termination of 20141238401
2018 8545457
12/10/18
Continuation of 20141238401
2019 8532553
12/03/19
Termination of 20141238401
2018 4722720
07/10/18
BMO Harris Bank N.A.,
as Agent
Debtor’s interest in Accounts,
chattel paper, instruments, etc., all
as more fully described on
Schedule I
2018 8294304
11/30/18
Pure Water Partners
Leased equipment
2019 8080710
11/15/19
Canon Financial Services,
Inc.
Leased equipment
New Castle County
Recorder of Deeds,
Delaware
09/21/2021
Fixture
Filings and
Federal Tax
Liens
Clear
Hinds County, MS
10/29/2021
Fixtures,
State Tax
Liens and
Judgments
Clear
-3-
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Federal Tax
Liens
64-64
04/01/19
Internal Revenue Service
$533,014.90
Released on 05/08/19 and 06/13/19
W
HARTON
C
OUNTY
F
OODS
,
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Texas Secretary of State
10/28/2021
UCC and
Federal Tax
Liens
Clear
Dallas County, Texas
10/22/2021
Fixture
Filings and
Judgment,
Federal and
State Tax
Liens
Clear
Wharton County, Texas
11/05/2021
Fixture
Filings and
Judgment,
Federal &
State Tax
Liens
Clear
Hinds County, MS
10/29/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
-4-
S
OUTH
T
EXAS
A
PPLICATORS
,
I
NC
.
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Delaware Secretary of
State
10/28/2021
Federal Tax
Lien
Clear
UCC Lien
2018 4722894
07/10/18
BMO Harris Bank N.A.,
as Agent
Debtor’s interest in Accounts,
chattel paper, instruments, etc., all
as more fully described on
Schedule I
New Castle County,
Delaware
09/21/2021
Fixture
Filings,
Federal and
State Tax
Liens and
Judgments
Clear
Hinds County, MS
10/29/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
Gonzales County Clerk,
Texas
11/05/2021
Fixture
Filings,
Federal and
State Tax
Liens and
Judgments
Clear
-5-
S
OUTHERN
E
QUIPMENT
D
ISTRIBUTORS
,
I
NC
.
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Mississippi Secretary of
State
10/29/2021
Federal and
State Tax and
UCC Liens
Clear
Hinds County, MS
10/29/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
A
MERICAN
E
GG
P
RODUCTS
,
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Superior Court Clerks
Cooperative Authority,
Georgia
10/20/2021
UCC
No Records
Found
11/08/2021
State Tax
Lien – GA
Department
of Revenue
Clear
Pierce County Clerk of
the Superior Court,
Georgia
10/22/2021
Fixture
Filings,
Federal &
State Tax
Clear
-6-
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
and
Judgment
Liens
Gwinnett County, GA
11/03/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
Hinds County, MS
10/29/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
B
ENTON
C
OUNTY
F
OODS
,
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Arkansas Secretary of
State
11/03/2021
UCC and
Federal Tax
Liens
Clear
Benton County, AR
11/02/2021
Fixtures,
Federal and
State Tax
Liens
Clear
Judgments
Bk/PG: 2012-
1961
01/31/12
Department of Workforce
Services
$271.05
Released on 02/08/13
-7-
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Bk/PG: 2012-
17777
10/05/12
Department of Finance
and Administration
$2,840.57
Released on 07/30/13
Bk/PG: 2013-
8874
06/19/13
Department of Finance
and Administration
$864.98
Released on 08/08/13
Hinds County, MS
10/29/2021
Fixtures,
Federal and
State Tax
Liens and
Judgments
Clear
C
AL
-M
AINE
R
EAL
E
STATE
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Mississippi Secretary of
State
10/29/2021
UCCs, Federal
and State Tax
Liens
Clear
Madison County, MS
10/27/2021
Fixture Filings,
Federal and
State Tax Liens,
Pending Suits
and Judgments
Clear
U.S. District Court,
Mississippi Southern
District
11/03/2021
Federal Pending
Suits
Clear
-8-
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
U.S. Bankruptcy Court,
Mississippi Southern
District
11/03/2021
Bankruptcy
Clear
R
ED
R
IVER
V
ALLEY
E
GG
F
ARM
,
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Mississippi Secretary of
State
10/29/2021
UCCs and
Federal Tax
Liens
Clear
U.S. District Court,
Mississippi Southern
District
11/03/2021
Federal Pending
Suits
Clear
U.S. Bankruptcy Court,
Mississippi Southern
District
11/03/2021
Bankruptcy
Clear
Red River County, TX
10/05/2021
Fixture Filings,
Federal and
State Tax Liens
and Judgments
Clear
-9-
T
EXAS
E
GG
P
RODUCTS
,
LLC
J
URISDICTION
S
EARCH
D
ATE
T
YPE OF
S
EARCH
F
ILING
N
O
.
F
ILING
D
ATE
S
ECURED
P
ARTY
C
OLLATERAL
T
YPE
Texas Secretary of State
10/28/2021
UCCs and
Federal Tax
Liens
Clear
Gonzales County Clerk,
Texas
11/05/2021
Fixture Filings,
Federal and
State Tax Liens
and Judgments
Clear
U.S. District Court,
Texas District Court
11/03/2021
Federal Pending
Suits
Clear
U.S. Bankruptcy Court,
Texas Western District
11/03/2021
Bankruptcy
Clear
-1-
S
CHEDULE
8.9
E
XISTING
I
NVESTMENTS
Cal-Maine Foods, Inc.
Existing Investments
Period Ending August 28, 2021
Unconsolidated Entities:
Eggland's Best
Southwest Specialty
Specialty Egg
US Egg Marketers
Investment in Xiant
Life Insurance Cash Value
Vanguard
-1-
A
MENDED AND
R
ESTATED
C
REDIT
A
GREEMENT
This Amended and Restated Credit Agreement is entered into as of November 15, 2021 by
and among Cal-Maine Foods, Inc., a Delaware corporation (the
“Borrower”
), the direct and
indirect Wholly-owned Subsidiaries that are Domestic Subsidiaries of the Borrower from time to
time party to this Agreement, as Guarantors, the several financial institutions from time to time
party to this Agreement, as Lenders, and BMO H
ARRIS
B
ANK
N.A.,
as Administrative Agent as
provided herein.
P
RELIMINARY
S
TATEMENT
W
HEREAS
,
pursuant to that certain Credit Agreement dated as of July 10, 2018 (as amended
prior to the date hereof, without giving effect to the amendments and restatements set forth herein,
the
“Existing Credit Agreement”
), by and among the Borrowers, the Guarantors party thereto, the
lenders party thereto and the Administrative Agent, the lenders thereunder have made available to
the Borrowers a revolving loan facility upon and subject to the terms and conditions set forth
therein;
W
HEREAS
, the Loan Parties, the Administrative Agent and the Lenders desire to amend
and restate the Existing Credit Agreement in its entirety in order to provide an increase to the
revolving credit facility and make certain other amendments as more fully set forth herein, which
amendment and restatement shall become effective upon satisfaction of the conditions precedent
set forth herein;
W
HEREAS
, in connection with the foregoing and as an inducement for the Lenders to extend
and/or continue to extend the credit contemplated hereunder, the Loan Parties have agreed to
continue to secure all of their joint and several Obligations by granting to the Administrative
Agent, for the benefit of the Lenders, a first priority lien on the Collateral (as hereinafter defined);
and
W
HEREAS
, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement, and the parties
hereto hereby agree that all obligations under the Loan Documents (as amended prior to the
Closing Date) shall continue in full force and effect from and after the Closing Date.
N
OW
,
T
HEREFORE
, in consideration of the mutual agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
-2-
S
ECTION
EFINITIONS
;
I
NTERPRETATION
.
Section 1.1. Definitions
. The following terms when used herein shall have the following
meanings:
“Acquired Business”
Party in an Acquisition, whether before or after the date hereof.
“Acquisition”
resulting, directly or indirectly, in (a) the acquisition of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition of no less than 51% of the
capital stock, partnership interests, membership interests or equity of any Person (other than a
Person that is a Subsidiary), or otherwise causing any Person to become a Subsidiary, or (c) a
merger or consolidation or any other combination with another Person (other than a Person that is
a Subsidiary) provided that the Borrower or a Guarantor is the surviving entity.
“Additional Credit Extension Amendment”
means an amendment to this Agreement
(which may, at the option of the Administrative Agent, be in the form of an amendment and
restatement of this Agreement) providing for any Extended Revolving Credit Commitments and/or
Extended Incremental Term Loans pursuant to Section 2.16, which shall be consistent with the
applicable provisions of this Agreement and otherwise satisfactory to the parties thereto. Each
Additional Credit Extension Amendment shall be executed by the Administrative Agent, the L/C
Issuer and/or the Swingline Lender (to the extent Section 2.16 would require the consent of the
L/C Issuer and/or the Swingline Lender, respectively for the amendments effected in such
Additional Credit Extension Amendment), the Loan Partis and each applicable extending Lender.
Any Additional Credit Extension Amendment may include conditions for delivery of opinions of
counsel and other documentation consistent with the conditions in Section 7.2 all to the extent
reasonably requested by the Administrative Agent or the Lenders party to such Additional Credit
Extension Amendment.
“Adjusted LIBOR”
determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
“Administrative Agent”
means BMO Harris Bank N.A., in its capacity as Administrative
Agent hereunder, and any successor in such capacity pursuant to Section 10.6.
“Administrative Questionnaire”
means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified;
provided that
, in any event for purposes of this definition, any
Person that owns, directly or indirectly, 5% or more of the securities having the ordinary voting
-3-
power for the election of directors or governing body of a corporation or 5% or more of the
partnership or other ownership interest of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person.
“Agreement”
amended, modified, restated or supplemented from time to time pursuant to the terms hereof.
“Anti-Corruption Law”
concerning or relating to bribery or corruption that are applicable to any Loan Party or any
Subsidiary or Affiliate.
“Applicable Margin”
Participation Fees, and the commitment fees payable under Section 3.1(a), until the first Pricing
Date, the rates per annum shown opposite Level I below, and thereafter from one Pricing Date to
the next the Applicable Margin means the rates per annum determined in accordance with the
following schedule:
L
EVEL
T
OTAL
F
UNDED
D
EBT TO
C
APITALIZATION
R
ATIO FOR
S
UCH
P
RICING
D
ATE
A
PPLICABLE
M
ARGIN FOR
B
ASE
R
ATE
L
OANS UNDER
R
EVOLVING
F
ACILITY AND
R
EIMBURSEMENT
O
BLIGATIONS SHALL
BE
:
A
PPLICABLE
M
ARGIN FOR
E
URODOLLAR
L
OANS UNDER
R
EVOLVING
F
ACILITY AND
L/C
P
ARTICIPATION
F
EES SHALL BE
:
A
PPLICABLE
M
ARGIN FOR
C
OMMITMENT
F
EE
SHALL BE
:
I
Less than 20.0%
0.00%
1.00%
0.15%
II
Greater than or
equal 20.0% and
less than 30.0%
0.25%
1.25%
0.20%
III
Greater than or
equal 30.0% and
less than 40.0%
0.50%
1.50%
0.20%
IV
Greater than or
equal to 40.0%
0.75%
1.75%
0.25%
For purposes hereof, the term
“Pricing Date”
on or after November 27, 2021, the date on which the Administrative Agent is in receipt of the
Borrower’s most recent financial statements (and, in the case of the year-end financial statements,
audit report) for the fiscal quarter then ended, pursuant to Section 8.5. The Applicable Margin
shall be established based on the Total Funded Debt to Capitalization Ratio for the most recently
completed fiscal quarter and the Applicable Margin established on a Pricing Date shall remain in
effect until the next Pricing Date. If the Borrower has not delivered its financial statements by the
date such financial statements (and, in the case of the year-end financial statements, audit report)
are required to be delivered under Section 8.5, until such financial statements and audit report are
delivered, the Applicable Margin shall be the highest Applicable Margin (
i.e.,
apply). If the Borrower subsequently delivers such financial statements before the next Pricing
-4-
Date, the Applicable Margin shall be determined on the date of delivery of such financial
statements and remain in effect until the next Pricing Date. In all other circumstances, the
Applicable Margin shall be in effect from the Pricing Date that occurs immediately after the end
of the fiscal quarter covered by such financial statements until the next Pricing Date. Each
determination of the Applicable Margin made by the Administrative Agent in accordance with the
foregoing shall be conclusive and binding on the Borrower and the Lenders if reasonably
determined.
“Application”
“Assignment and Assumption”
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 13.2(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit G
or any other form approved by the Administrative Agent.
“Authorized Representative”
by the Borrower pursuant to Section 7.2 or on any update of any such list provided by the Borrower
to the Administrative Agent, or any further or different officers of the Borrower so named by any
Authorized Representative of the Borrower in a written notice to the Administrative Agent.
“Bail-In Action”
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”
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”
provided to any Loan Party by any Lender or any of its Affiliates: (a) credit or charge cards for
commercial customers (including, without limitation, “commercial credit cards” and purchasing
cards), (b) stored value cards, and (c) depository, cash management, and treasury management
services (including, without limitation, controlled disbursement, automated clearinghouse
transactions, return items, overdrafts and interstate depository network services).
“Bank Product Obligations”
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof and substitutions therefor)
in connection with Bank Products.
“Base Rate”
of interest announced or otherwise established by the Administrative Agent from time to time as
its prime commercial rate
as in effect on such day, with any change in the Base Rate resulting from
a change in said prime commercial rate to be effective as of the date of the relevant change in said
prime commercial rate (it being acknowledged and agreed that such rate may not be the
Administrative Agent’s best or lowest rate), (b) the sum of (i) the Federal Funds Rate for such day,
-5-
plus
plus
1.00%. As used herein, the
term
“LIBOR Quoted Rate”
rate per annum (rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a one-month interest period as reported on the
applicable Bloomberg screen page (or such other commercially available source providing such
quotations as may be designated by the Administrative Agent from time to time) as of 11:00 a.m.
(London, England time) on such day (or, if such day is not a Business Day, on the immediately
preceding Business Day) divided by (ii) one (1) minus the Eurodollar Reserve Percentage,
provided
“Base Rate Loan”
“Beneficial Ownership Certification”
a required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”
“Borrower”
“Borrowing”
additional Interest Period, or converted from a different type into such type by the Lenders under
a Facility on a single date and, in the case of Eurodollar Loans, for a single Interest Period.
Borrowings of Loans are made and maintained ratably from each of the Lenders under a Facility
according to their Percentages of such Facility. A Borrowing is
“advanced”
advance funds comprising such Borrowing to the Borrower, is
“continued”
Interest Period for the same type of Loans commences for such Borrowing, and is
“converted”
when such Borrowing is changed from one type of Loans to the other, all as determined pursuant
to Section 2.6. Borrowings of Swingline Loans are made by the Swingline Lender in accordance
with the procedures set forth in Section 2.2(b).
“Business Day”
authorized or required to close in Chicago, Illinois and, if the applicable Business Day relates to
the advance or continuation of, or conversion into, or payment of a Eurodollar Loan, on which
banks are dealing in U.S. Dollar deposits in the interbank eurodollar market in London, England.
“Capital Expenditures”
amount of all expenditures (whether paid in cash or accrued as a liability) by such Person during
that period for the acquisition or leasing (pursuant to a Capital Lease) of fixed or capital assets or
additions to property, plant, or equipment (including replacements, capitalized repairs, and
improvements), and for any of the foregoing are required to be capitalized on the balance sheet of
such Person in accordance with GAAP.
“Capital Lease
” means any lease of Property which in accordance with GAAP is required
to be capitalized on the balance sheet of the lessee;
provided
accounting standards after the Closing Date will not cause any lease that was not or would not
have been a Capital Lease prior to such adoption or issuance to be deemed a Capital Lease.
-6-
“Capitalized Lease Obligation”
on the balance sheet of such Person in respect of a Capital Lease determined in accordance with
GAAP.
“Cash Collateralize”
Agent, for the benefit of one or more of the L/C Issuer or Lenders, as collateral for L/C Obligations
or obligations of Lenders to fund participations in respect of L/C Obligations, cash or deposit
account balances subject to a first priority perfected security interest in favor of the Administrative
Agent or, if the Administrative Agent and each applicable L/C Issuer shall agree in their sole
discretion, other credit support, in each case pursuant to documentation in form and substance
satisfactory to the Administrative Agent and each applicable L/C Issuer.
“Cash Collateral”
have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral
and other credit support.
“Cash Equivalents”
means (a) cash in banks or on hand and (b) investments with a
maturity of three (3) months or less when purchased, which are made in accordance with the Cal-
Maine Investment Guidelines as attached hereto as Schedule 1.1,
17
from time to time with the consent of the Required Lenders.
“CERCLA”
means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C.
§§
9601
et seq.,
“Change in Law”
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation, implementation or
application thereof by any Governmental Authority, or (c) the making or issuance of any request,
rule, guideline or directive (whether or not having the force of law) by any Governmental
Authority;
provided
Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or
directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel Committee on Banking
Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in
Law”, regardless of the date enacted, adopted or issued, or (b) any “Change of Control” (or words
of like import), as defined in any agreement or indenture relating to any issue of Material
Indebtedness of any Loan Party or any Subsidiary of a Loan Party, shall occur.
“Change of Control”
or grandchildren, or any trust, guardianship, conservatorship or custodianship for the primary
benefit of any of the foregoing, or any family limited partnership, similar limited liability company
or other entity that 100% of voting control of such entity, is held by any of the foregoing, cease at
17
-7-
any time and for any reason (including death or incapacity) to own, legally and beneficially, at
least 50% of the votes represented by the Voting Stock of the Borrower.
“Closing Date”
each condition described in Section 7.2 shall be satisfied or waived in a manner acceptable to the
Administrative Agent in its discretion.
“Code”
thereto.
“Collateral”
to the Liens granted to the Administrative Agent, or any security trustee therefor, by the Collateral
Documents.
“Collateral Account”
“Collateral Access Agreement”
bailee letter or other agreement, in form and substance satisfactory to the Administrative Agent,
between the Administrative Agent and any third party (including any bailee, consignee, customs
broker, or other similar Person) in possession of any Collateral or any landlord of the Borrower or
any Subsidiary for any real property where any Collateral is located, as such landlord waiver,
bailee letter or other agreement may be amended, restated, or otherwise modified from time to
time.
“Collateral Documents”
means the Security Agreement, and all other mortgages, deeds of
trust, security agreements, pledge agreements, assignments, financing statements, control
agreements, and other documents as shall from time to time secure or relate to the Secured
Obligations or any part thereof.
“Commitments”
“
Commodity Exchange Act”
as amended from time to time, and any successor statute.
“Connection Income Taxes”
measured by net income (however denominated) or that are franchise Taxes or branch profit Taxes.
“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”
“Controlled”
thereto.
“Controlled Group”
trades or businesses (whether or not incorporated) under common control which, together with any
Loan Party, are treated as a single employer under Section 414 of the Code.
-8-
“Credit Event”
expiration date or increase in the amount of, any Letter of Credit.
“Debtor Relief Laws”
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.
“Default”
or condition the occurrence of which would, with the passage of time or the giving of notice, or
both, constitute an Event of Default.
“Defaulting Lender”
(i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were
required to be funded hereunder unless such Lender notifies the Administrative Agent and the
Borrower in writing that such failure is the result of such Lender’s determination that one or more
conditions precedent to funding (each of which conditions precedent, together with any applicable
default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the
Administrative Agent, any L/C Issuer, the Swingline Lender or any other Lender any other amount
required to be paid by it hereunder (including in respect of its participation in Letters of Credit or
Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the
Borrower, the Administrative Agent or any L/C Issuer or the Swingline Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a public statement
to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a
Loan hereunder and states that such position is based on such Lender’s determination that a
condition precedent to funding (which condition precedent, together with any applicable default,
shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three (3) Business Days after written request by the Administrative Agent or the
Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply
with its prospective funding obligations hereunder (
provided
Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the
Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that
has, at any time after the Closing Date (i) become the subject of a proceeding under any Debtor
Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or assets, including the Federal Deposit Insurance Corporation or any other state or
federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-in Action;
provided
acquisition of any equity interest in that Lender or any direct or indirect parent company thereof
by a Governmental Authority so long as such ownership interest does not result in or provide such
Lender with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent
manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
-9-
Section 2.13(b)) upon delivery of written notice of such determination to the Borrower, the L/C
Issuer, the Swingline Lender and each Lender.
“Designated Disbursement Account”
the Administrative Agent or its Affiliate and designated in writing to the Administrative Agent as
the Borrower’s Designated Disbursement Account (or such other account as the Borrower and the
Administrative Agent may otherwise agree).
“Disposition”
than (a) the sale or lease of inventory in the ordinary course of business, and (b) the sale, transfer,
lease or other disposition of Property of a Loan Party to another Loan Party in the ordinary course
of its business.
“Domestic Subsidiary”
“EEA Financial Institution”
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”
Liechtenstein, and Norway.
“EEA Resolution Authority”
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under
Section 13.2(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under
Section 13.2(b)(iii)).
“Eligible Line of Business”
by the Borrower or any other Loan Party or any business reasonably related thereto, including,
without limitation, spent foul business, further processing, fertilizer or nutrient manufacturing or
cooperative purchasing or similar businesses related to Borrower’s commercial egg production
business.
“Environmental Claim”
means any investigation, notice, violation, demand, allegation,
action, suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding or claim
(whether administrative, judicial or private in nature), but not including internal reports prepared
by or on behalf of Borrower in the ordinary course of business, arising (a) pursuant to, or in
connection with an actual or alleged violation of, any Environmental Law, (b) in connection with
any Hazardous Material, (c) from any abatement, removal, remedial, investigative, corrective or
response action in connection with a Hazardous Material, Environmental Law or order of a
-10-
governmental authority or (d) from any actual or alleged damage, injury, threat or harm to health,
safety, natural resources or the environment.
“Environmental Law”
protection of health, safety and the indoor or outdoor environment, (b) the conservation,
management, protection or use of natural resources and wildlife, (c) the protection or use of surface
water or groundwater, (d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened Release, abatement, removal,
investigation, remediation or handling of, or exposure to, any Hazardous Material or (e) pollution
(including any Release to air, land, surface water or groundwater), and any amendment, rule,
regulation, order or directive issued thereunder.
“Environmental Liability”
liability for damages, costs of environmental remediation, fines, costs of compliance, penalties or
indemnities), of any Loan Party or any Subsidiary of a Loan Party directly or indirectly resulting
from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any
Hazardous Materials into the environment or (e) any contract, agreement or other legally
enforceable consensual arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“ERISA”
any successor statute thereto.
“EU Bail-In Legislation Schedule”
by the Loan Market Association (or any successor Person), as in effect from time to time.
“Eurodollar Loan”
“Eurodollar Reserve Percentage”
a decimal, at which reserves (including, without limitation, any emergency, marginal, special, and
supplemental reserves) are imposed by the Board of Governors of the Federal Reserve System (or
any successor) on
“eurocurrency liabilities”
, as defined in such Board’s Regulation D (or any
successor thereto), subject to any amendments of such reserve requirement by such Board or its
successor, taking into account any transitional adjustments thereto. For purposes of this definition,
the relevant Loans shall be deemed to be
“eurocurrency liabilities”
without benefit or credit for any prorations, exemptions or offsets under Regulation D.
The
Eurodollar Reserve Percentage shall be adjusted automatically on and as of the effective date of
any change in any such reserve percentage.
“Event of Default”
“Event of Loss”
destruction or damage of such Property or (b) any condemnation, seizure, or taking, by exercise of
-11-
the power of eminent domain or otherwise, of such Property, or confiscation of such Property or
the requisition of the use of such Property.
“Exchange Act”
“Excluded Deposit Account”
means a deposit account the balance of which consists
exclusively of (and is identified when established as an account established solely for the purposes
of) (a) withheld income Taxes and federal, state, local or foreign employment Taxes in such
amounts as are required in the reasonable judgment of a Loan Party to be paid to the Internal
Revenue Service or any other U.S., federal, state or local or foreign government agencies within
the following month with respect to employees of such Loan Party, (b) amounts required to be
paid over to an employee benefit plan pursuant to DOL Reg. Sec. 2510.3-102 on behalf of or for
the benefit of employees of any Loan Party, (c) amounts which are required to be pledged or
otherwise provided as security pursuant to any requirement of any Governmental Authority or
foreign pension requirement, (d) amounts to be used to fund payroll obligations (including, but not
limited to, any ZBA for payroll and amounts payable to any employment contracts between any
Loan Party and their respective employees), (e) Texas Egg Products, LLC and South Texas
Applicators, Inc. deposit accounts, and (f) other deposit accounts maintained in the ordinary
course of business containing cash amounts that do not exceed at any time $2,000,000 in the
aggregate for all such accounts under this clause (f), unless requested by the Administrative Agent
after the occurrence and during the continuation of an Event of Default.
“
Excluded Equity Issuances
” means (a) the issuance by any Subsidiary of equity securities
to the Borrower or any Guarantor, as applicable, (b) the issuance of equity securities by the
Borrower to any Person that is an equity holder of the Borrower prior to such issuance, (c) the
issuance of equity securities of the Borrower to directors, officers and employees of the Borrower
and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans
or other compensation arrangements) approved by the Borrower’s Board of Directors, and (d) the
issuance of equity securities of the Borrower in order to finance the purchase consideration (or a
portion thereof) in connection with a Permitted Acquisition or Capital Expenditures.
“Excluded Property”
means (a) any intent-to-use trademark application prior to the filing
of a “Statement of Use” or “Amendment to Allege Use” with the United States Patent and
Trademark Office with respect thereto, to the extent, if any, that, and solely during the period, if
any, in which, the grant of a security interest therein would impair the validity or enforceability of
such intent-to-use trademark application under applicable federal law; (b) any permit or license
issued to any Loan Party as the permit holder or licensee thereof or any lease to which any Loan
Party is lessee thereof, in each case only to the extent and for so long as the terms of such permit,
license, or lease effectively (after giving effect to Sections 9-406 through 9-409, inclusive, of the
Uniform Commercial Code in the applicable state (or any successor provision or provisions) or
any other applicable law) prohibit the creation by such Loan Party of a security interest in such
permit, license, or lease in favor of the Administrative Agent or would result in an effective
invalidation, termination or breach of the terms of any such permit, license or lease (after giving
effect to Sections 9-406 through 9-409, inclusive, of the Uniform Commercial Code in the
applicable state (or any successor provision or provisions) or any other applicable law), in each
case unless and until any required consents are obtained,
provided
-12-
not include, and the Collateral shall include and the security interest granted in the Collateral shall
attach to, (x) all proceeds, substitutions or replacements of any such excluded items referred to
herein unless such proceeds, substitutions or replacements would constitute excluded items
hereunder, (y) all rights to payment due or to become due under any such excluded items referred
to herein, and (z) if and when the prohibition which prevents the granting of a security interest in
any such Property is removed, terminated, or otherwise becomes unenforceable as a matter of law,
the Administrative Agent will be deemed to have, and at all times to have had, a security interest
in such property, and the Collateral will be deemed to include, and at all times to have included,
such Property without further action or notice by any Person; and (c) Excluded Deposit Accounts.
“
Excluded Swap Obligation
” means, with respect to any Guarantor, any Swap Obligation
if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by
such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof)
is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the
Commodity Futures Trading Commission (or the application or official interpretation of any
thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract
participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time
the Guarantee of such Guarantor or the grant of such security interest becomes effective with
respect to such related Swap Obligation. If a Swap Obligation arises under a master agreement
governing more than one swap, such exclusion shall apply only to the portion of such Swap
Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes
illegal.
“Excluded Taxes”
Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed
on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes,
in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its applicable lending office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other
Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts
payable to or for the account of such Lender with respect to an applicable interest in a Loan or
Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest
in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under
Section 2.12) or (ii) such Lender changes its lending office, except in each case to the extent that,
pursuant to Section 4.1 amounts with respect to such Taxes were payable either to such Lender’s
assignor immediately before such Lender became a party hereto or to such Lender immediately
before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply
with Section 4.1(g), and (d) any U.S. federal withholding Taxes imposed under FATCA .
“Existing Credit Agreement”
has the meaning specified in the Preliminary Statements
hereto.
“Extended Revolving Credit Commitment”
means any Revolving Credit Commitment the
maturity of which has been extended pursuant to Section 2.16.
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“
Extended Revolving Loans
” means any Revolving Loans made pursuant to the Extended
Revolving Credit Commitments.
“
Extended Incremental Term Loans
” means any Incremental Term Loans the maturity of
which shall have been extended pursuant to Section 2.16.
“
Extension
” has the meaning specified in Section 2.16(a).
“
Extension Offer
” has the meaning specified in Section 2.16(a).
“Facility”
“FATCA”
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof, and
any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“FCPA”
“Federal Funds Rate”
average of the rates on overnight federal funds transactions with members of the Federal Reserve
System, as published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day;
provided
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 the Administrative
Agent on such day on such transactions as determined by the Administrative Agent;
provided
in no event shall the Federal Funds Rate be less than 0.00%.
“Financial Officer”
officer, treasurer or controller of such Person.
“Foreign Lender”
means a Lender that is not a U.S. Person.
“Foreign Subsidiary”
jurisdiction other than the United States of America or any state thereof or the District of Columbia,
(b) conducts substantially all of its business outside of the United States of America, and (c) has
substantially all of its assets outside of the United States of America.
“Fronting Exposure”
any L/C Issuer, such Defaulting Lender’s Revolver Percentage of the outstanding L/C Obligations
with respect to Letters of Credit issued by such L/C Issuer other than L/C Obligations as to which
such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender,
such Defaulting Lender’s Revolver Percentage of outstanding Swingline Loans made by the
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Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders.
“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”
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances as of the date of
determination.
“Governmental Authority”
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 supra-national bodies such as the European Union or the European
Central Bank).
“Guarantee”
“guarantor”
) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the
“primary obligor”
) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property, securities or services for
the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof,
(c) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation;
provided
include endorsements for collection or deposit in the ordinary course of business.
“Guaranty Agreements”
for in Section 11, and any other guaranty agreement executed and delivered in order to guarantee
the Secured Obligations or any part thereof in form and substance acceptable to the Administrative
Agent.
“Guarantors”
Subsidiary of the Borrower, and Borrower, in its capacity as a guarantor of the Secured Obligations
of another Loan Party.
“Hazardous Material”
means any substance, chemical, compound, product, solid, gas,
liquid, waste, byproduct, pollutant, contaminant or material which is hazardous, toxic, or a
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pollutant and regulated pursuant to any Environmental Law and includes, without limitation,
(a) asbestos, polychlorinated biphenyls and petroleum (including crude oil or any fraction thereof)
and (b) any material classified or regulated as “hazardous,” “toxic,” or a “pollutant” or words of
like import pursuant to an Environmental Law. For the purposes of this Agreement, however, the
Parties acknowledge and agree that Borrower is in the live animal agriculture business and
routinely generates, stores, handles, transports, composts, disposes of, applies and/or sells manure
for beneficial reuse (fertilizer) in the ordinary course of business, that manure naturally breaks
down and releases ammonia, phosphorus and other substances and such manure and its constituent
parts shall not be “Hazardous Material” hereunder.
“Hazardous Material Activity”
Hazardous Material, including, without limitation, the manufacture, possession, presence, use,
generation, transportation, treatment, storage, disposal, Release, threatened Release, abatement,
removal, remediation, handling of or corrective or response action to any Hazardous Material.
“Hedging Agreement”
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions;
provided
similar plan providing for payments only on account of services provided by current or former
directors, officers, employees or consultants of any Loan Party or its Subsidiaries shall be a
Hedging Agreement.
“Hedging Liability”
to any of the Lenders, or any
Affiliates of such Lenders in respect of any Hedging Agreement as such Loan Party may from
time to time enter into with any one or more of the Lenders party to this Agreement or their
Affiliates, whether absolute or contingent and howsoever and whensoever created, arising,
evidenced or acquired (including all renewals, extensions and modifications thereof and
substitutions therefor);
provided, however,
Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.
“Hostile Acquisition”
a Person through a tender offer or similar solicitation of the owners of such capital stock or other
equity interests which has not been approved (prior to such acquisition) by resolutions of the Board
of Directors of such Person or by similar action if such Person is not a corporation, or as to which
such approval has been withdrawn.
“Increase”
“Increase Date”
“Incremental Amendment”
“Incremental Term Facility”
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“Incremental Term Loans”
“Incremental Term Loan Percentage”
means, for each Lender, the percentage held by such
Lender of the aggregate principal amount of all Incremental Term Loans outstanding, if any.
“Indebtedness”
assumed or incurred in any manner by such Person representing money borrowed (including by
the issuance of debt securities), (b) all indebtedness for the deferred purchase price of property or
services (other than trade accounts payable arising in the ordinary course of business), (c) all
indebtedness secured by any Lien upon Property of such Person, whether or not such Person has
assumed or become liable for the payment of such indebtedness, (d) all Capitalized Lease
Obligations of such Person, (e) all obligations of such Person on or with respect to letters of credit,
bankers’ acceptances and other extensions of credit to the extent any of the foregoing are not cash
collateralized, whether or not representing obligations for borrowed money, (f) all obligations of
such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any
equity interest in such Person or any other Person or any warrant, right or option to acquire such
equity interest, valued, in the case of a redeemable preferred interest, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends, (g) all net obligations
(determined as of any time based on the termination value thereof) of such Person under any
interest rate, foreign currency, and/or commodity swap, exchange, cap, collar, floor, forward,
future or option agreement, or any other similar interest rate, currency or commodity hedging
arrangement; and (h) all Guarantees of such Person in respect of any of the foregoing. For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture (other than a joint venture that is itself a corporation or limited liability company)
in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person.
“Indemnified Taxes”
respect to any payment made by or on account of any obligation of any Loan Party under any Loan
Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Interest Payment Date”
each Interest Period with respect to such Eurodollar Loan and on the maturity date and, if the
applicable Interest Period is longer than three (3) three months, on each day occurring every
three (3) months after the commencement of such Interest Period, (b) with respect to any Base
Rate Loan (other than Swingline Loans), the last day of every calendar quarter and on the maturity
date, and (c) as to any Swingline Loan, (i) bearing interest by reference to the Base Rate, the last
day of every calendar month, and on the maturity date and (ii) bearing interest by reference to the
Swingline Lender’s Quoted Rate, the last day of the Interest Period with respect to such Swingline
Loan, and on the maturity date.
“Interest Period”
Loans or Swingline Loans (bearing interest at the Swingline Lender’s Quoted Rate) is advanced,
continued, or created by conversion and ending (a) in the case of Eurodollar Loans, one (1),
two (2), three (3), six (6) or twelve (12) months thereafter and (b) in the case of Swingline Loans
bearing interest at the Swingline Lender’s Quoted Rate, on the date one (1) to five (5) Business
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Days thereafter as mutually agreed by the Borrower and the Swingline Lender,
provided, however,
that:
Loans;
is not a Business Day, the last day of such Interest Period shall be extended to the next
succeeding Business Day,
provided
that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately preceding Business
Day; and
Eurodollar Loans, a month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month;
provided,
however,
Interest Period is to end or if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last Business Day of the calendar
month in which such Interest Period is to end.
“IRS”
means the United States Internal Revenue Service.
“L/C Issuer”
Credit hereunder, in each case together with its successors in such capacity as provided in
Section 2.3(h).
“L/C Obligations”
of Credit and all unpaid Reimbursement Obligations.
“L/C Participation Fee”
“L/C Sublimit”
hereof.
“Legal Requirement”
regulation, ordinance, license, permit, governmental approval, injunction, judgment, order,
consent decree or other requirement of any governmental authority, whether federal, state, or local.
“Lenders”
and the other Persons listed on
Schedule 2.1/2.2 and any other Person that shall have become party hereto pursuant to an
Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption. Unless the context requires otherwise, the term
“Lenders”
includes the Swingline Lender.
“Lending Office”
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“Letter of Credit”
“LIBOR”
LIBOR Index Rate for such Interest Period, if such rate is available, and (b) if the LIBOR Index
Rate cannot be determined, the arithmetic average of the rates of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in U.S. Dollars in immediately
available funds are offered to the Administrative Agent at 11:00 a.m. (London, England time) two
(2) Business Days before the beginning of such Interest Period by three (3) or more major banks
in the interbank euro dollar market selected by the Administrative Agent for delivery on the first
day of and for a period equal to such Interest Period and in an amount equal or comparable to the
principal amount of the Eurodollar Loan scheduled to be made as part of such Borrowing, provided
that in no event shall “LIBOR” be less than 0.00%.
“LIBOR Index Rate”
if necessary, to the next higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a period equal to such Interest Period, as reported on the applicable Bloomberg screen
page (or such other commercially available source providing such quotations as may be designated
by the Administrative Agent from time to time)
as of 11:00 a.m. (London, England time) on the
day two (2) Business Days before the commencement of such Interest Period.
“Lien”
means any mortgage, lien, security interest, pledge, charge or encumbrance of any
kind in respect of any Property, including the interests of a vendor or lessor under any conditional
sale, Capital Lease or other title retention arrangement.
“Loan”
whether outstanding as a Base Rate Loan or Eurodollar Loan or otherwise, each of which is a
“type”
“Loan Documents”
Collateral Documents, the Guaranty Agreements, and each other instrument or document to be
delivered hereunder or thereunder or otherwise in connection therewith.
“Loan Party”
“Marketable Securities”
when purchased which are made in accordance with the Cal-Maine Investment Guidelines as
attached hereto as Schedule 1.1, as the same may be amended from time to time with the consent
of the Required Lenders.
“Material Adverse Effect”
effect upon, the operations, business, or financial condition of the Borrower or of the Loan Parties
and their Subsidiaries taken as a whole, (b) a material impairment of the ability of any Loan Party
to perform its material
obligations under any Loan Document or (c) a material adverse effect upon
(i) the legality, validity, binding effect or enforceability against any Loan Party of any Loan
Document or the material rights and remedies of the Administrative Agent and the Lenders
thereunder or (ii) the perfection or priority of any Lien granted under any Collateral Document.
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“Material Indebtedness”
or obligations in respect of one or more Hedging Agreements, of any one or more of the Loan
Parties and its Subsidiaries with an individual outstanding principal amount exceeding
$30,000,000. For purposes of determining Material Indebtedness, the “obligations” of any Loan
Party or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that such Loan Party or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at such time.
“Minimum Collateral Amount”
consisting of cash or deposit account balances, an amount equal to 105% (or 100% if such Cash
Collateral consists of a demand or time deposit account) of the Fronting Exposure of all L/C Issuers
with respect to Letters of Credit issued and outstanding at such time and (b) otherwise, an amount
determined by the Administrative Agent and the L/C Issuer in their sole discretion.
“Moody’s”
“Net Cash Proceeds”
cash and cash equivalent proceeds received by or for such Person’s account, net of (i) reasonable
direct costs relating to such Disposition, (ii) sale, use or other transactional taxes paid or payable
by such Person as a direct result of such Disposition, and (iii) the amount of any Indebtedness
permitted hereby which is secured by a prior perfected Lien on the asset subject to such Disposition
and is required to be repaid in connection with such Disposition, (b) with respect to any Event of
Loss of a Person, cash and cash equivalent proceeds received by or for such Person’s account
(whether as a result of payments made under any applicable insurance policy therefor or in
connection with condemnation proceedings or otherwise), net of reasonable direct costs incurred
in connection with the collection of such proceeds, awards or other payments, and the amount of
any Indebtedness permitted hereby which is secured by a prior perfected Lien in the asset subject
to the Event of Loss and (c) with respect to any offering of equity securities of a Person or the
issuance of any Indebtedness by a Person, cash and cash equivalent proceeds received by or for
such Person’s account, net of reasonable legal, underwriting, and other fees and expenses incurred
as a direct result thereof.
“Net Income”
Borrower and its Subsidiaries for such period computed on a consolidated basis in accordance with
GAAP;
provided
any Person accrued prior to the date it becomes a Subsidiary of, or has merged into or consolidated
with, the Borrower or another Subsidiary, (b) the net income (or net loss) of any Person (other than
a Subsidiary) in which the Borrower or any of its Subsidiaries has an equity interest, except to the
extent of the amount of dividends or other distributions actually paid to the Borrower or any of its
Subsidiaries during such period, and (c) the undistributed earnings of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such Subsidiary is not at
the time permitted by the terms of any contractual obligation (other than under any Loan
Document) or requirement of law applicable to such Subsidiary.
“Net Worth”
means, at any time the same is to be determined, total shareholder’s equity
(including capital stock, additional paid in capital, and retained earnings after deducting treasury
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stock) that would appear on the balance sheet of the Borrower and its Subsidiaries, determined in
accordance with GAAP on a consolidated basis.
“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver
or amendment that (a) requires the approval of all affected Lenders in accordance with the terms
of Section 13.3 and (b) has been approved by the Required Lenders.
“Non-Defaulting Lender”
at such time.
“Note”
“Notes”
“Obligations”
Loans, all Reimbursement Obligations owing under the Applications, all fees and charges payable
hereunder, and all other payment obligations of the Borrower or any other Loan Party arising under
or in relation to any Loan Document, in each case whether now existing or hereafter arising, due
or to become due, direct or indirect, absolute or contingent, and howsoever evidenced, held or
acquired.
“OFAC”
means the United States Department of Treasury Office of Foreign Assets
Control.
“OFAC Event”
is defined in Section 8.15.
“OFAC Sanctions Programs”
administered by OFAC, including without limitation, the Bank Secrecy Act, anti-money
laundering laws (including, without limitation, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Pub. L. 107-56 (a/k/a the USA Patriot Act)), and all economic and trade sanction programs
administered by OFAC, any and all similar United States federal laws, regulations or Executive
Orders (whether administered by OFAC or otherwise), and any similar laws, regulations or orders
adopted by any State within the United States.
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result
of a present or former connection between such Recipient and the jurisdiction imposing such Tax
(other than connections arising from such Recipient having executed, delivered, become a party
to, performed its obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or
sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
recording, filing or similar Taxes that arise from any payment made under, from the execution,
delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made
pursuant to Section 2.12).
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“Participant”
has the meaning assigned to such term in clause (d) of Section 13.2.
“Participant Register”
has the meaning specified in clause (d) of Section 13.2.
“Participating Interest”
“Participating Lender”
“PBGC”
any or all of its functions under ERISA.
“Percentage”
means for any Lender its Revolver Percentage or its Incremental Term Loan
Percentage, as applicable.
“Permitted Acquisition”
conditions shall have been satisfied:
operations within the United States of America;
which it is a party in connection with such Acquisition;
the Acquisition, the Borrower shall have complied with the requirements of Section 12.3
within 30 days of the completion thereof;
therewith, no Default shall exist, including with respect to the financial covenants
contained in Section 8.22 on a pro forma basis (looking back four completed fiscal quarters
as if the Acquisition occurred on the first day of such period and after giving effect to the
payment of the purchase price for the Acquired Business); and
therewith, the sum of cash and Cash Equivalents of the Borrower plus availability under
the Revolving Facility shall equal at least $50,000,000.
“Person”
means any natural Person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other entity.
“Plan”
to the minimum funding standards under Section 412 of the Code that either (a) is maintained by
a member of the Controlled Group for employees of a member of the Controlled Group or (b) is
maintained pursuant to a collective bargaining agreement or any other arrangement under which
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more than one employer makes contributions and to which a member of the Controlled Group is
then making or accruing an obligation to make contributions or has within the preceding five plan
years made contributions.
“Premises”
of a Loan Party.
“Property”
mixed property owned by such Person whether or not included in the most recent balance sheet of
such Person and its subsidiaries under GAAP.
“
Qualified ECP Guarantor
” means, in respect of any Swap Obligation, each Loan Party
that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the
relevant security interest becomes effective with respect to such Swap Obligation or such other
person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any
regulations promulgated thereunder and can cause another person to qualify as an “eligible contract
participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the
Commodity Exchange Act.
“RCRA”
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 U.S.C.
§§
6901
et seq.
, and any future amendments.
“Recipient
” means (a) the Administrative Agent, (b) any Lender, and (c) any L/C Issuer,
as applicable.
“Register”
“Reimbursement Obligation”
“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and
representatives of such Person and of such Person’s Affiliates.
“Release”
discharging, injecting, escaping, leaching, migrating, dumping, or disposing into the indoor or
outdoor environment, including, without limitation, the abandonment or discarding of barrels,
drums, containers, tanks or other receptacles containing or previously containing any Hazardous
Material.
“Required Lenders”
means, at any time, Lenders having Total Credit Exposures
representing (a) if there are 2 or less Lenders, all of the Lenders, and (b) if there are 3 or more
Lenders, 50.0% or more of the Total Credit Exposures of all Lenders. To the extent provided in
the last paragraph of Section 13.3, the Total Credit Exposure of any Defaulting Lender shall be
disregarded in determining Required Lenders at any time.
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“Responsible Officer”
such Person and any other officer, general partner or managing member or similar official thereof
with responsibility for the administration of the obligations of such person in respect of this
Agreement whose signature and incumbency shall have been certified to the Administrative Agent
on or after the Closing Date pursuant to an incumbency certificate of the type contemplated by
Section 7.2.
“Revolver Percentage”
Credit Commitments represented by such Lender’s Revolving Credit Commitment or, if the
Revolving Credit Commitments have been terminated or expired, the percentage of the total
Revolving Credit Exposure then outstanding held by such Lender.
“Revolving Facility”
Loans and issuing Letters of Credit described in Sections 2.1, 2.2 and 2.3.
“Revolving Credit Commitment”
to make Revolving Loans and to participate in Swingline Loans and Letters of Credit issued for
the account of the Borrower hereunder in an aggregate principal or face amount at any one time
outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.1/2.2
attached hereto and made a part hereof, as the same may be reduced or modified at any time or
from time to time pursuant to the terms hereof (including, without limitation, Section 2.15 hereof).
The Borrower and the Lenders acknowledge and agree that the Revolving Credit Commitments of
the Lenders aggregate $250,000,000 on the Closing Date.
“Revolving Credit Exposure”
means, as to any Lender at any time, the aggregate principal
amount at such time of its outstanding Revolving Loans and such Lender’s participation in L/C
Obligations and Swingline Loans at such time.
“Revolving Credit Termination Date”
which the Revolving Credit Commitments are terminated in whole pursuant to Section 2.11, 9.2
or 9.3.
“Revolving Loan”
is defined in Section 2.1 and, as so defined, includes a Base Rate Loan
or a Eurodollar Loan, each of which is a
“type”
“Revolving Note”
“S&P”
Services LLC business.
“SEC”
“Secured Obligations”
Obligations, in each case whether now existing or hereafter arising, due or to become due, direct
or indirect, absolute or contingent, and howsoever evidenced, held or acquired (including all
interest, costs, fees, and charges after the entry of an order for relief against any Loan Party in a
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case under the United States Bankruptcy Code or any similar proceeding, whether or not such
interest, costs, fees and charges would be an allowed claim against such Loan Party in any such
proceeding);
provided, however,
Guaranteed by such Guarantor shall exclude all Excluded Swap Obligations.
“Securities Act”
means the United States Securities Act of 1933.
“Security Agreement”
amended and reaffirmed by that certain Reaffirmation, Modification and Omnibus Joinder
Agreement dated as of the date hereof among the Loan Parties and the Administrative Agent, as
the same may be amended, modified, amended and restated, supplemented or otherwise modified
from time to time.
“Subsidiary”
corporation or organization more than 50% of the outstanding Voting Stock of which is at the time
directly or indirectly owned by such parent corporation or organization or by any one or more
other entities which are themselves subsidiaries of such parent corporation or organization. Unless
otherwise expressly noted herein, the term
“Subsidiary”
of any of its direct or indirect Subsidiaries.
“
Swap Obligation
” means, with respect to any Guarantor, 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.
“Sweep Depositary”
Arrangement.
“Sweep to Loan Arrangement”
Borrower with the Swingline Lender or an Affiliate of the Swingline Lender, as depositary (in
such capacity, the
“Sweep Depositary”
), pursuant to which the Swingline Lender is authorized
(a) to make advances of Swingline Loans hereunder, the proceeds of which are deposited by the
Swing Lender into a designated account of the Borrower maintained at the Sweep Depositary, and
(b) to accept as prepayments of the Swingline Loans hereunder proceeds of excess targeted
balances held in such designated account at the Sweep Depositary, which cash management
arrangement is subject to such agreement(s) and on such terms acceptable to the Sweep Depositary
and the Swing Lender.
“Swingline”
means the credit facility for making one or more Swingline Loans described
in Section 2.2.
“Swingline Lender”
Swingline Loans hereunder, or any successor Lender acting in such capacity appointed pursuant
to Section 13.2.
“Swingline Lender’s Quoted Rate”
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“Swingline Sublimit”
“Swingline Loan”
and
“Swingline Loans”
“Swing Note”
“Tangible Net Worth
” means total shareholder’s equity that would appear on the balance
sheet of the Borrower and its Subsidiaries minus the sum of (a) all assets which would be classified
as intangible assets under GAAP, including, without limitation, goodwill, patents, trademarks,
trade names, copyrights, franchises and deferred charges (including, without limitation,
unamortized debt discount and expense, organization costs and deferred research and development
expense) and similar assets, and (b) the write up of assets above cost (other than marketable
securities); provided, however, that intangible assets shall not include prepaid expenses (including,
without limitation, prepaid insurance, software licenses and support agreements, consulting
contracts and prepaid financing fees) carried on the consolidated balance sheet, in each case
determined on a consolidated basis in accordance with GAAP.
“Taxes”
(including backup withholding), assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable thereto.
“Total Capitalization”
Total Funded Debt and (b) Net Worth.
“Total Credit Exposure”
means, as to any Lender at any time, the unused Commitments,
Revolving Credit Exposure, and Incremental Term Loans (if any) of such Lender at such time.
“Total Funded Debt”
duplication) of (a) all Indebtedness of the Borrower and its Subsidiaries at such time described in
clauses (a) through (f), both inclusive, of the definition thereof, and (b) all Indebtedness of any
other Person which is directly or indirectly Guaranteed by the Borrower or any of its Subsidiaries
or which the Borrower or any of its Subsidiaries has agreed (contingently or otherwise) to purchase
or otherwise acquire or in respect of which the Borrower or any of its Subsidiaries has otherwise
assured a creditor against loss.
“Total Funded Debt to Capitalization Ratio”
of the Borrower, the ratio of (a) Total Funded Debt of the Borrower and its Subsidiaries as of the
last day of such fiscal quarter to (b) Total Capitalization of the Borrower and its Subsidiaries as of
the last day of such fiscal quarter.
“Unfunded Vested Liabilities”
means, for any Plan at any time, the amount (if any) by
which the present value of all vested nonforfeitable accrued benefits under such Plan exceeds the
fair market value of all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess represents a potential
liability of a member of the Controlled Group to the PBGC or the Plan under Title IV of ERISA.
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“U.S. Dollars”
“$”
“U.S. Person”
means any Person that is a “United States Person” as defined in
Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate”
has the meaning assigned to such term in subsection (f)
of Section 4.1.
“Voting Stock”
classes (however designated) having ordinary power to vote as prescribed for such class of capital
stock or equity interest for the election of directors or other similar governing body of such Person,
other than stock or other equity interests having such power only by reason of the happening of a
contingency.
“Welfare Plan”
“Wholly-owned Subsidiary”
shares of capital stock (other than directors’ qualifying shares as required by law) or other equity
interests are owned by the Borrower and/or one or more Wholly-owned Subsidiaries within the
meaning of this definition.
“Withholding Agent”
“Write-Down and Conversion Powers”
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.
Section 1.2.
Interpretation.
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise modified (subject to
any restrictions on such amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person’s successors and assigns,
(c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references
herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) any reference to any law or
regulation herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, and (f) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights. All references to
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time of day herein are references to Chicago, Illinois, time unless otherwise specifically provided.
Where the character or amount of any asset or liability or item of income or expense is required to
be determined or any consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done in accordance with GAAP, except where there is
variation from GAAP as currently reflected under the current financial statements as consistently
applied and except where such principles are inconsistent with the specific provisions of this
Agreement.
Section 1.3. Change in Accounting Principles
. If, after the date of this Agreement, there
shall occur any change in GAAP from those used in the preparation of the financial statements
referred to in Section 6.5 and such change shall result in a change in the method of calculation of
any financial covenant, standard or term found in this Agreement, either the Borrower or the
Required Lenders may by notice to the Lenders and the Borrower, respectively, require that the
Lenders and the Borrower negotiate in good faith to amend such covenants, standards, and terms
so as equitably to reflect such change in accounting principles, with the desired result being that
the criteria for evaluating the financial condition of the Borrower and its Subsidiaries shall be the
same as if such change had not been made. No delay by the Borrower or the Required Lenders in
requiring such negotiation shall limit their right to so require such a negotiation at any time after
such a change in accounting principles. Until any such covenant, standard, or term is amended in
accordance with this Section, financial covenants shall be computed and determined in accordance
with GAAP in effect prior to such change in accounting principles. Without limiting the generality
of the foregoing, the Borrower shall neither be deemed to be in compliance with any financial
covenant hereunder nor out of compliance with any financial covenant hereunder if such state of
compliance or noncompliance, as the case may be, would not exist but for the occurrence of a
change in accounting principles after the date hereof.
. 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.
S
ECTION
HE
R
EVOLVING
F
ACILITY
Section 2.1. Revolving Facility.
Subject to the terms and conditions hereof, each Lender,
by its acceptance hereof, severally agrees to make a loan or loans (individually a
“Revolving Loan”
and collectively for all the Lenders the
“Revolving Loans”
) in U.S. Dollars to the Borrower from
time to time on a revolving basis up to the amount of such Lender’s Revolving Credit
Commitment, subject to any reductions thereof pursuant to the terms hereof, before the Revolving
Credit Termination Date. The sum of the aggregate principal amount of Revolving Loans,
Swingline Loans, and L/C Obligations at any time outstanding shall not exceed the Revolving
Credit Commitments in effect at such time. Each Borrowing of Revolving Loans shall be made
ratably by the Lenders in proportion to their respective Revolver Percentages. As provided in
Section 2.6(a), the Borrower may elect that each Borrowing of Revolving Loans be either Base
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Rate Loans or Eurodollar Loans. Revolving Loans may be repaid and the principal amount thereof
reborrowed before the Revolving Credit Termination Date, subject to the terms and conditions
hereof.
Section 2.2
Swingline Loans.
Generally
. Subject to the terms and conditions hereof,
as part of the Revolving Facility, the Swingline Lender may, in its sole discretion, make loans in
U.S. Dollars to the Borrower under the Swingline (individually a
“Swingline Loan”
collectively the
“Swingline Loans”
) which shall not in the aggregate at any time outstanding
exceed the Swingline Sublimit. Swingline Loans may be availed of from time to time and
borrowings thereunder may be repaid and used again during the period ending on the Revolving
Credit Termination Date. Each Swingline Loan shall be in a minimum amount of $150,000 or
such greater amount which is an integral multiple of $100,000. Each Swingline Loan shall bear
interest until maturity (whether by acceleration or otherwise) at a rate per annum equal to (x) the
rate per annum for Base Rate Loans under the Revolving Facility as from time to time in effect or
(y) the Swingline Lender’s Quoted Rate (computed on the basis of a year of 360 days for the actual
number of days elapsed). Interest on each Swingline Loan shall be due and payable by the
Borrower on each Interest Payment Date and at maturity (whether by acceleration or otherwise).
. The Borrower shall give the Administrative Agent
prior notice (which may be written or oral) no later than 12:00 Noon (Chicago time) on the date
upon which the Borrower requests that any Swingline Loan be made, of the amount and date of
such Swingline Loan, and, if applicable, the Interest Period requested therefor. The Administrative
Agent shall promptly advise the Swingline Lender of any such notice received from the Borrower.
Thereafter, the Swingline Lender shall notify the Administrative Agent (who shall thereafter
promptly notify the Borrower) whether or not it has elected to make such Swingline Loan. If the
Swingline Lender agrees to make such Swingline Loan, it may in its discretion quote an interest
rate to the Borrower at which the Swingline Lender would be willing to make such Swingline Loan
available to the Borrower for the Interest Period so requested (the rate so quoted for a given Interest
Period being herein referred to as
“Swingline Lender’s Quoted Rate”
). The Borrower
acknowledges and agrees that the interest rate quote is given for immediate and irrevocable
acceptance. If the Borrower does not so immediately accept the Swingline Lender’s Quoted Rate
for the full amount requested by the Borrower for such Swingline Loan, the Swingline Lender’s
Quoted Rate shall be deemed immediately withdrawn. If the Swingline Lender’s Quoted Rate is
not accepted or otherwise does not apply, such Swingline Loan shall bear interest at the rate per
annum for Base Rate Loans under the Revolving Facility as from time to time in effect. Subject
to the terms and conditions hereof, the proceeds of each Swingline Loan extended to the Borrower
shall be deposited or otherwise wire transferred to the Borrower’s Designated Disbursement
Account or as the Borrower, the Administrative Agent, and the Swingline Lender may otherwise
agree. Anything contained in the foregoing to the contrary notwithstanding, the undertaking of
the Swingline Lender to make Swingline Loans shall be subject to all of the terms and conditions
of this Agreement (provided that the Swingline Lender shall be entitled to assume that the
conditions precedent to an advance of any Swingline Loan have been satisfied unless notified to
the contrary by the Administrative Agent or the Required Lenders).
Refunding Swingline Loans
. In its sole and absolute discretion, the Swingline Lender
may at any time, on behalf of the Borrower (which hereby irrevocably authorizes the Swingline
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Lender to act on its behalf for such purpose) and with notice to the Borrower and the
Administrative Agent, request each Lender to make a Revolving Loan in the form of a Base Rate
Loan in an amount equal to such Lender’s Revolver Percentage of the amount of the Swingline
Loans outstanding on the date such notice is given (which Loans shall thereafter bear interest as
provided for in Section 2.4(a)). Unless an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the Borrower, regardless of the existence of any other Event of Default, each
Lender shall make the proceeds of its requested Revolving Loan available to the Administrative
Agent for the account of the Swingline Lender), in immediately available funds, at the
Administrative Agent’s office in Chicago, Illinois (or such other location designated by the
Administrative Agent), before 12:00 Noon (Chicago time) on the Business Day following the day
such notice is given. The Administrative Agent shall promptly remit the proceeds of such
Borrowing to the Swingline Lender to repay the outstanding Swingline Loans.
Participation in Swingline Loans.
If any Lender refuses or otherwise fails to make a
Revolving Loan when requested by the Swingline Lender pursuant to Section 2.2(b) above
(because an Event of Default described in Section 9.1(j) or 9.1(k)
exists with respect to the
Borrower or otherwise), such Lender will, by the time and in the manner such Revolving Loan
was to have been funded to the Swingline Lender, purchase from the Swingline Lender an
undivided participating interest in the outstanding Swingline Loans in an amount equal to its
Revolver Percentage of the aggregate principal amount of Swingline Loans that were to have been
repaid with such Revolving Loans. From and after the date of any such purchase, the parties hereto
hereby acknowledge and agree that such Swingline Loans shall thereafter bear interest at the rate
for such Swingline Loan as determined in accordance with Section 2.2(b) hereof. Each Lender
that so purchases a participation in a Swingline Loan shall thereafter be entitled to receive its
Revolver Percentage of each payment of principal received on the Swingline Loan and of interest
received thereon accruing from the date such Lender funded to the Swingline Lender its
participation in such Loan. The several obligations of the Lenders under this Section shall be
absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not
be subject to any set-off, counterclaim or defense to payment which any Lender may have or have
had against the Borrower, any other Lender, or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any Default or by any
reduction or termination of the Commitments of any Lender, and each payment made by a Lender
under this Section shall be made without any offset, abatement, withholding, or reduction
whatsoever.
Sweep to Loan Arrangement
. So long as a Sweep to Loan Arrangement is in effect,
and subject to the terms and conditions thereof, Swingline Loans may be advanced and prepaid
hereunder notwithstanding any notice, minimum amount, or funding and payment location
requirements hereunder for any advance of Swingline Loans or for any prepayment of any
Swingline Loans. The making of any such Swingline Loans shall otherwise be subject to the other
terms and conditions of this Agreement. The Swingline Lender shall have the right in its sole
discretion to suspend or terminate the making and/or prepayment of Swingline Loans pursuant to
such Sweep to Loan Arrangement with notice to the Sweep Depositary and the Borrower (which
may be provided on a same-day basis), whether or not any Default exists. The Swingline Lender
shall not be liable to the Borrower or any other Person for any losses directly or indirectly resulting
from events beyond the Swingline Lender’s reasonable control, including without limitation any
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interruption of communications or data processing services or legal restriction or for any special,
indirect, consequential or punitive damages in connection with any Sweep to Loan Arrangement.
Section 2.3. Letters of Credit.
General Terms.
Facility, the L/C Issuer shall issue standby and commercial letters of credit (each a
“Letter of
Credit”
) for the account of the Borrower
or for the account of the Borrower and one or more of its
Subsidiaries
in an aggregate undrawn face amount up to the L/C Sublimit. Each Letter of Credit
shall be issued by the L/C Issuer, but each Lender shall be obligated to reimburse the L/C Issuer
for such Lender’s Revolver Percentage of the amount of each drawing thereunder and, accordingly,
Letters of Credit shall constitute usage of the Revolving Credit Commitment of each Lender pro
rata in an amount equal to its Revolver Percentage of the L/C Obligations then outstanding.
Applications.
L/C Issuer shall, at the request of the Borrower, issue one or more Letters of Credit
in U.S. Dollars,
in a form satisfactory to the L/C Issuer, with expiration dates no later than the earlier of 12 months
from the date of issuance (or which are cancelable not later than 12 months from the date of
issuance and each renewal) or thirty (30) days prior to the Revolving Credit Termination Date, in
an aggregate face amount as set forth above, upon the receipt of an application duly executed by
the Borrower and, if such Letter of Credit is for the account of one of its Subsidiaries, such
Subsidiary
for the relevant Letter of Credit in the form then customarily prescribed by the
L/C Issuer for the Letter of Credit requested (each an
“Application”
). The Borrower agrees that
if on the Revolving Credit Termination Date any Letters of Credit remain outstanding the
Borrower shall then deliver to the Administrative Agent, without notice or demand, Cash
Collateral in an amount equal to 105% of the aggregate amount of each Letter of Credit then
outstanding (which shall be held by the Administrative Agent pursuant to the terms of Section 9.4).
Notwithstanding anything contained in any Application to the contrary: (i) the Borrower shall pay
fees in connection with each Letter of Credit as set forth in Section 3.1, (ii) except as otherwise
provided herein or in Sections 2.8, 2.13 or 2.14, unless an Event of Default exists, the L/C Issuer
will not call for the funding by the Borrower of any amount under a Letter of Credit before being
presented with a drawing thereunder, and (iii) if the L/C Issuer is not timely reimbursed for the
amount of any drawing under a Letter of Credit on the date such drawing is paid, except as
otherwise provided for in Section 2.6(c), the Borrower’s obligation to reimburse the L/C Issuer for
the amount of such drawing shall bear interest (which the Borrower hereby promises to pay) from
and after the date such drawing is paid at a rate per annum equal to the sum of the Applicable
Margin plus the Base Rate from time to time in effect (computed on the basis of a year of 365 or
366 days, as the case may be, and the actual number of days elapsed). If the L/C Issuer issues any
Letter of Credit with an expiration date that is automatically extended unless the L/C Issuer gives
notice that the expiration date will not so extend beyond its then scheduled expiration date, unless
the Administrative Agent or the Required Lenders instruct the L/C Issuer otherwise, the L/C Issuer
will give such notice of non-renewal before the time necessary to prevent such automatic extension
if before such required notice date: (i) the expiration date of such Letter of Credit if so extended
would be after the Revolving Credit Termination Date, (ii) the Revolving Credit Commitments
have been terminated, or (iii) an Event of Default exists and either the Administrative Agent or the
Required Lenders (with notice to the Administrative Agent) have given the L/C Issuer instructions
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not to so permit the extension of the expiration date of such Letter of Credit. The L/C Issuer agrees
to issue amendments to the Letter(s) of Credit increasing the amount, or extending the expiration
date, thereof at the request of the Borrower subject to the conditions of Section 7 and the other
terms of this Section.
The Reimbursement Obligations.
Borrower to reimburse the L/C Issuer for all drawings under a Letter of Credit (a
“Reimbursement
Obligation”
) shall be governed by the Application related to such Letter of Credit, except that
reimbursement shall be made (i) by no later than 2:00 p.m. (Chicago time) on the date when each
drawing is to be paid if the Borrower has been informed of such drawing by the L/C Issuer on or
before 10:00 a.m. (Chicago time) on the date when such drawing is to be paid and the Borrower
has notified the Administrative Agent by 1:00 p.m. (Chicago time) on such date that the Borrower
will reimburse the L/C Issuer on the date each such drawing is to be paid, or (ii) if notice of such
drawing is given to the Borrower after 10:00 a.m. (Chicago time) on the date when such drawing
is to be paid or if the Borrower fails to notify the Administrative Agent by 1:00 p.m. (Chicago
time) on such date that the Borrower will reimburse the L/C Issuer on the date each such drawing
is to be paid, by no later than 12:00 Noon (Chicago time) on the following Business Day, in each
case, in immediately available funds at the Administrative Agent’s principal office in Chicago,
Illinois, or such other office as the Administrative Agent may designate in writing to the Borrower
(who shall thereafter cause to be distributed to the L/C Issuer such amount(s) in like funds). If the
Borrower does not make any such reimbursement payment on the date due and the Participating
Lenders fund their participations therein in the manner set forth in Section 2.3(e) below, then all
payments thereafter received by the Administrative Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section 2.3(e) below.
Obligations Absolute.
be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the
terms of this Agreement and the relevant Application under any and all circumstances whatsoever
and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) payment by the L/C Issuer under a Letter of Credit
against presentation of a draft or other document that does not strictly comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
None of the Administrative Agent, the Lenders, or the L/C Issuer shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or
any payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to any Letter
of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond the control of the
L/C Issuer;
provided
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower and each other Loan Party to the
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extent permitted by applicable law) suffered by the Borrower or any Loan Party that are caused by
the L/C Issuer’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the part of the L/C Issuer
(as determined by a court of competent jurisdiction by final and nonappealable judgment), the
L/C Issuer shall be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance with the terms of
a Letter of Credit, the L/C Issuer may, in its reasonable discretion, either accept and make payment
upon such documents without responsibility for further investigation, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance with the terms of
such Letter of Credit.
The Participating Interests.
in issuing the relevant Letter of Credit), by its acceptance hereof, severally agrees to purchase from
the L/C Issuer, and the L/C Issuer hereby agrees to sell to each such Lender (a
“Participating
Lender”
), an undivided percentage participating interest (a
“Participating Interest”)
, to the extent
of its Revolver Percentage, in each Letter of Credit issued by, and each Reimbursement Obligation
owed to, the L/C Issuer. Upon any failure by the Borrower to pay any Reimbursement Obligation
at the time required on the date the related drawing is to be paid, as set forth in Section 2.3(c)
above, or if the L/C Issuer is required at any time to return to the Borrower or to a trustee, receiver,
liquidator, custodian or other Person any portion of any payment of any Reimbursement
Obligation, each Participating Lender shall, not later than the Business Day it receives a certificate
in the form of Exhibit A hereto from the L/C Issuer (with a copy to the Administrative Agent) to
such effect, if such certificate is received before 1:00 p.m. (Chicago time), or not later than
1:00 p.m. (Chicago time) the following Business Day, if such certificate is received after such
time, pay to the Administrative Agent for the account of the L/C Issuer an amount equal to such
Participating Lender’s Revolver Percentage of such unpaid or recaptured Reimbursement
Obligation together with interest on such amount accrued from the date the related payment was
made by the L/C Issuer to the date of such payment by such Participating Lender at a rate per
annum equal to: (i) from the date the related payment was made by the L/C Issuer to the date two
(2) Business Days after payment by such Participating Lender is due hereunder, at the greater of
the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation for each such day and (ii) from the date two
(2) Business Days after the date such payment is due from such Participating Lender to the date
such payment is made by such Participating Lender, the Base Rate in effect for each such day.
Each such Participating Lender shall thereafter be entitled to receive its Revolver Percentage of
each payment received in respect of the relevant Reimbursement Obligation and of interest paid
thereon, with the L/C Issuer retaining its Revolver Percentage thereof as a Lender hereunder. The
several obligations of the Participating Lenders to the L/C Issuer under this Section shall be
absolute, irrevocable, and unconditional under any and all circumstances whatsoever and shall not
be subject to any set-off, counterclaim or defense to payment which any Participating Lender may
have or have had against the Borrower, the L/C Issuer, the Administrative Agent, any Lender or
any other Person whatsoever. Without limiting the generality of the foregoing, such obligations
shall not be affected by any Default or by any reduction or termination of any Commitment of any
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Lender, and each payment by a Participating Lender under this Section shall be made without any
offset, abatement, withholding or reduction whatsoever.
Indemnification.
Revolver Percentages, indemnify the L/C Issuer (to the extent not reimbursed by the Borrower)
against any cost, expense (including reasonable counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from such L/C Issuer’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction by final and nonappealable
judgment) that the L/C Issuer may suffer or incur in connection with any Letter of Credit issued
by it. The obligations of the Participating Lenders under this subsection (f) and all other parts of
this Section shall survive termination of this Agreement and of all Applications, Letters of Credit,
and all drafts and other documents presented in connection with drawings thereunder.
Manner of Requesting a Letter of Credit.
(5) Business Days’ advance written notice to the Administrative Agent of each request for the
issuance of a Letter of Credit, such notice in each case to be accompanied by an Application for
such Letter of Credit properly completed and executed by the Borrower and, in the case of an
extension or amendment or an increase in the amount of a Letter of Credit, a written request
therefor, in a form acceptable to the Administrative Agent and the L/C Issuer, in each case,
together with the fees called for by this Agreement. The Administrative Agent shall promptly
notify the L/C Issuer of the Administrative Agent’s receipt of each such notice (and
the L/C Issuer
shall be entitled to assume that the conditions precedent to any such issuance, extension,
amendment or increase have been satisfied unless notified to the contrary by the Administrative
Agent or the Required Lenders) and the L/C Issuer shall promptly notify the Administrative Agent
and the Lenders of the issuance of the Letter of Credit so requested.
Replacement of the L/C Issuer
. The L/C Issuer may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced L/C Issuer, and the
successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement
of the L/C Issuer. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced L/C Issuer. From and after the effective
date of any such replacement (i) the successor L/C Issuer shall have all the rights and obligations
of the L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any
previous L/C Issuer, or to such successor and all previous L/C Issuers, as the context shall require.
After the replacement of a L/C Issuer hereunder, the replaced L/C Issuer shall remain a party
hereto and shall continue to have all the rights and obligations of a L/C Issuer under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.
Section 2.4. Applicable Interest Rates.
Base Rate Loans.
interest (computed on the basis of a year of 365 or 366 days, as the case may be (360 days, in the
case of clause (c) of the definition of Base Rate relating to the LIBOR Quoted Rate), and the actual
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days elapsed on the unpaid principal amount thereof from the date such Loan is advanced, or
created by conversion from a Eurodollar Loan, until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate from
time to time in effect, payable by the Borrower on each Interest Payment Date and at maturity
(whether by acceleration or otherwise).
Eurodollar Loans.
interest during each Interest Period it is outstanding (computed on the basis of a year of 360 days
and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is
advanced or continued, or created by conversion from a Base Rate Loan, until maturity (whether
by acceleration or otherwise) at a rate per annum equal to the sum of the Applicable Margin plus
the Adjusted LIBOR applicable for such Interest Period, payable by the Borrower on each Interest
Payment Date and at maturity (whether by acceleration or otherwise).
Rate Determinations.
applicable to the Loans and the Reimbursement Obligations hereunder, and its determination
thereof shall be conclusive and binding except in the case of manifest error.
Section 2.5. Minimum Borrowing Amounts; Maximum Eurodollar Loans
. Each
Borrowing of Base Rate Loans advanced under a Facility shall be in an amount not less than
$100,000. Each Borrowing of Eurodollar Loans advanced, continued or converted under a Facility
shall be in an amount equal to $1,000,000 or such greater amount which is an integral multiple of
$500,000. Without the Administrative Agent’s consent, there shall not be more than ten (10)
Borrowings of Eurodollar Loans outstanding hereunder at any one time.
Section 2.6. Manner of Borrowing Loans and Designating Applicable Interest Rates.
Notice to the Administrative Agent.
Administrative
Agent by no later than 12:00 noon (Chicago time): (i) at least three (3) Business
Days before the date on which the Borrower requests the Lenders to advance a Borrowing of
Eurodollar Loans and (ii) on the date the Borrower requests the Lenders to advance a Borrowing
of Base Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type
of rate specified in such notice of a new Borrowing. Thereafter, subject to the terms and conditions
hereof, the Borrower may from time to time elect to change or continue the type of interest rate
borne by each Borrowing or, subject to the minimum amount requirement for each outstanding
Borrowing set forth in Section 2.5, a portion thereof, as follows: (i) if such Borrowing is of
Eurodollar Loans, on the last day of the Interest Period applicable thereto, the Borrower may
continue part or all of such Borrowing as Eurodollar Loans or convert part or all of such Borrowing
into Base Rate Loans or (ii) if such Borrowing is of Base Rate Loans, on any Business Day, the
Borrower may convert all or part of such Borrowing into Eurodollar Loans for an Interest Period
or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting
the advance, continuation or conversion of a Borrowing to the Administrative
Agent by telephone,
telecopy, or other telecommunication device acceptable to the Administrative Agent (which notice
shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing in a
manner acceptable to the Administrative Agent), substantially in the form attached hereto as
Exhibit B (Notice of Borrowing) or Exhibit C (Notice of Continuation/Conversion), as applicable,
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or in such other form acceptable to the Administrative
Agent. Notice of the continuation of a
Borrowing of Eurodollar Loans for an additional Interest Period or of the conversion of part or all
of a Borrowing of Base Rate Loans into Eurodollar Loans must be given by no later than
12:00 noon (Chicago time) at least three (3) Business Days before the date of the requested
continuation or conversion. All such notices concerning the advance, continuation or conversion
of a Borrowing shall specify the date of the requested advance, continuation or conversion of a
Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be
advanced, continued or converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans, the Interest Period
applicable thereto. Upon notice to the Borrower by the Administrative Agent or the Required
Lenders (or, in the case of an Event of Default under Section 9.1(j) or 9.1(k) with respect to the
Borrower, without notice), no Borrowing of Eurodollar Loans shall be advanced, continued, or
created by conversion if any Default then exists. The Borrower agrees that the Administrative
Agent may rely on any such telephonic, telecopy or other telecommunication notice given by any
person the Administrative Agent in good faith believes is an Authorized Representative without
the necessity of independent investigation, and in the event any such notice by telephone conflicts
with any written confirmation such telephonic notice shall govern if the Administrative Agent has
acted in reliance thereon.
Notice to the Lenders
. The Administrative Agent shall give prompt telephonic,
telecopy or other telecommunication notice to each Lender of any notice from the Borrower
received pursuant to Section 2.6(a) above and, if such notice requests the Lenders to make
Eurodollar Loans, the Administrative Agent shall give notice to the Borrower and each Lender by
like means of the interest rate applicable thereto promptly after the Administrative Agent has made
such determination.
Borrower’s Failure to Notify.
If the Borrower fails to give notice pursuant to
Section 2.6(a) above of the continuation or conversion of any outstanding principal amount of a
Borrowing of Eurodollar Loans before the last day of its then current Interest Period within the
period required by Section 2.6(a) and such Borrowing is not prepaid in accordance with
Section 2.8(a), such Borrowing shall automatically be converted into a Borrowing of Base Rate
Loans. In the event the Borrower fails to give notice pursuant to Section 2.6(a) above of a
Borrowing equal to the amount of a Reimbursement Obligation and has not notified the
Administrative Agent by 12:00 noon (Chicago time) on the day such Reimbursement Obligation
becomes due that it intends to repay such Reimbursement Obligation through funds not borrowed
under this Agreement, the Borrower shall be deemed to have requested a Borrowing of Base Rate
Loans under the Revolving Facility (or, at the option of the Swingline Lender, under the Swingline)
on such day in the amount of the Reimbursement Obligation then due, which Borrowing shall be
applied to pay the Reimbursement Obligation then due.
Disbursement of Loans
. Not later than 2:00 p.m. (Chicago time) on the date of any
requested advance of a new Borrowing, subject to Section 7, each Lender shall make available its
Loan comprising part of such Borrowing in funds immediately available at the principal office of
the Administrative Agent in Chicago, Illinois (or at such other location as the Administrative Agent
shall designate). The Administrative Agent shall make the proceeds of each new Borrowing
available to the Borrower at the Administrative Agent’s principal office in Chicago, Illinois (or at
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such other location as the Administrative Agent shall designate), by depositing or wire transferring
such proceeds to the credit of the Borrower’s Designated Disbursement Account or as the
Borrower and the Administrative Agent may otherwise agree.
Administrative Agent Reliance on Lender Funding.
shall have been notified by a Lender prior to (or, in the case of a Borrowing of Base Rate Loans,
by 1:00 p.m. (Chicago time) on) the date on which such Lender is scheduled to make payment to
the Administrative Agent of the proceeds of a Loan (which notice shall be effective upon receipt)
that such Lender does not intend to make such payment, the Administrative Agent may assume
that such Lender has made such payment when due and the Administrative Agent may in reliance
upon such assumption (but shall not be required to) make available to the Borrower the proceeds
of the Loan to be made by such Lender and, if any Lender has not in fact made such payment to
the Administrative Agent, such Lender shall, on demand, pay to the Administrative Agent the
amount made available to the Borrower attributable to such Lender together with interest thereon
in respect of each day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Lender pays such amount to the
Administrative Agent at a rate per annum equal to: (i) from the date the related advance was made
by the Administrative Agent to the date two (2) Business Days after payment by such Lender is
due hereunder, the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation for each such day and
(ii) from the date two (2) Business Days after the date such payment is due from such Lender to
the date such payment is made by such Lender, the Base Rate in effect for each such day. If such
amount is not received from such Lender by the Administrative Agent immediately upon demand,
the Borrower will, on demand, repay to the Administrative Agent the proceeds of the Loan
attributable to such Lender with interest thereon at a rate per annum equal to the interest rate
applicable to the relevant Loan, but without such payment being considered a payment or
prepayment of a Loan under Section 4.5 so that the Borrower will have no liability under such
Section with respect to such payment. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that shall have failed to make such payment
to the Administrative Agent.
.
Revolving Loans.
paid, shall mature and be due and payable by the Borrower on the Revolving Credit Termination
Date.
Swingline Loans
. Each Swingline Loan, both for principal and interest not sooner
paid, shall mature and be due and payable by the Borrower on the Revolving Credit Termination
Date.
Section 2.8. Prepayment.
(a)
. The Borrower may prepay in whole or in part (but, if in part, then: (i) if
such Borrowing is of Base Rate Loans, in an amount not less than $100,000, (ii) if such Borrowing
is of Eurodollar Loans, in an amount not less than $500,000, and (iii) in each case, in an amount
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such that the minimum amount required for a Borrowing pursuant to Sections 2.2(b) and 2.5
remains outstanding) upon not less than three (3) Business Days prior notice by the Borrower to
the Administrative Agent in the case of any prepayment of a Borrowing of Eurodollar Loans and
notice delivered by the Borrower to the Administrative Agent no later than 12:00 noon (Chicago
time) on the date of prepayment in the case of a Borrowing of Base Rate Loans (or, in any case,
such shorter period of time then agreed to by the Administrative Agent), such prepayment to be
made by the payment of the principal amount to be prepaid and, in the case of any Incremental
Term Loans, any Eurodollar Loans or Swingline Loans, accrued interest thereon to the date fixed
for prepayment plus any amounts due the Lenders under Section 4.5.
Mandatory
. (i) The Borrower shall, on each date the Revolving Credit Commitments
are reduced pursuant to Section 2.11, prepay the Swingline Loans, Revolving Loans, and, if
necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the
aggregate principal amount of Swingline Loans, Revolving Loans, and L/C Obligations then
outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
to make a Disposition (other than a Disposition permitted pursuant to Section 8.10 hereof) or shall
suffer an Event of Loss with respect to any Property, then the Borrower shall promptly notify the
Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the
estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof)
and, promptly upon receipt by the Borrower or such Subsidiary of the Net Cash Proceeds of such
Disposition or Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount
equal to 100% of the amount of all such Net Cash Proceeds;
provided
then exists, this subsection shall not require any such prepayment with respect to Net Cash
Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied
to replace or restore the relevant Property in accordance with the relevant Collateral Documents,
(y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds
received on account of Dispositions during any fiscal year of the Borrower not exceeding
$10,000,000 in the aggregate so long as no Default then exists, and (z) in the case of any
Disposition not covered by clause (y) above, so long as no Default then exists, if the Borrower
states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest,
within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to
the assets which were subject to such Disposition, then the Borrower shall not be required to make
a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent
such Net Cash Proceeds are actually reinvested in such similar assets with such 180-day period.
Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent
whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar
assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall
promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The
amount of each such prepayment shall be applied, subject to Section 2.8(b)(v) below, first to the
outstanding Incremental Term Loans, if any, on a ratable basis based on the outstanding principal
amounts thereof, and then to the Revolving Facility, but without a reduction of the Revolving
Credit Commitments. If the Administrative Agent or the Required Lenders so request, all proceeds
of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent)
and held by it in the Collateral Account. So long as no Default exists, the Administrative Agent
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is authorized to disburse amounts representing such proceeds from the Collateral Account to or at
the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding
or restoring such Property.
securities (whether common or preferred stock or otherwise), other than Excluded Equity
Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash
Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary
in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash
Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal
to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be
applied, subject to Section 2.8(b)(v) below, first to the outstanding Incremental Term Loans, if
any, on a ratable basis based on the outstanding principal amounts thereof, and then to the
Revolving Facility, but without a reduction of the Revolving Credit Commitments. The Borrower
acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders
for any breach of Section 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control)
or any other terms of the Loan Documents.
other than Indebtedness permitted by Section 8.7, the Borrower shall promptly notify the
Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or
for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by
the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay
the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
The amount of each such prepayment shall be applied, subject to Section 2.8(b)(v) below, first to
the outstanding Incremental Term Loans, if any, on a ratable basis based on the outstanding
principal amounts thereof, and then to the Revolving Facility, but without a reduction of the
Revolving Credit Commitments. The Borrower acknowledges that its performance hereunder
shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 or any other
terms of the Loan Documents.
Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof
with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest
Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment
of the principal amount to be prepaid and, in the case of any Incremental Term Loans, Eurodollar
Loans or Swingline Loans, accrued interest thereon to the date of prepayment together with any
amounts due the Lenders under Section 4.5. Each prefunding of L/C Obligations shall be made in
accordance with Section 9.4.
Revolving Credit Termination Date may, subject to the terms and conditions of this Agreement,
be borrowed, repaid and borrowed again. No amount of the Incremental Term Loans, if any, paid
or prepaid may be reborrowed, and, in the case of any partial prepayment, such prepayment shall
be applied to the remaining payments on all Incremental Term Loans in inverse order of maturity.
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Section 2.9. Default Rate.
Notwithstanding anything to the contrary contained herein,
while any Event of Default exists or after acceleration, the Borrower shall pay interest (after as
well as before entry of judgment thereon to the extent permitted by law) on the principal amount
of all Loans and Reimbursement Obligations, letter of credit fees and other amounts at a rate per
annum equal to:
the Base Rate, the sum of 2.0%
plus
the Applicable Margin
plus
the Base Rate from time
to time in effect;
Administrative Agent’s Quoted Rate, the sum of 2.0%
plus
the rate of interest in effect
thereon at the time of such Event of Default until the end of the Interest Period applicable
thereto and, thereafter, at a rate per annum equal to the sum of 2.0%
plus
the Applicable
Margin for Base Rate Loans
plus
the Base Rate from time to time in effect;
plus
the amounts due
under Section 2.3 with respect to such Reimbursement Obligation;
plus
the L/C Participation Fee due
under Section 3.1(b) with respect to such Letter of Credit; and
(d) above, the sum of 2%
plus
plus
in effect;
provided, however,
that in the absence of acceleration pursuant to Section 9.2 or 9.3, any
adjustments pursuant to this Section shall be made at the election of the Administrative Agent,
acting at the request or with the consent of the Required Lenders, with written notice to the
Borrower (which election may be retroactively effective to the date of such Event of Default).
While any Event of Default exists or after acceleration, interest shall be paid on demand of the
Administrative Agent at the request or with the consent of the Required Lenders.
Section 2.10. Evidence of Indebtedness.
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time hereunder.
amount of each Loan made hereunder, the type thereof and the Interest Period with respect thereto,
(ii) the amount of any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender’s share thereof.
above shall be
prima facie
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recorded;
provided, however,
that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Obligations in accordance with their terms.
the forms of Exhibit D-1 (in the case of its Revolving Loans and referred to herein as a
“Revolving
Note”
), or D-2 (in the case of its Swingline Loans and referred to herein as a
“Swing Note”
), as
applicable (the Revolving Notes and Swing Note being hereinafter referred to collectively as the
“Notes”
“Note”
). In such event, the Borrower shall prepare, execute and
deliver to such Lender a Note payable to such Lender or its registered assigns in the amount of the
relevant Commitment, or Swingline Sublimit, as applicable. Thereafter, the Loans evidenced by
such Note or Notes and interest thereon shall at all times (including after any assignment pursuant
to Section 13.2) be represented by one or more Notes payable to the order of the payee named
therein or any assignee pursuant to Section 13.2, except to the extent that any such Lender or
assignee subsequently returns any such Note for cancellation and requests that such Loans once
again be evidenced as described in subsections (a) and (b) above.
Section 2.11. Commitment Terminations .
Optional Revolving Credit Terminations.
The Borrower shall have the right at any
time and from time to time, upon five (5) Business Days prior written notice to the Administrative
Agent (or such shorter period of time agreed to by the Administrative Agent), to terminate the
Revolving Credit Commitments without premium or penalty and in whole or in part, any partial
termination to be (i) in an amount not less than $5,000,000 or any whole multiple thereof and
(ii) allocated ratably among the Lenders in proportion to their respective Revolver Percentages,
provided that the Revolving Credit Commitments may not be reduced to an amount less than the
sum of the aggregate principal amount of Swingline Loans, Revolving Loans, and L/C Obligations
then outstanding. Any termination of the Revolving Credit Commitments below the L/C Sublimit
or the Swingline Sublimit then in effect shall reduce the L/C Sublimit and Swingline Sublimit, as
applicable, by a like amount. The Administrative Agent shall give prompt notice to each Lender
of any such termination of the Revolving Credit Commitments.
not be reinstated.
Section 2.12. Replacement of Lenders
. If any Lender requests compensation under
Section 4.4, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1
and, in each case, such Lender has declined or is unable to designate a different lending office in
accordance with Section 4.7, or if any Lender is a Defaulting Lender or a Non-Consenting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative 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 13.2), all of its
interests, rights (other than its existing rights to payments pursuant to Section 4.1 or Section 4.4)
and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that
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shall assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment);
provided
that:
fee (if any) specified in Section 13.2;
outstanding principal of its Loans and funded participations in L/C Obligations, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents (including any amounts under Section
4.5 as if the Loans owing to
it were prepaid rather than assigned) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts);
under Section 4.4 or payments required to be made pursuant to Section 4.1, such
assignment will result in a reduction in such compensation or payments thereafter;
Non-Consenting Lender, the applicable assignee shall have consented to the applicable
amendment, waiver or consent.
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 Borrower to
require such assignment and delegation cease to apply.
Section 2.13. Defaulting Lenders.
Defaulting Lender Adjustments.
in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such
Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
Waivers and Amendments
. Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in the definition of Required Lenders.
Defaulting Lender Waterfall
. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of such Defaulting
Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9 or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.7
hereto shall be applied at such time or times as may be determined by the Administrative
Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender
to the Administrative Agent hereunder;
second
, to the payment on a pro rata basis of any
amounts owing by such Defaulting Lender to any L/C Issuer or the Swingline Lender
hereunder;
third
, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to
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such Defaulting Lender in accordance with Section 2.14;
fourth
, as the Borrower may
request (so long as no Default exists), to the funding of any Loan in respect of which such
Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent;
fifth
, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to
(x) satisfy such Defaulting Lender’s potential future funding obligations with respect to
Loans under this Agreement and (y) Cash Collateralize the L/C Issuer’s future Fronting
Exposure with respect to such Defaulting Lender with respect to future Letters of Credit
issued under this Agreement, in accordance with Section 2.14;
sixth
, to the payment of any
amounts owing to the Lenders, the L/C Issuer or the Swingline Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or
the Swingline Lender against such Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement;
seventh
, so long as no Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment
of a court of competent jurisdiction obtained by the Borrower against such Defaulting
Lender as a result of such Defaulting Lender’s breach of its obligations under this
Agreement; and
eighth
, to such Defaulting Lender or as otherwise directed by a court of
competent jurisdiction;
provided
amount of any Loans or L/C Obligations in respect of which such Defaulting Lender has
not fully funded its appropriate share, and (y) such Loans were made or the related Letters
of Credit were issued at a time when the conditions set forth in Section 7.1 were satisfied
or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations
owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the
payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such
time as all Loans and funded and unfunded participations in L/C Obligations and Swingline
Loans are held by the Lenders pro rata in accordance with their Percentages of the relevant
Commitments without giving effect to Section 2.13(a)(iv) below. Any payments,
prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to
this Section 2.13(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.
Certain Fees
.
fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been
required to have been paid to that Defaulting Lender).
Fees for any period during which that Lender is a Defaulting Lender only to the
extent allocable to its Percentage of the stated amount of Letters of Credit for which
it has provided Cash Collateral pursuant to Section 2.14.
any Defaulting Lender pursuant to clause (B) above, the Borrower shall (x) pay to
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each Non-Defaulting Lender that portion of any such fee otherwise payable to such
Defaulting Lender with respect to such Defaulting Lender’s participation in
L/C Obligations or Swingline Loans that has been reallocated to such
Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each L/C Issuer
and Swingline Lender, as applicable, the amount of any such fee otherwise payable
to such Defaulting Lender to the extent allocable to such L/C Issuer’s or Swingline
Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to
pay the remaining amount of any such fee.
Reallocation of Participations to Reduce Fronting Exposure
. All or any
part of such Defaulting Lender’s participation in L/C Obligations and Swingline Loans
shall be reallocated among the Non-Defaulting Lenders in accordance with their respective
Percentages of the relevant Commitments (calculated without regard to such Defaulting
Lender’s Commitments) but only to the extent that (x) the conditions set forth in
Section 7.1 are satisfied at the time of such reallocation (and, unless the Borrower shall
have otherwise notified the Administrative Agent at such time, the Borrower 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 Loans and interests in
L/C Obligations and Swingline Loans of any Non-Defaulting Lender to exceed such
Non-Defaulting Lender’s Revolving Credit Commitment. Subject to Section 13.21, 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.
Cash Collateral; Repayment of Swingline Loans
. If the reallocation
described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall,
without prejudice to any right or remedy available to them hereunder or under law, (x) first,
prepay Swingline Loans in an amount equal to the Swing Lender’s Fronting Exposure and
(y) second, Cash Collateralize the L/C Issuer’s Fronting Exposure in accordance with the
procedures set forth in Section 2.14.
Defaulting Lender Cure
. If the Borrower, the Administrative Agent, the Swingline
Lender and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified
in such notice and subject to any conditions set forth therein (which may include arrangements
with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that
portion of outstanding Loans of the other Lenders or take such other actions as the Administrative
Agent may determine to be necessary to cause the Loans and funded and unfunded participations
in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with
their respective Percentages of the relevant Commitments (without giving effect to
Section 2.13(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided
no adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and
provided
,
further
, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
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Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender’s having been a Defaulting Lender.
New Swingline Loans/Letters of Credit
. So long as any Lender is a Defaulting
Lender, (i) the Swingline Lender shall not be required to fund any Swingline Loans unless it is
satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan and
(ii) no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless
it is satisfied that it will have no Fronting Exposure after giving effect thereto.
Section 2.14. Cash Collateral for Fronting Exposure.
At any time that there shall exist a
Defaulting Lender, within one (1) Business Day following the written request of the
Administrative Agent or any L/C Issuer (with a copy to the Administrative Agent) the Borrower
shall Cash Collateralize the L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender
(determined after giving effect to Section 2.13(a)(iv) and any Cash Collateral provided by such
Defaulting Lender) in an amount not less than the Minimum Collateral Amount.
Grant of Security Interest
. The Borrower, and to the extent provided by any
Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the
benefit of the L/C Issuers, and agree to maintain, a first priority security interest in all such Cash
Collateral as security for such Defaulting Lender’s obligation to fund participations in respect of
L/C Obligations, to be applied pursuant to clause (b) below. If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other than the
Administrative Agent and the L/C Issuers as herein provided, or that the total amount of such Cash
Collateral is less than the Minimum Collateral Amount, the Borrower shall, promptly upon demand
by the Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash
Collateral provided by the Defaulting Lender).
Application
. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.14 or Section 2.13 in respect of Letters of Credit
shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in
respect of L/C Obligations (including, as to Cash Collateral provided by a Defaulting Lender, any
interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any
other application of such property as may otherwise be provided for herein.
Termination of Requirement
. Cash Collateral (or the appropriate portion thereof)
provided to reduce any L/C Issuer’s Fronting Exposure shall no longer be required to be held as
Cash Collateral pursuant to this Section 2.14(c) following (A) the elimination of the applicable
Fronting Exposure (including by the termination of Defaulting Lender status of the applicable
Lender), or (B) the determination by the Administrative Agent and each L/C Issuer that there exists
excess Cash Collateral;
provided
Collateral and each L/C Issuer may agree that Cash Collateral shall be held to support future
anticipated Fronting Exposure or other obligations; and
provided further
that to the extent that
such Cash Collateral was provided by the Borrower or any other Loan Party, such Cash Collateral
shall remain subject to the security interest granted pursuant to the Loan Documents.
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Section 2.15. Increase in Revolving Credit Commitments; Making of Incremental Term
Loans.
The Borrower may, on any Business Day prior to the Revolving Credit Termination Date,
with the written consent of the Administrative Agent, the L/C Issuer, and the Swingline Lender,
increase the aggregate amount of the Revolving Credit Commitments and/or borrow one or more
term loans (collectively, the “
Incremental Term Loans
”), in each case, by delivering an Increase
Request substantially in the form attached hereto as Exhibit I (or in such other form acceptable to
the Administrative Agent) to the Administrative Agent at least five (5) Business Days prior to the
desired effective date of such increase (the
“Increase”
) identifying an additional Lender, which
qualifies as an Eligible Assignee (or additional Revolving Credit Commitments or a commitment
to make Incremental Term Loans for an existing Lender) and the amount of its Revolving Credit
Commitment or Incremental Term Loan (or, for an existing Lender, the amount of additional
Revolving Credit Commitments or the amount of a commitment to make Incremental Term
Loans);
provided, however
, that:
and any such Increase shall be in an amount not less than $10,000,000 (or such lesser
amount then agreed to by the Administrative Agent);
or the effective date of the Increase and after giving pro forma effect to the use of proceeds
thereof; and
other Loan Documents shall be and remain true and correct in all material respects on the
effective date of such Increase (where not already qualified by materiality, otherwise in all
respects), except to the extent the same expressly relate to an earlier date, in which case
they shall be true and correct in all material respects (where not already qualified by
materiality, otherwise in all respects)
as of such earlier date.
The effective date (the
“Increase Date”
) of the Increase shall be agreed upon by the Borrowers,
the Administrative Agent and the Lender(s) providing such Increase. Upon the Increase Date,
Schedule 2.1/2.2 shall be deemed amended to reflect the Increase. With respect to an Increase in
the Revolving Credit Commitments as described above, on the Increase Date, the new Revolving
Lender(s) (or, if applicable, existing Lender(s)) shall advance Revolving Loans, as applicable, in
an amount sufficient such that after giving effect to such advance(s) or loan(s) and the prepayment
of Revolving Loans by any Lender(s) whose commitment is not increased, each Lender shall have
outstanding its Revolver Percentage of Revolving Loans. It shall be a condition to such
effectiveness that (A) if any Eurodollar Loans are outstanding on the date of such effectiveness,
such Eurodollar Loans shall be deemed to be prepaid on such date and the Borrower shall pay any
amounts owing to the Lenders pursuant to Section 4.5 and (B) the Borrower shall not have
terminated any portion of the Revolving Credit Commitments pursuant to Section 2.11. The
Borrower agrees to pay the expenses of the Administrative Agent (including reasonable attorney’s
fees) relating to any Increase. Notwithstanding anything herein to the contrary, no Lender shall
have any obligation to increase its Revolving Credit Commitment or to make any Incremental
Term Loan and no Lender’s Revolving Credit Commitment shall be increased without its consent
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thereto, and each Lender may at its option, unconditionally and without cause, decline to provide
any Increase.
Each Revolving Credit Increase shall be on the same terms (including pricing and maturity, but
excluding customary arrangement, commitment, structuring and underwriting fees, and
amendment fees not generally shared with other Lenders with respect to such Revolving Credit
Increase) as the Revolving Credit Commitments outstanding prior to the Increase Date. Each
Incremental Term Loan shall be on terms and conditions specified in an Incremental Amendment.
Commitments in respect of Incremental Term Loans and increases in the Revolving Credit
Commitment shall become commitments (or in the case of an increase in the Revolving Credit
Commitment to be provided by an existing Lender, an increase in such Lender’s applicable
Revolving Credit Commitment) under this Agreement pursuant to an amendment (an
“Incremental
Amendment”
) to this Agreement and, as appropriate, the other Loan Documents, executed by the
Borrowers, each existing Lender agreeing to provide such Increase, if any, each additional Lender,
if any, and the Administrative Agent. The Incremental Amendment may, without the consent of
any other Lenders, 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
Borrowers, to effect the provisions of this Section 2.15.
(a) The Borrower may, by written notice to the
Administrative Agent from time to time, request an extension (each, an “
Extension
”) of the
Revolving Credit Termination Date and/or, if applicable, any maturity date applicable to any
Incremental Term Loan to the extended maturity date specified in such request. Such notice shall
set forth (i) the amount of the Revolving Credit Commitments and/or Incremental Term Loans to
be extended (which shall be in minimum increments of $5,000,000 and a minimum of
$10,000,000) and (ii) the date on which such Extension is requested to become effective (which
date shall not be less than ten (10) Business Days nor more than sixty (60) days after after the date
of such requested Extension (or such longer or shorter periods as the Administrative Agent shall
agree). Each Lender shall be offered (an “
Extension Offer
”) an opportunity to participate in such
Extension on a pro rata basis and on the same terms and conditions as each other Lender pursuant
to procedures established by, or reasonably acceptable to, the Administrative Agent. Any Lender
approached to participate in such Extension may elect or decline, in its sole discretion, to
participate in such Extension (it being understood that if a Lender shall fail to respond to any
request for participation in an Extension within five (5) Business Days of receipt of the Extension
Offer, such Lender shall be deemed to have declined to participate in such Extension). If the
aggregate principal amount of Revolving Credit Commitments or Incremental Term Loans,
(calculated on the face amount thereof), as applicable, in respect of which Lenders shall have
accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of
the Revolving Credit Commitment or Incremental Term Loan, as applicable, requested to be
extended by the Borrower pursuant to the Extension Offer, then the Revolving Credit
Commitments or Incremental Term Loans, as applicable of the 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.
-47-
Default shall have occurred and be continuing immediately prior to and immediately after giving
effect to such Extension, (ii) the representations and warranties of the Borrower and each other
Loan Party contained in Section 6 or 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 (and in all respects if any such representation or warranty is already
qualified by materiality or reference to Material Adverse Effect) on and as of the date of such
Extension, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case, they shall be true and correct in all material respects (and in all respects
if any such representation or warranty is already qualified by materiality or reference to Material
Adverse Effect) as of such earlier date, (iii) the L/C Issuer and the Swingline Lender shall have
consented to any Extension of the Revolving Credit Commitments if such Extension provides for
the issuance of Letters of Credit or the making of Swingline Loans at any time during the extended
period, and (iv) the terms of such Extension shall comply with Section 2.16(c).
extending Lenders and be set forth in an Additional Credit Extension Amendment, provided, that
(i) the final maturity date of any Extended Revolving Credit Commitment or Extended Incremental
Term Loan shall be no earlier than the Revolving Credit Termination Date or the maturity date
applicable to the existing Incremental Term Loans, (ii)(A) there shall be no scheduled amortization
of the Extended Revolving Credit Commitments and (B) the scheduled amortization of the
Extended Incremental Term Loans shall be as agreed among the Borrower and the Lenders
providing such Extended Incremental Term Loans, (iii)(A) the Extended Revolving Loans and the
Extended Incremental Term Loans will rank pari passu in right of payment with the Revolving
Loans and the Incremental Term Loans being extended, and (B) the borrower and the guarantors
of the Extended Revolving Credit Commitments or the Extended Incremental Term Loans, as
applicable, shall be the Borrower and the Guarantors, (iv) the interest rate margins and fees
applicable to any Extended Revolving Credit Commitments (and the Extended Revolving Loans
thereunder) and Extended Incremental Loans shall be determined by the Borrower and the
applicable extending Lenders, and (v) to the extent the terms of the Extended Revolving Credit
Commitments or Extended Incremental Term Loans are inconsistent with the terms set forth herein
(except as set forth in clauses (i) through (iv) above), such terms shall be reasonably satisfactory
to the Administrative Agent.
applicable extending Lender shall execute and deliver to the Administrative Agent an Additional
Credit Extension Amendment and such other documentation as the Administrative Agent shall
reasonably specify to evidence the Extension. The Administrative Agent shall promptly notify
each Lender as to the effectiveness of each Extension. Notwithstanding anything herein to the
contrary, any Additional Credit Extension Amendment may, without the consent of any other
Lender, effect such amendment to this Agreement and the other Loan Documents as may be
necessary or appropriate (but only to such extent), in the reasonable opinion of the Administrative
Agent and the Borrower, to implement the terms of any such Extension Offer, including any
amendments necessary to establish Extended Revolving Credit Commitments or Extended
Incremental Term Loans as a new tranche of Revolving Credit Commitments or Incremental Term
Loan, as applicable, and such other technical amendments as may be necessary or appropriate in
-48-
the reasonable opinion of the Administrative Agent and the Borrower in connection with the
establishment of such new tranche (including to preserve the pro rata treatment of the extended
and non-extended tranches and to provide for the reallocation of any L/C Obligations or
obligations under Swingline Loans upon the expiration or termination of the commitments under
any tranche), in each case on terms consistent with this Section 2.16.
S
ECTION
EES
.
Section 3.1. Fees.
Revolving Credit Commitment Fee
. The Borrower shall pay to the Administrative
Agent for the ratable account of the Lenders in accordance with their Revolver Percentages a
commitment fee at the rate per annum equal to the Applicable Margin (computed on the basis of a
year of 360 days and the actual number of days elapsed) times the daily amount by which the
aggregate Revolving Credit Commitments exceeds the principal amount of Revolving Loans and
L/C Obligations then outstanding. For the avoidance of doubt, the principal amount of Swingline
Loans shall not be counted towards or considered usage of the Revolving Credit Commitments for
purposes of this Section. Such commitment fee shall be payable quarterly in arrears on the last
day of each March, June, September, and December in each year (commencing on the first such
date occurring after the Closing Date) and on the Revolving Credit Termination Date, unless the
Revolving Credit Commitments are terminated in whole on an earlier date, in which event the
commitment fee for the period to the date of such termination in whole shall be paid on the date
of such termination.
Letter of Credit Fees.
of any Letter of Credit pursuant to Section 1.3, the Borrower shall pay to the L/C Issuer for its own
account a fronting fee equal to 0.125% of the face amount of (or of the increase in the face amount
of) such Letter of Credit. Quarterly in arrears, on the last day of each March, June, September,
and December, commencing on the first such date occurring after the Closing Date, the Borrower
shall pay to the Administrative Agent, for the ratable benefit of the Lenders in accordance with
their Revolver Percentages, a letter of credit fee (the
“L/C Participation Fee”
) at a rate per annum
equal to the Applicable Margin (computed on the basis of a year of 360 days and the actual number
of days elapsed) in effect during each day of such quarter applied to the daily average face amount
of Letters of Credit outstanding during such quarter. In addition, the Borrower shall pay to the
L/C Issuer for its own account the L/C Issuer’s standard issuance, drawing, negotiation,
amendment, assignment, and other administrative fees for each Letter of Credit as established by
the L/C Issuer from time to time.
Administrative Agent Fees
. The Borrower shall pay to the Administrative Agent, for
its own use and benefit, the fees agreed to between the Administrative Agent and the Borrower in
a letter dated as of the date hereof, or as otherwise agreed to in writing between them.
-49-
S
ECTION
AXES
;
C
HANGE IN
C
IRCUMSTANCES
,
I
NCREASED
C
OSTS
,
F
UNDING
I
NDEMNITY
Certain Defined Terms.
For purposes of this Section, the term “Lender” includes any
L/C Issuer and the term “applicable law” includes FATCA.
Payments Free of Taxes.
Any and all payments by or on account of any obligation
of any Loan Party 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 and, if such
Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased
as necessary so that after such deduction or withholding has been made (including such deductions
and withholdings applicable to additional sums payable under this Section) the applicable
Recipient receives an amount equal to the sum it would have received had no such deduction or
withholding been made.
Payment of Other Taxes by the Loan Parties.
The Loan Parties shall timely pay to
the relevant Governmental Authority in accordance with applicable law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.
Indemnification by the Loan Parties.
The Loan Parties shall jointly and severally
indemnify each Recipient, within thirty (30) days after demand therefor, for the full amount of any
Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts
payable under this Section) payable or paid by such Recipient or required to be withheld or
deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by
the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
Indemnification by the Lenders.
Each Lender shall severally indemnify the
Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes
or Other Taxes attributable to such Lender (but only to the extent that any Loan Party has not
already indemnified the Administrative Agent for such Indemnified Taxes or Other Taxes and
without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such
Lender’s failure to comply with the provisions of Section 13.2(d) relating to the maintenance of a
Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are
payable or paid by the Administrative Agent in connection with any Loan Document, and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
-50-
to the amount of such payment or liability delivered to any Lender by the Administrative Agent
shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative
Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan
Document or otherwise payable by the Administrative Agent to the Lender from any other source
against any amount due to the Administrative Agent under this subsection (e).
Evidence of Payments.
As soon as practicable after any payment of Taxes by any
Loan Party to a Governmental Authority pursuant to this Section, such Loan Party shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction
of withholding Tax with respect to payments made under any Loan Document shall deliver to the
Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation reasonably
requested by the Borrower or the Administrative Agent as will permit such payments to be made
without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation
prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent
as will enable the Borrower or the Administrative Agent to determine whether or not such Lender
is subject to backup withholding or information reporting requirements. Notwithstanding anything
to the contrary in the preceding two sentences, the completion, execution and submission of such
documentation (other than such documentation set forth in Section 4.1(g)(ii)(A), (ii)(B) and (ii)(D)
below) shall not be required if in the Lender’s reasonable judgment such completion, execution or
submission would subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender.
Administrative Agent on or prior to the date on which such Lender becomes a Lender under
this Agreement (and from time to time thereafter upon the reasonable request of the
Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding tax;
to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), whichever of the following is
applicable:
tax treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN
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establishing an exemption from, or reduction of, U.S. federal withholding Tax
pursuant to the “interest” article of such tax treaty and (y) with respect to any other
applicable payments under any Loan Document, IRS Form W-8BEN establishing
an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the
“business profits” or “other income” article of such tax treaty;
exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate
substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is
not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code (a
“U.S. Tax Compliance Certificate”
) and (y) executed originals of IRS
Form W-8BEN; or
originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of
Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents
from each beneficial owner, as applicable;
provided
that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are
claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf
of each such direct and indirect partner;
to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign Lender becomes
a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), executed originals of any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to be made; and
to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in
Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower and the Administrative Agent at the time or times prescribed by law and at such
time or times reasonably requested by the Borrower or the Administrative Agent such
documentation prescribed by applicable law (including as prescribed by
Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably
requested by the Borrower or the Administrative Agent as may be necessary for the
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Borrower and the Administrative Agent to comply with their obligations under FATCA
and to determine that such Lender has complied with such Lender’s obligations under
FATCA or to determine the amount to deduct and withhold from such payment. Solely for
purposes of this clause (D),
“FA
TCA”
shall include any amendments made to FATCA
after the date of this Agreement.
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 Borrower and the Administrative Agent in writing of its legal inability to do so.
Treatment of Certain Refunds.
If any party receives a refund of any Taxes as to which
it has been indemnified pursuant to this Section (including by the payment of additional amounts
pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund
(but only to the extent of indemnity payments made under this Section with respect to the Taxes
giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified
party and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund). Such indemnifying party, upon the request of such indemnified party,
shall repay to such indemnified party the amount paid over pursuant to this subsection (h) (plus
any penalties, interest or other charges imposed by the relevant Governmental Authority) in the
event that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this subsection (h), in no event will the indemnified
party be required to pay any amount to an indemnifying party pursuant to this subsection (h) the
payment of which would place the indemnified party in a less favorable net after-Tax position than
the indemnified party would have been in if the Tax subject to indemnification had not been
deducted, withheld or otherwise imposed and the indemnification payments or additional amounts
giving rise to such refund had never been paid. This subsection shall not be construed to require
any indemnified party to make available its Tax returns (or any other information relating to its
Taxes that it deems confidential) to the indemnifying party or any other Person.
Survival.
Each party’s obligations under this Section
shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a
Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all
obligations under any Loan Document.
Section 4.2. Change of Law.
any other Loan Document, if at any time any Change in Law makes it unlawful for any Lender to
make or continue to maintain any Eurodollar Loans or to perform its obligations as contemplated
hereby, such Lender shall promptly give notice thereof to the Borrower and such Lender’s
obligations to make or maintain Eurodollar Loans under this Agreement shall be suspended until
it is no longer unlawful for such Lender to make or maintain Eurodollar Loans. The Borrower
shall prepay on demand the outstanding principal amount of any such affected Eurodollar Loans,
together with all interest accrued thereon and all other amounts then due and payable to such
Lender under this Agreement;
provided, however,
Agreement, the Borrower may then elect to borrow the principal amount of the affected Eurodollar
Loans from such Lender by means of Base Rate Loans from such Lender, which Base Rate Loans
shall not be made ratably by the Lenders but only from such affected Lender.
-53-
Section 4.3. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of,
LIBOR
. (a)
Reserved
.
Replacing USD LIBOR.
On March 5, 2021 the Financial Conduct Authority
(
“FCA”
), the regulatory supervisor of USD LIBOR’s administrator (
“IBA”
), announced in a
public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-
month, 3-month, 6-month and 12- month USD LIBOR tenor settings. On the earlier of (i) the date
that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be
provided by IBA or have been announced by the FCA pursuant to public statement or publication
of information to be no longer representative and (ii) the Benchmark Replacement Date relating
to an Early Opt-in Election, if the then-current Benchmark is USD LIBOR, the Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of any setting of such Benchmark on such day and all subsequent settings
without any amendment to, or further action or consent of any other party to this Agreement or
any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest
payments will be payable on a quarterly basis.
(c) Effect of Benchmark Transition Event.
(i) Notwithstanding anything to the contrary
herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt
-
in
Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the
Reference Time in respect of any setting of the then
-
current Benchmark, then (x) if a Benchmark
Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark
Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace
such Benchmark for all purposes hereunder and under any Loan Document in respect of such
Benchmark setting and subsequent Benchmark settings without any amendment to, or further
action or consent of any other party to, this Agreement or any other Loan Document and (y) if a
Benchmark Replacement is determined in accordance with clause (3) of the definition of
“Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark
Replacement will replace such Benchmark for all purposes hereunder and under any Loan
Document in respect of any Benchmark setting at or after 5:00 p.m. (Chicago time) on the 5th
Business Day after the date notice of such Benchmark Replacement is provided to the Lenders
without any amendment to, or further action or consent of any other party to, this Agreement or
any other Loan Document so long as the Administrative Agent has not received, by such time,
written notice of objection to such Benchmark Replacement from Lenders comprising the
Required Lenders.
Document and subject to the proviso below in this paragraph, if a Term SOFR Event and
its related Benchmark Replacement Date have occurred prior to the Reference Time in
respect of any setting of the then
-
current Benchmark, then the applicable Benchmark
Replacement will replace the then
-
current Benchmark for all purposes hereunder or under
any Loan Document in respect of such Benchmark setting and subsequent Benchmark
settings, without any amendment to, or further action or consent of any other party to, this
Agreement or any other Loan Document;
provided
unless the Administrative Agent has delivered to the Lenders and the Borrower a Term
SOFR Notice.
-54-
Administrative Agent will have the right to make Benchmark Replacement Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any
other Loan Document, any amendments implementing such Benchmark Replacement
Conforming Changes will become effective without any further action or consent of any
other party to this Agreement or any other Loan Document.
Lenders of (A) any occurrence of a Benchmark Transition Event, Term SOFR Event or
Early Opt
-
in Election, as applicable, and its related Benchmark Replacement Date, (B) the
implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark
Replacement Conforming Changes, (D) the removal or reinstatement of any tenor of a
Benchmark pursuant to clause (v) below and (E) the commencement or conclusion of any
Benchmark Unavailability Period. Any determination, decision or election that may be
made by the Administrative Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 4.3(c), including any determination with respect to a tenor, rate or
adjustment or of the occurrence or non
-
occurrence of an event, circumstance or date and
any decision to take or refrain from taking any action or any selection, will be made in
good faith in its or their reasonable discretion giving due consideration to any selection or
recommendation by the Relevant Governmental Body and to any prevailing market
practices for U.S. Dollar-denominated syndicated credit facilities and shall be conclusive
and binding absent manifest error without consent from any other party to this Agreement
or any other Loan Document, except, in each case, as expressly required pursuant to this
Section 4.3(c). The parties hereto acknowledge that, on March 5, 2021, the ICE
Benchmark Administration (the
“IBA”
), the administrator of the London interbank offered
rate (
“LIBOR Rate”
), stated that as a result of its not having access to input data necessary
to calculate LIBOR Rate settings on a representative basis beyond the intended cessation
dates set forth in such statement, it would have to cease publication of all 35 LIBOR Rate
settings immediately after such dates. The IBA did not identify any successor
administrator in its announcement. The IBA also noted that the U.K. Financial Conduct
Authority (the
“FCA”
), the regulatory supervisor for the IBA, could, at a later date, use
proposed new powers to require the IBA to publish LIBOR Rate settings on a synthetic
basis. The FCA also issued a separate announcement confirming that the IBA had notified
the FCA of its intent to cease providing all LIBOR Rate settings. While the FCA stated
that, subject to the establishment of the new proposed powers, it would consult on the issue
of requiring the IBA to produce certain LIBOR Rate tenors on a synthetic basis, it
confirmed that all 35 LIBOR Rate settings will either cease to be provided by any
administrator or will no longer be representative as of the dates set forth in such statement.
Document, at any time (including in connection with the implementation of a Benchmark
Replacement), (A) if the then
-
current Benchmark is a term rate (including Term SOFR or
LIBOR) and either (1) any tenor for such Benchmark is not displayed on a screen or other
information service that publishes such rate from time to time as selected by the
Administrative Agent in good faith and in its reasonable discretion giving due
consideration to any prevailing market practice for U.S. Dollar-denominated syndicated
-55-
credit facilities or (2) the regulatory supervisor for the administrator of such Benchmark
has provided a public statement or publication of information announcing that any tenor
for such Benchmark is or will be no longer representative, then the Administrative Agent
may modify the definition of “Interest Period” for any Benchmark settings at or after such
time to remove such unavailable or non
-
representative tenor and (B) if a tenor that was
removed pursuant to clause (A) above either (1) is subsequently displayed on a screen or
information service for a Benchmark (including a Benchmark Replacement) or (2) is not,
or is no longer, subject to an announcement that it is or will no longer be representative for
a Benchmark (including a Benchmark Replacement), then the Administrative Agent may
modify the definition of “Interest Period” for all Benchmark settings at or after such time
to reinstate such previously removed tenor.
Benchmark Unavailability Period, the Borrower may revoke any request for a Borrowing
of, conversion to or continuation of Eurodollar Loans to be made, converted or continued
during any Benchmark Unavailability Period and, failing that, the Borrowers 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 or at any time that a
tenor for the then
-
current Benchmark is not an Available Tenor, the component of Base
Rate based upon the then
-
current Benchmark or such tenor for such Benchmark, as
applicable, will not be used in any determination of Base Rate.
(vii)
Certain Defined Terms
. As used in this Section 4.3(c):
respect to the then
-
current Benchmark, as applicable, any tenor for such
Benchmark or payment period for interest calculated with reference to such
Benchmark, as applicable, that is or may be used for determining the length
of an Interest Period pursuant to this Agreement as of such date and not
including, for the avoidance of doubt, any tenor for such Benchmark that is
then
-
removed from the definition of “Interest Period” pursuant to clause (v)
of this Section 4.3(c).
provided
if a Benchmark Transition Event, a Term SOFR Event or an Early Opt
-
in
Election, as applicable, and its related Benchmark Replacement Date have
occurred with respect to the LIBOR Index Rate or the then
-
current
Benchmark, then “Benchmark” means the applicable Benchmark
Replacement to the extent that such Benchmark Replacement has replaced
such prior benchmark rate pursuant to clause (i) or (ii) of this Section 4.3(c).
means, for any Available Tenor, the
first alternative set forth in the order below that can be determined by the
Administrative Agent for the applicable Benchmark Replacement Date:
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Replacement Adjustment;
Benchmark Replacement Adjustment;
selected by the Administrative Agent and the Borrower as the replacement
for the then
-
current Benchmark for the applicable Corresponding Tenor
giving due consideration to (i) any selection or recommendation of a
replacement benchmark rate or the mechanism for determining such a rate
by the Relevant Governmental Body or (ii) any evolving or then
-
prevailing
market convention for determining a benchmark rate as a replacement for
the then
-
current Benchmark for U.S. dollar
-
denominated syndicated credit
facilities at such time and (b) the related Benchmark Replacement
Adjustment;
provided
Replacement is displayed on a screen or other information service that
publishes such rate from time to time as selected by the Administrative
Agent in good faith and in its reasonable discretion giving due consideration
to any prevailing market practice for U.S. Dollar-denominated syndicated
credit facilities;
provided further
contrary in this Agreement or in any other Loan Document, upon the
occurrence of a Term SOFR Event, and the delivery of a Term SOFR
Notice, on the applicable Benchmark Replacement Date the “Benchmark
Replacement” shall revert to and shall be deemed to be the sum of (a) Term
SOFR and (b) the related Benchmark Replacement Adjustment, as set forth
in clause (1) of this definition (subject to the first proviso above).
If the Benchmark Replacement as determined pursuant to clause (1), (2) or
(3) above would be less than the Floor, the Benchmark Replacement will be
deemed to be the Floor for the purposes of this Agreement and the other
Loan Documents.
means, with respect to any
replacement of the then current Benchmark with an Unadjusted Benchmark
Replacement for any applicable Interest Period and Available Tenor for any
setting of such Unadjusted Benchmark Replacement:
“Benchmark Replacement,” the first alternative set forth in the order below
that can be determined by the Administrative Agent:
determining such spread adjustment, (which may be a positive or negative
-57-
value or zero) as of the Reference Time such Benchmark Replacement is
first set for such Interest Period that has been selected or recommended by
the Relevant Governmental Body for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement for the applicable
Corresponding Tenor;
value or zero) as of the Reference Time such Benchmark Replacement is
first set for such Interest Period that would apply to the fallback rate for a
derivative transaction referencing the ISDA Definitions to be effective upon
an index cessation event with respect to such Benchmark for the applicable
Corresponding Tenor; and
Replacement,” the spread adjustment, or method for calculating or
determining such spread adjustment, (which may be a positive or negative
value or zero) that has been selected by the Administrative Agent and the
Borrower for the applicable Corresponding Tenor giving due consideration
to (i) any selection or recommendation of a spread adjustment, or method
for calculating or determining such spread adjustment, for the replacement
of such Benchmark with the applicable Unadjusted Benchmark
Replacement by the Relevant Governmental Body on the applicable
Benchmark Replacement Date and/or (ii) any evolving or then-prevailing
market convention for determining a spread adjustment, or method for
calculating or determining such spread adjustment, for the replacement of
such Benchmark with the applicable Unadjusted Benchmark Replacement
for U.S. dollar denominated syndicated credit facilities;
provided
on a screen or other information service that publishes such Benchmark
Replacement Adjustment from time to time as selected by the
Administrative Agent in its reasonable discretion.
respect to any Benchmark Replacement, any technical, administrative or
operational changes (including changes to the definition of “Base Rate,” the
definition of “Business Day,” the definition of “Interest Period,” the timing
and frequency of determining rates and making payments of interest, the
timing of borrowing requests or prepayment, conversion or continuation
notices, the length of lookback periods, the applicability of breakage
provisions, and other technical, administrative or operational matters) that
the Administrative Agent reasonably decides may be appropriate to reflect
the adoption and implementation of such Benchmark Replacement and to
permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative
Agent in good faith decides that adoption of any portion of such market
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practice is not administratively feasible or if the Administrative Agent
determines in good faith that no market practice for the administration of
such Benchmark Replacement exists, in such other manner of
administration as the Administrative Agent in good faith decides is
reasonably necessary in connection with the administration of this
Agreement and the other Loan Documents).
following events with respect to the then-current Benchmark:
“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 such Benchmark (or the published component
used in the calculation thereof) permanently or indefinitely ceases to
provide all Available Tenors of such Benchmark (or such component
thereof);
Transition Event,” the date of the public statement or publication of
information referenced therein;
after the date a Term SOFR Notice is provided to the Lenders and the
Borrower pursuant to this Section 4.3(c)(ii); or
-
in Election, the 6th Business Day
after the date notice of such Early Opt
-
in Election is provided to the
Lenders, so long as the Administrative Agent has not received, by 5:00 p.m.
(Chicago time) on the 5th Business Day after the date notice of such Early
Opt
-
in Election is provided to the Lenders, written notice of objection to
such Early Opt
-
in Election from Lenders comprising the Required Lenders.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark
Replacement Date occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date
will be deemed to have occurred prior to the Reference Time for such
determination and (ii) the “Benchmark Replacement Date” will be deemed
to have occurred in the case of clause (1) or (2) with respect to any
Benchmark upon the occurrence of the applicable event or events set forth
therein with respect to all then
-
current Available Tenors of such Benchmark
(or the published component used in the calculation thereof).
means the occurrence of one or
more of the following events with respect to the then
-
current Benchmark:
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behalf of the administrator of such Benchmark (or the published component
used in the calculation thereof) announcing that such administrator has
ceased or will cease to provide all Available Tenors of such Benchmark (or
such component thereof), permanently or indefinitely;
provided
time of such statement or publication, there is no successor administrator
that will continue to provide any Available Tenor of such Benchmark (or
such component thereof);
regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof), the FRB, the
NYFRB, an insolvency official with jurisdiction over the administrator for
such Benchmark (or such component), a resolution authority with
jurisdiction over the administrator for such Benchmark (or such component)
or a court or an entity with similar insolvency or resolution authority over
the administrator for such Benchmark (or such component), which states
that the administrator of such Benchmark (or such component) has ceased
or will cease to provide all Available Tenors of such Benchmark (or such
component thereof) permanently or indefinitely,
provided
of such statement or publication, there is no successor administrator that
will continue to provide any Available Tenor of such Benchmark (or such
component thereof); or
regulatory supervisor for the administrator of such Benchmark (or the
published component used in the calculation thereof) announcing that all
Available Tenors of such Benchmark (or such component thereof) are no
longer representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be
deemed to have occurred with respect to any Benchmark if a public
statement or publication of information set forth above has occurred with
respect to each then
-
current Available Tenor of such Benchmark (or the
published component used in the calculation thereof).
means the period (if any) (x)
beginning at the time that a Benchmark Replacement Date pursuant to
clauses (1) or (2) of that definition has occurred if, at such time, no
Benchmark Replacement has replaced the then
-
current Benchmark for all
purposes hereunder and under any Loan Document in accordance with this
Section 4.3(c) and (y) ending at the time that a Benchmark Replacement has
replaced the then
-
current Benchmark for all purposes hereunder and under
any Loan Document in accordance with this Section 4.3(c).
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with respect to any Available Tenor means,
as applicable, either a tenor (including overnight) or an interest payment
period having approximately the same length (disregarding business day
adjustment) as such Available Tenor.
means, for any day, SOFR, with the
conventions for this rate (which will include a lookback) being established
by the Administrative Agent in accordance with the conventions for this
rate selected or recommended by the Relevant Governmental Body for
determining “Daily Simple SOFR” for syndicated business loans;
provided
that if the Administrative Agent decides in good faith that any such
convention is not administratively feasible for the Administrative Agent,
then the Administrative Agent may establish another convention in good
faith and in its reasonable discretion giving due consideration to any
prevailing market practices for U.S. Dollar-denominated syndicated credit
facilities.
-
in Election”
means, if the then
-
current Benchmark is
the LIBOR Index Rate, the occurrence of:
by the Borrower to the Administrative Agent to notify) each of the other
parties hereto that at least five currently outstanding U.S.
dollar
-
denominated syndicated credit facilities at such time contain (as a
result of amendment or as originally executed) a SOFR
-
based rate
(including SOFR, a term SOFR or any other rate based upon SOFR) as a
benchmark rate (and such syndicated credit facilities are identified in such
notice and are publicly available for review), and
Borrower to trigger a fallback from LIBOR and the provision by the
Administrative Agent of written notice of such election to the Lenders.
Agreement initially (as of the execution of this Agreement, the
modification, amendment or renewal of this Agreement or otherwise) with
respect to LIBOR.
System of the United States.
means the 2006 ISDA Definitions published by
the International Swaps and Derivatives Association, Inc. or any successor
thereto, as amended or supplemented from time to time, or any successor
definitional booklet for interest rate derivatives published from time to time
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by the International Swaps and Derivatives Association, Inc. or such
successor thereto.
means the Federal Reserve Bank of New York.
means the website of the Federal Reserve Bank
of New York at http://www.newyorkfed.org, or any successor source.
with respect to any setting of the then
-
current
Benchmark means (1) if such Benchmark is the LIBOR Index Rate, 11:00
a.m. (London time) on the day that is two London banking days preceding
the date of such setting, and (2) if such Benchmark is not the LIBOR Index
Rate, the time determined by the Administrative Agent in good faith and in
its reasonable discretion giving due consideration to any prevailing market
practice for U.S. Dollar-denominated syndicated credit facilities.
” means the FRB and/or the NYFRB,
or a committee officially endorsed or convened by the FRB and/or the
NYFRB, or any successor thereto.
means, with respect to any Business Day, a rate per annum
equal to the secured overnight financing rate for such Business Day
published by the SOFR Administrator on the SOFR Administrator’s
Website on the immediately succeeding Business Day.
means the NYFRB (or a successor
administrator of the secured overnight financing rate).
means the NYFRB’s Website,
currently at http://www.newyorkfed.org, or any successor source for the
secured overnight financing rate identified as such by the SOFR
Administrator from time to time.
means, for the applicable Corresponding Tenor as of
the applicable Reference Time, the forward
-
looking term rate based on
SOFR that has been selected or recommended by the Relevant
Governmental Body.
means the determination by the Administrative
Agent that (a) Term SOFR has been recommended for use by the Relevant
Governmental Body, (b) the administration of Term SOFR is
administratively feasible for the Administrative Agent and (c) a Benchmark
Transition Event has previously occurred resulting in a Benchmark
Replacement in accordance with this Section 4.3(c) that is not Term SOFR.
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means a notification by the Administrative
Agent to the Lenders and the Borrower of the occurrence of a Term SOFR
Event.
means the applicable
Benchmark Replacement excluding the related Benchmark Replacement
Adjustment.
Section 4.4. Increased Costs
.
Increased Costs Generally.
If any Change in Law shall:
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 Adjusted LIBOR) or any L/C Issuer;
(B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and
(C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
or
any other condition, cost or expense (other than Taxes) affecting this Agreement or 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 or such other
Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its
obligation to make any such Loan, or to increase the cost to such Lender, such L/C Issuer or such
other Recipient of participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender, L/C Issuer or other Recipient hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender, L/C Issuer or other
Recipient, the Borrower will pay to such Lender, L/C Issuer or other Recipient, as the case may
be, such additional amount or amounts as will compensate such Lender, L/C Issuer or other
Recipient, as the case may be, for such additional costs incurred or reduction suffered.
Capital Requirements.
If any Lender or L/C Issuer determines that any Change in
Law affecting such Lender or L/C Issuer or any lending office of such Lender or such Lender’s or
L/C Issuer’s holding company, if any, regarding capital or liquidity requirements, has or would
have the effect of reducing the rate of return on such Lender’s or L/C Issuer’s capital or on the
capital of such Lender’s or 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 or Swingline Loans held by, such Lender, or the Letters of Credit issued by any L/C
Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or L/C Issuer’s
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holding company could have achieved but for such Change in Law (taking into consideration such
Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding
company with respect to capital adequacy), then from time to time the Borrower will pay to such
Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate
such Lender or L/C Issuer or such Lender’s or L/C Issuer’s holding company for any such
reduction suffered.
Certificates for Reimbursement.
A certificate of a Lender or L/C Issuer setting forth
the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company,
as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the
Borrower, shall be conclusive absent manifest error. The Borrower shall pay such Lender or L/C
Issuer, as the case may be, the amount shown as due on any such certificate within thirty (30) days
after receipt thereof.
Delay in Requests.
Failure or delay on the part of any Lender or L/C Issuer to demand
compensation pursuant to this Section shall not constitute a waiver of such Lender’s or L/C Issuer’s
right to demand such compensation;
provided
compensate a Lender or L/C Issuer pursuant to this Section for any increased costs incurred or
reductions suffered more than six (6) months prior to the date that such Lender or L/C Issuer, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions, and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period of retroactive effect
thereof).
Section 4.5. Funding Indemnity
. If any Lender shall incur any loss, cost or expense
(including, without limitation, any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Lender to fund or maintain any
Eurodollar Loan or Swingline Loan bearing interest at the Swingline Lender’s Quoted Rate or the
relending or reinvesting of such deposits or amounts paid or prepaid to such Lender) as a result of:
Swingline Loan on a date other than the last day of its Interest Period,
otherwise) by the Borrower to borrow or continue a Eurodollar Loan or such Swingline
Loan, or to convert a Base Rate Loan into a Eurodollar Loan or such Swingline Loan on
the date specified in a notice given pursuant to Section 2.6(a) or 2.2(b),
Eurodollar Loan or such Swingline Loan when due (whether by acceleration or otherwise),
or
Loan as a result of the occurrence of any Event of Default hereunder,
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then, upon the demand of such Lender, the Borrower shall pay to such Lender such amount as will
reimburse such Lender for such loss, cost or expense. If any Lender makes such a claim for
compensation, it shall provide to the Borrower, with a copy to the Administrative Agent, a
certificate setting forth the amount of such loss, cost or expense in reasonable detail and the
amounts shown on such certificate shall be conclusive
absent manifest error.
Section 4.6. Discretion of Lender as to Manner of Funding.
Notwithstanding any other
provision of this Agreement, each Lender shall be entitled to fund and maintain its funding of all
or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes
of this Agreement all determinations hereunder with respect to Eurodollar Loans shall be made as
if each Lender had actually funded and maintained each Eurodollar Loan through the purchase of
deposits in the interbank euro dollar market having a maturity corresponding to such Loan’s
Interest Period, and bearing an interest rate equal to LIBOR for such Interest Period.
Section 4.7. Lending Offices; Mitigation Obligations.
Each Lender may, at its option,
elect to make its Loans hereunder at the branch, office or affiliate specified in its Administrative
Questionnaire (each a
“Lending Office”
) for each type of Loan available hereunder or at such other
of its branches, offices or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent.
If any Lender requests compensation under
Section 4.4, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to Section 4.1, then
such Lender shall (at the request of the Borrower) 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 4.1
or 4.4, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
S
ECTION
LACE AND
A
PPLICATION OF
P
AYMENTS
.
Section 5.1. Place and Application of Payments.
on the Loans and the Reimbursement Obligations, and all other Obligations payable by the
Borrower under this Agreement and the other Loan Documents, shall be made by the Borrower to
the Administrative Agent by no later than 2:00 p.m. (Chicago time) on the due date thereof at the
office of the Administrative Agent in Chicago, Illinois (or such other location as the Administrative
Agent may designate to the Borrower), for the benefit of the Lender(s) or L/C Issuer entitled
thereto. Any payments received after such time shall be deemed to have been received by the
Administrative Agent on the next Business Day. All such payments shall be made in U.S. Dollars,
in immediately available funds at the place of payment, in each case without set-off or
counterclaim. The Administrative Agent will promptly thereafter cause to be distributed like funds
relating to the payment of principal or interest on Loans and on Reimbursement Obligations in
which the Lenders have purchased Participating Interests ratably to the Lenders and like funds
relating to the payment of any other amount payable to any Lender to such Lender, in each case to
be applied in accordance with the terms of this Agreement. Unless the Administrative Agent shall
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have received notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuers hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the L/C Issuers, as the case may be, the amount due. With respect to
any payment that the Administrative Agent makes to any Lender, L/C Issuer or other secured party
hereunder as to which Administrative Agent determines (in its sole and absolute discretion) that
any of the following applies (such payment referred to as the
“Rescindable Amount”
): (1) the
Borrowers have not in fact made the corresponding payment to the Administrative Agent; (2) the
Administrative Agent has made a payment in excess of the amount(s) received by it from the
Borrowers either individually or in the aggregate (whether or not then owed); or (3) the
Administrative Agent has for any reason otherwise erroneously made such payment; then each of
the Lenders, the L/C Issuer and the other Affiliates of the Lenders that are secured parties
hereunder severally agrees to repay to the Administrative Agent forthwith on demand the
Rescindable Amount so distributed to such Person, 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 Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
Section 5.2. Non-Business Days.
Subject to the definition of Interest Period, if any
payment hereunder becomes due and payable on a day which is not a Business Day, the due date
of such payment shall be extended to the next succeeding Business Day on which date such
payment shall be due and payable. In the case of any payment of principal falling due on a day
which is not a Business Day, interest on such principal amount shall continue to accrue during
such extension at the rate per annum then in effect, which accrued amount shall be due and payable
on the next scheduled date for the payment of interest.
. To the extent that any payment by or on behalf of the
Borrower or any other Loan Party is made to the Administrative Agent, any L/C Issuer or any
Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff,
and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, such L/C Issuer or such Lender 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 Lender and each L/C
Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share
(without duplication) of any amount so recovered from or repaid by the Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation for each such day.
. The Borrower hereby irrevocably authorizes the
Administrative Agent, upon at least two (2) business days prior notice to Borrower, to charge any
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of the Borrower’s deposit accounts maintained with the Administrative Agent for the amounts
from time to time necessary to pay any then due Obligations;
provided
the Borrower
acknowledges and agrees that the Administrative Agent shall not be under an obligation to do so
and the Administrative Agent shall not incur any liability to the Borrower or any other Person for
the Administrative Agent’s failure to do so.
S
ECTION
EPRESENTATIONS AND
W
ARRANTIES
.
Each Loan Party represents and warrants to the Administrative Agent and the Lenders as
follows:
Section 6.1. Organization and Qualification
. Each Loan Party is duly organized, validly
existing, and in good standing as a corporation, limited liability company, or partnership, as
applicable, under the laws of the jurisdiction in which it is organized, has the authority and power
to own its Property and conduct its business as now conducted, and is duly qualified and in good
standing in each jurisdiction in which the nature of the business conducted by it or the nature of
the Property owned or leased by it requires such qualifying, except where the failure to do so would
not have a Material Adverse Effect.
Section 6.2. Subsidiaries
. Each Subsidiary that is not a Loan Party is duly organized,
validly existing, and in good standing under the laws of the jurisdiction in which it is organized,
has the authority and power to own its Property and conduct its business as now conducted, and is
qualified and in good standing in each jurisdiction in which the nature of the business conducted
by it or the nature of the Property owned or leased by it requires such qualifying, except where the
failure to do so would not have a Material Adverse Effect. Schedule 6.2 hereto identifies each
Subsidiary (including Subsidiaries that are Loan Parties), the jurisdiction of its organization, the
percentage of issued and outstanding shares of each class of its capital stock or other equity
interests owned by any Loan Party and its Subsidiaries and, if such percentage is not 100%
(excluding directors’ qualifying shares as required by law), a description of each class of its
authorized capital stock and other equity interests and the number of shares of each class issued
and outstanding. All of the outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares
and other equity interests indicated on Schedule 6.2 as owned by the relevant Loan Party or another
Subsidiary are owned, beneficially and of record, by such Loan Party or such Subsidiary free and
clear of all Liens otherwise permitted by this Agreement. There are no outstanding commitments
or other obligations of any Subsidiary to issue, and no options, warrants or other rights of any
Person to acquire, any shares of any class of capital stock or other equity interests of any
Subsidiary.
Section 6.3. Authority and Validity of Obligations
. Each Loan Party has the right and
authority to enter into this Agreement and the other Loan Documents executed by it, to make the
borrowings herein provided for (in the case of the Borrower), to guarantee the Secured Obligations
(in the case of each Guarantor), to grant to the Administrative Agent the Liens described in the
Collateral Documents executed by such Loan Party, and to perform all of its obligations hereunder
and under the other Loan Documents executed by it. The Loan Documents delivered by the Loan
Parties and their Subsidiaries have been duly authorized, executed, and delivered by such Persons
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and constitute valid and binding obligations of such Loan Parties and their Subsidiaries enforceable
against each of them in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally
and general principles of equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law); and this Agreement and the other Loan Documents
do not, nor does the performance or observance by any Loan Party or any Subsidiary of any of the
matters and things herein or therein provided for, (a) contravene or constitute a default under any
provision of law or any judgment, injunction, order or decree binding upon any Loan Party or any
Subsidiary of a Loan Party or any provision of the organizational documents (
e.g.,
certificate or articles of incorporation and by-laws, certificate or articles of association and
operating agreement, partnership agreement, or other similar organizational documents) of any
Loan Party or any Subsidiary of a Loan Party, (b) contravene or constitute a default under any
covenant, indenture or agreement of or affecting any Loan Party or any Subsidiary of a Loan Party
or any of their respective Property, in each case where such contravention or default, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or (c) result
in the creation or imposition of any Lien on any Property of any Loan Party or any Subsidiary of
a Loan Party other than the Liens granted in favor of the Administrative Agent pursuant to the
Collateral Documents.
Section 6.4. Use of Proceeds; Margin Stock
. The Borrower shall use the proceeds of the
Revolving Facility to finance Capital Expenditures, to finance Permitted Acquisitions and for its
general working capital purposes and for such other legal and proper purposes as are consistent
with all applicable laws and to pay certain fees and expenses associated with closing of this
Agreement. No Loan Party nor any of its Subsidiaries is engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Loan
or any other extension of credit made hereunder will be used to purchase or carry any such margin
stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock.
Margin stock (as hereinabove defined) constitutes less than 25% of the assets of the Loan Parties
and their Subsidiaries which are subject to any limitation on sale, pledge or other restriction
hereunder.
Section 6.5. Financial Reports
. The consolidated balance sheet of the Borrower and its
Subsidiaries as of May 29, 2021, and the related consolidated statements of operations,
comprehensive income (loss), stockholder’s equity and cash flows of the Borrower and its
Subsidiaries for the fiscal year then ended, and accompanying notes thereto, which financial
statements are accompanied by the audit report of Frost, PLLC, independent public accountants,
and the unaudited interim consolidated balance sheet of the Borrower and its Subsidiaries as of
August 28, 2021, and the related consolidated statements of operations, comprehensive
income(loss), shareholder’s equity and cash flows of the Borrower and its Subsidiaries
for the
three (3) months then ended, heretofore furnished to the Administrative Agent and the Lenders,
fairly present in all material respects the consolidated financial condition of the Borrower and its
Subsidiaries
at said dates and the consolidated results of their operations and cash flows for the
periods then ended in conformity with GAAP applied on a consistent basis. Neither the Borrower
nor any of its Subsidiaries has contingent liabilities which are material to it other than as indicated
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on such financial statements or, with respect to future periods, on the financial statements furnished
pursuant to Section 8.5.
Section 6.6. No Material Adverse Change.
Since May 29, 2021, there has been no change
in the condition (financial or otherwise) or business prospects of any Loan Party or any Subsidiary
of a Loan Party except those occurring in the ordinary course of business or as disclosed in its
filings with the SEC, none of which individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect.
Section 6.7. Full Disclosure
. The statements and information furnished to the
Administrative Agent and the Lenders in connection with the negotiation of this Agreement and
the other Loan Documents and the commitments by the Lenders to provide all or part of the
financing contemplated hereby do not contain any untrue statements of a material fact or omit a
material fact necessary to make the material statements contained herein or therein not misleading,
the Administrative Agent and the Lenders acknowledging that as to any projections furnished to
the Administrative Agent and the Lenders, the Loan Parties only represent that the same were
prepared on the basis of information and estimates the Loan Parties believed to be reasonable in
light of the then existing conditions. The Administrative Agent and Lenders recognize that any
projections are not to be viewed as facts and that the actual results during the period or periods
covered by such projections may vary from such projections. Notwithstanding the foregoing, it is
understood and agreed that the periodic reports and other information of Borrower filed with the
SEC pursuant to Section 13 of the Exchange Act speak as of the date of such reports or other filings
and not of any subsequent time and, therefore, the representation set forth in the first sentence of
this paragraph is applicable to the information contained in such reports or other filings only as of
the date of such reports or other filings. Additionally, notwithstanding anything to the contrary
contained herein, the representation in the first sentence of this paragraph shall not apply to
forward-looking information contained in the filings made by Borrower with the SEC pursuant to
Section 13 of the Exchange Act, and the Borrowers shall have no liability with respect to such
forward-looking information, except to the extent that Borrower would have liability to investors
in its public securities under the Exchange Act after the application of Section 21E of the Exchange
Act.
Section 6.8. Trademarks, Franchises, and Licenses
. The Loan Parties and their
Subsidiaries own, possess, or have the right to use all necessary patents, licenses, franchises,
trademarks, trade names, trade styles, copyrights, trade secrets, know how, and confidential
commercial and proprietary information to conduct their businesses as now conducted, without
known conflict with any patent, license, franchise, trademark, trade name, trade style, copyright
or other proprietary right of any other Person.
Section 6.9. Governmental Authority and Licensing.
Subsidiaries have received all licenses, permits, and approvals of all federal, state, and local
governmental authorities, if any, necessary to conduct their businesses, in each case where the
failure to obtain or maintain the same could reasonably be expected to have a Material Adverse
Effect. No investigation or proceeding which, if adversely determined, could reasonably be
expected to result in revocation or denial of any material license, permit or approval is pending or,
to the knowledge of any Loan Party, threatened in writing.
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Section 6.10. Good Title
. The Borrower and its Subsidiaries have good and defensible title
(or valid leasehold interests) to their assets as reflected on the most recent consolidated balance
sheet of the Borrower and its Subsidiaries furnished to the Administrative Agent and the Lenders
(except for sales of assets in the ordinary course of business), subject to no Liens other than such
thereof as are permitted by Section 8.8.
Section 6.11. Litigation and Other Controversies.
Except as set forth in Schedule 6.11,
there is no litigation or governmental or arbitration proceeding or labor controversy pending, nor
to the knowledge of any Loan Party threatened, against any Loan Party or any Subsidiary of a
Loan Party or any of their respective Property which if adversely determined, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 6.12. Taxes
. All federal and material state, local, and foreign Tax returns required
to be filed by any Loan Party or any Subsidiary of a Loan Party in any jurisdiction have, in fact,
been filed, and all Taxes upon any Loan Party or any Subsidiary of a Loan Party or upon any of
their respective Property, income or franchises, which are shown to be due and payable in such
returns, have been paid, except such Taxes, if any, as are being contested in good faith and by
appropriate proceedings which prevent enforcement of the matter under contest and as to which
adequate reserves established in accordance with GAAP have been provided. No Loan Party
knows of any proposed additional Tax assessment against it or its Subsidiaries for which adequate
provisions in accordance with GAAP have not been made on their accounts. Adequate provisions
in accordance with GAAP for Taxes on the books of each Loan Party and each of its Subsidiaries
have been made for all open years, and for its current fiscal period.
Section 6.13. Approvals
. No authorization, consent, license or exemption from, or filing
or registration with, any court or governmental department, agency or instrumentality, nor any
approval or consent of any other Person, is or will be necessary to the valid execution, delivery or
performance by any Loan Party or any Subsidiary of a Loan Party of any Loan Document, except
for (i) such approvals which have been obtained prior to the date of this Agreement and remain in
full force and effect and (ii) filings which are necessary to perfect the security interests under the
Collateral Documents.
Section 6.14. Affiliate Transactions .
No Loan Party nor any of its Subsidiaries is a party
to any contracts or agreements with any of its Affiliates on terms and conditions which are less
favorable to such Loan Party or such Subsidiary than would be usual and customary in similar
contracts or agreements between Persons not affiliated with each other.
Section 6.15. Investment Company.
No Loan Party nor any of its Subsidiaries is an
“investment company” or a company “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
. Except as would not reasonably be expected to result in a Material
Adverse Effect, each Loan Party and each other member of its Controlled Group has fulfilled its
obligations under the minimum funding standards of and is in compliance in all material respects
with ERISA and the Code to the extent applicable to it and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA other than a liability to the PBGC for premiums under
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Section 4007 of ERISA. Except as would not reasonably be expected to result in a Material
Adverse Effect, no Loan Party or any of its Subsidiaries has any contingent liabilities with respect
to any post-retirement benefits under a Welfare Plan, other than liability for continuation coverage
described in article 6 of Title I of ERISA.
Section 6.17. Compliance with Laws
. (a) The Loan Parties and their Subsidiaries are in
compliance with all Legal Requirements applicable to or pertaining to their Property or business
operations, where any such non-compliance, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
be expected to result in a Material Adverse Effect, the Loan Parties represent and warrant that:
(i) the Loan Parties and their Subsidiaries, and each of the Premises, comply in all material respects
with all applicable Environmental Laws; (ii) the Loan Parties and their Subsidiaries have obtained,
maintain and are in compliance with all approvals, permits, or authorizations of Governmental
Authorities required for their operations and each of the Premises; (iii) the Loan Parties and their
Subsidiaries have not, and no Loan Party has knowledge of any other Person who has, caused any
Release, threatened Release or disposal of any Hazardous Material or any other waste or product,
including manure, at, on, or from any of the Premises in violation of any Environmental Laws;
(iv) the Loan Parties and their Subsidiaries are not subject to and have not received written notice
of any material Environmental Claim involving any Loan Party or any Subsidiary of a Loan Party
or any of the Premises, and, to the knowledge of the Loan Parties and their Subsidiaries, there are
no conditions or occurrences at any of the Premises which could reasonably be anticipated to form
the basis for such a material Environmental Claim; (v) none of the Premises contain and have
contained any sites on or nominated for the National Priority List or similar state list; (vi) the Loan
Parties and their Subsidiaries have conducted no Hazardous Material Activity at any of the
Premises except in compliance with Environmental Laws; (vii) except for permits, licenses and
other legal requirements required in the ordinary course of business none of the Premises are
subject to any, and no Loan Party has knowledge of any imminent, restriction on the ownership,
occupancy, use or transferability of the Premises in connection with any (1) Environmental Law
or (2) Release, threatened Release or disposal of a Hazardous Material, waste or product; and
(viii) the Loan Parties and their Subsidiaries have no knowledge of any material capital
expenditures necessary to bring the Premises or their respective businesses or equipment into
compliance with Environmental Laws.
Anti-Corruption Laws. To the knowledge of the Responsible Officers of the Loan Parties, no Loan
Party nor any Subsidiary has made a payment, offering, or promise to pay, or authorized the
payment of, money or anything of value (a) in order to assist in obtaining or retaining business for
or with, or directing business to, any foreign official, foreign political party, party official or
candidate for foreign political office, (b) to a foreign official, foreign political party or party
official or any candidate for foreign political office, and (c) with the intent to induce the recipient
to misuse his or her official position to direct business wrongfully to such Loan Party or such
Subsidiary or to any other Person, in violation of any Anti-Corruption Laws, which could
reasonably be expected to result in a Material Adverse Effect.
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Section 6.18. OFAC
. (a) Each Loan Party is in compliance in all material respects with the
requirements of all OFAC Sanctions Programs applicable to it, (b) each Subsidiary of each Loan
Party is in compliance in all material respects with the requirements of all OFAC Sanctions
Programs applicable to such Subsidiary, (c) each Loan Party has provided to the Administrative
Agent, the L/C Issuer, and the Lenders all information requested by them regarding such Loan
Party and its Affiliates and Subsidiaries necessary for the Administrative Agent, the L/C Issuer,
and the Lenders to comply with all applicable OFAC Sanctions Programs, and (d) no Loan Party
nor any of its Subsidiaries nor, to the knowledge of any Loan Party, any officer, director or Affiliate
of any Loan Party or any of its Subsidiaries, is a Person, that is, or is owned or controlled by
Persons that are, (i) the target of any OFAC Sanctions Programs or (ii) located, organized or
resident in a country or territory that is, or whose government is, the subject of any OFAC
Sanctions Programs.
Section
6.19.
Labor Matters.
There are no strikes, lockouts or slowdowns against any Loan
Party or any Subsidiary of a Loan Party pending or, to the knowledge of any Loan Party,
threatened. There are no collective bargaining agreements in effect between any Loan Party or
any Subsidiary of a Loan Party and any labor union; and no Loan Party nor any of its Subsidiaries
is under any obligation to assume any collective bargaining agreement to or conduct any
negotiations with any labor union with respect to any future agreements. Each Loan Party and its
Subsidiaries have remitted on a timely basis all amounts required to have been withheld and
remitted (including withholdings from employee wages and salaries relating to income tax,
employment insurance, and pension plan contributions), goods and services tax and all other
amounts which if not paid when due could result in the creation of a Lien against any of its
Property, except for Liens permitted by Section 8.8, or which would not reasonably be expected
to result in a Material Adverse Effect or which are being contested in good faith by appropriate
proceedings which prevent enforcement of any Lien with respect thereto.
Section 6.20. Other Agreements
. No Loan Party nor any of its Subsidiaries is in default
under the terms of any covenant, indenture or agreement of or affecting such Person or any of its
Property, which default if uncured could reasonably be expected to have a Material Adverse Effect.
Section 6.21. Solvency
. The Loan Parties and their Subsidiaries are solvent, able to pay
their debts as they become due, and have sufficient capital to carry on their business and all
businesses in which they are about to engage.
Section 6.22. No Default.
No Default has occurred and is continuing.
Section 6.23. No Broker Fees.
No broker’s or finder’s fee or commission will be payable
with respect hereto or any of the transactions contemplated thereby; and the Loan Parties hereby
agree to indemnify the Administrative Agent, the L/C Issuer, and the Lenders against, and agree
that they will hold the Administrative Agent, the L/C Issuer, and the Lenders harmless from, any
claim, demand, or liability for any such broker’s or finder’s fees alleged to have been incurred in
connection herewith or therewith and any expenses (including reasonable attorneys’ fees) arising
in connection with any such claim, demand, or liability.
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S
ECTION
ONDITIONS
P
RECEDENT
.
Section 7.1. All Credit Events
. At the time of each Credit Event hereunder:
Loan Documents shall be and remain true and correct in all material respects as of said
time (where not already qualified by materiality, otherwise in all respects), except to the
extent the same expressly relate to an earlier date, in which case they shall be true and
correct in all material respects (where not already qualified by materiality, otherwise in all
respects) as of such earlier date;
of such Credit Event;
of all Swingline Loans, Revolving Loans and L/C Obligations outstanding under this
Agreement shall not exceed the Revolving Credit Commitments;
notice required by Section 2.6, in the case of the issuance of any Letter of Credit the
L/C Issuer shall have received a duly completed Application for such Letter of Credit
together with any fees called for by Section 3.1, and, in the case of an extension or increase
in the amount of a Letter of Credit, a written request therefor in a form acceptable to the
L/C Issuer together with fees called for by Section 3.1; and
court or other authority or any provision of law or regulation applicable to the
Administrative Agent, the L/C Issuer or any Lender (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System) as then in effect.
Each request for a Borrowing hereunder and each request for the issuance of, increase in
the amount of, or extension of the expiration date of, a Letter of Credit shall be deemed to be a
representation and warranty by the Borrower on the date on such Credit Event as to the facts
specified in subsections (a) through (d), both inclusive, of this Section;
provided, however,
that the
Lenders may continue to make advances under the Revolving Facility, in the sole discretion of the
Lenders with Revolving Credit Commitments, notwithstanding the failure of the Borrower to
satisfy one or more of the conditions set forth above and any such advances so made shall not be
deemed a waiver of any Default or other condition set forth above that may then exist.
Section 7.2. Initial Credit Event.
Before or concurrently with the Initial Credit Event:
by the Borrower and its Wholly-owned Subsidiaries that are Domestic Subsidiaries, as
Guarantors, the L/C Issuer, and the Lenders;
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for such Lender such Lender’s duly executed Notes of the Borrower dated the date hereof
and otherwise in compliance with the provisions of Section 2.10;
Modification and Omnibus Joinder Agreement dated as of the date hereof, duly executed
by the Loan Parties, together with (i) UCC financing statements to be filed against each
Loan Party, as debtor, in favor of the Administrative Agent, as secured party, and
(ii) deposit account control agreements to the extent requested by the Administrative
Agent;
and substance satisfactory to the Administrative Agent;
articles of incorporation and bylaws (or comparable organizational documents) and any
amendments thereto, certified in each instance by its Secretary or Assistant Secretary (or
comparable Responsible Officer);
Loan Party’s Board of Directors (or similar governing body) authorizing the execution,
delivery and performance of this Agreement and the other Loan Documents to which it is
a party and the consummation of the transactions contemplated hereby and thereby,
together with specimen signatures of the persons authorized to execute such documents on
each Loan Party’s behalf, all certified in each instance by its Secretary or Assistant
Secretary (or comparable Responsible Officer);
good standing for each Loan Party (dated no earlier than 30 days prior to the date hereof)
from the office of the secretary of the state of its incorporation or organization;
Authorized Representatives, which may be included in the certificate of the Secretary or
Assistant Secretary (or comparable Responsible Officer) referenced in Sections 7.1(e) and
(f);
Reserved
;
Section 3.1;
unaudited monthly financial statements (including an income statement, a balance sheet,
and a cash flow statement) of the Loan Parties for the prior 3 years, including unaudited
quarterly financial statements for the period ended August 28, 2021, and 5-year projected
financial statements, certified to by a Financial Officer of the Borrower (and each Lender
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hereby acknowledges that it has received copies of each of the foregoing items); and (ii) a
certificate from a Responsible Officer of the Borrower certifying that since May 29, 2021,
no Material Adverse Effect has occurred;
judgment lien search results against each Loan Party and its Property evidencing the
absence of Liens thereon except as permitted by Section 8.8;
of counsel to each Loan Party, in form and substance satisfactory to the Administrative
Agent;
Closing Date, all documentation and other information requested by any such Lender
required by bank regulatory authorities under applicable “know your customer” and
anti-money laundering rules and regulations, including without limitation, the United
States Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
including, without limitation, the information described in Section 13.24; and the
Administrative Agent shall have received a fully executed Internal Revenue Service Form
W-9 (or its equivalent) for the Borrower and each other Loan Party;
“legal entity customer” under the Beneficial Ownership Regulation shall deliver a
Beneficial Ownership Certification in relation to such Borrower; and
instruments, documents, certificates, and opinions as the Administrative Agent may
reasonably request.
S
ECTION
OVENANTS
.
Each Loan Party agrees that, so long as any credit is available to or in use by the Borrower
hereunder, except to the extent compliance in any case or cases is waived in writing pursuant to
the terms of Section 13.3.
Section 8.1. Maintenance of Business.
maintain its existence, except as otherwise provided in Section 8.10(c);
provided, however,
nothing in this Section shall prevent the Borrower from dissolving any of its Subsidiaries if such
action is, in the reasonable business judgment of the Borrower, desirable in the conduct of its
business and is not disadvantageous in any material respect to the Lenders.
in force and effect all licenses, permits, franchises, approvals, patents, trademarks, trade names,
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trade styles, copyrights, and other proprietary rights necessary to the proper conduct of its business
where the failure to do so could reasonably be expected to have a Material Adverse Effect.
Each Loan Party shall, and shall cause each of
its Subsidiaries to, maintain, preserve, and keep its property, plant, and equipment in good repair,
working order and condition (ordinary wear and tear excepted), and shall from time to time make
such repairs, renewals, replacements, additions, and betterments thereto as it deems appropriate in
its reasonable business judgment so that the usefulness thereof shall be preserved and maintained,
except to the extent that, in the reasonable business judgment of such Person, any such Property is
no longer necessary for the proper conduct of the business of such Person.
Section 8.3. Taxes and Assessment
s. Each Loan Party shall duly pay and discharge, and
shall cause each of its Subsidiaries to duly pay and discharge, all federal and material state, local,
and foreign Taxes, rates, assessments, fees, and governmental charges upon or against it or its
Property, in each case before the same become delinquent and before penalties accrue thereon,
unless and to the extent that the same are being contested in good faith and by appropriate
proceedings which prevent enforcement of the matter under contest and adequate reserves are
provided therefor.
Section 8.4. Insurance.
Each Loan Party shall insure and keep insured, and shall cause
each of its Subsidiaries to insure and keep insured, with good and responsible insurance
companies, all insurable Property owned by it which is of a character usually insured by Persons
similarly situated and operating like Properties against loss or damage from such hazards and risks
(including flood insurance with respect to any improvements on real Property consisting of
building or parking facilities in an area designated by a governmental body as having special flood
hazards), and in such amounts and with such deductibles, as are insured by Persons similarly
situated and operating like Properties, but in no event at any time in an amount less than the
replacement value of the Collateral, subject to deductibles. Each Loan Party shall also maintain,
and shall cause each of its Subsidiaries to maintain, insurance with respect to the business of such
Loan Party and its Subsidiaries, covering commercial general liability, statutory worker’s
compensation and occupational disease, statutory structural work act liability, and business
interruption and such other risks with good and responsible insurance companies, in such amounts
and on such terms as the Administrative Agent or the Required Lenders shall reasonably request,
but in any event as and to the extent usually insured by Persons similarly situated and conducting
similar businesses. The Loan Parties shall in any event maintain insurance on the Collateral to the
extent required by the Collateral Documents. All such policies of insurance shall contain
satisfactory mortgagee/lender’s loss payable endorsements, naming the Administrative Agent (or
its security trustee) as mortgagee or a loss payee, assignee or additional insured, as appropriate, as
its interest may appear, and showing only such other loss payees, assignees and additional insureds
as are satisfactory to the Administrative Agent. Each policy of insurance or endorsement shall
contain a clause requiring the insurer to give not less than thirty (30) days’ (ten (10) days’ in the
case of nonpayment of insurance premiums) prior written notice to the Administrative Agent in
the event of cancellation of the policy for any reason whatsoever. The Borrower shall deliver to
the Administrative Agent (a) on the Closing Date and at such other times as the Administrative
Agent shall reasonably request, certificates evidencing the maintenance of insurance required
hereunder, (b) prior to the termination of any such policies, certificates evidencing the renewal
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thereof, and (c) promptly following request by the Administrative Agent, copies of all insurance
policies of the Loan Parties and their Subsidiaries. The Borrower also agrees to deliver to the
Administrative Agent, promptly as rendered, true copies of all reports made in any reporting forms
to insurance companies.
Section 8.5. Financial Reports.
The Loan Parties shall, and shall cause each of their
Subsidiaries to, maintain proper books of records and accounts reasonably necessary to prepare
financial statements required to be delivered pursuant to this Section 8.5 in accordance with GAAP
and shall furnish to the Administrative Agent and each Lender:
of each fiscal quarter of each fiscal year of the Borrower, a copy of the consolidated balance
sheet of the Borrower and its Subsidiaries
as of the last day of such fiscal quarter and the
related consolidated statement of operations, comprehensive income (loss), shareholder’s
equity, and cash flows of the Borrower and its Subsidiaries for the fiscal quarter and for
the fiscal year-to-date period then ended, each in reasonable detail showing in comparative
form the figures for the corresponding date and period in the previous fiscal year, prepared
by the Borrower in accordance with GAAP (subject to the absence of footnote disclosures
and year-end audit adjustments) and certified to by a Financial Officer of the Borrower;
of each fiscal year of the Borrower, a copy of the consolidated balance sheet of the
Borrower and its Subsidiaries as of the last day of the fiscal year then ended and the related
consolidated statement of operations, comprehensive income (loss), shareholder’s equity,
and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended, and
accompanying notes thereto, each in reasonable detail showing in comparative form the
figures for the previous fiscal year, accompanied in the case of the consolidated financial
statements by an unqualified opinion of Frost, PLLC or another firm of independent public
accountants of recognized standing, selected by the Borrower and reasonably satisfactory
to the Administrative Agent, to the effect that the consolidated financial statements have
been prepared in accordance with GAAP and present fairly in all material respects in
accordance with GAAP the consolidated financial condition of the Borrower and its
Subsidiaries as of the close of such fiscal year and the results of their operations for the
fiscal year then ended and that an examination of such accounts in connection with such
financial statements has been made in accordance with generally accepted auditing
standards and, accordingly, such examination included such tests of the accounting records
and such other auditing procedures as were considered necessary in the circumstances;
letters or other detailed information contained in writing concerning significant aspects of
any Loan Party’s or any of its Subsidiary’s operations and financial affairs given to it by
its independent public accountants;
statement, report, notice or proxy statement sent by any Loan Party or any Subsidiary of a
Loan Party to its stockholders or other equity holders, and copies of each regular, periodic
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or special report, registration statement or prospectus (including all Form 10-K, Form 10-Q
and Form 8-K reports) filed by any Loan Party or any Subsidiary of a Loan Party with any
securities exchange or the SEC or any successor agency;
any regulatory agency of the books and records of any Loan Party or any Subsidiary of a
Loan Party that gives notice of any noncompliance with any applicable law, regulation or
guideline relating to any Loan Party or any Subsidiary of a Loan Party or their respective
business which could reasonably be expected to have a Material Adverse Effect;
each fiscal year of the Borrower, a copy of the consolidated and consolidating business
plan for the Borrower and its Subsidiaries for the following fiscal year, such business plan
to show the projected consolidated and consolidating revenues, expenses and balance sheet
of the Borrower and its Subsidiaries on a quarter-by-quarter basis, such business plan to be
in reasonable detail prepared by the Borrower and in form satisfactory to the
Administrative Agent (which shall include a summary of all assumptions made in
preparing such business plan);
Responsible Officer of any Loan Party, written notice of (i) any threatened or pending
litigation or governmental or arbitration proceeding or labor controversy against any Loan
Party or any Subsidiary of a Loan Party or any of their Property which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect and would
require disclosure in a report to be filed with the SEC under the Exchange Act, (ii) the
occurrence of any Material Adverse Effect, or (iii) the occurrence of any Default;
and (b) above, a written certificate in the form attached hereto as Exhibit E signed by a
Financial Officer of the Borrower to the effect that to the best of such officer’s knowledge
and belief no Default has occurred during the period covered by such statements or, if any
such Default has occurred during such period, setting forth a description of such Default
and specifying the action, if any, taken by the relevant Loan Party or its Subsidiary to
remedy the same. Such certificate shall also set forth the calculations supporting such
statements in respect of Section 8.22
(Financial Covenants);
Reserved
; and
operations, business affairs and financial condition of any Loan Party or any Subsidiary of
a Loan Party, or compliance with the terms of any Loan Document, as the Administrative
Agent or any Lender may reasonably request.
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Section 8.6. Inspection; Field Audits
. Each Loan Party shall, and shall cause each of its
Subsidiaries to, permit the Administrative Agent and each Lender, and each of their duly
authorized representatives and agents to visit and inspect any of its Property, corporate books, and
financial records, to examine and make copies of its books of accounts and other financial records,
and to discuss its affairs, finances, and accounts with, and to be advised as to the same by, its
officers, employees and independent public accountants (and by this provision the Loan Parties
hereby authorize such accountants to discuss with the Administrative Agent and such Lenders the
finances and affairs of the Loan Parties and their Subsidiaries) at such reasonable times and
intervals as the Administrative Agent or any such Lender may designate and, so long as no Default
exists, with reasonable prior notice to the Borrower and compliance with the Borrower’s
customary on-site policies applicable to visitors (bio-security, etc.). The Borrower shall pay to the
Administrative Agent charges for field audits of the Collateral, inspections and visits to Property,
inspections of corporate books and financial records, examinations and copies of books of accounts
and financial record and other activities permitted in this Section performed by the Administrative
Agent or its agents or third party firms, in such amounts as the Administrative Agent may from
time to time request (the Administrative Agent acknowledging and agreeing that any internal
charges for such audits and inspections shall be computed in the same manner as it at the time
customarily uses for the assessment of charges for similar collateral audits);
provided, however,
that in the absence of any Default, the Borrower shall not be required to pay the Administrative
Agent for more than one (1) such audit per calendar year.
Section 8.7.
Borrowings and Guaranties.
No Loan Party shall, nor shall it permit any of
its Subsidiaries to, issue, incur, assume, create or have outstanding any Indebtedness, or incur
liabilities under any Hedging Agreement, or be or become liable as endorser, guarantor, surety or
otherwise for any Indebtedness or undertaking of any Person, or otherwise agree to provide funds
for payment of the obligations of another, or supply funds thereto or invest therein or otherwise
assure a creditor of another against loss, or apply for or become liable to the issuer of a letter of
credit which supports an obligation of another, or subordinate any claim or demand it may have to
the claim or demand of any Person;
provided, however,
operate to prevent:
of the Loan Parties and their Subsidiaries owing to
the Administrative Agent and the Lenders (and their Affiliates);
Loan Parties and their Subsidiaries in an amount not to exceed $20,000,000 in the
aggregate at any one time outstanding;
rate, foreign currency, and commodity Hedging Agreements entered into with financial
institutions in connection with bona fide hedging activities in the ordinary course of
business and not for speculative purposes;
in the ordinary course of business;
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Parties and/or any of their Subsidiaries in the ordinary course of business, provided that
the aggregate amount of all such intercompany advances made to Subsidiaries of a Loan
Party that are not Loan Parties or Subsidiaries of a Loan Party that are not Wholly-owned
Subsidiaries shall not exceed an aggregate amount of $20,000,000 during any fiscal year
of the Borrower;
disability or other employee benefits (including contractual and statutory benefits) or
property, casualty, liability or credit insurance, pursuant to reimbursement or
indemnification obligations to such Person, in each case incurred in the ordinary course of
business;
borrowed money), leases (other than Capitalized Lease Obligations), statutory obligations,
surety, stay, customs and appeal bonds, performance, performance and completion and
return of money bonds, government contracts and similar obligations, in each case,
provided in the ordinary course of business;
arrangements, in each case, in connection with cash management and deposit accounts;
employees of any Loan Party or any Subsidiary of a Loan Party incurred in the ordinary
course of business; and
ordinary course of business;
otherwise permitted under this Section;
providing for indemnification, adjustment of purchase or acquisition price or similar
obligations, in each case, incurred or assumed in connection with a Permitted Acquisition;
Date and Indebtedness acquired or assumed in connection with Permitted Acquisitions, in
an amount not to exceed $50,000,000 in the aggregate at any one time outstanding,
provided
the time of such Permitted Acquisition and is not created in contemplation of or in
connection therewith;
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described in this Section that (i) does not exceed the aggregate principal amount (plus
accrued interest and applicable premium and associated fees and expenses) of the
Indebtedness being replaced, renewed, refinanced or extended, (ii) does not have a
weighted average life to maturity at the time of such replacement, renewal, refinancing or
extension that is less than the weighted average life to maturity of the Indebtedness being
replaced, renewed, refinanced or extended, and (iii) does not rank at the time of such
replacement, renewal, refinancing or extension senior to the Indebtedness being replaced,
renewed, refinanced or extended;
otherwise permitted by this Section in an amount not to exceed $400,000,000 in the
aggregate at any one time outstanding; and
(other than the Collateral) in an amount not to exceed $200,000,000 in the aggregate at any
one time outstanding.
Section 8.8. Liens.
No Loan Party shall, nor shall it permit any of its Subsidiaries to,
create, incur or permit to exist any Lien of any kind on any Property owned by any such Person;
provided, however,
unemployment insurance, old age benefits, social security obligations, Taxes, assessments,
statutory obligations or other similar charges (other than Liens arising under ERISA), good
faith cash deposits in connection with tenders, contracts or leases to which any Loan Party
or any Subsidiary of a Loan Party is a party or other cash deposits required to be made in
the ordinary course of business, provided in each case that the obligation is not for
borrowed money and that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which prevent enforcement of the
matter under contest and adequate reserves have been established therefor;
similar Liens arising in the ordinary course of business with respect to obligations which
are not due or which are being contested in good faith by appropriate proceedings which
prevent enforcement of the matter under contest;
Default under Section 9.1(g) and the pledge of assets for the purpose of securing an appeal,
stay or discharge in the course of any legal proceeding, provided that the aggregate amount
of such judgment liens and attachments and liabilities of the Loan Parties and their
Subsidiaries secured by a pledge of assets permitted under this subsection, including
interest and penalties thereon, if any, shall not be in excess of $25,000,000 at any one time
outstanding;
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created solely for the purpose of securing indebtedness permitted by Section 8.7(b),
representing or incurred to finance the purchase price of such Property, provided that no
such Lien shall extend to or cover other Property of such Loan Party or such Subsidiary
other than the respective Property so acquired, and the principal amount of indebtedness
secured by any such Lien shall at no time exceed the purchase price of such Property, as
reduced by repayments of principal thereon;
of Uniform Commercial Code financing statements solely as a precautionary measure in
connection with operating leases entered into by any Loan Party or any Subsidiary of a
Loan Party in the ordinary course of its business;
encumbrances against real property incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not materially detract from the
value of the Property subject thereto or materially interfere with the ordinary conduct of
the business of any Loan Party or any Subsidiary of a Loan Party;
Section 4-210 of the Uniform Commercial Code) in one or more deposit accounts
maintained by any Loan Party or any Subsidiary of a Loan Party, in each case granted in
the ordinary course of business in favor of the bank or banks with which such accounts are
maintained, securing amounts owing to such bank with respect to cash management and
operating account arrangements, including those involving pooled accounts and netting
arrangements;
provided
of law, in no case shall any such Liens secure (either directly or indirectly) the repayment
of any Indebtedness;
Collateral Documents.
course of business and not interfering in any material respect with the ordinary conduct of
business of any Loan Party or any Subsidiary of a Loan Party;
of the premiums with respect thereto permitted by Section 8.7(k);
acquired in a Permitted Acquisition to be applied against the purchase price for such
Property, or (ii) consisting of an agreement to dispose of any Property in a disposition
permitted under Section 8.10, in each case, solely to the extent such Acquisition or
disposition, as the case may be, would have been permitted on the date of the creation of
such Lien;
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or merged with or into or consolidated with any Loan Party or any Subsidiary of a Loan
Party to the extent permitted hereunder (and not created in anticipation or contemplation
thereof) and securing Indebtedness permitted under Section 8.7(n);
provided
Liens do not extend to Property not subject to such Liens at the time of acquisition and are
no more favorable to the lienholders than such existing Lien;
support obligations under or in respect of interest rate, foreign currency, and commodity
Hedging Agreements entered into with financial institutions in connection with bona fide
hedging activities in the ordinary course of business and not for speculative purposes;
listed and identified on Schedule 8.8;
property and assets relating to any lease agreement with such landlord and contractual
Liens of suppliers (including sellers of goods) or customers granted in the ordinary course
of business to the extent limited to the property or assets related to such contract;
securing indebtedness permitted by Section 8.7(q) and which do not encumber any
Collateral; and
with respect to obligations that do not in the aggregate exceed $10,000,000 at any time
outstanding, and which do not encumber any Collateral.
Section 8.9. Investments, Acquisitions, Loans and Advances
. No Loan Party shall, nor
shall it permit any of its Subsidiaries to, directly or indirectly, make, retain or have outstanding
any investments (whether through purchase of stock or obligations or otherwise) in, or loans or
advances to (other than for travel advances and other similar cash advances made to employees in
the ordinary course of business), any other Person, or acquire all or any substantial part of the
assets or business of any other Person or division thereof;
provided, however,
shall not apply to nor operate to prevent:
outstanding on the Closing Date;
Subsidiary of any Loan Party and any other Loan Party or Subsidiary of any Loan Party in
the ordinary course of business, provided that the aggregate amount of all such
intercompany advances made to Subsidiaries of a Loan Party that are not Loan Parties or
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Subsidiaries of a Loan Party that are not Wholly-owned Subsidiaries shall not exceed an
aggregate amount of $20,000,000 during any fiscal year of the Borrower;
interest rate, foreign currency, and commodity Hedging Agreements entered into with
financial institutions in connection with bona fide hedging activities in the ordinary course
of business and not for speculative purposes;
with dispositions permitted by Section 8.10;
connection with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers and suppliers
arising in the ordinary course of business and upon the foreclosure with respect to any
secured investment or other transfer of title with respect to any secured investment;
leases or other obligations as permitted by Section 8.8;
above and listed and identified on Schedule 8.9;
time outstanding, provided that (i) no Default exists both immediately before and after
giving effect to such investment, (ii) after giving pro forma effect to such investment, the
Borrower and its Subsidiaries are in compliance with Section 8.22, and (iii) cash and Cash
Equivalents of the Borrower and its Subsidiaries plus availability under the Revolving
Facility shall equal at least $50,000,000; and
permitted by this Section in an amount not to exceed $25,000,000 in the aggregate at any
one time outstanding.
In determining the amount of investments, acquisitions, loans, and advances permitted under this
Section, investments and acquisitions shall always be taken at the original cost thereof (regardless
of any subsequent appreciation or depreciation therein), less any amount in respect of such
investment upon sale, collection or return (not to exceed the original cost thereof) and loans and
advances shall be taken at the principal amount thereof then remaining unpaid.
Section 8.10. Mergers, Consolidations and Sales.
No Loan Party shall, nor shall it permit
any of its Subsidiaries to, be a party to any merger or consolidation or amalgamation, or sell,
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transfer, lease or otherwise dispose of all or any material part of its Property, including any
disposition of Property as part of a sale and leaseback transaction, or in any event sell or discount
(with or without recourse) any of its notes or accounts receivable;
provided, however,
Section shall not apply to nor operate to prevent:
one another in the ordinary course of its business;
into the Borrower or any other Loan Party, provided that, in the case of any merger
involving the Borrower or involving a Subsidiary of a Loan Party which is not a Loan
Party, the Borrower, if the Borrower is a party to the merger, or a Loan Party, if the
Borrower is not a party to the merger, is the corporation surviving the merger;
business for purposes of collection only (and not for the purpose of any bulk sale or
securitization transaction);
in the reasonable business judgment of the relevant Loan Party or its Subsidiary, has
become obsolete or worn out, and which is disposed of in the ordinary course of business;
Party (including any Disposition of Property as part of a sale and leaseback transaction)
aggregating for all Loan Parties and their Subsidiaries not more than $30,000,000 during
any fiscal year of the Borrower,
provided
fair value and (ii) at least 80% of the total consideration received at the closing of such
Disposition shall consist of cash and at least 80% of the total consideration received after
taking into account all final purchase price adjustments and/or contingent payments
(including working capital adjustment or earn-out provisions) expressly contemplated by
the transaction documents, when received shall consist of cash; and
of business.
Section 8.11. Maintenance of Subsidiaries.
No Loan Party shall assign, sell or transfer, nor
shall it permit any of its Subsidiaries to issue, assign, sell or transfer, any shares of capital stock or
other equity interests of a Subsidiary;
provided, however,
prevent (a) the issuance, sale, and transfer to any person of any shares of capital stock of a
Subsidiary solely for the purpose of qualifying, and to the extent legally necessary to qualify, such
person as a director of such Subsidiary, (b) any transaction permitted by Section 8.10(c) above,
and (c) the issuance of shares of the Borrower’s capital stock pursuant to the Borrower’s KSOP,
or (d) any Excluded Equity Issuances.
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Section 8.12. Dividends and Certain Other Restricted Payments.
No Loan Party shall, nor
shall it permit any of its Subsidiaries to, (a) declare or pay any dividends on or make any other
distributions in respect of any class or series of its capital stock or other equity interests (other than
dividends or distributions payable solely in its capital stock or other equity interests), or (b) directly
or indirectly purchase, redeem, or otherwise acquire or retire any of its capital stock or other equity
interests or any warrants, options, or similar instruments to acquire the same (collectively referred
to herein as
“Restricted Payments”
);
provided, however,
prevent:
dividend policy as in effect on the Closing Date or any employee stock option plans or
employee incentive plans or other compensation arrangements, or SAR plans; provided
that no Default exists or will arise after giving effect to such other Restricted Payment; and
giving effect to such Restricted Payment (A) no Default has occurred and is continuing and
(B) the sum of cash and Cash Equivalents of the Borrower and its Subsidiaries plus
availability under the Revolving Facility shall equal at least $50,000,000.
Section 8.13. ERISA.
Each Loan Party shall, and shall cause each of its Subsidiaries to,
promptly pay and discharge all obligations and liabilities arising under ERISA of a character which
if unpaid or unperformed could reasonably be expected to result in the imposition of a Lien against
any of its Property, unless being contested in good faith by appropriate proceedings which prevents
the enforcement of any Lien with respect thereto. Each Loan Party shall, and shall cause each of
its Subsidiaries to, promptly notify the Administrative Agent and each Lender of: (a) the
occurrence of any reportable event (as defined in ERISA) with respect to a Plan, which individually
or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, (b) receipt
of any notice from the PBGC of its intention to seek termination of any Plan or appointment of a
trustee therefor, (c) its intention to terminate or withdraw from any Plan, and (d) the occurrence of
any event with respect to any Plan which would result in the incurrence by any Loan Party or any
Subsidiary of a Loan Party of any material liability, fine or penalty, or any material increase in the
contingent liability of any Loan Party or any Subsidiary of a Loan Party with respect to any
post-retirement Welfare Plan benefit, which individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
Section 8.14. Compliance with Laws.
(a) Each Loan Party shall, and shall cause each of its
Subsidiaries to, comply in all respects with all Legal Requirements applicable to or pertaining to
its Property or business operations, where any such non-compliance, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or result in a Lien upon
any of its Property.
of its Subsidiaries to, at all times, do the following to the extent the failure to do so, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect: (i) comply
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in all material respects with, and maintain each of the Premises in compliance in all material
respects with, all applicable Environmental Laws; (ii) require that each tenant and subtenant, if
any, of any of the Premises or any part thereof comply in all material respects with all applicable
Environmental Laws; (iii) obtain and maintain in full force and effect all material governmental
approvals required by any applicable Environmental Law for the operation of their business and
each of the Premises; (iv) cure any material violation by it or at any of the Premises of applicable
Environmental Laws unless and except to the extent being contested in good faith by appropriate
proceedings which prevents the enforcement of any Lien with respect thereto; (v) not
manufacture, use, generate, transport, treat, store, Release, dispose or handle any Hazardous
Material (or allow any tenant or subtenant to do any of the foregoing) at any of the Premises except
in the ordinary course of its live animal agricultural business and in material compliance with all
applicable Environmental Laws; (vi) within ten (10) Business Days notify the Administrative
Agent in writing and provide the disclosure filing made by the Borrower with the SEC of any of
the following in connection with any Loan Party or any Subsidiary of a Loan Party or any of the
Premises which would be required to be disclosed in an 8-K or 10-Q filing with the SEC: (1) any
Environmental Liability; (2) any Environmental Claim; or (3) any violation of an Environmental
Law or Release, threatened Release or disposal, placement or land application of a Hazardous
Material, product, or waste, including manure, that is not in compliance with applicable
Environmental Laws; or (4) any restriction on the ownership, occupancy, use or transferability of
any Premises arising from or in connection with any (x) Release, threatened Release or disposal
of a Hazardous Material, waste or product, including manure, or (y) Environmental Law;
(vii) conduct at its expense any investigation, study, sampling, testing, abatement, cleanup,
removal, remediation or other corrective or response action necessary to remove, remediate, clean
up, correct or abate any material Release, threatened material Release or material violation of any
applicable Environmental Law unless and except to the extent being contested in good faith by
appropriate proceedings which prevents the enforcement of any Lien with respect thereto,
(viii) abide by and observe any restrictions on the use of the Premises imposed by any
Governmental Authority as set forth in a deed or other instrument affecting any Loan Party’s or
any of its Subsidiary’s interest therein unless being contested in good faith by appropriate
proceedings which prevents the enforcement of any Lien with respect thereto; (ix) promptly
provide or otherwise make available to the Administrative Agent any reasonably requested
environmental record concerning the Premises which any Loan Party or any Subsidiary of a Loan
Party possesses or controls other than records subject to work product or attorney-client or other
confidentiality privilege pursuant to applicable law; and (x) perform, satisfy, and implement any
operation, maintenance or corrective actions or other requirements of any Governmental Authority
or Environmental Law, or included in any no further action letter or covenant not to sue issued by
any Governmental Authority under any Environmental Law unless and except to the extent being
contested in good faith by appropriate proceedings which prevents the enforcement of any Lien
with respect thereto.
Section 8.15. Compliance with OFAC Sanctions Programs and Anti-Corruption Laws.
(a) Each Loan Party shall at all times comply in all material respects with the requirements of all
OFAC Sanctions Programs applicable to such Loan Party and shall cause each of its Subsidiaries
to comply in all material respects with the requirements of all OFAC Sanctions Programs
applicable to such Subsidiary.
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information regarding the Loan Parties, their Affiliates, and their Subsidiaries necessary for the
Administrative Agent and the Lenders to comply with all applicable OFAC Sanctions Programs;
subject however, in the case of Affiliates, to such Loan Party’s ability to provide information
applicable to them.
Loan Party, any Subsidiary of any Loan Party, or any officer, director or Affiliate of any Loan
Party or that any Person that owns or controls any such Person is the target of any OFAC Sanctions
Programs or is located, organized or resident in a country or territory that is, or whose government
is, the subject of any OFAC Sanctions Programs (such occurrence, an
“OFAC Event”
), such Loan
Party shall promptly (i) give written notice to the Administrative Agent and the Lenders of such
OFAC Event, and (ii) comply in all material respects with all applicable laws with respect to such
OFAC Event (regardless of whether the target Person is located within the jurisdiction of the
United States of America), including the OFAC Sanctions Programs, and each Loan Party hereby
authorizes and consents to the Administrative Agent and the Lenders taking any and all steps the
Administrative Agent or the Lenders deem necessary, in their sole but reasonable discretion, to
avoid violation of all applicable laws with respect to any such OFAC Event, including the
requirements of the OFAC Sanctions Programs (including the freezing and/or blocking of assets
and reporting such action to OFAC).
proceeds of the Revolving Facility of an Incremental Term Loan (if any), or lend, contribute or
otherwise make available such proceeds to any other Person, (i) to fund any activities or business
of or with any Person or in any country or territory, that, at the time of such funding, is, or whose
government is, the subject of any OFAC Sanctions Programs, or (ii) in any other manner that
would result in a violation of OFAC Sanctions Programs or Anti-Corruption Laws by any Person
(including any Person participating in the Revolving Facility or any Incremental Term Loan,
whether as underwriter, lender, advisor, investor, or otherwise).
Law in any material respect.
compliance by the Loan Parties, their Subsidiaries, and their respective directors, officers,
employees, and agents with applicable Anti-Corruption Laws.
Section 8.16. Burdensome Contracts With Affiliates.
permit any of its Subsidiaries to, enter into any material contract, agreement or business
arrangement with any of its Affiliates on terms and conditions which are less favorable to such
Loan Party or such Subsidiary than would be usual and customary in similar contracts, agreements
or business arrangements between Persons not affiliated with each other;
provided
that the
foregoing restriction shall not apply to transactions between or among the Loan Parties.
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Section 8.17. No Changes in Fiscal Year.
Subsidiaries ends on or about May 31 of each year; and the Borrower shall not, nor shall it permit
any Subsidiary to, change its fiscal year from its present basis.
Section 8.18. Formation of Subsidiaries.
any Subsidiary, the Loan Parties shall provide the Administrative Agent and the Lenders notice
thereof (at which time Schedule 6.2 shall be deemed amended to include reference to such
Subsidiary. The Loan Parties shall, and shall cause their Wholly-owned Subsidiaries that are
Domestic Subsidiaries to, timely comply with the requirements of Sections 11 and 12
with respect
to any Subsidiary that is required to become a Guarantor hereunder.
Section 8.19. Change in the Nature of Business.
No Loan Party shall, nor shall it permit
any of its Subsidiaries to, engage in any business or activity if as a result the general nature of the
business of such Loan Party or any of its Subsidiaries would be changed in any material respect
from the general nature of the business engaged in by it as of the Closing Date or an Eligible Line
of Business.
Section 8.20. Use of Proceeds
. The Borrower shall use the credit extended under this
Agreement solely for the purposes set forth in, or otherwise permitted by, Section 6.4.
Section 8.21. No Restrictions
. Except as provided herein or exist as of the date hereof, no
Loan Party shall, nor shall it permit any of its Wholly-owned Subsidiaries to, directly or indirectly
create or otherwise cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind on the ability of any Loan Party or any Wholly-owned Subsidiary of a Loan
Party to: (a) pay dividends or make any other distribution on any such Subsidiary’s capital stock
or other equity interests owned by such Loan Party or any of its Wholly-owned Subsidiaries,
(b) pay any indebtedness owed to any Loan Party or any of its Wholly-owned Subsidiaries,
(c) make loans or advances to any Loan Party or any of its Wholly-owned Subsidiaries, (d) transfer
any of its Property to any Loan Party or any of its Wholly-owned Subsidiaries, or (e) guarantee
the Secured Obligations and/or grant Liens on its assets to the Administrative Agent as required
by the Loan Documents.
Section 8.22. Financial Covenants.
Total Funded Debt to Capitalization Ratio
. As of the last day of each fiscal quarter
of the Borrower ending on or after November 27, 2021, the Borrower shall not permit the Total
Funded Debt to Capitalization Ratio to be greater than 50.0%.
Minimum Tangible Net Worth
. The Borrower shall not permit Tangible Net Worth
to be less than (i) $700,000,000 for the fiscal quarter ended November 27, 2021, plus (ii) for each
fiscal quarter ending thereafter, 50% of Net Income for such fiscal quarter (if Net Income is
positive) less Restricted Payments permitted to be made pursuant to Section 8.12 during such fiscal
quarter.
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S
ECTION
VENTS OF
D
EFAULT AND
R
EMEDIES
.
Section 9.1.
Events of Default.
“Event of Default”
part of the principal of any Loan (whether at the stated maturity thereof or at any other time
provided for in this Agreement) or of any Reimbursement Obligation, or default for a
period of five (5) Business Days in the payment when due of any interest,
fee or other
Obligation payable hereunder or under any other Loan Document;
Sections 8.1(a), 8.10, 8.12, 8.17, 8.20 or 8.22 of this Agreement;
of any other Loan Document which is not remedied within thirty (30) days after the earlier
of (i) the date on which such failure shall first become known to any Responsible Officer
of any Loan Party or (ii) written notice thereof is given to the Borrower by the
Administrative Agent;
or in any certificate furnished to the Administrative Agent or the Lenders pursuant hereto
or thereto or in connection with any transaction contemplated hereby or thereby proves
untrue in any material respect as of the date of the issuance or making or deemed making
thereof;
subsections (a) through (d) above) which is specified as an event of default under any of
the other Loan Documents, or (ii) any of the Loan Documents shall for any reason not be
or shall cease to be in full force and effect or is declared to be null and void, or (iii) any of
the Collateral Documents shall for any reason fail to create a valid and perfected first
priority Lien in favor of the Administrative Agent in any Collateral purported to be covered
thereby except as expressly permitted by the terms hereof, or (iv) any Loan Party takes any
action for the purpose of terminating, repudiating or rescinding any Loan Document
executed by it or any of its obligations thereunder;
guaranteed by any Loan Party or any Subsidiary of a Loan Party, or under any indenture,
agreement or other instrument under which the same may be issued, and such default shall
continue for a period of time sufficient to permit the acceleration of the maturity of any
such Material Indebtedness (whether or not such maturity is in fact accelerated), or any
such Material Indebtedness shall not be paid when due (whether by demand, lapse of time,
acceleration or otherwise);
attachment, or any similar process or processes, shall be entered or filed against any Loan
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Party or any Subsidiary of a Loan Party, or against any of their respective Property, in an
aggregate amount for all such Persons in excess of $25,000,000 (except to the extent fully
covered by insurance pursuant to which the insurer has accepted liability therefor in
writing), and which remains undischarged, unvacated, unbonded or unstayed for a period
of 30 days, or any action shall be legally taken by a judgment creditor to attach or levy
upon any Property of any Loan Party or any Subsidiary of a Loan Party to enforce any such
judgment, or (ii) any Loan Party or any Subsidiary of a Loan Party shall fail within
thirty (30) days to discharge one or more non-monetary judgments or orders which,
individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect, which judgments or orders, in any such case, are not stayed on appeal or otherwise
being appropriately contested in good faith by proper proceedings diligently pursued;
Controlled Group, shall fail to pay when due an amount or amounts aggregating for all
such Persons in excess of $20,000,000 which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
having aggregate Unfunded Vested Liabilities in excess of $20,000,000 (collectively, a
“Material Plan”
) shall be filed under Title IV of ERISA by any Loan Party or any
Subsidiary of a Loan Party, or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer
any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan
against any Loan Party or any Subsidiary of a Loan Party, or any member of its Controlled
Group, to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have
been dismissed within ninety (90) days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan
must be terminated;
involuntarily against it an order for relief under the United States Bankruptcy Code, as
amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they
become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek,
consent to or acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its Property, (v) institute any
proceeding seeking to have entered against it an order for relief under the United States
Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material allegations of any such
proceeding filed against it, (vi) take any corporate or similar action in furtherance of any
matter described in parts (i) through (v) above, or (vii) fail to contest in good faith any
appointment or proceeding described in Section 9.1(k); or
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be appointed for any Loan Party or any Subsidiary of a Loan Party, or any substantial part
of any of its Property, or a proceeding described in Section 9.1(j)(v) shall be instituted
against any Loan Party or any Subsidiary of a Loan Party, and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period of
60 days.
Section 9.2.
Non-Bankruptcy Defaults.
described in subsection (j) or (k) of Section 9.1 with respect to the Borrower) has occurred and is
continuing, the Administrative Agent shall, by written notice to the Borrower: (a) if so directed by
the Required Lenders, terminate the remaining Commitments and all other obligations of the
Lenders hereunder on the date stated in such notice (which may be the date thereof); (b) if so
directed by the Required Lenders, declare the principal of and the accrued interest on all
outstanding Loans to be forthwith due and payable and thereupon all outstanding Loans, including
both principal and interest thereon, shall be and become immediately due and payable together
with all other amounts payable under the Loan Documents without further demand, presentment,
protest or notice of any kind; and (c) if so directed by the Required Lenders, demand that the
Borrower immediately deliver to the Administrative Agent Cash Collateral in an amount equal to
105% of the aggregate amount of each Letter of Credit then outstanding, and the Borrower agrees
to immediately make such payment and acknowledges and agrees that the Lenders would not have
an adequate remedy at law for failure by the Borrower to honor any such demand and that the
Administrative Agent, for the benefit of the Lenders, shall have the right to require the Borrower
to specifically perform such undertaking whether or not any drawings or other demands for
payment have been made under any Letter of Credit. In addition, the Administrative Agent may
exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it,
the Lenders and the L/C Issuer under the Loan Documents or applicable law or equity when any
such Event of Default has occurred and is continuing. The Administrative Agent shall give notice
to the Borrower under Section 9.1(c) promptly upon being requested to do so by any Lender. The
Administrative Agent, after giving notice to the Borrower pursuant to Section 9.1(c) or this
Section 9.2, shall also promptly send a copy of such notice to the other Lenders, but the failure to
do so shall not impair or annul the effect of such notice.
Section 9.3. Bankruptcy Defaults
. When any Event of Default described in subsections (j)
or (k) of Section 9.1 with respect to the Borrower has occurred and is continuing, then all
outstanding Loans shall immediately become due and payable together with all other amounts
payable under the Loan Documents without presentment, demand, protest or notice of any kind,
the obligation of the Lenders to extend further credit pursuant to any of the terms hereof shall
immediately terminate and the Borrower shall immediately deliver to the Administrative Agent
Cash Collateral in an amount equal to 105% of the aggregate amount of each Letter of Credit then
outstanding, the Borrower acknowledging and agreeing that the Lenders would not have an
adequate remedy at law for failure by the Borrower to honor any such demand and that the Lenders,
and the Administrative Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands for payment
have been made under any of the Letters of Credit. In addition, the Administrative Agent may
exercise on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it,
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the Lenders and the L/C Issuer under the Loan Documents or applicable law or equity when any
such Event of Default has occurred and is continuing.
Section 9.4. Collateral for Undrawn Letters of Credit
. (a) If the prepayment of the
amount available for drawing under any or all outstanding Letters of Credit is required under any
of Sections 2.3(b), 2.8(b), Section 2.13, 2.14, 9.2 or 9.3 above, the Borrower shall forthwith pay
the amount required to be so prepaid, to be held by the Administrative Agent as provided in
subsection (b) below.
Administrative Agent in one or more separate collateral accounts (each such account, and the credit
balances, properties, and any investments from time to time held therein, and any substitutions for
such account, any certificate of deposit or other instrument evidencing any of the foregoing and
all proceeds of and earnings on any of the foregoing being collectively called the
“Collateral
Account”
) as security for, and for application by the Administrative Agent (to the extent available)
to, the reimbursement of any payment under any Letter of Credit then or thereafter made by the
L/C Issuer, and to the payment of the unpaid balance of all other Secured Obligations. The
Collateral Account shall be held in the name of and subject to the exclusive dominion and control
of the Administrative Agent for the benefit of the Administrative Agent, the Lenders, and the
L/C Issuer. If and when requested by the Borrower, the Administrative Agent shall invest funds
held in the Collateral Account from time to time in direct obligations of, or obligations the principal
of and interest on which are unconditionally guaranteed by, the United States of America with a
remaining maturity of one year or less,
provided
authorized to sell investments held in the Collateral Account when and as required to make
payments out of the Collateral Account for application to amounts due and owing from the
Borrower to the L/C Issuer, the Administrative Agent or the Lenders. Subject to the terms of
Sections 2.13 and 2.14, if the Borrower shall have made payment of all obligations referred to in
subsection (a) above required under Section 2.8(b), at the request of the Borrower the
Administrative Agent shall release to the Borrower amounts held in the Collateral Account so long
as at the time of the release and after giving effect thereto no Default exists. After all Letters of
Credit have expired or been cancelled and the expiration or termination of all Commitments, at the
request of the Borrower, the Administrative Agent shall release any remaining amounts held in the
Collateral Account following payment in full in cash of all Secured Obligations.
Section 9.5. Post-Default Collections
. Anything contained herein or in the other Loan
Documents to the contrary notwithstanding (including, without limitation, Section 2.8(b)), all
payments and collections received in respect of the Obligations and all proceeds of the Collateral
and payments made under or in respect of the Guaranty Agreements received, in each instance, by
the Administrative Agent or any of the Lenders after acceleration or the final maturity of the
Obligations or termination of the Commitments as a result of an Event of Default shall be remitted
to the Administrative Agent and distributed as follows:
Administrative Agent, and any security trustee therefor, in monitoring, verifying,
protecting, preserving or enforcing the Liens on the Collateral, in protecting, preserving or
enforcing rights under the Loan Documents, and in any event including all costs and
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expenses of a character which the Loan Parties have agreed to pay the Administrative
Agent under Section 13.4 (such funds to be retained by the Administrative Agent for its
own account unless it has previously been reimbursed for such costs and expenses by the
Lenders, in which event such amounts shall be remitted to the Lenders to reimburse them
for payments theretofore made to the Administrative Agent);
Loan Documents to be allocated pro rata in accordance with the aggregate unpaid amounts
owing to each holder thereof;
Obligations, together with amounts to be held by the Administrative Agent as collateral
security for any outstanding L/C Obligations pursuant to Section 9.4 (until the
Administrative Agent is holding an amount of cash equal to 105% of the then outstanding
amount of all such L/C Obligations), and Hedging Liability, the aggregate amount paid to,
or held as collateral security for, the Lenders and L/C Issuer and, in the case of Hedging
Liability, their Affiliates to be allocated pro rata in accordance with the aggregate unpaid
amounts owing to each holder thereof;
indebtedness, obligations, and liabilities of the Borrower and its Subsidiaries secured by
the Loan Documents (including, without limitation, Bank Product Obligations) to be
allocated pro rata in accordance with the aggregate unpaid amounts owing to each holder
thereof; and
S
ECTION
HE
A
DMINISTRATIVE
A
GENT
.
. Each of the Lenders and the L/C Issuers hereby
irrevocably appoints BMO Harris Bank N.A.
to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Section 10 are solely for the benefit of the Administrative Agent,
the Lenders and the L/C Issuers, and neither the Borrower nor any other Loan Party shall have
rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the
use of the term “agent” herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative 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 is
used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.
. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and the term “Lender”
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or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the
financial advisor or in any other advisory capacity for, and generally engage in any kind of business
with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to the Lenders.
Section 10.3. Action by Administrative Agent; Exculpatory Provisions
. (a) The
Administrative Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature.
Without limiting the generality of the foregoing, the Administrative Agent and its Related Parties:
whether a Default has occurred and is continuing;
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Administrative 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
opinion or the opinion of its counsel, may expose the Administrative Agent to liability or
that is contrary to any Loan Document or applicable law, including for the avoidance of
doubt any action that may be in violation of the automatic stay under any Debtor Relief
Law or that may effect a forfeiture, modification or termination of property of a Defaulting
Lender in violation of any Debtor Relief Law. The Administrative Agent shall in all cases
be fully justified in failing or refusing to act hereunder or under any other Loan Document
unless it first receives any further assurances of its indemnification from the Lenders that
it may require, including prepayment of any related expenses and any other protection it
requires against any and all costs, expense, and liability which may be incurred by it by
reason of taking or continuing to take any such action; and
Documents, have any duty or responsibility to disclose, and shall not be liable for the
failure to disclose, any information relating to any Loan Party or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent or any
of its Affiliates in any capacity.
action taken or not taken by the Administrative Agent under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby or thereby (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 Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 9.2, 9.3, 9.4, 9.5 and 13.3), or (ii) in
the absence of its own gross negligence or willful misconduct as determined by a court of
competent jurisdiction by final and nonappealable judgment. Any such action taken or failure to
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act pursuant to the foregoing shall be binding on all Lenders. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until notice describing such Default is
given to the Administrative Agent in writing by the Borrower, a Lender, or the L/C Issuer.
for or have any duty or obligation to any Lender or L/C Issuer or participant or any other Person
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 Collateral Documents, (v) the value or sufficiency of any Collateral, or (vi) the satisfaction
of any condition set forth in Section 7.1 or 7.2 or elsewhere herein, other than to confirm receipt
of items expressly required to be delivered to the Administrative Agent.
. The Administrative Agent shall be
entitled to rely upon, and shall be fully protected in relying and shall not incur any liability for
relying upon, any notice, request, certificate, communication, consent, statement, instrument,
document or other writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the proper Person, and
shall be fully protected in relying 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,
extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such
condition is satisfactory to such Lender or L/C Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or L/C Issuer prior to the making of such Loan
or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel
(who may be counsel for the Loan Parties), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
. The Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory provisions of this Section
shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection with the syndication of
the Revolving Facility and any Incremental Term Loans as well as activities as Administrative
Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any
sub-agents except to the extent that a court of competent jurisdiction determines in a final and
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nonappealable judgment that the Administrative Agent acted with gross negligence or willful
misconduct in the selection of such sub-agents.
. (a) The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon
receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office in the United States
of America, or an Affiliate of any such bank with an office in the United States of America. 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 Administrative Agent gives notice of its
resignation (or such earlier day as shall be agreed by the Required Lenders) (the
“Resignation
Effective Date”
), then the retiring Administrative Agent may (but shall not be obligated to), on
behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the
qualifications set forth above. Whether or not a successor has been appointed, such resignation
shall become effective in accordance with such notice on the Resignation Effective Date.
shall be discharged from its duties and obligations hereunder and under the other Loan Documents,
and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent,
all payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and L/C Issuer directly, until
such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided
for above.
If on the Resignation Effective Date no successor has been appointed and accepted
such appointment, the Administrative Agent’s rights in the Collateral Documents shall be assigned
without representation, recourse or warranty to the Lenders and L/C Issuer as their interests may
appear. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring Administrative Agent (other than any rights to indemnity payments or other
amounts owed to the retiring Administrative Agent), and the retiring Administrative Agent shall
be discharged from all of its duties and obligations hereunder or under 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.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Section 10 and Section 13.4 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
. Each Lender and
L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative
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 L/C Issuer also acknowledges that it will, independently and
without reliance upon the Administrative 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
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Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
Upon a Lender’s written request, the Administrative Agent agrees to forward to such
Lender, when complete, copies of any field audit, examination, or appraisal report prepared by or
for the Administrative Agent with respect to the Borrower or any Loan Party or the Collateral
(herein,
“Reports”
). Each Lender hereby agrees that (a) it has requested a copy of each Report
prepared by or on behalf of the Administrative Agent; (b) the Administrative Agent (i) makes no
representation or warranty, express or implied, as to the completeness or accuracy of any Report
or any of the information contained therein or any inaccuracy or omission contained in or relating
to a Report and (ii) shall not be liable for any information contained in any Report; (c) the Reports
are not comprehensive audits or examinations, and that any Person performing any field
examination will inspect only specific information regarding the Borrower and the other Loan
Parties and will rely significantly upon the books and records of Borrower and the other Loan
Parties, as well as on representations of personnel of the Borrower and the other Loan Parties, and
that the Administrative Agent undertakes no obligation to update, correct or supplement the
Reports; (d) it will keep all Reports confidential and strictly for its internal use, not share the Report
with any other Person except as otherwise permitted pursuant to this Agreement; and (e) without
limiting the generality of any other indemnification provision contained in this Agreement, it will
pay and protect, and indemnify, defend, and hold the Administrative Agent and any such other
Person preparing a Report harmless from and against, the claims, actions, proceedings, damages,
costs, expenses, and other amounts (including reasonable attorney fees) incurred by as the direct
or indirect result of any third parties who might obtain all or part of any Report through the
indemnifying Lender.
Section 10.8. L/C Issuer and Swingline Lender.
Lenders with respect to any Letters of Credit issued by it and the documents associated therewith,
and the Swingline Lender shall act on behalf of the Lenders with respect to the Swingline Loans
made hereunder. The L/C Issuer and the Swingline Lender shall each have all of the benefits and
immunities (i) provided to the Administrative Agent in this Section 10 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 the Applications pertaining to such Letters of Credit or by the
Swingline Lender in connection with Swingline Loans made or to be made hereunder as fully as
if the term “Administrative Agent”, as used in this Section 10, included the L/C Issuer and the
Swingline Lender with respect to such acts or omissions and (ii) as additionally provided in this
Agreement with respect to such L/C Issuer or Swingline Lender, as applicable. Any resignation
by the Person then acting as Administrative Agent pursuant to Section 10.6 shall also constitute
its resignation or the resignation of its Affiliate as L/C Issuer and Swingline Lender except as it
may otherwise agree. If such Person then acting as L/C Issuer so resigns, 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 Lenders to make Loans or fund risk participations
in Reimbursement Obligations pursuant to Section 2.3. If such Person then acting as Swingline
Lender resigns, it shall retain all the rights of the Swingline Lender provided for hereunder with
respect to Swingline Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Loans or fund risk participations in outstanding
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Swingline Loans pursuant to Section 2.2(b). Upon the appointment by the Borrower of a successor
L/C Issuer or Swingline Lender hereunder (which successor shall in all cases be a Lender other
than a Defaulting Lender), (i) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swingline Lender, as applicable
(other than any rights to indemnity payments or other amounts that remain owing to the retiring
L/C Issuer or Swingline Lender), and (ii) the retiring L/C Issuer and Swingline Lender shall be
discharged from all of their respective duties and obligations hereunder or under the other Loan
Documents other than with respect to its outstanding Letters of Credit and Swingline Loans, and
(iii) upon the request of the resigning L/C Issuer, 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 resigning L/C Issuer to effectively assume the
obligations of the resigning L/C Issuer with respect to such Letters of Credit.
Section 10.9. Hedging Liability and Bank Product Obligations
. By virtue of a Lender’s
execution of this Agreement or an assignment agreement pursuant to Section 13.2, as the case may
be, any Affiliate of such Lender with whom the Borrower or any other Loan Party has entered into
an agreement creating Hedging Liability or Bank Product Obligations shall be deemed a Lender
party hereto for purposes of any reference in a Loan Document to the parties for whom the
Administrative Agent is acting, it being understood and agreed that the rights and benefits of such
Affiliate under the Loan Documents consist exclusively of such Affiliate’s right to share in
payments and collections out of the Collateral and the Guaranty Agreements as more fully set forth
in Section 9.5. Without limiting the generality of the foregoing, (i) each such Affiliate of any
Lender that has entered into an agreement creating Hedging Liability or Bank Product Obligations
shall, for the avoidance of doubt, be deemed to have agreed to the provisions of Section 10.15 and
(ii) no such Affiliate of any Lender shall have any right to notice of any action or to consent to,
direct or object to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral). In connection with any
such distribution of payments and collections, or any request for the release of the Guaranty
Agreements and the Administrative Agent’s Liens in connection with the termination of the
Commitments and the payment in full of the Obligations, the Administrative Agent shall be
entitled to assume no amounts are due to any Lender or its Affiliate with respect to Hedging
Liability or Bank Product Obligations unless such Lender has notified the Administrative Agent
in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution or
payment or release of Guaranty Agreements and Liens.
Section 10.10. Designation of Additional Agents
. The Administrative Agent shall have the
continuing right, for purposes hereof, at any time and from time to time to designate one or more
of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,”
“book runners,” “lead arrangers,” “arrangers,” or other designations for purposes hereto, but such
designation shall have no substantive effect, and such Lenders and their Affiliates shall have no
additional powers, duties or responsibilities as a result thereof.
Section 10.11. Authorization to Enter into, and Enforcement of, the Collateral Documents;
Possession of Collateral
. The Administrative Agent is hereby irrevocably authorized by each of
the Lenders and the L/C Issuer to execute and deliver the Collateral Documents on behalf of each
of the Lenders, the L/C Issuer, and their Affiliates and to take such action and exercise such powers
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under the Collateral Documents as the Administrative Agent considers appropriate;
provided
Administrative Agent shall not amend the Collateral Documents unless such amendment is agreed
to in writing by the Required Lenders. Upon the occurrence of an Event of Default, the
Administrative Agent shall take such action to enforce its Lien on the Collateral and to preserve
and protect the Collateral as may be directed by the Required Lenders. Unless and until the
Required Lenders give such direction, the Administrative Agent may (but shall not be obligated
to) take or refrain from taking such actions as it deems appropriate and in the best interest of all
the Lenders and L/C Issuer. Each Lender and L/C Issuer acknowledges and agrees that it will be
bound by the terms and conditions of the Collateral Documents upon the execution and delivery
thereof by the Administrative Agent. The Administrative Agent shall not be responsible for or
have a duty to ascertain or inquire into any representation or warranty regarding the existence,
value or collectability of the Collateral, the existence, priority or perfection of the Administrative
Agent’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor
shall the Administrative Agent be responsible or liable to the Lenders, the L/C Issuer or their
Affiliates for any failure to monitor or maintain any portion of the Collateral. The Lenders and
L/C Issuer hereby irrevocably authorize (and each of their Affiliates holding any Bank Product
Obligations and Hedging Liability entitled to the benefits of the Collateral shall be deemed to
authorize) the Administrative Agent, based upon the instruction of the Required Lenders, to credit
bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of
the Collateral at any sale thereof conducted by the Administrative Agent (or any security trustee
therefore) under the provisions of the Uniform Commercial Code, including pursuant to Sections
9-610 or 9-620 of the Uniform Commercial Code, at any sale thereof conducted under the
provisions of the United States Bankruptcy Code, including Section 363 of the United States
Bankruptcy Code, or at any sale or foreclosure conducted by the Administrative Agent or any
security trustee therefore (whether by judicial action or otherwise) in accordance with applicable
law. Except as otherwise specifically provided for herein, no Lender, L/C Issuer, or their
Affiliates, other than the Administrative Agent, shall have the right to institute any suit, action or
proceeding in equity or at law for the foreclosure or other realization upon any Collateral or for
the execution of any trust or power in respect of the Collateral or for the appointment of a receiver
or for the enforcement of any other remedy under the Collateral Documents; it being understood
and intended that no one or more of the Lenders or L/C Issuer or their Affiliates shall have any
right in any manner whatsoever to affect, disturb or prejudice the Lien of the Administrative Agent
(or any security trustee therefor) under the Collateral Documents by its or their action or to enforce
any right thereunder, and that all proceedings at law or in equity shall be instituted, had, and
maintained by the Administrative Agent (or its security trustee) in the manner provided for in the
relevant Collateral Documents for the benefit of the Lenders, the L/C Issuer, and their Affiliates.
Each Lender and L/C Issuer is hereby appointed agent for the purpose of perfecting the
Administrative Agent’s security interest in assets which, in accordance with Article 9 of the
Uniform Commercial Code or other applicable law can be perfected only by possession. Should
any Lender or L/C Issuer (other than the Administrative Agent) obtain possession of any
Collateral, such Lender or L/C Issuer shall notify the Administrative Agent thereof, and, promptly
upon the Administrative Agent’s request therefor shall deliver such Collateral to the
Administrative Agent or in accordance with the Administrative Agent’s instructions.
Guaranties.
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the L/C Issuer, and their Affiliates to (a) release any Lien covering any Collateral that is sold,
transferred, or otherwise disposed of in accordance with the terms and conditions of this
Agreement and the relevant Collateral Documents (including a sale, transfer, or disposition
permitted by the terms of Section 8.10 or which has otherwise been consented to in accordance
with Section 13.3), (b) release or subordinate any Lien on Collateral consisting of goods financed
with purchase money indebtedness or under a Capital Lease to the extent such purchase money
indebtedness or Capitalized Lease Obligation, and the Lien securing the same, are permitted by
Sections 8.7(b) and 8.8(d), (c) reduce or limit the amount of the indebtedness secured by any
particular item of Collateral to an amount not less than the estimated value thereof to the extent
necessary to reduce mortgage registry, filing and similar tax, (d) release Liens on the Collateral
following termination or expiration of the Commitments and payment in full in cash of the
Obligations (other than contingent indemnification obligations) and the expiration or termination
of all Letters of Credit (other than Letters of Credit that have been Cash Collateralized to the
satisfaction of the Administrative Agent and relevant L/C Issuer) and, if then due, Hedging
Liability and Bank Product Obligations, and (e) release any Subsidiary from its obligations as a
Guarantor if such Person ceases to be a Subsidiary as a result of a transaction permitted under the
Loan Documents. Upon the Administrative Agent’s request, the Required Lenders will confirm
in writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of Property or to release any Person form its obligations as a Guarantor under the
Loan Documents.
Section 10.13. Authorization of Administrative Agent to 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 Administrative 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 Administrative Agent shall have made any demand on the
Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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 Lenders, the L/C Issuer and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements and
advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders, the L/C Issuer and the
Administrative Agent under the Loan Documents including, but not limited to,
Sections 3.1, 4.4, 4.5, and 13.4) allowed in such judicial proceeding; and
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 L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements
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and advances of the Administrative Agent and its agents and counsel, and any other amounts due
the Administrative Agent under Sections 3.1 and 13.4. Nothing contained herein shall be deemed
to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of
any Lender or L/C Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or L/C Issuer or to authorize the
Administrative Agent to vote in respect of the claim of any Lender or L/C Issuer in any such
proceeding.
(a) Each Lender (x) represents and warrants, as of
the date such Person became a Lender party hereto, to, and (y) covenants, from the date such
Person became a Lender party hereto to the date such Person ceases being a Lender party hereto,
for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt,
to or for the benefit of any Borrower or any other Loan Party, that at least one of the following is
and will be true:
of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s
entrance into, participation in, administration of and performance of the Loans, the Letters
of Credit, the Commitments or this Agreement;
14 (a class exemption for certain transactions determined by independent qualified
professional asset managers), PTE 95-60 (a class exemption for certain transactions
involving insurance company general accounts), PTE 90-1 (a class exemption for certain
transactions involving insurance company pooled separate accounts), PTE 91-38 (a class
exemption for certain transactions involving bank collective investment funds) or PTE 96-
23 (a class exemption for certain transactions determined by in-house asset managers), is
applicable with respect to such Lender’s entrance into, participation in, administration of
and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;
or
Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such
Qualified Professional Asset Manager made the investment decision on behalf of such
Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit,
the Commitments and this Agreement, (C) the entrance into, participation in,
administration of and performance of the Loans, the Letters of Credit, the Commitments
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of
PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection
(a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the
Commitments and this Agreement; or
writing between the Administrative Agent, in its sole discretion, and such Lender.
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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, to,
and (y) covenants, from the date such Person became a Lender party hereto to the date such Person
ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the
avoidance of doubt, to or for the benefit of any Borrower or any other Loan Party, that the
Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such
Lender’s entrance into, participation in, administration of and performance of the Loans, the
Letters of Credit, the Commitments and this Agreement (including in connection with the
reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan
Document or any documents related hereto or thereto).
. Notwithstanding anything to the contrary
in this Agreement, if at any time the Administrative Agent determines (in its sole and absolute
discretion) that it has made a payment hereunder in error to any Lender, L/C Issuer or other secured
party hereunder, whether or not in respect of an Obligation due and owing by the Borrowers at
such time, where such payment is a Rescindable Amount, then in any such event, each such Person
receiving a Rescindable Amount severally agrees to repay to the Administrative Agent forthwith
on demand the Rescindable Amount received by such Person in immediately available funds in
the currency so received, with interest thereon, for each day from and including the date such
Rescindable Amount is received by it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation. Each Lender, each L/C
Issuer and each other secured party hereunder irrevocably waives any and all defenses, including
any “discharge for value” (under which a creditor might otherwise claim a right to retain funds
mistakenly paid by a third party in respect of a debt owed by another), “good consideration”,
“change of position” or similar defenses (whether at law or in equity) to its obligation to return
any Rescindable Amount. The Administrative Agent shall inform each Lender, L/C Issuer or other
secured party hereunder that received a Rescindable Amount promptly upon determining that any
payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each
Person’s obligations, agreements and waivers under this Section 10.16 shall survive the resignation
or replacement of the Administrative Agent, any transfer of rights or obligations by, or the
replacement of, a Lender or L/C Issuer, the termination of the Commitments and/or the repayment,
satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
S
ECTION
HE
G
UARANTEES
.
Section 11.1. The Guarantees
. To induce the Lenders and L/C Issuer to provide the credits
described herein and in consideration of benefits expected to accrue to the Borrower by reason of
the Commitments and for other good and valuable consideration, receipt of which is hereby
acknowledged, each Wholly-owned Subsidiary party hereto (including any Wholly-owned
Subsidiary executing an Additional Guarantor Supplement in the form attached hereto as Exhibit F
or such other form acceptable to the Administrative Agent) and the Borrower (as to the Secured
Obligations of another Loan Party) hereby unconditionally and irrevocably guarantees jointly and
severally to the Administrative Agent, the Lenders, and the L/C Issuer and their Affiliates, the due
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and punctual payment of all present and future Secured Obligations, including, but not limited to,
the due and punctual payment of principal of and interest on the Loans, the Reimbursement
Obligations, and the due and punctual payment of all other Obligations now or hereafter owed by
the Borrower under the Loan Documents and the due and punctual payment of all Hedging
Liability and Bank Product Obligations, in each case as and when the same shall become due and
payable, whether at stated maturity, by acceleration, or otherwise, according to the terms hereof
and thereof (including all interest, costs, fees, and charges after the entry of an order for relief
against the Borrower or such other obligor in a case under the United States Bankruptcy Code or
any similar proceeding, whether or not such interest, costs, fees and charges would be an allowed
claim against the Borrower or any such obligor in any such proceeding);
provided, however,
with respect to any Guarantor, Hedging Liability guaranteed by such Guarantor shall exclude all
Excluded Swap Obligations. In case of failure by the Borrower or other obligor punctually to pay
any Secured Obligations guaranteed hereby, each Guarantor hereby unconditionally agrees to
make such payment or to cause such payment to be made punctually as and when the same shall
become due and payable, whether at stated maturity, by acceleration, or otherwise, and as if such
payment were made by the Borrower or such obligor. Only direct and indirect Wholly-owned
Subsidiaries of the Borrower that are Domestic Subsidiaries shall be required to be a Guarantor
and bound by the guaranty provisions of this Section 11.
Section 11.2. Guarantee Unconditional
. The obligations of each Guarantor under this
Section 11 shall be unconditional and absolute and, without limiting the generality of the
foregoing, shall not be released, discharged, or otherwise affected by:
respect of any obligation of any Loan Party or other obligor or of any other guarantor under
this Agreement or any other Loan Document or by operation of law or otherwise;
other Loan Document or any agreement relating to Hedging Liability or Bank Product
Obligations;
insolvency, bankruptcy, reorganization, or other similar proceeding affecting, any Loan
Party or other obligor, any other guarantor, or any of their respective assets, or any resulting
release or discharge of any obligation of any Loan Party or other obligor or of any other
guarantor contained in any Loan Document;
other obligor or any other guarantor may have at any time against the Administrative
Agent, any Lender, the L/C Issuer or any other Person, whether or not arising in connection
herewith;
exercise of, or failure to exercise, any rights or remedies against any Loan Party or other
obligor, any other guarantor, or any other Person or Property;
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any obligation of any Loan Party or other obligor, regardless of what obligations of any
Loan Party or other obligor remain unpaid;
other obligor or any other guarantor for any reason of this Agreement or of any other Loan
Document or any agreement relating to Hedging Liability or Bank Product Obligations or
any provision of applicable law or regulation purporting to prohibit the payment by any
Loan Party or other obligor or any other guarantor of the principal of or interest on any
Loan or any Reimbursement Obligation or any other amount payable under the Loan
Documents or any agreement relating to Hedging Liability or Bank Product Obligations;
or
Agent, any Lender, the L/C Issuer, or any other Person or any other circumstance
whatsoever that might, but for the provisions of this subsection, constitute a legal or
equitable discharge of the obligations of any Guarantor under this Section 11.
Section 11.3. Discharge Only upon Payment in Full; Reinstatement in Certain
Circumstances
. Each Guarantor’s obligations under this Section 11 shall remain in full force and
effect until the Commitments are terminated, all Letters of Credit have expired, and the principal
of and interest on the Loans and all other amounts payable by the Borrower and the other Loan
Parties under this Agreement and all other Loan Documents and, if then outstanding and unpaid,
all Hedging Liability and Bank Product Obligations shall have been paid in full. If at any time any
payment of the principal of or interest on any Loan or any Reimbursement Obligation or any other
amount payable by any Loan Party or other obligor or any guarantor under the Loan Documents
or any agreement relating to Hedging Liability or Bank Product Obligations is rescinded or must
be otherwise restored or returned upon the insolvency, bankruptcy, or reorganization of such Loan
Party or other obligor or of any guarantor, or otherwise, each Guarantor’s obligations under this
Section 11 with respect to such payment shall be reinstated at such time as though such payment
had become due but had not been made at such time.
Section 11.4. Subrogation
. Each Guarantor agrees it will not exercise any rights which it
may acquire by way of subrogation by any payment made hereunder, or otherwise, until all the
Secured Obligations shall have been paid in full subsequent to the termination of all the
Commitments and expiration of all Letters of Credit. If any amount shall be paid to a Guarantor
on account of such subrogation rights at any time prior to the later of (x) the payment in full of the
Secured Obligations and all other amounts payable by the Loan Parties hereunder and the other
Loan Documents and (y) the termination of the Commitments and expiration of all Letters of
Credit, such amount shall be held in trust for the benefit of the Administrative Agent, the Lenders,
and the L/C Issuer (and their Affiliates) and shall forthwith be paid to the Administrative Agent
for the benefit of the Lenders and L/C Issuer (and their Affiliates) or be credited and applied upon
the Secured Obligations, whether matured or unmatured, in accordance with the terms of this
Agreement.
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Section 11.5. Subordination
. Each Guarantor (each referred to herein as a
“Subordinated
Creditor”
) hereby subordinates the payment of all indebtedness, obligations, and liabilities of the
Borrower or other Loan Party owing to such Subordinated Creditor, whether now existing or
hereafter arising, to the indefeasible payment in full in cash of all Secured Obligations. During
the existence of any Event of Default, subject to Section 11.4, any such indebtedness, obligation,
or liability of the Borrower or other Loan Party owing to such Subordinated Creditor shall be
enforced and performance received by such Subordinated Creditor as trustee for the benefit of the
holders of the Secured Obligations and the proceeds thereof shall be paid over to the
Administrative Agent for application to the Secured Obligations (whether or not then due), but
without reducing or affecting in any manner the liability of such Guarantor under this Section 11.
Section 11.6. Waivers
. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest, and any notice not provided for herein, as well as any requirement
that at any time any action be taken by the Administrative Agent, any Lender, the L/C Issuer, or
any other Person against the Borrower or any other Loan Party or other obligor, another guarantor,
or any other Person.
. Notwithstanding any other provision hereof, the right of
recovery against each Guarantor under this Section 11 shall not exceed $1.00 less than the lowest
amount which would render such Guarantor’s obligations under this Section 11 void or voidable
under applicable law, including, without limitation, fraudulent conveyance law.
Section 11.8. Stay of Acceleration
. If acceleration of the time for payment of any amount
payable by the Borrower or other Loan Party or other obligor under this Agreement or any other
Loan Document, or under any agreement relating to Hedging Liability or Bank Product
Obligations, is stayed upon the insolvency, bankruptcy or reorganization of the Borrower or such
other Loan Party or obligor, all such amounts otherwise subject to acceleration under the terms of
this Agreement or the other Loan Documents, or under any agreement relating to Hedging Liability
or Bank Product Obligations, shall nonetheless be payable by the Guarantors hereunder forthwith
on demand by the Administrative Agent made at the request or otherwise with the consent of the
Required Lenders.
Section 11.9. Benefit to Guarantors
. The Loan Parties are engaged in related businesses
and integrated to such an extent that the financial strength and flexibility of the Borrower and the
other Loan Parties has a direct impact on the success of each other Loan Party. Each Guarantor
will derive substantial direct and indirect benefit from the extensions of credit hereunder, and each
Guarantor acknowledges that this guarantee is necessary or convenient to the conduct, promotion
and attainment of its business.
Section 11.10. 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
this Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP
Guarantor shall only be liable under this Section for the maximum amount of such liability that
can be hereby incurred without rendering its obligations under this Section, or otherwise under this
Guaranty, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer,
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and not for any greater amount). The obligations of each Qualified ECP Guarantor under this
Section shall remain in full force and effect until discharged in accordance with Section 11.3. Each
Qualified ECP Guarantor intends that this Section constitute, and this Section 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.
S
ECTION
OLLATERAL
.
Section 12.1. Collateral
. The Secured Obligations shall be secured by valid, perfected, and
enforceable Liens on all right, title, and interest of each Loan Party in all of its accounts, chattel
paper, instruments, documents, payment intangibles,
letter-of-credit rights, supporting obligations,
deposit accounts, inventory and farm products and certain other Property as specifically set forth
in the Collateral Documents whether now owned or hereafter acquired or arising, and all proceeds
thereof;
provided, however,
that: (i) the Collateral shall not include Excluded Property, and
(ii) the Collateral need not include (or be perfected if a Lien is granted) those assets of any Loan
Party as to which the Administrative Agent in its sole discretion determines that the cost of
obtaining a security interest in or perfection thereof are excessive in relation to the value of the
security to be afforded thereby. Each Loan Party acknowledges and agrees that the Liens on the
Collateral shall be granted to the Administrative Agent for the benefit of the holders of the Secured
Obligations and shall be valid and perfected first priority Liens (to the extent perfection by filing,
registration, recordation, possession or control is required herein or in any other Loan Document)
subject to the proviso appearing at the end of the preceding sentence and to Liens permitted by
Section 8.8, in each case pursuant to one or more Collateral Documents from such Persons, each
in form and substance satisfactory to the Administrative Agent.
Section 12.2. Depository Banks
. Each Loan Party shall maintain the Administrative Agent
(or one of its Affiliates) as its primary depository bank, including for its principal operating,
administrative, cash management, lockbox arrangements, collection activity, and other deposit
accounts for the conduct of its business.
Section 12.3. Further Assurances
. Each Loan Party agrees that it shall, from time to time
at the request of the Administrative Agent, execute and deliver such documents and do such acts
and things as the Administrative Agent may reasonably request in order to provide for or perfect
or protect such Liens on the Collateral. In the event any Loan Party forms or acquires any other
Subsidiary after the date hereof, except as otherwise provided in the definition of Guarantor, the
Loan Parties shall promptly upon such formation or acquisition cause such newly formed or
acquired Subsidiary to execute a Guaranty Agreement and such Collateral Documents as the
Administrative Agent may then require, and the Loan Parties shall also deliver to the
Administrative Agent, or cause such Subsidiary to deliver to the Administrative Agent, at the
Borrower’s cost and expense, such other instruments, documents, certificates, and opinions
reasonably required by the Administrative Agent in connection therewith.
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S
ECTION
ISCELLANEOUS
.
.
Notices Generally.
Except in the case of notices and other communications expressly
permitted to be given by telephone (and except as provided in subsection (b) below), all notices
and other communications provided for herein shall be in writing and shall be delivered by hand
or overnight courier services or mailed by certified or registered mail as follows:
Parkway, Suite 200, Ridgeland, MS 39157, Attention of Max Bowman, Vice President and
Chief Financial Officer; Telephone No. (601) 718-4238 with a copy to the same address to
the attention of Robert Holladay, General Counsel; Telephone No. (601) 948-6813;
as L/C Issuer, to BMO Harris Bank N.A. at 111 West Monroe Street, Chicago, Illinois
60603, Attention of David J. Bechstein; Telephone No. (312) 461-5174);
Questionnaire.
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 delivered through electronic
communications, to the extent provided in subsection (b) below, shall be effective as provided in
said subsection (b).
Electronic Communications.
Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent,
provided
that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant
to Sections 2.2, 2.3 and 2.6 if such Lender or L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such Sections by electronic
communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it;
provided
that approval of such procedures may be limited to particular
notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the sender’s receipt of
an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), 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;
provided
that, for both clauses (i) and (ii) above, if such notice, email or
other communication is not sent during the normal business hours of the recipient, such notice or
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communication shall be deemed to have been sent at the opening of business on the next business
day for the recipient.
Change of Address, etc.
Any party hereto may change its address or facsimile number
for notices and other communications hereunder by notice to the other parties hereto.
Platform.
(i) Each Loan Party agrees that the Administrative Agent may, but shall
not be obligated to, make the Communications (as defined below) available to the L/C Issuers and
the other Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a
substantially similar electronic transmission system (the
“Platform”
).
defined below) do not warrant the adequacy of the Platform and expressly disclaim liability
for errors or omissions in the Communications. No warranty of any kind, express, implied
or statutory, including, without limitation, 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 Communications or the
Platform. In no event shall the Administrative Agent or any of its Related Parties
(collectively, the
“Agent Parties”
) have any liability to the Borrower or the other Loan
Parties, any Lender or any other Person or entity for damages of any kind, including,
without limitation, direct or indirect, special, incidental or consequential damages, losses
or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s, any Loan
Party’s or the Administrative Agent’s transmission of communications through the
Platform, except to the extent that such losses, claims, damages and liabilities or expenses
are determined by a court of competent jurisdiction by final and non-appealable judgment
to have resulted from the gross negligence or willful misconduct of the Agent Parties.
“Communications”
document or other material provided by or on behalf of any Loan Party pursuant to any
Loan Document or the transactions contemplated therein which is distributed to the
Administrative Agent, any Lender or any L/C Issuer by means of electronic
communications pursuant to this Section, including through the Platform.
Private Side Designation
. Each public Lender agrees to cause at least one individual
at or on behalf of such public Lender to all times have selected the “Private Side Information” or
similar designation on the content declaration screen of the Platform in order to enable such public
Lender or its delegate, in accordance with such public Lender’s compliance procedures and
applicable laws, including United States Federal and state securities applicable laws, to make
reference to Borrower or any Loan Party materials that are not made available through the “Public
Side Information” portion of the Platform and that may contain material non-public information
with respect to the Borrower or any Loan Party or their securities for purposes of United States
Federal or state securities applicable laws.
Section 13.2. Successors and Assigns
.
Successors and Assigns Generally.
upon and inure to the benefit of the parties hereto and their respective successors and assigns
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permitted hereby, except that neither the Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of paragraph (e) of this Section (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 paragraph (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
Assignments by Lenders.
Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans at the time owing to it);
provided
any Facility) any such assignment shall be subject to the following conditions:
Minimum Amounts.
(A) in the case of an assignment of the entire remaining
amount of the assigning Lender’s Commitments and the Loans at the time owing to it (in
each case with respect to any Facility) or in the case of an assignment to a Lender or an
Affiliate of a Lender, no minimum amount need be assigned; and
aggregate amount of the relevant Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the applicable 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 Administrative Agent or, if
“Trade Date”
is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $5,000,000, unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed).
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 Loan or the Commitment assigned.
Required Consents.
No consent shall be required for any assignment except
to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
withheld or delayed) shall be required unless (x) an Event of Default has occurred
and is continuing at the time of such assignment, or (y) such assignment is to a
Lender or an Affiliate of a Lender;
provided
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have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within ten (10) Business Days after having
received notice thereof;
unreasonably withheld or delayed) shall be required for assignments in respect of
(i) the Revolving Facility if such assignment is to a Person that is not a Lender with
a Commitment in respect of the Revolving Facility or an Affiliate of such Lender,
or (ii) any Incremental Term Loans to a Person who is not a Lender or an Affiliate
of a Lender; and
required for any assignment in respect of the Revolving Facility.
Assignment and Assumption.
The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
provided
that the Administrative Agent may, in
its sole discretion, elect to waive such processing and recordation fee in the case of any
assignment
.
an Administrative Questionnaire.
No Assignment to Certain Persons.
No such assignment shall be made to
(A) the Borrower or any other Loan Party or any Loan Party’s Affiliates or Subsidiaries or
(B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming
a Lender hereunder, would constitute any of the foregoing Persons described in this
clause (B).
No Assignment to Natural Persons.
No such assignment shall be made to a
natural Person (or a holding company, investment vehicle or trust for or owned and
operated for the primary benefit of a natural person) (herein any of the foregoing is a
“natural Person”).
Certain Additional Payments.
In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties to
the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be
outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed
by such Defaulting Lender to the Administrative Agent, each L/C Issuer, the Swingline
Lender and each other Lender hereunder (and interest accrued thereon), and (y) acquire
(and fund as appropriate) its full pro rata share of all Loans and participations in Letters of
Credit and Swingline Loans in accordance with its Percentage. Notwithstanding the
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foregoing, in the event that any assignment of rights and obligations of any Defaulting
Lender hereunder shall become effective under applicable law without compliance with
the provisions of this paragraph, then the assignee of such interest shall be deemed to be a
Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph (c)
of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in
the case of an Assignment and Assumption covering all of the assigning 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 13.4 and 13.6 with respect to facts and circumstances
occurring prior to the effective date of such assignment;
provided
that except to the extent
otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having
been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with paragraph (d) of this Section.
Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in Chicago, Illinois
a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts (and stated interest) of the 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. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
Participations.
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other than a natural
Person or the Borrower or any other Loan Party or any Loan Party’s Affiliates or Subsidiaries or
any other Person prohibited under Section 13.2 (b)(v) (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
Commitments and/or the Loans owing to it);
Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, and (iii) the Borrower, the Administrative
Agent, the L/C Issuers and Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. For the avoidance of
doubt, each Lender shall be responsible for the indemnity under Section 10.8 with respect to any
payments made by such Lender to its Participant(s).
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Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided
that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in Section 13.3 that
expressly relate to amendments requiring the unanimous consent of the Lenders in the Revolving
Facility in which such Participant participates. The Borrower agrees that each Participant shall be
entitled to the benefits of Sections 4.1, 4.4, and 4.5 (subject to the requirements and limitations
therein, including the requirements under Section 4.1(g) (it being understood that the
documentation required under Section 4.1(g) shall be delivered to the participating Lender)) to the
same extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section;
provided
that such Participant (A) agrees to be subject to the
provisions of Sections 2.12 and 4.7 as if it were an assignee under paragraph (b) of this Section;
and (B) shall not be entitled to receive any greater payment under Sections 4.1
or 4.4, with respect
to any participation, than its participating Lender would have been entitled to receive, except to
the extent such entitlement to receive a greater payment results from a Change in Law that occurs
after the Participant acquired the applicable participation. Each Lender that sells a participation
agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the
Borrower to effectuate the provisions of Section 2.12 with respect to any Participant. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 13.6 (Right of
Setoff) as though it were a Lender; provided that such Participant agrees to be subject to
Section 13.7 (Sharing of Payments by Lenders) as though it were a Lender. Each Lender that sells
a participation shall, acting 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
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. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance
of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register.
Certain Pledges.
Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided
that no such
pledge or assignment shall release such Lender from any of its obligations hereunder or substitute
any such pledgee or assignee for such Lender as a party hereto.
Section 13.3. Amendments.
may be amended or waived if, but only if, such amendment or waiver is in writing and is signed
by (a) the Borrower, (b) the Required Lenders (or the Administrative Agent acting at the direction
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of the Required Lenders) (except as otherwise stated below to require only the consent of the
Lenders affected thereby), and (c) if the rights or duties of the Administrative Agent, the
L/C Issuer, or the Swingline Lender are affected thereby, the Administrative Agent, the L/C Issuer,
or the Swingline Lender, as applicable;
provided
any Commitment of any Lender without the consent of such Lender or (B) reduce the
amount of or postpone the date for any scheduled payment of any principal of or interest
on any Loan or of any Reimbursement Obligation or of any fee payable hereunder without
the consent of the Lender to which such payment is owing or which has committed to make
such Loan or Letter of Credit (or participate therein) hereunder;
provided, however,
only the consent of the Required Lenders shall be necessary (i) to amend the default rate
provided in Section 2.9 or to waive any obligation of the Borrower to pay interest or fees
at the default rate as set forth therein or (ii) to amend any financial covenant hereunder (or
any defined term used therein) even if the effect of such amendment would be to reduce
the rate of interest or any fee payable hereunder;
by each Lender, change the definition of Required Lenders, change the provisions of this
Section 13.3, change Section 13.7 in a manner that would affect the ratable sharing of
setoffs required thereby, change the application of payments contained in Section 3.1 or
9.5, release any material Guarantor or all or substantially all of the Collateral (except as
otherwise provided for in the Loan Documents), or affect the number of Lenders required
to take any action hereunder or under any other Loan Document;
by each Lender affected thereby, extend the Revolving Credit Termination Date, or extend
the stated expiration date of any Letter of Credit beyond the Revolving Credit Termination
Date; and
Guarantor(s) affected thereby.
Notwithstanding anything to the contrary herein, (1) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver
or consent which by its terms requires the consent of all Lenders or each affected Lender may be
effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x)
the Commitment of any Defaulting Lender may not be increased or extended without the consent
of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders
or each affected Lender that by its terms affects any Defaulting Lender more adversely than other
affected Lenders shall require the consent of such Defaulting Lender, (2) if the Administrative
Agent and the Borrower have jointly identified an obvious error or any error or omission of a
technical nature, in each case, in any provision of the Loan Documents, then the Administrative
Agent and the Borrower shall be permitted to amend such provision, (3) guarantees, collateral
security documents and related documents executed by the Borrower or any other Loan Party in
connection with this Agreement may be in a form reasonably determined by the Administrative
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Agent and may be amended, supplemented or waived without the consent of any Lender if such
amendment, supplement or waiver is delivered in order to (x) comply with local law or advice of
local counsel, (y) cure ambiguities, omissions, mistakes or defects or (z) cause such guarantee,
collateral security document or other document to be consistent with this Agreement and the other
Loan Documents, (4) the Borrower and the Administrative Agent may, without the input or
consent of any other Lender, effect amendments to this Agreement and the other Loan Documents
as may be necessary in the reasonable opinion of the Borrower and the Administrative Agent to
effect the provisions of Section 2.15, and (5) this Section 13.3 shall be subject to the terms of
Section 4.3(c) in all respects.
Section 13.4. Costs and Expenses; Indemnification
.
Costs and Expenses.
The Borrower shall pay (i) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of outside counsel for the Administrative Agent), in
connection with the syndication of the Revolving Facility of any Incremental Term Loan, the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), including,
without limitation, such documented fees and expenses incurred in connection with (x) the
creation, perfection or protection of the Liens under the Loan Documents (including all title
insurance fees and all search, filing and recording fees) and (y) environmental assessments,
insurance reviews, collateral audits and valuations, and field exams as provided herein, (ii) all
documented reasonable out-of-pocket expenses incurred by any L/C Issuer in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment
thereunder, and (iii) all documented out-of-pocket expenses incurred by the Administrative Agent,
any Lender or any L/C Issuer (including the fees, charges and disbursements of any outside counsel
for the Administrative Agent, any Lender or any L/C Issuer), and shall pay all fees and time
charges for attorneys who may be employees of the Administrative Agent, any Lender or any L/C
Issuer, in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such
documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit (including all such costs and expenses incurred in
connection with any proceeding under the United States Bankruptcy Code involving the Borrower
or any other Loan Party as a debtor thereunder).
Indemnification by the Loan Parties.
Each Loan Party shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”
)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any outside counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any Person
(including any third party or the 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
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hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any
sub-agent thereof), any Swingline Lender and L/C Issuer, and their Related Parties, the
administration and enforcement of this Agreement and the other Loan Documents (including all
such costs and expenses incurred in connection with any proceeding under the United States
Bankruptcy Code involving the Borrower or any other Loan Party as a debtor thereunder), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal
by any 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), (iii) any Environmental Claim or Environmental Liability, including with respect to the
actual or alleged presence or Release of Hazardous Materials, wastes, or products, including
manure, at, on or from any property owned or operated by any Loan Party or any of its Subsidiaries
or at any off-site location, related in any way to any Loan Party or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other Loan Party, and regardless of whether any Indemnitee is a party
thereto (including, without limitation, any settlement arrangement arising from or relating to the
foregoing);
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower 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 Borrower 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. This subsection (b) shall not apply with respect
to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax
claim.
Reimbursement by Lenders.
To the extent that (i) the Loan Parties for any reason fail
to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by
any of them to the Administrative Agent (or any sub-agent thereof), any L/C Issuer, any Swingline
Lender or any Related Party or (ii) any liabilities, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever are imposed on, incurred
by, or asserted against, Administrative Agent, the L/C Issuer, any Swingline Lender or a Related
Party 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 Administrative Agent, the L/C Issuer, any Swingline Lender
or a Related Party in connection therewith, then, in each case, each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent), such L/C Issuer, such Swingline Lender or
such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s
share of the Total Credit Exposure at such time) of such unpaid amount (including any such unpaid
amount in respect of a claim asserted by such Lender);
provided
amounts owed to any L/C Issuer or Swingline Lender solely in its capacity as such, only the
Lenders party to the Revolving Facility shall be required to pay such unpaid amounts, such
payment to be made severally among them based on such Lenders’ pro rata share (determined as
of the time that the applicable unreimbursed expense or indemnity payment is sought based on
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each such Lender’s share of the Revolving Credit Exposure at such time); and
provided, further,
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as
the case may be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent), such L/C Issuer or such Swingline Lender in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), such
L/C Issuer or any such Swingline Lender in connection with such capacity. The obligations of the
Lenders under this subsection (c) are subject to the provisions of Section 13.15.
Waiver of Consequential Damages, Etc.
To the fullest extent permitted by applicable
law, the Loan Parties shall not assert, and hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit, or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed by it 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.
Payments.
All amounts due under this Section shall be payable not later than 30 days
after demand therefor.
Survival.
Each party’s obligations under this Section shall survive the termination of
the Loan Documents and payment of the obligations hereunder.
Section 13.5. No Waiver, Cumulative Remedies.
Administrative Agent, the L/C Issuer, or any Lender, or on the part of the holder or holders of any
of the Obligations, in the exercise of any power or right under any Loan Document shall operate
as a waiver thereof or as an acquiescence in any default, nor shall any single or partial exercise of
any power or right preclude any other or further exercise thereof or the exercise of any other power
or right. The rights and remedies hereunder of the Administrative Agent, the L/C Issuer, the
Lenders, and of the holder or holders of any of the Obligations are cumulative to, and not exclusive
of, any rights or remedies which any of them would otherwise have.
Loan Documents or applicable law and not by way of limitation of any such rights, if an Event of
Default shall have occurred and be continuing, each Lender, each L/C Issuer, and each of their
respective Affiliates is hereby authorized at any time and from time to time, 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, such L/C Issuer or any such Affiliate, to
or for the credit or the account of the Borrower or any other Loan Party against any and all of the
obligations of the Borrower or such Loan Party now or hereafter existing under this Agreement or
any other Loan Document to such Lender or such L/C Issuer or their respective Affiliates,
irrespective of whether or not such Lender, L/C Issuer or Affiliate shall have made any demand
under this Agreement or any other Loan Document and although such obligations of the Borrower
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or such Loan Party may be contingent or unmatured or are owed to a branch, office or Affiliate of
such Lender or such L/C Issuer different from the branch, office or Affiliate holding such deposit
or obligated on such indebtedness;
provided
that in the event that any Defaulting Lender shall
exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the
Administrative Agent for further application in accordance with the provisions of Section 2.13
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds
and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers, and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. The rights of each Lender, each 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, such L/C Issuer or their respective Affiliates may have. Each
Lender and L/C Issuer agrees to notify the Borrower and the Administrative 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.
Section 13.7. Sharing of Payments by Lenders.
of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or other such
obligations greater than its pro rata share thereof as provided herein, then the Lender receiving
such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase
(for cash at face value) participations in the Loans and such other obligations of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans and other amounts owing them;
provided
that:
payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and
payment made by the Borrower pursuant to and in accordance with the express terms of
this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations in L/C
Obligations to any assignee or participant, other than to any Loan Party 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 each Loan Party rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of each Loan Party in the amount of
such participation.
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Section 13.8. Survival of Representations.
or in any other Loan Document or in certificates given pursuant hereto or thereto shall survive the
execution and delivery of this Agreement and the other Loan Documents, and shall continue in
full force and effect with respect to the date as of which they were made as long as any credit is in
use or available hereunder.
Section 13.9.
Survival of Indemnities.
reimbursement to the Lenders and L/C Issuer of amounts sufficient to protect the yield of the
Lenders and L/C Issuer with respect to the Loans and Letters of Credit, including, but not limited
to, Sections 4.1, 4.4, 4.5, and 13.4, shall survive the termination of this Agreement and the other
Loan Documents and the payment of the Obligations.
Section 13.10. Counterparts; Integration; Effectiveness
.
Counterparts; Integration; Effectiveness.
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, and any separate letter agreements with respect to fees
payable to the Administrative Agent, constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 7.2, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof 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 or in electronic (e.g., “pdf” or “tif”) format shall be effective
as delivery of a manually executed counterpart of this Agreement.
Electronic Execution of Assignments.
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 Illinois
State Electronic Commerce Security Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
Section 13.11. Headings.
and shall not affect the construction of this Agreement.
Section 13.12. Severability of Provisions.
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
unenforceability without invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights, remedies and powers
provided in this Agreement and the other Loan Documents may be exercised only to the extent
that the exercise thereof does not violate any applicable mandatory provisions of law, and all the
provisions of this Agreement and other Loan Documents are intended to be subject to all applicable
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mandatory provisions of law which may be controlling and to be limited to the extent necessary
so that they will not render this Agreement or the other Loan Documents invalid or unenforceable.
Section 13.13. Construction
. The parties acknowledge and agree that the Loan Documents
shall not be construed more favorably in favor of any party hereto based upon which party drafted
the same, it being acknowledged that all parties hereto contributed substantially to the negotiation
of the Loan Documents. The provisions of this Agreement relating to Subsidiaries shall only apply
during such times as the Borrower has one or more Subsidiaries. N
OTHING CONTAINED HEREIN
SHALL BE DEEMED OR CONSTRUED TO PERMIT ANY ACT OR OMISSION WHICH IS PROHIBITED BY THE
TERMS OF ANY
C
OLLATERAL
D
OCUMENT
,
BEING IN ADDITION TO AND NOT IN SUBSTITUTION FOR THE COVENANTS AND AGREEMENTS
CONTAINED IN THE
C
OLLATERAL
D
OCUMENTS
.
Section 13.14. Excess Interest
. Notwithstanding any provision to the contrary contained
herein or in any other Loan Document, no such provision shall require the payment or permit the
collection of any amount of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance in the collection, of all or
any portion of the Loans or other obligations outstanding under this Agreement or any other Loan
Document (
“Excess Interest”
). If any Excess Interest is provided for, or is adjudicated to be
provided for, herein or in any other Loan Document, then in such event (a) the provisions of this
Section shall govern and control, (b) neither the Borrower nor any guarantor or endorser shall be
obligated to pay any Excess Interest, (c) any Excess Interest that the Administrative Agent or any
Lender may have received hereunder shall, at the option of the Administrative Agent, be (i) applied
as a credit against the then outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by applicable law),
(ii) refunded to the Borrower, or (iii) any combination of the foregoing, (d) the interest rate payable
hereunder or under any other Loan Document shall be automatically subject to reduction to the
maximum lawful contract rate allowed under applicable usury laws (the
“Maximum Rate”
), and
this Agreement and the other Loan Documents shall be deemed to have been, and shall be,
reformed and modified to reflect such reduction in the relevant interest rate, and (e) neither the
Borrower nor any guarantor or endorser shall have any action against the Administrative Agent or
any Lender for any damages whatsoever arising out of the payment or collection of any Excess
Interest. Notwithstanding the foregoing, if for any period of time interest on any of Borrower’s
Obligations is calculated at the Maximum Rate rather than the applicable rate under this
Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of
interest payable on the Borrower’s Obligations shall remain at the Maximum Rate until the
Lenders have received the amount of interest which such Lenders would have received during such
period on the Borrower’s Obligations had the rate of interest not been limited to the Maximum
Rate during such period.
Section 13.15. Lender’s and L/C Issuer’s Obligations Several
. The obligations of the
Lenders and L/C Issuer hereunder are several and not joint. Nothing contained in this Agreement
and no action taken by the Lenders or L/C Issuer pursuant hereto shall be deemed to constitute the
Lenders and L/C Issuer a partnership, association, joint venture or other entity.
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Section 13.16. No Advisory or Fiduciary Responsibility
. In connection with all aspects of
each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), each Loan Party acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (a) (i) no fiduciary, advisory or
agency relationship between any Loan Party and its Subsidiaries and the Administrative Agent,
the L/C Issuer, or any Lender is intended to be or has been created in respect of the transactions
contemplated hereby or by the other Loan Documents, irrespective of whether the Administrative
Agent, the L/C Issuer, or any Lender has advised or is advising any Loan Party or any of its
Subsidiaries on other matters, (ii) the arranging and other services regarding this Agreement
provided by the Administrative Agent, the L/C Issuer, and the Lenders are arm’s-length
commercial transactions between such Loan Parties and their Affiliates, on the one hand, and the
Administrative Agent, the L/C Issuer, and the Lenders, on the other hand, (iii) each Loan Party has
consulted its own legal, accounting, regulatory and tax advisors to the extent that it has deemed
appropriate and (iv) each Loan Party is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; and (b) (i) the Administrative Agent, the L/C Issuer, and the Lenders each is and has
been acting solely as a principal and, except as expressly agreed in writing by the relevant parties,
has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or
any of its Affiliates, or any other Person; (ii) none of the Administrative Agent, the L/C Issuer,
and the Lenders 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; and (iii) the Administrative Agent, the L/C Issuer, and the Lenders and
their respective Affiliates may be engaged, for their own accounts or the accounts of customers, in
a broad range of transactions that involve interests that differ from those of any Loan Party and its
Affiliates, and none of the Administrative Agent, the L/C Issuer, and the Lenders has any
obligation to disclose any of such interests to any Loan Party or its Affiliates. To the fullest extent
permitted by law, each Loan Party hereby waives and releases any claims that it may have against
the Administrative Agent, the L/C Issuer, and the Lenders with respect to any breach or alleged
breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.
Section 13.17. Governing Law; Jurisdiction; Consent to Service of Process
. (a) This
Agreement, the Notes and the other Loan Documents (except as otherwise specified therein), and
the rights and duties of the parties hereto, shall be construed and determined in accordance with
the laws of the State of Illinois
without regard to conflicts of law principles that would require
application of the laws of another jurisdiction.
property, to the nonexclusive jurisdiction of the United States District Court for the Northern
District of Illinois and of any Illinois State court sitting in the City of Chicago, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each party hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such Illinois State court or, to the extent permitted by applicable
Legal Requirements, in such federal court. Each party hereto hereby agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
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suit on the judgment or in any other manner provided by applicable Legal Requirements. Nothing
in this Agreement or any other Loan Document or otherwise shall affect any right that the
Administrative Agent, the L/C Issuer or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the Borrower or any
Guarantor or its respective properties in the courts of any jurisdiction.
permitted by applicable Legal Requirements, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any court referred to in Section 13.17(b). Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.
or proceeding arising out of or relating to any Loan Document, in the manner provided for notices
(other than telecopy or e-mail) in Section 13.1. Nothing in this Agreement or any other Loan
Document will affect the right of any party to this Agreement to serve process in any other manner
permitted by applicable Legal Requirements.
Section 13.18. Waiver of Jury Trial
. Each party hereto hereby irrevocably waives, to the
fullest extent permitted by applicable Legal Requirements, any right it may have to a trial by jury
in any legal proceeding directly or indirectly arising out of or relating to any Loan Document or
the transactions contemplated thereby (whether based on contract, tort or any other theory). Each
party hereto (a) certifies that no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it and the other parties hereto have been induced
to enter into this Agreement by, among other things, the mutual waivers and certifications in this
Section.
Section 13.19. USA Patriot Act
. Each Lender and L/C Issuer that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the
“Act”
) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify, and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender
or L/C Issuer to identify the Borrower in accordance with the Act.
Section 13.20. Confidentiality
. Each of the Administrative Agent, the Lenders and the L/C
Issuers agree to maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed and agrees to keep such Information confidential); (b) to the extent
required by any regulatory authority purporting to have jurisdiction over such Person or its Related
Parties (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
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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 and obligations under this Agreement, or (ii) any actual or prospective party (or its Related
Parties) to any swap, derivative or other transaction under which payments are to be made by
reference to the Borrower and its obligations, this Agreement or payments hereunder; (g) on a
confidential basis to (i) any rating agency in connection with rating any Loan Party or its
Subsidiaries or the Revolving Facility or any Incremental Term Loan or (ii) the CUSIP Service
Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers
with respect to the Revolving Facility or Incremental Term Loan; (h) with the consent of the
Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result
of a breach of this Section, or (y) becomes available to the Administrative Agent, any Lender, any
L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than
the Borrower. For purposes of this Section,
“Information”
Loan Party or any of its Subsidiaries relating to a Loan Party or any of its Subsidiaries or any of
their respective businesses, other than any such information that is available to the Administrative
Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by a Loan Party
or any of its Subsidiaries;
provided
any of its Subsidiaries after the date hereof, such information is clearly identified at the time of
delivery as confidential or is information that is not made available to the public and as such
whether or not marked as confidential is to be held in confidence by the recipient. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement,
arrangement or understanding among any such parties, each party hereto (including any party
becoming a party hereto by virtue of an Assignment and Assumption) acknowledges that any
liability of any 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:
Resolution Authority to any such liabilities arising hereunder which may be payable to it
by any party hereto that is an EEA Financial Institution; and
applicable:
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
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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
exercise of the write-down and conversion powers of any EEA Resolution
Authority.
. This Agreement amends and restates the
Existing Credit Agreement and is not intended to be or operate as a novation or an accord and
satisfaction of the Existing Credit Agreement or the indebtedness, obligations and liabilities of the
Loan Parties evidenced or provided for thereunder. Without limiting the generality of the
foregoing, each Loan Party agrees that notwithstanding the execution and delivery of this
Agreement, the Liens previously granted to the Administrative Agent pursuant to the Collateral
Documents shall be and remain in full force and effect and that any rights and remedies of the
Administrative Agent thereunder and obligations of the Loan Parties thereunder shall be and
remain in full force and effect, shall not be affected, impaired or discharged thereby (except as
expressly amended by the Loan Documents) and shall secure all of the Borrower’s indebtedness,
obligations and liabilities to the Administrative Agent and the Lenders under the Existing Credit
Agreement as amended and restated hereby. Without limiting the foregoing, the parties to this
Agreement hereby acknowledge and agree that the “Credit Agreement” and the “Notes” referred
to in the Collateral Documents shall from and after the date hereof be deemed references to this
Agreement and the Notes issued hereunder.
the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or
any other agreement or instrument that is a QFC (such support,
“QFC Credit Support”
, and each
such QFC, a
“Supported QFC”
), the parties acknowledge and agree as follows with respect to the
resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit
Insurance Act and Title II of the 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):
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
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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.
Certain Defined Terms.
BHC Act Affiliate”
term is defined under, and interpreted in accordance with, 12 U.S.C.
1841(k)) of such party.
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).
and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“QFC”
interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
[S
IGNATURE
P
AGES TO
F
OLLOW
]
This Amended and Restated Credit Agreement is entered into between us for the uses and
purposes hereinabove set forth as of the date first above written.
“B
ORROWER
”
C
AL
-M
AINE
F
OODS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer
“G
UARANTORS
”
A
MERICAN
E
GG
P
RODUCTS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
B
ENTON
C
OUNTY
F
OODS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
W
HARTON
C
OUNTY
F
OODS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
S
OUTHERN
E
QUIPMENT
D
ISTRIBUTORS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
S
OUTH
T
EXAS
A
PPLICATORS
,
I
NC
.
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
R
ED
R
IVER
V
ALLEY
E
GG
F
ARM
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
C
AL
-M
AINE
R
EAL
E
STATE
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
T
EXAS
E
GG
P
RODUCTS
,
LLC
By ____________________________________
Max Bowman
Vice President – Chief Financial Officer of
Cal-Maine Foods, Inc.
“A
DMINISTRATIVE
A
GENT AND
L/C I
SSUER
”
BMO
H
ARRIS
B
ANK
N.A., as L/C Issuer and as
Administrative Agent
By: ____________________________________
“L
ENDERS
”
BMO
H
ARRIS
B
ANK
N.A.
By: ____________________________________
G
REEN
S
TONE
F
ARM
C
REDIT
S
ERVICES
,
ACA
By ____________________________________
A
G
F
IRST
F
ARM
C
REDIT
B
ANK
By ____________________________________
C
OMPEER
F
INANCIAL
,
ACA
By ____________________________________
F
ARM
C
REDIT
B
ANK OF
T
EXAS
By ____________________________________