UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 15, 2018
R. R. DONNELLEY & SONS COMPANY
(Exact name of Registrant as Specified in its Charter)
1-4694 (Commission File Number) |
Delaware (State or other Jurisdiction of Incorporation) |
36-1004130 (I.R.S. Employer Identification No.) |
35 West Wacker Drive, Chicago, Illinois |
60601 | |
(Address of Principal Executive Offices) | (Zip Code) |
(312) 326-8000
(Registrants Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 | Entry into a Material Definitive Agreement. |
Term Loan Credit Agreement
On October 15, 2018, R. R. Donnelley & Sons Company (the Company), entered into a $550,000,000 senior secured term loan B credit facility pursuant to a Credit Agreement (the Term Loan Credit Agreement) by and among the Company, as borrower, the lenders party thereto (the Term Loan Lenders), and Bank of America, N.A., as administrative agent (in such capacity, the Term Loan Administrative Agent). Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A., PNC Capital Markets LLC and Wells Fargo Securities LLC acted as co-syndication agents for the Term Loan Credit Agreement.
Borrowings under the Term Loan Credit Agreement will bear interest, at the Companys option, at either one-week, one-month, two-month, three-month or six-month (or, if available to all the Term Loan Lenders, twelve-month or any period acceptable to the Term Loan Administrative Agent) LIBOR, plus either a margin of 5% or a base rate plus a margin of 4%. The proceeds of the loans under the Term Loan Credit Agreement will be used for, among other things, (i) repayment of certain debt outstanding under the Amended ABL Credit Agreement (as defined below), (ii) the consummation of the Tender Offers (as defined below) and (iii) the payment of fees and expenses in connection with the foregoing. The Term Loan Credit Agreement is scheduled to mature on January 15, 2024, at which time all amounts outstanding under the Term Loan Credit Agreement will be due and payable. Commencing on March 29, 2019, the Company will be required to make regularly scheduled amortization payments of $1,375,000 at the end each fiscal quarter until the maturity date.
The Companys obligations under the Term Loan Credit Agreement are guaranteed by certain of its domestic subsidiaries (the Guarantors) and are secured by a security interest in substantially all of the assets of the Company and certain of its domestic subsidiaries (the Collateral). Collateral consisting of accounts receivable, inventory, equipment, money, deposit accounts, securities accounts, investment property, and, to the extent related to the foregoing, general intangibles, documents, instruments and chattel paper, as well as 65% of the equity interests of their first-tier foreign subsidiaries secures the obligations of the Company and the Guarantors under the Term Loan Credit Agreement and related guarantees on a second-priority basis (collectively the ABL Priority Collateral), and all other Collateral other than the ABL Priority Collateral (collectively, the Term Loan Priority Collateral) secures the obligations of the Company and the Guarantors under the Term Loan Credit Agreement and related guarantees on a first-priority basis, in each case, subject to permitted liens.
The Term Loan Credit Agreement contains customary affirmative and negative covenants for transactions of this type including negative covenants restricting, among other things, the Companys ability to incur debt, make investments, make certain restricted payments (including payments on certain other debt), incur liens securing other debt, consummate certain fundamental transactions, enter into transactions with affiliates and consummate asset sales.
The Term Loan Credit Agreement contains customary events of default such as failure to pay obligations when due, defaults on certain other indebtedness, material breaches of representations and warranties, judgments in excess of $75,000,000 in the aggregate being rendered against the Company or its subsidiaries, the acquisition of 35% or more by any person or group of any outstanding class of capital stock having ordinary voting power in the election of directors of the Company, the incurrence of certain ERISA liabilities, and any collateral document ceasing to maintain the first priority lien contemplated thereby in an amount in excess of $20,000,000. Upon an event of default, the Term Loan Lenders may, subject to customary cure rights, require immediate payment of all amounts outstanding and foreclose on the collateral. For certain events of default related to insolvency and receivership, the commitments of the Term Loan Lenders are automatically terminated and all outstanding obligations become immediately due and payable.
ABL Amendment
On October 15, 2018, the Company and the Guarantors entered into Amendment No. 1 to Credit Agreement (the ABL Amendment), with the lenders party thereto and Bank of America, N.A., as administrative agent (in such capacity, the ABL Administrative Agent), which amended that certain Amended and Restated Credit Agreement, dated as of September 29, 2017 (the Existing ABL Credit Agreement and, together with the ABL Amendment, the Amended ABL Credit Agreement), by and among the Company, as borrower, the Guarantors, as guarantors, the lenders party thereto and the ABL Administrative Agent.
The ABL Amendment amends the Existing ABL Credit Agreement to, among other things, permit (i) the incurrence of the debt pursuant to the Term Loan Credit Agreement and (ii) the incurrence of a lien on the ABL Priority Collateral to secure the obligations of the Company and the Guarantors under the Term Loan Credit Agreement and related guarantees on a second-priority basis. The Company and the Guarantors also entered into an amended and restated security agreement to grant a security interest in the Term Loan Priority Collateral to secure the obligations of the Company and the Guarantors under the Amended ABL Credit Agreement on a second-priority basis.
Certain Relationships and Incorporation by Reference
Certain of the lenders, agents and arrangers to the Term Loan Credit Agreement, the ABL Amendment and the Amended ABL Credit Agreement, and their affiliates (i) are acting as dealer managers in connection with the Tender Offers and (ii) have in the past provided, and may in the future provide, investment banking, underwriting, lending, commercial banking and other advisory services to the Company and its subsidiaries. Such lenders, agents and arrangers have received, and may in the future receive, customary compensation from the Company and its subsidiaries for such services.
The foregoing descriptions of the Term Loan Credit Agreement, the ABL Amendment and related matters does not purport to be complete and is qualified in its entirety by reference to the full text of the Term Loan Credit Agreement and the ABL Amendment, copies of which are attached as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth in Item 1.01 of this Current Report on Form 8-K with respect to the Term Loan Credit Agreement and the ABL Amendment is incorporated by reference under this Item 2.03 insofar as it relates to the creation of a direct financial obligation.
Item 8.01 | Other Events. |
On October 15, 2018, the Company announced that it elected to exercise the early settlement option (the Early Settlement Option) in connection with its previously announced cash tender offers (the Tender Offers) to purchase up to $430 million in aggregate principal amount of certain of its outstanding debt securities. The early settlement for the Tender Offers occurred on October 15, 2018. A copy of the press release announcing the exercise of the Early Settlement Option is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: October 15, 2018 | R. R. DONNELLEY & SONS COMPANY
| |||||
By: | /s/ Deborah L. Steiner | |||||
Deborah L. Steiner | ||||||
Executive Vice President and General Counsel |
Exhibit 10.1
Published CUSIP No. 74971KAJ4
CREDIT AGREEMENT
Dated as of October 15, 2018,
among
R.R. DONNELLEY & SONS COMPANY,
as Borrower,
THE LENDERS PARTY HERETO,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANK OF AMERICA, N.A.,
CITIGROUP GLOBAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC
and
WELLS FARGO SECURITIES, LLC,
as Joint Lead Arrangers and Joint Bookrunners,
CITIGROUP GLOBAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A.,
PNC CAPITAL MARKETS LLC
and
WELLS FARGO SECURITIES, LLC,
as Co-Syndication Agents,
and
U.S. BANK NATIONAL ASSOCIATION
and
SUNTRUST ROBINSON HUMPHREY, INC.,
as Co-Documentation Agents
Table of Contents
Page | ||||||
ARTICLE I |
| |||||
DEFINITIONS |
| |||||
Section 1.01 |
Defined Terms | 1 | ||||
Section 1.02 |
Classification of Loans and Borrowings | 37 | ||||
Section 1.03 |
Other Interpretive Provisions | 37 | ||||
Section 1.04 |
Accounting Terms | 38 | ||||
Section 1.05 |
Rounding | 38 | ||||
Section 1.06 |
Times of Day; Timing of Performance | 38 | ||||
Section 1.07 |
Currencies | 39 | ||||
Section 1.08 |
Limited Conditionality | 39 | ||||
ARTICLE II |
| |||||
THE CREDITS |
| |||||
Section 2.01 |
Commitments | 40 | ||||
Section 2.02 |
Incremental Term Loans | 40 | ||||
Section 2.03 |
Procedure for Borrowing | 42 | ||||
Section 2.04 |
Funding of Borrowings | 42 | ||||
Section 2.05 |
Interest Elections | 43 | ||||
Section 2.06 |
Repayment of Loans; Evidence of Debt | 44 | ||||
Section 2.07 |
Prepayments | 44 | ||||
Section 2.08 |
Fees | 47 | ||||
Section 2.09 |
Interest | 47 | ||||
Section 2.10 |
Alternate Rate of Interest | 47 | ||||
Section 2.11 |
Increased Costs | 49 | ||||
Section 2.12 |
Break Funding Payments | 49 | ||||
Section 2.13 |
Taxes | 50 | ||||
Section 2.14 |
Pro Rata Treatment and Payments | 53 | ||||
Section 2.15 |
Mitigation Obligations; Replacement of Lenders | 55 | ||||
Section 2.16 |
Defaulting Lenders | 56 | ||||
Section 2.17 |
Extensions of Loans | 56 | ||||
Section 2.18 |
Refinancing Amendments | 58 | ||||
Section 2.19 |
Loan Repurchases | 59 | ||||
Section 2.20 |
MIRE Event | 60 | ||||
Section 2.21 |
Illegality | 61 | ||||
ARTICLE III |
| |||||
REPRESENTATIONS AND WARRANTIES |
| |||||
Section 3.01 |
Organization; Powers | 61 | ||||
Section 3.02 |
Authorization; Enforceability | 61 | ||||
Section 3.03 |
Governmental Approvals; No Conflicts | 62 | ||||
Section 3.04 |
Financial Position | 62 |
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Page | ||||||
Section 3.05 |
Properties; Flood Documentation | 62 | ||||
Section 3.06 |
Litigation and Environmental Matters | 63 | ||||
Section 3.07 |
Compliance with Laws and Agreements | 63 | ||||
Section 3.08 |
Investment Company Status; Margin Stock | 63 | ||||
Section 3.09 |
Taxes | 63 | ||||
Section 3.10 |
ERISA | 64 | ||||
Section 3.11 |
Disclosure | 64 | ||||
Section 3.12 |
Liens; Security Interests in the Collateral | 65 | ||||
Section 3.13 |
No Change | 65 | ||||
Section 3.14 |
Subsidiaries | 65 | ||||
Section 3.15 |
Solvency | 66 | ||||
Section 3.16 |
No Default | 66 | ||||
Section 3.17 |
OFAC | 66 | ||||
Section 3.18 |
Anti-Corruption Laws | 66 | ||||
Section 3.19 |
EEA Financial Institutions | 66 | ||||
Section 3.20 |
Use of Proceeds | 66 | ||||
Section 3.21 |
Insurance | 66 | ||||
Section 3.22 |
USA PATRIOT Act | 67 | ||||
ARTICLE IV |
| |||||
CONDITIONS |
| |||||
Section 4.01 |
Closing Date | 67 | ||||
Section 4.02 |
Each Credit Event | 69 | ||||
ARTICLE V |
| |||||
AFFIRMATIVE COVENANTS |
| |||||
Section 5.01 |
Financial Statements; Other Information | 70 | ||||
Section 5.02 |
Notices of Material Events | 71 | ||||
Section 5.03 |
Existence; Conduct of Business | 72 | ||||
Section 5.04 |
Payment of Taxes | 72 | ||||
Section 5.05 |
Maintenance of Properties; Insurance | 72 | ||||
Section 5.06 |
Books and Records; Inspection Rights | 73 | ||||
Section 5.07 |
Compliance with Laws | 73 | ||||
Section 5.08 |
Use of Proceeds | 73 | ||||
Section 5.09 |
Guarantors and Collateral | 74 | ||||
Section 5.10 |
Further Assurances | 76 | ||||
Section 5.11 |
Information Regarding Collateral and Loan Documents | 77 | ||||
Section 5.12 |
Conference Calls | 77 | ||||
Section 5.13 |
Ratings | 77 | ||||
Section 5.14 |
Post-Closing Requirements | 77 | ||||
ARTICLE VI |
| |||||
NEGATIVE COVENANTS |
| |||||
Section 6.01 |
Debt | 78 | ||||
Section 6.02 |
Investments | 80 |
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Page | ||||||
Section 6.03 |
Restricted Payments | 81 | ||||
Section 6.04 |
Burdensome Agreements | 82 | ||||
Section 6.05 |
Liens | 83 | ||||
Section 6.06 |
Merger; Sale of Assets | 86 | ||||
Section 6.07 |
Conduct of Business | 87 | ||||
Section 6.08 |
Transactions with Affiliates | 87 | ||||
Section 6.09 |
Changes in Fiscal Periods | 87 | ||||
Section 6.10 |
Restrictions on Amendments of Certain Documents | 87 | ||||
Section 6.11 |
Asset Sales | 88 | ||||
ARTICLE VII |
| |||||
EVENTS OF DEFAULT |
| |||||
Section 7.01 |
Events of Default | 88 | ||||
ARTICLE VIII |
| |||||
THE ADMINISTRATIVE AGENT |
| |||||
Section 8.01 |
Appointment and Authorization | 90 | ||||
Section 8.02 |
Administrative Agent and Affiliates | 91 | ||||
Section 8.03 |
Action by Administrative Agent | 91 | ||||
Section 8.04 |
Consultation with Experts | 92 | ||||
Section 8.05 |
Delegation of Duties | 92 | ||||
Section 8.06 |
Successor Administrative Agent | 92 | ||||
Section 8.07 |
Credit Decision | 93 | ||||
Section 8.08 |
Lead Arrangers; Co-Syndication Agents; Co-Documentation Agents | 93 | ||||
Section 8.09 |
Tax Indemnification by the Lenders | 93 | ||||
Section 8.10 |
Administrative Agent May File Proofs of Claim; Credit Bidding | 94 | ||||
Section 8.11 |
ERISA Matters | 95 | ||||
ARTICLE IX |
| |||||
MISCELLANEOUS |
| |||||
Section 9.01 |
Notices | 96 | ||||
Section 9.02 |
Waivers; Amendments | 98 | ||||
Section 9.03 |
Enforcement | 99 | ||||
Section 9.04 |
Expenses; Indemnity; Damage Waiver | 99 | ||||
Section 9.05 |
Successors and Assigns | 101 | ||||
Section 9.06 |
Survival | 105 | ||||
Section 9.07 |
Counterparts; Integration; Effectiveness | 106 | ||||
Section 9.08 |
Severability | 106 | ||||
Section 9.09 |
Right of Setoff | 106 | ||||
Section 9.10 |
Governing Law; Jurisdiction; Consent to Service of Process | 106 | ||||
Section 9.11 |
WAIVER OF JURY TRIAL | 107 | ||||
Section 9.12 |
Headings | 107 | ||||
Section 9.13 |
Confidentiality | 107 | ||||
Section 9.14 |
USA PATRIOT Act | 108 | ||||
Section 9.15 |
Collateral and Guarantee Matters | 108 |
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Page | ||||||
Section 9.16 |
No Advisory or Fiduciary Relationship | 109 | ||||
Section 9.17 |
Platform; Borrower Materials | 110 | ||||
Section 9.18 |
Electronic Execution of Assignments and Certain Other Documents | 110 | ||||
Section 9.19 |
Acknowledgment and Consent to Bail-In of EEA Financial Institutions | 111 | ||||
Section 9.20 |
California Judicial Reference | 111 | ||||
Section 9.21 |
ABL Intercreditor Agreement | 111 |
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SCHEDULES:
Schedule 1.01A | | Commitments | ||
Schedule 1.01B | | Closing Date Mortgaged Properties | ||
Schedule 3.06 | | Disclosed Matters | ||
Schedule 3.12 | | Filings | ||
Schedule 3.14 | | Subsidiary Guarantors | ||
Schedule 4.01 | | Local Counsel | ||
Schedule 6.01 | | Existing Debt | ||
Schedule 6.02 | | Existing Investments | ||
Schedule 6.05 | | Existing Liens | ||
Schedule 9.01 | | Notices | ||
EXHIBITS: | ||||
Exhibit A | | Form of Assignment and Assumption | ||
Exhibit B | | Form of Borrower Purchasing Party Assignment Agreement | ||
Exhibit C | | Form of Guarantee Agreement | ||
Exhibit D-1 | | Form of Security Agreement | ||
Exhibit D-2 | | Form of Pledge Agreement | ||
Exhibit E | | Form of Secretary Certificate | ||
Exhibit F | | Form of ABL Intercreditor Agreement | ||
Exhibit G | | Form of Non-Bank Certificate | ||
Exhibit H-1 | | Form of Perfection Certificate | ||
Exhibit H-2 | | Form of Perfection Certificate Supplement | ||
Exhibit I | | Form of Solvency Certificate | ||
Exhibit J | | Auction Procedures | ||
Exhibit K | | Form of Committed Loan Notice |
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CREDIT AGREEMENT, dated as of October 15, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, this Agreement), among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the LENDERS party hereto from time to time and BANK OF AMERICA, N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
2019 Notes means the Borrowers 11.25% senior notes due 2019.
ABL Agent means Bank of America, N.A., as administrative agent under the ABL Credit Agreement or any successor thereto acting in such capacity.
ABL Collateral has the meaning assigned to such term in the ABL Intercreditor Agreement.
ABL Credit Agreement means (i) that certain Second Amended and Restated Credit Agreement, dated as of September 29, 2017, amended as of the Closing Date and as amended, supplemented, restated, amended and restated, extended or otherwise modified from time to time after the Closing Date, among the Borrower, the Subsidiary Guarantors, the lenders party thereto, the ABL Agent and the other parties thereto, and (ii) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Debt or other financial accommodation that has been incurred to refinance or replace (subject to the limitations set forth herein) in whole or in part and with the same or different lenders, in a greater or lesser principal or commitment amount, the Debt and other obligations outstanding under (x) the credit agreement referred to in clause (i) or (y) any subsequent ABL Credit Agreement, unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Credit Agreement hereunder. Any reference to the ABL Credit Agreement hereunder shall be deemed a reference to any ABL Credit Agreement then in existence.
ABL Intercreditor Agreement means that certain ABL Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the ABL Agent and the other parties thereto from time to time, substantially in the form of Exhibit F.
ABL Loan Documents has the meaning assigned to the term Loan Documents (or similar term) in the ABL Credit Agreement.
ABR when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
Act has the meaning assigned to such term in Section 9.14.
Administrative Agent means Bank of America in its capacity as the contractual representative and agent for all of the Secured Parties for purposes of this Agreement, as designated and appointed in accordance with Article VIII, and any successor thereto as provided herein.
Administrative Agents Office means the Administrative Agents address and, as appropriate, account as set forth on Schedule 9.01, or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate means, with respect to any Person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person.
Agent Parties has the meaning assigned to such term in Section 9.01(c).
Aggregate Exposure means, with respect to any Lender at any time, the aggregate then outstanding principal amount of such Lenders Term Loans.
Agreement has the meaning assigned to such term in the preamble to this Credit Agreement.
All-in Yield means, as to any Loans (or other Debt, if applicable), the yield thereon to Lenders (or other lenders, as applicable) providing such Loans (or other Debt, if applicable) in the primary syndication thereof, whether in the form of interest rate, margin, original issue discount, upfront fees, rate floors or otherwise; provided, that original issue discount and upfront fees shall be equated to interest rate based on an assumed four year average life (or, if less, the stated life to maturity at the time of the incurrence of such Loans or other Debt, if applicable); provided, further, that All-in Yield shall not include arrangement, commitment, underwriting, structuring or similar fees (regardless of whether paid in whole or in part to any or all lenders), other fees not paid generally to all lenders of such Loans (or other Debt, if applicable) and customary consent fees for an amendment paid generally to consenting lenders; and provided, further, any Debt that is fixed rate Debt shall, for the purpose of determining the All-In Yield, be swapped to a floating rate on a customary match maturity basis.
Alternate Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by the Administrative Agent as its prime rate and (c) the Eurodollar Rate plus 1.00%. The prime rate is a rate set by the Administrative Agent based upon various factors including the Administrative Agents costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by the Administrative Agent shall take effect at the opening of business on the day specified in the public announcement of such change.
Anti-Corruption Laws has the meaning assigned to such term in Section 3.18.
Applicable Percentage means, with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Exposure of all Lenders represented by the Aggregate Exposure of such Lender (or, if all Term Loans have been repaid, such percentage immediately prior to such repayment).
Applicable Rate means (a) for each Term B Loan, 5.00% for Eurodollar Loans and 4.00% for ABR Loans and (b) for each Type of Incremental Term Loan, such per annum rates as shall be agreed to by the Borrower and the applicable Incremental Term Lenders as shown in the applicable Incremental Assumption Agreement.
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Approved Fund means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Asset Acquisition means:
(1) an Investment by the Borrower or any Restricted Subsidiary in any other Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary, or shall be merged with or into the Borrower or any Restricted Subsidiary, or
(2) the acquisition by the Borrower or any Restricted Subsidiary of all or substantially all of the assets or equity interests of any other Person or any division or line of business of any other Person.
Asset Sale means any sale, issuance, conveyance, transfer, lease, assignment or other disposition by the Borrower or any Restricted Subsidiary to any Person other than the Borrower or any Guarantor (including by means of a sale and leaseback transaction, a merger or consolidation or an LLC Division) (collectively, for purposes of this definition, a transfer), in one transaction or a series of related transactions, of any assets of the Borrower or any of its Restricted Subsidiaries other than dispositions of inventory in the ordinary course of business. For purposes of this definition, the term Asset Sale shall not include:
(1) transfers of cash or Permitted Investments;
(2) transfers of assets (including Equity Interests) that are governed by, and made in accordance with, Section 6.06;
(3) Restricted Payments not prohibited by Section 6.03 and Investments not prohibited by Section 6.02;
(4) the creation of any Lien permitted by Section 6.05;
(5) transfers of assets that are (i) damaged, worn out or obsolete or (ii) replaced by or exchanged for assets of similar suitability and value;
(6) dispositions of property by the Borrower or any Subsidiary to the Borrower or to a Restricted Subsidiary that is a Wholly Owned Subsidiary; provided that if the transferor of such property is a Loan Party, the transferee thereof must be a Loan Party;
(7) Involuntary Dispositions;
(8) Asset Swaps (including assumption of liabilities or obligations in connection therewith) useful in the business of the Borrower and its Subsidiaries;
(9) sales or grants of licenses, cross-licenses or sublicenses to use the patents, trade secrets, know-how and other Intellectual Property or other intangible assets, the abandonment, cancellation or other disposition of Intellectual Property, and licenses, leases or subleases or other occupancy arrangements of other assets, of the Borrower or any Restricted Subsidiary, to the extent not materially interfering with the required use of such property by the Borrower and the Restricted Subsidiaries;
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(10) the sale or discount of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof (and not as part of any financing of receivables);
(11) Dispositions of Investments to the extent required by, or made pursuant to, customary buy/sell arrangements between the holders of Equity Interests pursuant to shareholders or joint venture agreements or similar arrangements; and
(12) any transfer or series of related transfers that, but for this clause, would be Asset Sales, if the aggregate Fair Market Value of the assets transferred in such transaction or any such series of related transactions does not exceed $10,000,000.
Asset Swap means any exchange of assets of the Borrower or any Restricted Subsidiary for assets of another Person (including Equity Interests of a Person whose primary business in a Related Business) that are intended to be used by the Borrower or any Restricted Subsidiary in a Related Business.
Assignment and Assumption means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent, in substantially the form of Exhibit A (or, in the case of assignments to the Borrower or any of its Subsidiaries, in substantially the form of Exhibit B) or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
Auction Manager has the meaning assigned to such term in Section 2.19(a).
Auction Procedures means auction procedures with respect to Purchase Offers set forth in Exhibit J hereto.
Available Amount means, as at any date of determination, an amount determined on a cumulative basis equal to, without duplication:
(a) the Retained Excess Cash Flow Amount; plus
(b) the cumulative amount of all Declined Prepayment Amounts; plus
(c) the net cash proceeds of any sale of Qualified Equity Interests by, or capital contribution to the common equity of, the Borrower and not utilized as the basis for any other Restricted Payment, Investment or prepayment of Debt hereunder; plus
(d) in the event that any Unrestricted Subsidiary designated as such after the Closing Date is redesignated as a Restricted Subsidiary or has been merged or consolidated with or into or transfers or conveys its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower, or the Equity Interests of such Unrestricted Subsidiary or such Unrestricted Subsidiarys assets are sold or otherwise disposed of to another Person (other than another Unrestricted Subsidiary), in each case after Closing Date, the lesser of (i) the Fair Market Value of the Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary made utilizing the Available Amount at the time of such redesignation, merger, consolidation, liquidation, transfer or conveyance, or of such sale or disposition of the Equity Interests or assets of such Unrestricted Subsidiary, as applicable, and (ii) the Fair Market Value of the original Investments of the Borrower and its Restricted Subsidiaries in such Unrestricted Subsidiary made utilizing the Available Amount; minus
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(e) the cumulative amount of Restricted Payments made with the Available Amount from and after the Closing Date and on or prior to such time; minus
(f) the cumulative amount of Investments made with the Available Amount from and after the Closing Date and on or prior to such time (net of any dividends, distributions, profits, returns or similar amounts in respect of any such Investments (not to exceed the original amount of such Investments)); minus
(g) the cumulative amount of Debt prepaid with the Available Amount from and after the Closing Date and on or prior to such time.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Basel III means, collectively, those certain agreements on capital requirements, leverage ratios and liquidity standards contained in Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems, Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring, and Guidance for National Authorities Operating the Countercyclical Capital Buffer, each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and as implemented by a Lenders primary U.S. federal banking regulatory authority or primary non-U.S. financial regulatory authority, as applicable.
Beneficial Ownership Certification means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.
Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA) that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such employee benefit plan or plan.
Board means the Board of Governors of the Federal Reserve System of the United States of America.
Board of Directors means the Board of Directors of the Borrower or any committee thereof duly authorized to act on behalf of such Board of Directors.
Bona Fide Debt Fund means any fund or investment vehicle that is primarily engaged in making, purchasing, holding or otherwise investing in commercial loans, bonds and other similar extensions of credit in the ordinary course.
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Borrower means R.R. Donnelley & Sons Company, a Delaware corporation.
Borrower Materials has the meaning assigned to such term in Section 9.17.
Borrowing means a Loan of the same Class and Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
Borrowing Date means any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.
Business Day means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a Eurodollar Loan, the term Business Day shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
Capital Expenditures means, without duplication, all expenditures made (whether made in the form of cash or other property) or costs incurred for the acquisition or improvement of fixed or capital assets of the Borrower and its Restricted Subsidiaries (excluding normal replacements and maintenance which are properly charged to current operations), in each case that are (or should be) set forth as capital expenditures in a consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries for such period, in each case prepared in accordance with GAAP.
CFC means a Subsidiary that is a controlled foreign corporation within the meaning of Section 957 of the Internal Revenue Code or a Subsidiary of such a Subsidiary.
Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 2.11(b), by any lending office of such Lender or by such Lenders holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives (including the rules for systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement Rules text published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a Change in Law, regardless of the date created, adopted or issued, but only to the extent it is the general policy of a Lender to impose applicable increased costs or costs in connection with capital adequacy and liquidity requirements similar to those described in clauses (a) and (b) of Section 2.11 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions; provided that such Lender shall only be required to certify compliance with such requirement and shall not be obliged to provide any other information.
Change of Control means if any Person, or a group of Persons acting in concert, shall at any time acquire beneficial ownership (within the meaning of Rule 13d-3 of the Commission under the Exchange Act), directly or indirectly, of Voting Stock of the Borrower representing 35% or more of the combined voting power of all Voting Stock of the Borrower.
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Notwithstanding the foregoing, (1) a transaction in which the Borrower becomes a subsidiary of another Person (other than a Person that is an individual) shall not constitute a Change of Control if the shareholders of the Borrower immediately prior to such transaction beneficially own, directly or indirectly through one or more intermediaries, the same proportion of voting power of the outstanding classes or series of the Borrowers Voting Stock as such shareholders beneficially own immediately following the consummation of such transaction; provided that such Person shall become a Guarantor hereunder in accordance with the terms of Section 5.09(b) (assuming that the requirements thereunder that apply to newly acquired Restricted Subsidiaries apply to such Person) and thereafter (i) all covenants applicable to a Restricted Subsidiary shall apply to such Person, (ii) all financial calculations and financial statements made by reference to the Borrower shall be made by reference to such Person and (iii) the Administrative Agent and the Borrower shall enter into an amendment to this Agreement (which shall not require the consent of any other Lender) to give effect to the foregoing; and (2) a transaction in which the Borrower consolidates with or merges into another U.S. Person shall not constitute a Change of Control if (A) the outstanding Voting Stock of the Borrower is converted into or exchanged for the Voting Stock (other than Disqualified Equity Interests) of the surviving Person, and (B) immediately after such merger or consolidation, no person or group (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is the beneficial owner (as such term is defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 35% of the aggregate voting power of all outstanding classes or series of such surviving Persons Voting Stock.
For purposes of this definition, a Person shall not be deemed to have beneficial ownership of securities subject to a stock purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.
Class (a) when used in reference to any Loans or Borrowing, refers to whether such Loans or the Loans comprising such Borrowing, are Term B Loans, Incremental Term Loans established as a new Class of Loans, Extended Term Loans established as a new Class of Loans or Refinancing Term Loans established as a new Class of Loans, (b) when used in reference to any Commitments, refers to whether such Commitment is in respect of a commitment to make Term B Loans, Incremental Term Loans of a given Class, Extended Term Loans of a given Class or Refinancing Term Loans of a given Class, and (c) when used in reference to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments. Incremental Term Loans, Extended Term Loans or Refinancing Term Loans that have different terms and conditions shall be construed to be in different Classes.
Closing Date means the date on which the conditions precedent set forth in Section 4.01 shall have been satisfied (or waived in accordance with Section 9.02).
Closing Date Mortgaged Properties has the meaning assigned to such term in the definition of Mortgaged Properties.
Co-Documentation Agents means U.S. Bank National Association and SunTrust Robinson Humphrey, Inc., as co-documentation agents.
Co-Syndication Agents means Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A., PNC Capital Markets LLC and Wells Fargo Securities, LLC, as co-syndication agents.
Collateral means all of the Pledged Collateral, Collateral and Mortgaged Property referred to in the Collateral Documents and all property pledged or granted (or purported to be pledged or granted) as collateral pursuant to the Security Agreement and the other Collateral Documents.
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Collateral Documents means, collectively, the Security Agreement, the Pledge Agreement, each of the Mortgages, each other security document, mortgage, pledge agreement or collateral agreement executed and delivered in connection with this Agreement and/or the other Loan Documents and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.
Commission or SEC means the Securities and Exchange Commission or any federal body succeeding to its principal functions.
Commitment means, with respect to each Lender (to the extent applicable), such Lenders Incremental Commitment and Term Loan Commitment, as applicable.
Committed Loan Notice means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Loans, pursuant to Section 2.05(a), which shall be substantially in the form of Exhibit K or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Consolidated Debt means the total debt of the Borrower and its Consolidated Restricted Subsidiaries, as determined on a consolidated basis in accordance with GAAP.
Consolidated EBITDA means, for any period,
(a) Consolidated Net Income for such period, plus
(1) to the extent deducted in computing such Consolidated Net Income for such period, the sum (without duplication) of
(2) all income taxes of the Borrower and its Consolidated Restricted Subsidiaries paid or accrued in accordance with GAAP,
(3) Consolidated Interest Expense,
(4) depreciation and amortization in accordance with GAAP,
(5) any non-cash charges, accruals or reserves for extraordinary, unusual or nonrecurring items,
(6) all non-cash compensation expense,
(7) all other non-cash charges, expenses or losses, including any impairment (including any impairment of intangibles and goodwill) (excluding any non-cash charge, expense or loss that results in an accrual of a reserve for cash charges in any future period and any non-cash charge, expense or loss relating to write-offs, write downs or reserves with respect to accounts receivable or inventory),
(8) any loss or gain on extinguishment of debt, and
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(9) any restructuring and impairment charges and any cash charges in respect of non-recurring or unusual items, minus
(b) (i) to the extent added in computing Consolidated Net Income for such period, total interest income, as determined in accordance with GAAP and (ii) the payment of cash, if any, when actually paid, with respect to any charge, accrual or reserve that was deducted in determining Consolidated Net Income in such period, but added back in any prior period pursuant to clause (b)(iv).
Consolidated Interest Expense means, for any period, on a Pro Forma Basis (a) total interest expense of the Borrower and its Consolidated Restricted Subsidiaries for such period, as determined in accordance with GAAP, plus (b) without duplication, the consolidated interest, fees, yield or discount accrued during such period on the aggregate outstanding investment or claim held by purchasers, assignees or other transferees of (or of interests in) receivables of the Borrower and its Consolidated Restricted Subsidiaries in connection with securitization transactions (regardless of the accounting treatment of such securitization transactions).
Consolidated Net Income means, for any period, the consolidated net earnings (or loss) after taxes of the Borrower and its Consolidated Restricted Subsidiaries for such period, as determined in accordance with GAAP.
Consolidated Restricted Subsidiary means any Consolidated Subsidiary that is a Restricted Subsidiary.
Consolidated Subsidiary means, at any date, any Subsidiary the accounts of which would be consolidated with those of the Borrower in its consolidated financial statements at such date in accordance with GAAP.
Consolidated Working Capital means, with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, Current Assets at such date of determination minus Current Liabilities at such date of determination; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Current Assets or Current Liabilities as a result of (a) any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent or (b) the effects of purchase accounting.
Contractual Obligation means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is legally bound.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Current Assets means, with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all assets (other than cash, Permitted Investments or other cash equivalents) that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as current assets at such date of determination, other than amounts related to current or deferred taxes based on income or profits.
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Current Liabilities means, with respect to the Borrower and its Restricted Subsidiaries on a consolidated basis at any date of determination, all liabilities that would, in accordance with GAAP, be classified on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries as current liabilities at such date of determination, other than (a) the current portion of any Debt, (b) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (c) accruals for current or deferred taxes based on income or profits, (d) accruals, if any, of transaction costs resulting from the Transactions, and (e) accruals of any costs or expenses related to (i) severance or termination of employees prior to the Closing Date or (ii) bonuses, pension and other post-retirement benefit obligations.
Debt means (but without duplication of any item) (i) indebtedness for borrowed money or for the deferred purchase price of property or services other than (x) trade accounts payable on customary terms in the ordinary course of business and (y) financial obligations under management consulting contracts or noncompete agreements with unaffiliated Persons entered into in connection with the acquisition of the businesses of such Persons, (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations as lessee under leases which shall have been or should be, in accordance with GAAP as of the Closing Date, recorded as capital leases, (iv) the maximum amount available to be drawn under letters of credit (including standby and commercial); provided that letters of credit that are cash collateralized, up to a maximum aggregate amount of $50,000,000 at any one time, shall not be deemed Debt, (v) net obligations under any Hedging Obligations and (vi) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (i), (ii), (iii), (iv) or (v) above.
Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Declined Prepayment Amount has the meaning assigned to such term in Section 2.07(e).
Declining Term Lender has the meaning assigned to such term in Section 2.07(e).
Default means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
Defaulting Lender means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two 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 Lenders 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 or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower or the Administrative Agent 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 lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has,
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(i) become the subject of a proceeding under any Debtor Relief Law, other than via an Undisclosed Administration, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower and each other Lender promptly following such determination.
Designated Jurisdiction means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
Designated Non-Cash Consideration means the Fair Market Value of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with an Asset Sale, less the amount of cash received in connection with a subsequent disposition of or collection on such Designated Non-Cash Consideration.
Designation has the meaning assigned to such term in the definition of Unrestricted Subsidiary.
Designation Amount has the meaning assigned to such term in the definition of Unrestricted Subsidiary.
Disclosed Matters means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.
Disposition means, with respect to any property, any sale, lease, license, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms Dispose and Disposed of shall have correlative meanings.
Disqualified Equity Interests of any Person means any class of Equity Interests of such Person that, by its terms, or by the terms of any related agreement or of any security into which it is convertible, puttable or exchangeable, is, or upon the happening of any event or the passage of time would be, required to be redeemed by such Person, whether or not at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, in whole or in part, in each case on or prior to the date that is 91 days after the Term B Maturity Date; provided, however, that any class of Equity Interests of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for Disqualified Equity Interests or Debt, will not be deemed to be Disqualified Equity Interests so long as such Person satisfies its obligations with respect thereto solely by the delivery of Equity Interests that are not Disqualified Equity Interests; provided, further, however, that any Equity Interests that would not constitute
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Disqualified Equity Interests but for provisions thereof giving holders thereof (or the holders of any security into or for which such Equity Interests are convertible, exchangeable or exercisable) the right to require the Borrower to redeem such Equity Interests upon the occurrence of a change of control, asset sale or casualty or condemnation event occurring prior to the 91st day after the Term B Maturity Date shall not constitute Disqualified Equity Interests if such Equity Interests specifically provide that the Borrower will not redeem any such Equity Interests pursuant to such provisions prior to the Obligations (other than contingent obligations not yet accrued and payable) having been paid in full.
Disqualified Lenders means, as of any date, (a) those Persons identified by the Borrower in writing to the Administrative Agent prior to September 18, 2018, (b) competitors of the Borrower and its Subsidiaries that are identified by the Borrower to the Administrative Agent in writing from time to time not less than three Business Days prior to such date after the Closing Date and (c) any Affiliate of any Person described in clauses (a) or (b) above that is identified by the Borrower to the Administrative Agent in writing from time to time or clearly identifiable solely on the basis of its name as an Affiliate of such Person, other than an Affiliate of such Person that is a Bona Fide Debt Fund; provided, that Disqualified Lenders shall exclude any Person that the Borrower has designated as no longer being a Disqualified Lender by written notice delivered to the Administrative Agent from time to time.
Dollars and the sign $ each mean the lawful currency of the United States.
Domestic Subsidiary means any Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof or the District of Columbia.
DQ List has the meaning assigned to such term in Section 9.05(f)(iv).
EEA Financial Institution means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
EEA Member Country means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Environmental Action means any administrative, regulatory or judicial action, suit, demand, demand letter, claim, notice of noncompliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to the environment, including (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
Environmental Law means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation relating to the environment or Hazardous Materials.
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Environmental Permit means any permit, approval, identification number, license or other authorization required under any Environmental Law.
Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting; provided that Equity Interests shall not include convertible Debt securities.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, or the treatment of a Pension Plan amendment as a termination, under Section 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) receipt of notice from the PBGC of its intent to take action under Section 4042 of ERISA to terminate or appoint a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Section 430 or 432 of the Internal Revenue Code or Section 303 or 305 of ERISA or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
Eurodollar when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Eurodollar Rate.
Eurodollar Rate means:
(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (LIBOR) or a comparable or successor rate, determined in accordance with Section 2.10, as published 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) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and
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(b) for any interest calculation with respect to any loan bearing interest at the Alternate Base Rate on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day; and
provided that (i) to the extent a comparable or successor rate is determined in accordance with Section 2.10 in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent and (ii) in the event that the Eurodollar Rate as determined above for any Term B Loan would otherwise be less than 0.00%, such Eurodollar Rate shall be deemed to be 0.00%.
Event of Default has the meaning assigned to such term in Section 7.01.
Excess Cash Flow means, for any period, an amount equal to the excess of:
(a) the sum, without duplication, of
(i) Consolidated Net Income for such period,
(ii) an amount equal to the amount of all non-cash charges to the extent deducted in arriving at such Consolidated Net Income,
(iii) decreases in Consolidated Working Capital for such period (other than any such decreases arising from acquisitions or dispositions outside the ordinary course of business by the Borrower and its Restricted Subsidiaries completed during such period),
(iv) cash receipts by the Borrower and its Restricted Subsidiaries in respect of Hedging Obligations during such fiscal year to the extent not otherwise included in such Consolidated Net Income,
(v) the amount by which tax expense deducted in determining such Consolidated Net Income for such period exceeded taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) by the Borrower and its Restricted Subsidiaries in such period,
(vi) any losses on Asset Sales to the extent reflected in Consolidated Net Income for such period,
(vii) any non-cash losses reflected in Consolidated Net Income for such period due solely to fluctuations in currency values and the related tax effects according to GAAP, and
(viii) any non-cash extraordinary, unusual or nonrecurring loss (or the tax effect of any such extraordinary, unusual or nonrecurring loss) reflected in Consolidated Net Income for such period, over
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(b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income,
(ii) without duplication of amounts deducted pursuant to clause (ix) below in prior years, the amount of Capital Expenditures or acquisitions of Intellectual Property made in cash during such period by the Borrower and its Restricted Subsidiaries, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of Debt of the Borrower or its Restricted Subsidiaries (other than under any revolving credit facility),
(iii) the aggregate amount of all principal payments of Debt of the Borrower and its Restricted Subsidiaries (including (A) the principal component of payments in respect of capital lease obligations, (B) the amount of any scheduled repayment of Term Loans, but excluding all other prepayments of Term Loans, and (C) all prepayments in respect of any revolving credit facility, but only to the extent there is an equivalent permanent reduction in commitments thereunder), except to the extent financed with the proceeds of other Debt (other than under any revolving credit facility) of the Borrower or its Restricted Subsidiaries,
(iv) increases in Consolidated Working Capital for such period (other than any such increases arising from acquisitions or dispositions outside the ordinary course of business by the Borrower and its Restricted Subsidiaries completed during such period or the application of purchase accounting),
(v) payments by the Borrower and its Restricted Subsidiaries during such period in respect of long-term liabilities of the Borrower and its Subsidiaries other than Debt, to the extent not already deducted from Consolidated Net Income, except to the extent financed with the proceeds of other Debt (other than under any revolving credit facility) of the Borrower or its Restricted Subsidiaries,
(vi) without duplication of amounts deducted pursuant to clause (ix) below in prior fiscal years, the aggregate amount of cash consideration paid by the Borrower and its Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period pursuant to Section 6.02 (except for those Investments made under Sections 6.02(a), (b), (c), (d), (f), (g), (i) and (j)) to the extent that such Investments were financed with internally generated cash flow of the Borrower and its Restricted Subsidiaries,
(vii) the amount of Restricted Payments during such period (on a consolidated basis) by the Borrower and its Restricted Subsidiaries made in compliance with Section 6.03 (other than Sections 6.03(b) (except to the extent a Restricted Payment is made pursuant to Section 6.03(b) to a Person that is not the Borrower or a Restricted Subsidiary), (c), (f) and (j)) to the extent such Restricted Payments were financed with internally generated cash flow of the Borrower and its Restricted Subsidiaries,
(viii) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and its Restricted Subsidiaries during such period that are made in connection with any prepayment of Debt to the extent that such payments are not deducted in calculating Consolidated Net Income and were not funded with the proceeds of other Debt (other than Debt under any revolving credit facility) of the Borrower or its Restricted Subsidiaries,
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(ix) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the Contract Consideration) entered into prior to or during such period relating to Asset Acquisitions, Capital Expenditures or acquisitions of Intellectual Property to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Asset Acquisition, Capital Expenditures or acquisitions of Intellectual Property during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,
(x) the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such period,
(xi) cash expenditures in respect of Hedging Obligations during such fiscal year to the extent not deducted in arriving at such Consolidated Net Income,
(xii) any gains on Asset Sales to the extent reflected in Consolidated Net Income for such period,
(xiii) any non-cash gains reflected in Consolidated Net Income for such period due solely to fluctuations in currency values and the related tax effects according to GAAP,
(xiv) any non-cash extraordinary, unusual or nonrecurring gain (or the tax effect of any such extraordinary, unusual or nonrecurring gain) reflected in Consolidated Net Income for such period, and
(xvi) cash payments made during such period for any liability the accrual of which in a prior period did not reduce Consolidated Net Income (and so increased Excess Cash Flow in such prior period) (provided that (1) there was no other deduction to Consolidated Net Income or Excess Cash Flow related to such payment and (2) such payment is not otherwise excluded pursuant to clauses (b)(i) through (b)(xv) above).
Excess Cash Flow Period means each fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2019.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Excluded Debt means all Debt permitted to be incurred under Section 6.01.
Excluded Property has the meaning assigned thereto in the Security Agreement.
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Excluded Taxes means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on or measured by such recipients net income (however denominated), franchise Taxes, and branch profits Taxes, in each case imposed by a jurisdiction as a result of (i) such recipient being organized under the laws of, having its principal office in or, in the case of any Lender, having its applicable lending office in such jurisdiction (or any political subdivision thereof) or (ii) any other present or former connection between such recipient and such jurisdiction (including such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than any connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or engaged in any other transaction pursuant to any Loan Documents (including, for the avoidance of doubt, any backup withholding in respect of any such Taxes), (b) any Taxes attributable to such Lenders failure to comply with Section 2.13(e), (c) in the case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such Lender with respect to an applicable interest in a Loan or Commitment pursuant to the laws in force at the time such Lender (i) acquires such interest in the Commitment (or, to the extent a Lender acquires an interest in a Loan without acquiring an interest in the corresponding Commitment, the Loan), provided that this clause (c)(i) shall not apply to a Lender that acquires its applicable interest pursuant to a request by the Borrower under Section 2.15, or (ii) designates a new lending office, except in each case to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new lending office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 2.13 and (d) any withholding Tax imposed pursuant to FATCA.
ExpressMap means, with respect to any Mortgaged Property, an aerial map depicting material improvements utilized in connection with such Mortgaged Property, issued by a survey provider that has been selected by the Borrower and is reasonably acceptable to the Administrative Agent and in form and substance reasonably acceptable to the Administrative Agent, and is otherwise sufficient to allow the issuance of the Mortgage Policy with respect to such Mortgaged Property without any exception (other than customary exceptions) for such matters as would be shown on an accurate survey of the Mortgaged Property and with a standard land same as survey and such other customary survey related endorsements as the Administrative Agent may reasonably request.
Extended Term Loan has the meaning assigned to such term in Section 2.17(a).
Extending Lender has the meaning assigned to such term in Section 2.17(a).
Extension has the meaning assigned to such term in Section 2.17(a).
Extension Amendment has the meaning assigned to that term in Section 2.17(b).
Fair Market Value means, with respect to any asset, as determined by the Borrower, the price (after taking into account any liabilities relating to such assets) that would be negotiated in an arms-length transaction for cash between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction.
Facility means any Term Facility.
FATCA means Sections 1471 through 1474 of the Internal Revenue Code as of the date hereof (and any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future Treasury regulations or other official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code as of the date of this Agreement (or any amended or successor version described above), and any intergovernmental agreement, treaty or convention among Governmental Authorities (and any related legislation, rules or official administrative practices) implementing any of the foregoing.
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Federal Funds Rate means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided that if Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purpose of this Agreement.
Financial Officer means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.
First Priority Debt means Consolidated Debt that is secured by a first-priority Lien on any Collateral.
First Priority Debt Leverage Ratio means, on a Pro Forma Basis as of any date of determination, the ratio of (a) First Priority Debt as of such date, less Unrestricted Cash of the Borrower and its Restricted Subsidiaries as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, the latest financial statements referred to in Section 3.04).
Flood Documentation means with respect to each improved Mortgaged Property, (i) a completed life-of-loan Federal Emergency Management Agency standard flood hazard determination (to the extent an improved Mortgaged Property has a building or mobile home located in a Special Flood Hazard Area, together with a notice about Special Flood Hazard Area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto) and (ii) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies, along with a copy of the underlying policies (if requested by the Administrative Agent) required by Section 5.05 hereof and the applicable provisions of the Collateral Documents, the property policy shall (A) be endorsed or otherwise amended to include a standard lenders loss payable or mortgagee endorsement (as applicable), (B) the general liability policy shall name the Administrative Agent, on behalf of the Secured Parties, as additional insured, (C) sufficiently identify the property located in a Special Flood Hazard Area, the applicable flood zone designation and the flood insurance coverage and deductible relating thereto and (D) be otherwise in form and substance reasonably satisfactory to the Administrative Agent, subject to the provisions of Section 5.05.
Flood Insurance Laws means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
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Foreign Lender means any Lender that is not a United States person as defined in Section 7701(a)(30) of the Internal Revenue Code.
Foreign Subsidiary means any Subsidiary of the Borrower that is not a Domestic Subsidiary.
GAAP means generally accepted accounting principles in the United States as set forth in the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) and other sources as described in FASB ASC 105, Generally Accepted Accounting Principles, that are applicable to the circumstances as of the date of determination, consistently applied.
Governmental Authority means the government of the United States or any other nation, or of any political subdivision thereof, whether state, local, provincial or otherwise 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) and any group or body charged with setting regulatory capital rules or standards (including the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
Guarantee means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term Guarantee as a verb has a corresponding meaning.
Guarantee Agreement means the Guarantee Agreement to be executed and delivered by each Subsidiary Guarantor, substantially in the form of Exhibit C.
Guarantors means each Subsidiary Guarantor.
Hazardous Materials means petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, radon gas and any other chemicals, materials or substances designated, classified or regulated as being hazardous or toxic, or words of similar import, under any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation.
Hedging Obligations of any Person means the obligations of such Person under Swap Contracts.
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HMT has the meaning assigned to such term in the definition of Sanction(s).
Incremental Amount means, at any time, the sum of:
(a) the excess (if any) of
(i) (x) the aggregate amount of all voluntary prepayments of Term Loans made prior to such time plus (y) the aggregate amount of cash actually paid by the Borrower in respect of repurchases of Term Loans made prior to such time (other than, in the case of clauses (x) and (y), prepayments and repurchases made with the proceeds of long-term Debt (it being understood that drawings under the ABL Credit Agreement are not considered to be proceeds of long-term Debt)); over
(ii) the aggregate amount of all Incremental Term Loan Commitments established after the Closing Date and prior to such time pursuant to Section 2.02 and the aggregate amount of all commitments in respect of Incremental Equivalent Debt established after the Closing Date and prior to such time pursuant to Section 6.01(m), in each case in reliance on this clause (a); and
(b) any amounts so long as immediately after giving pro forma effect to the establishment of any Incremental Term Loan Commitments or the commitments in respect of any Incremental Equivalent Debt, any Asset Acquisition or other transaction consummated concurrently therewith or to be consummated with the proceeds of the loans or other extensions of credit made thereunder, if, (x) in the case of Incremental Facilities or Incremental Equivalent Debt, in each case, constituting First Priority Debt, the First Priority Debt Leverage Ratio is equal to or less than 2.00 to 1.00, (y) in the case of Incremental Equivalent Debt constituting Priority Debt (other than First Priority Debt), the Priority Debt Leverage Ratio is equal to or less than 3.00 to 1.00 and (z) in the case of Incremental Equivalent Debt of the Borrower that is unsecured and is not guaranteed by any Subsidiary of the Borrower, the Total Leverage Ratio is equal to or less than 5.00 to 1.00, and in each case of clauses (x), (y) and (z), calculated (i) as if any Incremental Term Loan Commitments or the commitments in respect of any Incremental Equivalent Debt were fully drawn on the effective date thereof and (ii) without netting any of the proceeds of any of such Incremental Facility or Incremental Equivalent Debt; provided that solely for the purposes of calculating the First Priority Debt Leverage Ratio to determine whether an Incremental Facility or Incremental Equivalent Debt may be incurred pursuant to this clause (b), such calculation shall be made without giving effect to any amount incurred simultaneously under clause (a).
Incremental Assumption Agreement means an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and, if applicable, one or more Incremental Term Lenders.
Incremental Assumption Amendment means any amendment to the Incremental Assumption Agreement.
Incremental Commitment means an Incremental Term Loan Commitment.
Incremental Equivalent Debt means Debt incurred by one or more of the Loan Parties in the form of one or more series of pari passu notes, junior lien term loans or notes, subordinated term loans or notes or senior unsecured term loans or notes; provided that the requirements applicable to the incurrence of Incremental Term Loans shall not apply; provided further, that such Debt (a) shall not be secured by
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any property or assets of the Loan Parties or any Restricted Subsidiary other than Collateral, and unless such Debt is unsecured, a Senior Representative acting on behalf of the holders of such Debt shall have become party to a customary intercreditor agreement reasonably satisfactory to the Borrower and the Administrative Agent reflecting the priority of the Liens securing such Debt, (b) shall not be guaranteed by any Person other than one or more Loan Parties, (c) shall not mature prior to the Latest Maturity Date in effect at the time such Debt is incurred, (d) shall not have a Weighted Average Life to Maturity shorter than the Weighted Average Life to Maturity of the Term Loans at the time such Debt is incurred, (e) in the case of Incremental Equivalent Debt in the form of one or more series of pari passu notes, Section 2.02(b)(iv) shall apply and (f) shall have covenants and events of default that are not more restrictive, taken as a whole, than the terms applicable to the Term Loans at the time such Debt is incurred (except for covenants and events of default applicable only to periods after the Latest Maturity Date in effect at the time such Debt is incurred or after the Obligations in effect at such time (other than contingent obligations not yet accrued and payable) have been paid in full), as reasonably determined by the Borrower in good faith.
Incremental Facility means the Incremental Commitments and the Incremental Loans made thereunder.
Incremental Loan means an Incremental Term Loan.
Incremental Term Facility means the Incremental Term Loan Commitments and the Incremental Term Loans made thereunder.
Incremental Term Lender means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
Incremental Term Loan Commitment means the commitment of any Lender, established pursuant to Section 2.02, to make Incremental Term Loans to the Borrower.
Incremental Term Loans means any term loans borrowed in connection with an Incremental Assumption Agreement.
Indemnified Taxes means all Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, other than Excluded Taxes.
Indemnitee has the meaning assigned to such term in Section 9.04(b).
Ineligible Institution means (a) a Defaulting Lender, (b) except with respect to assignments made pursuant to Section 2.19, the Borrower, any of its Subsidiaries or any of its Affiliates, or (c) a company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person or relative(s) thereof.
Information has the meaning assigned to such term in Section 9.13.
Inside Maturity Notes means each of, individually, (a) the 2019 Notes, and (b) the Borrowers (i) 7.625% senior notes due 2020, (ii) 7.875% senior notes due 2021, (iii) 8.875% debentures due 2021, (iv) 7.00% senior notes due 2022 and (v) 6.50% senior notes due 2023.
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Insolvency or Liquidation Proceeding means:
(a) any voluntary or involuntary case or proceeding under any Debtor Relief Law with respect to any Loan Party;
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Loan Party or with respect to a material portion of their respective assets;
(c) any liquidation, dissolution, reorganization or winding up of any Loan Party, whether voluntary or involuntary, whether or not under a courts jurisdiction or supervision, and whether or not involving insolvency or bankruptcy; or
(d) any general assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Loan Party.
Insurance Policy Debt means Debt of the Borrower or any of its Restricted Subsidiaries under policies of life insurance now or hereafter owned by the Borrower or any of its Restricted Subsidiaries under which policies the sole recourse for such borrowing is against such policies.
Intellectual Property has the meaning assigned thereto in the Security Agreement.
Interest Election Request means a request in the form of Exhibit K (or any other form approved by the Administrative Agent (acting reasonably)) by the Borrower to convert or continue a Borrowing in accordance with Section 2.05.
Interest Payment Date means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months duration, each day prior to the last day of such Interest Period that occurs at intervals of three months duration after the first day of such Interest Period.
Interest Period means, as to any Eurodollar Loan, (a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one week, one month, two months, three months or six months (or, if available to all Lenders under the applicable Facility, twelve months or any other period acceptable to the Administrative Agent) thereafter, as selected by the Borrower in its Committed Loan Notice, as the case may be, given with respect thereto, and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one week, one month, two months, three months or six months (or, if agreed to by all Lenders under the applicable Facility, twelve months or any other period acceptable to the Administrative Agent) thereafter, as selected by the Borrower by irrevocable Committed Loan Notice to the Administrative Agent not later than 12:00 noon, New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;
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(ii) the Borrower may not select an Interest Period for a Term Loan that would extend beyond the date the final payment is due on such Term Loan; and
(iii) any Interest Period relating to a Eurodollar Rate Loan of at least one months duration that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month.
Internal Revenue Code means the Internal Revenue Code of 1986, as amended.
Investment means, as to any Person, any direct or indirect Asset Acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) an Asset Acquisition, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of any Investment. The amount of any Investment shall be the amount actually invested without adjustment for subsequent increases or decreases in value.
Involuntary Disposition means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of the Borrower or any Subsidiary.
Junior Debt means Debt for borrowed money, other than Debt incurred under or pursuant to the ABL Credit Agreement, that is (x) unsecured, or (y) by its terms subordinated or junior in right of payment or security to the Obligations.
Junior Debt Restricted Payment means, any payment or other distribution (whether in cash, securities or other property), directly or indirectly made by the Borrower or any of its Restricted Subsidiaries, of or in respect of principal of or interest on any Junior Debt (or any Permitted Refinancing thereof); provided, that the following shall not constitute a Junior Debt Restricted Payment:
(a) any Permitted Refinancing thereof permitted to be incurred under Section 6.01;
(b) payments of regularly scheduled interest and fees due thereunder, other non-principal payments thereunder, any mandatory prepayments of principal, interest and fees thereunder, scheduled payments thereon necessary to avoid the Junior Debt from constituting applicable high yield discount obligations within the meaning of Section 163(i)(l) of the Internal Revenue Code, and principal on the scheduled maturity date of any Junior Debt;
(c) payments or distributions in respect of all or any portion of the Junior Debt with the proceeds from the substantially concurrent issuance, sale or exchange by the Borrower of Qualified Equity Interests; provided that such net cash proceeds are not included in any determination of the Available Amount; or
(d) the conversion of any Junior Debt to Qualified Equity Interests of the Borrower; provided that such amounts are not included in any determination of the Available Amount.
Latest Maturity Date means, at any date of determination, the latest maturity date in respect of any Class of Term Loans, in each case then in effect on such date of determination.
LCT Election has the meaning assigned to such term in Section 1.08.
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LCT Test Date has the meaning assigned to such term in Section 1.08.
Lead Arrangers means, collectively, Bank of America, N.A., Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A., PNC Capital Markets LLC and Wells Fargo Securities, LLC, as joint lead arrangers and joint bookrunners.
Lender Presentation means the Lender Presentation dated September 2018 and made available to the Lenders in connection with this Agreement.
Lenders means the Persons listed on Schedule 1.01A and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or any Incremental Assumption Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.
LIBOR has the meaning assigned to such term in the definition of Eurodollar Rate.
LIBOR Screen Rate means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).
LIBOR Successor Rate has the meaning assigned to such term in Section 2.10(b).
LIBOR Successor Rate Conforming Changes means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Alternate Base Rate, Eurodollar Rate, or Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).
Lien means, with respect to any asset, any security interest, mortgage, pledge, lien, claim, charge or encumbrance of any kind in respect of such asset.
Limited Condition Transaction means each of any (i) Permitted Acquisition or other similar permitted Investment whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, (ii) redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (iii) Disposition or (iv) irrevocable declaration of a dividend.
LLC Division means the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited Liability Company Act or any comparable transaction under any similar law.
Loan Documents means this Agreement, the Guarantee Agreement, the Collateral Documents, the ABL Intercreditor Agreement, any Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment and any amendments or waivers to any of the foregoing.
Loan Parties means the Borrower and each Subsidiary Guarantor.
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Loans means the loans made by the Lenders to the Borrower pursuant to this Agreement.
Material Adverse Effect means a material adverse effect on (a) the business, operations, property or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole or that results in a material impairment of the ability of the Borrower to perform any payment obligations hereunder or (b) the validity or enforceability of this Agreement or the other Loan Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or thereunder.
Margin Stock has the meaning assigned to it in Regulation U issued by the Board.
Material Real Property means any parcel of Real Property owned in fee by the Borrower or any other Loan Party located in the United States and having a gross book value (determined on a per property basis) greater than or equal to $5,500,000 as of (x) the Closing Date, for Real Property then owned or (y) the date of acquisition, for Real Property acquired after the Closing Date, in each case, as determined by the Borrower in good faith.
Material Subsidiary means any Restricted Subsidiary of the Borrower which, at the time of determination, (i) shall own assets comprising in excess of 2% of all of the assets of the Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis or (ii) has net sales for the four fiscal quarters most recently ended in excess of 2% of the net sales of the Borrower and its Consolidated Restricted Subsidiaries on a consolidated basis.
Moodys means Moodys Investors Service, Inc.
Mortgage Policy has the meaning assigned to such term in Section 5.09(e)(iii)(A).
Mortgaged Properties means the Material Real Properties that are identified on Schedule 1.01B (the Closing Date Mortgaged Properties) and each additional Material Real Property encumbered by a Mortgage pursuant to Section 5.09.
Mortgages means, collectively, the mortgages, trust deeds, deeds of trust, deeds to secure debt, assignments of leases and rents, debentures, and other security documents securing the Obligations (including amendments to any of the foregoing) executed and delivered by a Loan Party to the Administrative Agent with respect to Mortgaged Properties (either as stand-alone documents or forming part of other Collateral Documents), each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, in each case, as amended, supplemented or otherwise modified from time to time.
Multiemployer Plan means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Multiple Employer Plan means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
Net Proceeds means:
(a) 100% of the cash proceeds actually received by the Borrower or any Restricted Subsidiary (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise,
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and including casualty insurance settlements and condemnation awards, but in each case only as and when received) from any Asset Sale or any Recovery Event made or occurring after the Closing Date, net of (i) attorneys fees, accountants fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer Taxes, deed or mortgage recording Taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith, (ii) required payments of Debt that is secured by a Lien permitted hereunder (other than pursuant to the Loan Documents and other than Incremental Equivalent Debt or other obligations secured by a Lien that is junior to the Liens securing the Obligations), including payments required under the ABL Credit Agreement with respect to assets or property constituting ABL Collateral, (iii) repayments of Incremental Term Loans and Incremental Equivalent Debt secured by a Lien that is pari passu with the Liens securing the Obligations (limited to its proportionate share of such prepayment, based on the amount of such then outstanding Debt as a percentage of all then outstanding Term Loans, Incremental Term Loans and Incremental Equivalent Debt secured by a Lien that is pari passu with the Liens securing the Obligations), (iv) Taxes paid or payable (in the good faith determination of the Borrower) as a direct result thereof, and (v) in the case of an Asset Sale, the amount of any reasonable reserve established in accordance with GAAP against any adjustment to the sale price or any liabilities (other than any Taxes deducted pursuant to clause (i) or (iv) above) (x) related to any of the applicable assets and (y) retained by the Borrower or any of the Subsidiaries including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations (provided that (1) the amount of any reduction of such reserve (other than in connection with a payment in respect of any such liability), prior to the date occurring 18 months after the date of the respective Asset Sale, shall be deemed to be cash proceeds of such Asset Sale occurring on the date of such reduction and (2) the amount of any such reserve that is maintained as of the date occurring 18 months after the date of the applicable Asset Sale shall be deemed to be Net Proceeds from such Asset Sale as of such date); provided, that, if the Borrower shall deliver an Officers Certificate to the Administrative Agent promptly following receipt of any such proceeds indicating the Borrowers election to retain such proceeds in order for it to be able to use any portion of such proceeds (x) within 12 months of such receipt, to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Borrower and the Subsidiaries or to make Asset Acquisitions and other Investments permitted hereunder (excluding Permitted Investments or intercompany Investments in Subsidiaries) or to reimburse the cost of any of the foregoing incurred on or after the date on which the Asset Sale giving rise to such proceeds was contractually committed (other than inventory) or (y) within six months of such receipt, to (A) repay outstanding amounts under the ABL Credit Agreement (with no requirement to permanently reduce commitments thereunder in connection therewith), in an amount (not including any outstanding amounts under the ABL Credit Agreement repaid pursuant to clause (B)(2) below) not to exceed $75,000,000 in any calendar year or (B) in an aggregate amount not to exceed $400,000,000, (1) redeem, repurchase or repay Inside Maturity Notes and (2) repay outstanding amounts under the ABL Credit Agreement to the extent such amounts were drawn in order to redeem, repurchase or repay Inside Maturity Notes, in the case of clauses (1) and (2) above, so long as (other than with respect to the Specified Prepayment), after giving effect to such Asset Sale and such prepayment of Inside Maturity Notes, the Total Leverage Ratio, on a Pro Forma Basis, is no greater than the Total Leverage Ratio immediately prior to such Asset Sale, then such portion of such proceeds shall not constitute Net Proceeds except to the extent not (I) within 365 days of such receipt, so used or contractually committed to be so used for the purposes set forth in clause (x) above (it being understood that if any portion of such proceeds are not so used within such 365 day period but are contractually committed within such 365 day period to be used, then such remaining portion if not so used within 180 days following the end of such 365 day period shall constitute Net Proceeds as of such date without giving effect to this proviso) or
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(II) within six months of such receipt, so used for the purposes set forth in clause (y) above; provided, further that no net cash proceeds calculated in accordance with the foregoing realized in a single transaction or series of related transactions shall constitute Net Proceeds unless such net cash proceeds shall exceed $10,000,000; and
(b) 100% of the cash proceeds from the incurrence, issuance or sale by the Borrower or any Restricted Subsidiary of any Debt (other than Excluded Debt, except for Refinancing Term Loans), net of all fees (including investment banking fees), commissions, costs and other expenses, in each case incurred in connection with such issuance or sale.
Non-Bank Certificate has the meaning assigned to such term in Section 2.13(e)(ii)(B)(3).
Non-Consenting Lender has the meaning assigned to such term in Section 2.15(c).
Non-Defaulting Lender means, at any time, each Lender that is not a Defaulting Lender at such time.
Non-Loan Party means any Restricted Subsidiary other than a Loan Party.
Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, any Borrower, Guarantor or Specified Pledgor arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and other amounts that accrue after the commencement by or against any Borrower, any Guarantor, any Specified Pledgor or any Affiliate of any thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and other amounts are allowed claims in such proceeding.
OFAC means the U.S. Department of the Treasurys Office of Foreign Assets Control.
Officers Certificate means a certificate of a Responsible Officer in form and substance reasonably acceptable to the Administrative Agent.
Other Taxes means all present or future stamp, documentary, intangible, recording, filing or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, registration or enforcement of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to Section 2.15) as a result of any other present or former connection between such recipient and such jurisdiction (including such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than any connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or engaged in any other transaction pursuant to and/or enforced any Loan Documents.
Participant has the meaning assigned to such term in Section 9.05(c).
Participant Register has the meaning assigned to such term in Section 9.05(c).
PBGC means the Pension Benefit Guaranty Corporation and its successors and assigns.
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Pension Plan means any employee pension benefit plan (including a Multiple Employer Plan but other than a Multiemployer Plan) that is maintained or is contributed to by the Borrower or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code.
Pension Funding Rules means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans set forth in Sections 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.
Perfection Certificate means a certificate substantially in the form of Exhibit H-1 or any other form approved by the Administrative Agent (acting reasonably), as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.
Perfection Certificate Supplement means a certificate substantially in the form of Exhibit H-2 or any other form approved by the Administrative Agent (acting reasonably).
Permitted Acquisition means any Asset Acquisition so long as, (a) on a Pro Forma Basis, immediately after giving effect thereto, no Event of Default has occurred and is continuing and (b) the aggregate consideration paid by the Borrower and its Restricted Subsidiaries attributable to acquisitions of the Equity Interests of Persons that become Restricted Subsidiaries that (after giving effect to Section 5.09(b)) do not become Subsidiary Guarantors or assets that are acquired by Restricted Subsidiaries that are not Subsidiary Guarantors (and are not required to become Subsidiary Guarantors after giving effect to Section 5.09(b)) shall not exceed $100,000,000.
Permitted Encumbrances means Permitted Liens pursuant to Section 6.05(a), (k), (l), (m), (n), (p), (q), (t), (u)(ii) and (z).
Permitted Investments means (1) marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition; (2) certificates of deposit, time deposits, eurodollar time deposits or overnight bank deposits having maturities of one year or less from the date of acquisition issued by any commercial bank organized under the laws of the United States or any state thereof; (3) commercial paper of an issuer rated at least A-1 by S&P or P-1 by Moodys, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two named rating agencies cease publishing ratings of commercial paper issuers generally, and maturing within one year from the date of acquisition; (4) repurchase obligations of any commercial bank satisfying the requirements of clause (2) of this definition with respect to securities issued or fully guaranteed or insured by the United States government; (5) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moodys; (6) securities with maturities of one year or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (2) of this definition; (7) money market mutual or similar funds at least 90% of the assets of which are invested in assets satisfying the requirements of clauses (1) through (6) of this definition; (8) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by S&P or Aaa by Moodys and (iii) have portfolio assets of at least $5,000,000,000; and (9) in the case of any Foreign Subsidiary, investments substantially comparable to any of the foregoing investments with respect to the country in which such Foreign Subsidiary is organized.
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Permitted Liens means Liens permitted by Section 6.05.
Permitted Refinancing means, with respect to any Debt, any refinancing thereof; provided, however, that: (a) no Event of Default shall have occurred and be continuing or would arise therefrom; (b) any such refinancing Debt shall (i) not have a stated maturity or weighted average life that is shorter than that of the Debt being refinanced (provided that the stated maturity or weighted average life may be shorter if the stated maturity of any principal payment (including any amortization payments) is not earlier than the earlier of (1) the stated maturity in effect prior to such refinancing or (2) 91 days after the Latest Maturity Date then in effect at the time of issuance), (ii) if the Debt being refinanced is subordinated by its terms or by the terms of any agreement or instrument relating to such Debt, be at least as subordinate to the Obligations as the Debt being refinanced (and (x) unsecured if the refinanced Debt is unsecured or (y) secured by Liens expressly junior in priority to the Liens securing the Obligations, if the refinanced Debt is secured by Liens expressly junior in priority to the Liens securing the Obligations) and (iii) be in a principal amount that does not exceed the principal amount so refinanced, plus accrued interest, plus any premium or other payment required to be paid in connection with such refinancing, plus, in either case, the amount of fees and reasonable expenses of the Borrower or any of its Restricted Subsidiaries incurred in connection with such refinancing; and (c) the sole obligor on such refinancing Debt shall be the Borrower or the original obligor on such Debt being refinanced; provided, however, that (i) any guarantor of the Debt being refinanced shall be permitted to guarantee the refinancing Debt and (ii) only to the extent such Debt being refinanced constitutes Priority Debt, any Loan Party shall be permitted to guarantee any such refinancing Debt of any other Loan Party.
Person means an individual, partnership, corporation (including a company or business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
Plan means any employee benefit plan (other than a Multiemployer Plan) within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower or any ERISA Affiliate or any such plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any of its employees.
Plan of Reorganization means any plan of reorganization, plan of liquidation, agreement for composition, or other type of plan of arrangement proposed in or in connection with any proceeding under any Debtor Relief Law.
Platform has the meaning assigned to such term in Section 9.17.
Pledge Agreement means a pledge agreement in substantially the form of Exhibit D-2, as amended, modified, supplemented or restated, among the Administrative Agent and the Specified Pledgors.
Priority Debt means Consolidated Debt that is either (a) secured by a Lien on any assets of the Borrower or one or more Restricted Subsidiaries and/or (b) issued or guaranteed by one or more Restricted Subsidiaries.
Priority Debt Leverage Ratio means, on a Pro Forma Basis as of any date of determination, the ratio of (a) Priority Debt as of such date, less Unrestricted Cash of the Borrower and its Restricted Subsidiaries as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, the latest financial statements referred to in Section 3.04).
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Pro Forma Basis means, with respect to any transaction, that for purposes of calculating the availability of baskets, commitment increases or incremental facilities, such transaction shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements have been or were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, the latest financial statements referred to in Section 3.04). In connection with the foregoing, (a) with respect to any Disposition (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction (it being agreed that with respect to any Disposition, such pro forma calculations may include a reasonable estimate of corporate overhead costs and expenses attributable to the property, assets or Subsidiary Disposed of that will no longer be incurred following such Disposition) and (ii) Debt which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period, and (b) with respect to any Asset Acquisition, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Borrower and its Subsidiaries in accordance with GAAP and (B) such items are supported by financial statements or other information (it being agreed that with respect to any Asset Acquisition, such pro forma calculations may include a reasonable good faith estimate of factually supportable and identifiable cost savings resulting from such Asset Acquisition that have been realized or for which the steps necessary for realization have been taken and are expected to be realized within 12 months of the relevant transaction, in an amount not to exceed 10% of Consolidated EBITDA before giving effect to such synergies for any measurement period, which cost savings can be reasonably computed, as certified in writing in an Officers Certificate executed by a Responsible Officer of the Borrower and delivered to the Administrative Agent) and (ii) any Debt incurred or assumed by the Borrower or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Debt of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Debt has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of determination.
Pro Rata Extension Offer has the meaning assigned to such term in Section 2.17(a).
PTE means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public Lender has the meaning assigned to such term in Section 9.17.
Purchase Offer has the meaning assigned to such term in Section 2.19(a).
Qualified Equity Interests of any Person means Equity Interests of such Person other than Disqualified Equity Interests. Unless otherwise specified, Qualified Equity Interests refer to Qualified Equity Interests of the Borrower.
Real Property means, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of or interests in real property owned in fee simple or leased by any Loan Party, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, incidental to the ownership, lease or operation thereof.
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Recovery Event means any event that gives rise to the receipt by the Borrower or any of its Restricted Subsidiaries of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon).
refinance means, in respect of any Debt, to refinance, extend, renew, refund, repay, prepay, or to issue other Debt in exchange or replacement for, such Debt.
Refinancing Amendment has the meaning assigned to such term in Section 2.18(c).
Refinancing Effective Date has the meaning assigned to such term in Section 2.18(a).
Refinancing Term Loans has the meaning assigned to such term in Section 2.18(a).
Register has the meaning assigned to such term in Section 9.05(b)(iv).
Related Business means (a) any business in which the Borrower or any Restricted Subsidiary was engaged on the Closing Date or any reasonable extension of such business, (b) the businesses of media, business services or business outsourcing and (c) any business or activity related, ancillary, incidental, synergistic or complementary to any business of the Borrower or any Restricted Subsidiary in which the Borrower or any Restricted Subsidiary was engaged on the Closing Date or any reasonable extension of such business (which shall include other businesses related to the handling and/or distribution of data used or processed in the businesses engaged in by the Borrower or any Subsidiary on the Closing Date).
Related Parties means, with respect to any specified Person, such Persons Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and such Persons Affiliates.
Reportable Event means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.
Repricing Event means (i) any prepayment or repayment of Term B Loans with the proceeds of, or conversion of all or any portion of the Term B Loans into, any new or replacement term loans bearing interest with an All-in Yield less than the All-in Yield applicable to the Term B Loans subject to such event or (ii) any amendment, waiver or consent to this Agreement which reduces the All-in Yield applicable to the Term B Loans (it being understood that any prepayment premium with respect to a Repricing Event shall apply to any required assignment by a Non-Consenting Lender in connection with any such amendment pursuant to Section 2.15(c)); provided that in no event shall any prepayment or repayment of Term B Loans in connection with a Change of Control or a Transformative Acquisition constitute a Repricing Event.
Required Lenders means, at any time, Lenders having Aggregate Exposure that, taken together, represents more than 50% of the Aggregate Exposure of all Lenders at such time; provided, that the Aggregate Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.
Required Percentage means, with respect to any Excess Cash Flow Period, 50%; provided, that, if the Total Leverage Ratio as of the end of such Excess Cash Flow Period is (x) less than or equal to 3.70 to 1.00 but greater than 3.20 to 1.00, such percentage shall be 25% or (y) less than or equal to 3.20 to 1.00, such percentage shall be 0%.
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Requirements of Law means, as to any Person, the Certificate of Incorporation and By-Laws or other organizational or governing documents of such Person, and any law, treaty, rule, regulation or official administrative pronouncement or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
Responsible Officer means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payment means (a) any dividend or other distribution (whether in cash, securities or other property) in respect of any Equity Interests in the Borrower or any Restricted Subsidiary, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests of the Borrower or any option, warrant or other right to acquire any such Equity Interests (other than convertible Debt instruments or securities) or (c) any Junior Debt Restricted Payment.
Restricted Subsidiary means any Subsidiary of the Borrower other than Unrestricted Subsidiaries. Each Subsidiary of the Borrower that is a Specified Pledgor shall constitute a Restricted Subsidiary at all times.
Retained Excess Cash Flow Amount means, as at any date of determination, an amount determined on a cumulative basis equal to, without duplication, (a) the cumulative amount of Excess Cash Flow for all Excess Cash Flow Periods completed prior to such date, minus (b) the amount of such Excess Cash Flow required to be applied to prepay the Loans pursuant to Section 2.07(c) during or with respect to such applicable Excess Cash Flow Periods (without giving effect to any reduction in respect of prepayments of Debt as provided in clause (ii) thereof).
Revocation has the meaning assigned to such term in the definition of Unrestricted Subsidiary.
Sanction(s) means any sanction, law, rule or regulation administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majestys Treasury (HMT) or other relevant sanctions authority.
Scheduled Unavailability Date has the meaning assigned to such term in Section 2.10(b)(ii).
Secured Parties means, collectively, the Administrative Agent, the Lenders, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 8.05 and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
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Security Agreement means a security agreement in substantially the form of Exhibit D-1, as amended, modified, supplemented or restated, among the Administrative Agent and the Loan Parties.
Senior Representative means, with respect to any series of Debt permitted by this Agreement to be secured by the Collateral on a pari passu or junior or subordinated basis, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Debt is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.
Solvent and Solvency mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Persons ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Persons property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Special Flood Hazard Area has the meaning assigned to such term in Section 5.05(d).
Specified Pledgor means any direct or indirect domestic subsidiary of the Borrower that is not a Loan Party that holds Equity Interests of a first tier Foreign Subsidiary; provided that, for purposes of the definition of Specified Pledgor, the Equity Interests of Courier Tecnologia em Serviços Gráficos and Consolidated Graphics de Mexico S. de R.L. de C.V. shall not constitute Equity Interests of a first tier Foreign Subsidiary so long as Courier Tecnologia em Serviços Gráficos and Consolidated Graphics de Mexico S. de R.L. de C.V. have no material assets. As of the Closing Date, the only Specified Pledgor is RRD Netherlands, LLC.
Specified Prepayment means the application by the Borrower of the net cash proceeds of any Asset Sale to repay up to $172,000,000 of (a) the aggregate principal amount outstanding of the 2019 Notes or (b) amounts outstanding under the ABL Credit Agreement drawn to repay the aggregate principal amount outstanding of the 2019 Notes; provided, however, that the Specified Prepayment must occur on or prior to December 31, 2019.
Specified Representations means Section 3.01 (solely with respect to the organizational existence of the Borrower and, except where the failure to be validly existing, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, the other Loan Parties), Section 3.02 (solely as it relates to (x) organizational power and authority of the Loan Parties to duly authorize, execute, deliver and perform the Loan Documents and (y) the due authorization, execution, delivery and enforceability of the Loan Documents), Section 3.03 (solely as it relates to no conflicts of the Loan Documents (with respect to the execution and delivery by the Borrower and the Subsidiary Guarantors of this Agreement, the incurrence of indebtedness hereunder and the granting of the guarantees and security interests hereunder) with the organizational documents of the Loan Parties), Section 3.08, Section 3.12, Section 3.15, Section 3.17, Section 3.18 and Section 3.22.
S&P means S&P Global Ratings, a division of Standard & Poors Financial Services LLC.
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Subsidiary means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other business entity (a) of which a majority of the shares of Voting Stock is at the time beneficially owned by such Person, (b) over which such Person has the ability to direct the management, or (c) whose financial results are consolidated into the financial statements of such Person. Unless otherwise specified, all references herein to a Subsidiary or to Subsidiaries shall refer to a Subsidiary or Subsidiaries of the Borrower.
Subsidiary Guarantor means each Domestic Subsidiary that is a party to the Guarantee Agreement and any other Domestic Subsidiary that becomes a Subsidiary Guarantor after the date hereof (whether required to by this Agreement or otherwise).
Survey has the meaning assigned to such term in Section 5.09(e).
Swap Contract means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement.
Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, the termination value thereof.
Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Tender Offers means the tender offers made by the Borrower pursuant to that certain offer to purchase, dated September 18, 2018, in respect of certain of its outstanding (a) 7.625% senior notes due 2020, (b) 7.875% senior notes due 2021, (c) 8.875% debentures due 2021 and (d) 7.000% senior notes due 2022.
Term B Commitment means, as to any Term B Lender, the obligation of such Term B Lender to make Term B Loans in an aggregate principal amount not to exceed the amount set forth opposite such Lenders name on Schedule 1.01A or in the Assignment and Assumption or Incremental Assumption Agreement pursuant to which such Term B Lender became a party hereto as the same may be changed from time to time pursuant to the terms of this Agreement (including as increased, extended or replaced as provided in Section 2.02, 2.17 and 2.18). The aggregate amount of all Term B Commitments as of the Closing Date is $550,000,000.
Term B Facility means the credit facility constituted by the Term B Commitments and the Term B Loans thereunder.
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Term B Lender means each Lender that has a Term B Commitment or that holds Term B Loans.
Term B Loans means the Term Loans made pursuant to the Term B Commitment.
Term B Maturity Date means January 15, 2024.
Term Facility means a credit facility in respect of Term Loans hereunder, including the Term B Facility.
Term Lender means each Lender that holds Term Loans.
Term Loan Commitment means any Commitment in respect of Term Loans, including the Term B Commitments.
Term Loans means the Term B Loans, any Incremental Term Loan, Extended Term Loan or Refinancing Term Loans incurred hereunder.
Term Yield Differential has the meaning assigned to such term in Section 2.02(b)(iv).
Title Insurer has the meaning assigned to such term in Section 5.09(e)(iii)(A).
Total Leverage Ratio means, on a Pro Forma Basis as of any date of determination, the ratio of (a) Consolidated Debt as of such date, less Unrestricted Cash of the Borrower and its Restricted Subsidiaries as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financial statements, the latest financial statements referred to in Section 3.04).
Transactions means (i) the entry into the Loan Documents and the borrowings under this Agreement to occur on the Closing Date, (ii) the repayment of certain Debt outstanding under the ABL Credit Agreement, (iii) the consummation of the Tender Offers, including the payment of any tender premium in connection therewith and (iv) the payment of fees and expenses in connection with the foregoing.
Transformative Acquisition means any Asset Acquisition or other Investment by the Borrower or any Restricted Subsidiary, whether by purchase, merger or otherwise, that (i) is not permitted by the terms of this Agreement immediately prior to the consummation of such Asset Acquisition or other Investment or (ii) if permitted by the terms of this Agreement immediately prior to the consummation of such Asset Acquisition or other Investment, the terms of the Loan Documents would not provide the Borrower and its Restricted Subsidiaries with adequate flexibility for the continuation or expansion of their combined operations following such consummation, as determined by the Borrower acting in good faith.
Type means, as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.
Undisclosed Administration means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
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United States means the United States of America.
Unrestricted Cash means, as of any date, all unrestricted cash and Permitted Investments of the Borrower and its Restricted Subsidiaries and all cash and Permitted Investments restricted solely in favor of or pursuant to any Loan Document (and, to the extent also restricted in favor of or pursuant to any Loan Document, any ABL Loan Document or any document governing or securing any Incremental Equivalent Debt).
Unrestricted Subsidiary means (a) any subsidiary of the Borrower that is designated as an Unrestricted Subsidiary by the Borrower after the Closing Date in a written notice to the Administrative Agent and (b) any subsidiary of any subsidiary described in clause (a) above or this clause (b); provided that (i) no Event of Default shall have occurred and be continuing at the time of or after giving effect to the designation of a subsidiary as an Unrestricted Subsidiary (a Designation) and (ii) at the time of and immediately after giving effect to such Designation, the Total Leverage Ratio determined on a Pro Forma Basis shall be less than or equal to 4.70 to 1.00; provided, further, that no subsidiary shall be designated as an Unrestricted Subsidiary unless (x) such subsidiary is not party to any transaction with the Borrower or any Restricted Subsidiary unless the terms of such transaction complies with Section 6.08 and (y) no Investments may be made in any such subsidiary by the Borrower or any Restricted Subsidiary except to the extent permitted under Section 6.02 (it being understood that, if a subsidiary is designated as an Unrestricted Subsidiary after the Closing Date, the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the subsidiary so designated shall be deemed to be an Investment made as of the time of such designation and shall be subject to the limits set forth in Section 6.02). It is understood that, other than with respect to the net income of any Unrestricted Subsidiary to the extent such income has actually been distributed in cash to the Borrower or any Restricted Subsidiary during the applicable period, Unrestricted Subsidiaries shall be disregarded for the purposes of any calculation pursuant to this Agreement relating to financial matters with respect to the Borrower.
The Borrower may revoke the designation of a subsidiary as an Unrestricted Subsidiary pursuant to a written notice to the Administrative Agent so long as, after giving pro forma effect to such revocation, (i) the Total Leverage Ratio determined on a Pro Forma Basis shall be less than or equal to no 4.70 to 1.00 and (ii) no Event of Default shall be in existence (a Revocation). Upon any Revocation, such Unrestricted Subsidiary shall constitute a Restricted Subsidiary for all purposes of this Agreement and the Borrower shall comply with Section 5.09 if such subsidiary is a Domestic Subsidiary that is a Material Subsidiary. In the case of any Revocation, if the designation of such subsidiary as an Unrestricted Subsidiary caused the available basket amount referred to in Section 6.02 to be utilized by an amount equal to the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the subsidiary so designated (the amount so utilized, the Designation Amount), then, effective upon such Revocation, such available basket amount shall be increased by the lesser of (i) the Designation Amount and (ii) the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in such subsidiary at the time of such Revocation.
Voting Stock means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
Weighted Average Life to Maturity when applied to any Debt at any date, means the number of years obtained by dividing (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal, including payment at final maturity, in respect thereof by (ii) the number of years (calculated to the nearest one-twelfth) that shall elapse between such date and the making of such payment by (b) the then outstanding principal amount of such Debt.
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Wholly Owned Subsidiary means, as to any Person, (a) any corporation 100% of whose common stock (other than directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have 100% of the common equity interests (other than directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) at such time.
Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Section 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a Term Loan) or by Type (e.g., a Eurodollar Loan) or by Class and Type (e.g., a Eurodollar Term Loan). Borrowings also may be classified and referred to by Class (e.g., a Term Loan Borrowing) or by Type (e.g., a Eurodollar Borrowing) or by Class and Type (e.g., a Eurodollar Term Loan Borrowing).
Section 1.03 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise (i) any definition of or reference to any agreement, instrument or other document (including any organization document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, restated, amended and restated, extended or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, (iii) the words hereto, herein, hereof and hereunder, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words asset and property (except when used as accounting terms, in which case GAAP shall apply) shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
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(b) In the computation of periods of time from a specified date to a later specified date, the word from means from and including; the words to and until each mean to but excluding; and the word through means to and including.
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
Section 1.04 Accounting Terms.
(a) Generally. Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the statements referenced in Section 3.04. Notwithstanding the foregoing, for purposes of determining compliance with any covenant contained herein, Debt of the Borrower and its Restricted Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. Notwithstanding the foregoing or any other provision contained herein or in any other Loan Document, including Section 1.04(b) below, any obligations related to a lease (whether now or hereafter existing) that would be accounted for by such Person as an operating lease in accordance with GAAP as of the Closing Date (whether or not such lease exists as of the Closing Date or is thereafter entered into) shall be accounted for as an operating lease and not a capital lease for all purposes under this Agreement and the other Loan Documents.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Administrative Agent shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP. Upon any agreement between the Borrower and the Administrative Agent as to any such amendment, the Administrative Agent shall provide the Lenders with prompt written notice of such amendment. Unless the Required Lenders shall have objected to such amendment within ten Business Days after the Lenders shall have been notified thereof by the Administrative Agent, such amendment shall become effective and shall be binding on all parties hereto; provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
Section 1.05 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.06 Times of Day; Timing of Performance. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable). When the performance of any covenant, duty or obligation is stated to be due or required on a day that is not a Business Day, the date of such performance shall extend to the immediately succeeding Business Day.
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The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of Eurodollar Rate or with respect to any comparable or successor rate thereto.
Section 1.07 Currencies. Unless otherwise specifically set forth in this Agreement, monetary amounts are in Dollars. Notwithstanding anything to the contrary herein, no Default or Event of Default will arise as a result of any limitation or threshold set forth in Dollars being exceeded solely as a result of changes in currency exchange rates.
Section 1.08 Limited Conditionality. Notwithstanding anything in this Agreement or any Loan Document to the contrary, when (i) calculating any applicable ratio or basket amount in connection with incurrence of Debt, the creation of Liens, the making of any Disposition, the making of an Investment (including any Asset Acquisition), the making of any Restricted Payment or the repayment of Debt or (ii) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom and/or that representations and warranties be true and correct, in the case of each of clauses (i) and (ii) in connection with a Limited Condition Transaction, the date of determination of such ratio, of whether any Default or Event of Default has occurred, is continuing or would result therefrom and whether the representations and warranties are true and correct shall, at the option of the Borrower (the Borrowers election to exercise such option in connection with any Limited Condition Transaction, an LCT Election), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the LCT Test Date). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Debt and the use of proceeds thereof) such ratios and other provisions are calculated as if such Limited Condition Transaction or other transactions had occurred as of the first day of the most recent four fiscal quarter period ending prior to such LCT Test Date for which financial statements have been or were required to be delivered pursuant to Section 5.01(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 3.04), the Borrower could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Sections 7.01(a), (b) or (g) shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction, unless on such date an Event of Default pursuant to Sections 7.01(a), (b) or (g) shall be continuing. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Limited Condition Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated, and be required to be satisfied, on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Debt and the use of proceeds thereof) have been consummated. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Borrower or its Restricted Subsidiaries (x) incurs Debt, creates Liens, makes Dispositions, makes Investments, makes Restricted Payments, or repays any Debt in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Debt, creates Liens, makes Dispositions, makes Investments, makes
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Restricted Payments, or repays any Debt in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur simultaneously with the events in clause (x) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction.
ARTICLE II
The Credits
Section 2.01 Commitments.
(a) Subject to the terms and conditions hereof, each Term B Lender severally agrees to make to the Borrower Term B Loans denominated in Dollars on the Closing Date in an amount equal to such Term B Lenders Term B Commitment. Term B Loans that are repaid or prepaid may not be reborrowed.
(b) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate principal amount that is an integral multiple of $100,000 and not less than $500,000; provided that an ABR Borrowing may be in an aggregate principal amount that is equal to the entire unused balance of the applicable outstanding Commitment. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of 10 Eurodollar Borrowings outstanding.
Section 2.02 Incremental Term Loans.
(a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans are funded or established (if commitments in respect of such Incremental Term Loans are established on a date prior to funding) from one or more Incremental Term Lenders (which may include any existing Lender (but no such Lender shall be required to participate in any such Incremental Facility without its consent), but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.05) willing to provide such Incremental Term Loans in their sole discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent) and (ii) the date on which such Incremental Term Loan Commitments are requested to become effective.
(b) The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation (including, without limitation, amendments to this Agreement) as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans; provided that:
(i) the Incremental Loans shall not be guaranteed by any subsidiaries of the Borrower that do not guarantee the Obligations and shall be secured on a pari passu basis by the same Collateral (and no additional Collateral) securing the Obligations and any Incremental Term Facility shall have the same payment priority as the Term B Facility,
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(ii) (a) the scheduled final maturity date of any Incremental Term Facility shall be no earlier than the Term B Maturity Date and (b) the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Facility,
(iii) no Incremental Term Facility shall participate on a greater than pro rata basis with the Term B Facility in any mandatory prepayment, and
(iv) any Incremental Facility shall be on terms (other than pricing, amortization, maturity, prepayment premiums and mandatory prepayments) and pursuant to documentation substantially similar to the Term B Facility or otherwise reasonably acceptable to the Administrative Agent; provided that such Incremental Facility shall not have negative covenants and/or default provisions that, taken as a whole, are materially more restrictive than those applicable to the Term B Facility as determined in good faith by the Borrower unless such terms (I) are, if favorable to all then-existing Lenders, in consultation with the Administrative Agent, incorporated into this Agreement for the benefit of all then-existing Lenders (without further amendment requirements); or (II) become applicable only after the Term B Maturity Date or all Term B Loans existing at such date have been paid in full; provided, however, with respect to any Incremental Term Loans, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the Borrower, except that the All-in Yield in respect of any such Incremental Term Loans may exceed the All-in Yield in respect of the Term B Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the Term Yield Differential) then the Applicable Rate (or the LIBOR floor as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that to the extent any portion of the Term Yield Differential is attributable to a higher LIBOR floor being applicable to such Incremental Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the adjusted LIBOR rate in effect for an Interest Period of three months duration at such time, and, with respect to such excess, the LIBOR floor applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the LIBOR floor applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Term B Loans then outstanding.
(c) Incremental Term Loans may be in the form of an increase to any existing Class of Term Loans or a new Class of Term Loans. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended or amended and restated to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby as provided for in Section 9.02 (including amendments to increase the amortization, extend the call protection or extend the MFN protection of an existing Class of Term Loans to ensure fungibility with Incremental Term Loans in the form of an increase to such Class). Any amendment or amendment and restatement to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.02 (including, without limitation, to provide for the establishment of Incremental Term Loans) and any such collateral and other documentation shall be deemed Loan Documents hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
(d) Notwithstanding the foregoing, subject to Section 1.08, no Incremental Term Loan Commitment shall become effective under this Section 2.02 unless (i) no Default or Event of Default shall exist after giving pro forma effect to such Incremental Term Loan Commitment and the incurrence of Debt thereunder and use of proceeds therefrom; (ii) the conditions set forth in Section 4.02 have been complied with whether or not a Borrowing is made under the Incremental Facility on such date (other
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than clause (c) thereof which shall only be required to be complied with if a Borrowing is made on such date); and (iii) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.
Section 2.03 Procedure for Borrowing.
(a) To request a Term B Loan Borrowing on any Business Day, the Borrower shall notify the Administrative Agent of such request (x) in the case of ABR Loans, by telephone or Committed Loan Notice (which notice must be received by the Administrative Agent prior to 12:00 noon, New York City time on the requested Borrowing Date) or (y) in the case of Eurodollar Loans, by telephone or Committed Loan Notice (which notice must be received by the Administrative Agent prior to 12:00 noon, New York City time not less than three Business Days prior to the requested Borrowing Date). Any Committed Loan Notice shall be irrevocable (but may be conditioned on the occurrence of any event if the Committed Loan Notice includes a description of such event; provided that the relevant Lenders shall still be entitled to the benefits of Section 2.12) and any telephonic borrowing request must be confirmed immediately by delivery to the Administrative Agent of a Committed Loan Notice. Each such telephonic and written Committed Loan Notice shall specify the amount, Class and Type of Borrowing to be borrowed, the requested Borrowing Date and if applicable, the duration of the Interest Period with respect thereto. Upon receipt of such notice, the Administrative Agent shall promptly notify each relevant Lender thereof. For the avoidance of doubt, subject to Section 2.10, each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith.
(b) If no election as to the Type of Borrowing is specified for a Borrowing, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one months duration.
Section 2.04 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m. New York City time to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City or to any other account as shall have been designated by the Borrower in writing to the Administrative Agent in the applicable Committed Loan Notice. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement, and such Lender shall not be entitled to any amounts payable under Section 2.11 or Section 2.13 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed time of any Borrowing that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date
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such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to such Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lenders Loan included in such Borrowing.
(c) The obligations of the Lenders hereunder to make Loans and to make payments pursuant to Sections 8.09 and 9.04(c) are several and not joint. The failure of any Lender to make any Loan or to make any payment under Sections 8.09 or 9.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or to make its payment under Sections 8.09 or 9.04(c).
Section 2.05 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the applicable Committed Loan Notice, and each Eurodollar Borrowing shall have an initial Interest Period as specified in such Committed Loan Notice. Thereafter, the Borrower may elect to convert any Borrowing to a different Type or to continue such Borrowing as the same Type and may elect successive Interest Periods for any Eurodollar Borrowing, all as provided in this Section. The Borrower may elect different Types or Interest Periods, as applicable, with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the relevant Lenders holding the Loans comprising the relevant portion of such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone or in writing by the time that a request for a Borrowing would be required under Section 2.03, if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election Request shall be irrevocable and any telephonic notice shall be confirmed promptly in writing.
(c) Each telephonic and written Interest Election Request shall specify (i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing), (ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day, (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing, and (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term Interest Period. If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one months duration.
(d) Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each relevant Lender of the details thereof and of such Lenders portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be continued as such for an Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the
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Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
Section 2.06 Repayment of Loans; Evidence of Debt.
(a) Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender and its registered assigns and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.05) be represented by one or more promissory notes in such form payable to such payee and its registered assigns.
(b) The Borrower shall repay principal of outstanding Term B Loans on the last Business Day of each March, June, September and December of each year (commencing on the applicable day of the first full fiscal quarter of the Borrower after the Closing Date) prior to the Term B Maturity Date in an amount equal to $1,375,000, and on the Term B Maturity Date, in an amount equal to the then unpaid principal amount of such Term B Loans outstanding.
(c) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(d) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable 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 for the account of the relevant Lenders and each relevant Lenders share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph (e) or (f) of this Section shall be conclusive absent manifest error of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
Section 2.07 Prepayments.
(a) The Borrower may at any time and from time to time prepay Loans, in whole or in part, without premium or penalty (except as specifically provided in the proviso of this sentence and in the penultimate sentence of this Section 2.07(a)), upon notice delivered to the Administrative Agent no later than 12:00 noon, New York City time, not less than three Business Days prior thereto, in the case of Eurodollar Loans, and no later than 12:00 noon, New York City time, on the date of such notice, in the case of ABR Loans, which notice shall specify the date and amount of prepayment and the Loans to be prepaid; provided that, if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.12. Each such notice may be conditioned on the occurrence of one or more events (it being understood that the Administrative Agent and Lenders shall be entitled to assume that the Loans contemplated to be prepaid by such notice are to be prepaid on the date indicated in such notice unless the Administrative Agent shall have received written notice revoking such notice of prepayment on or prior to the date of such
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prepayment). Upon receipt of any such notice the Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is given and not revoked on or prior to the date of prepayment indicated in such notice, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid. Partial prepayments of Loans shall be in an aggregate principal amount that is an integral multiple of $1,000,000 and not less than $5,000,000. In the case of each prepayment of Loans pursuant to this Section 2.07(a), the Borrower may in its sole discretion select the Loans (of any Class) to be repaid, and such prepayment shall be paid to the appropriate Lenders in accordance with their respective pro rata share of such Loans. If any Repricing Event occurs prior to the date occurring 12 months after the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of each Lender with Term B Loans that are subject to such Repricing Event (including any Lender which is replaced pursuant to Section 2.15(c) as a result of its refusal to consent to an amendment giving rise to such Repricing Event), a fee in an amount equal to 1.00% of the aggregate principal amount of the Term B Loans subject to such Repricing Event. Such fees shall be earned, due and payable upon the date of the occurrence of such Repricing Event.
(b) Beginning on the Closing Date, the Borrower shall apply all Net Proceeds within ten (10) Business Days after receipt thereof to prepay Term Loans in accordance with clauses (d) and (e) below.
(c) Not later than ten (10) Business Days after the date on which the annual financial statements are, or are required to be, delivered under Section 5.01(a) with respect to each Excess Cash Flow Period, the Borrower shall calculate Excess Cash Flow for such Excess Cash Flow Period and, if and to the extent the amount of such Excess Cash Flow is greater than $0, the Borrower shall apply an amount to prepay Term Loans equal to (i) the Required Percentage of such Excess Cash Flow minus (ii) to the extent not financed using the proceeds of long-term Debt (it being understood that drawings under the ABL Credit Agreement are not considered to be proceeds of long-term Debt), the amount of any voluntary payments of Term Loans and amounts used to repurchase outstanding principal of Term Loans during such Excess Cash Flow Period (plus, without duplication of any amounts previously deducted under this clause (ii), the amount of any such voluntary payments and amounts so used to repurchase principal of Term Loans after the end of such Excess Cash Flow Period but before the date of prepayment under this clause (c)) pursuant to Sections 2.07(a) and Section 2.19 (it being understood that the amount of any such payments pursuant to Section 2.19 shall be calculated to equal the amount of cash used to repay principal and not the principal amount deemed prepaid therewith). Such calculation will be set forth in an Officers Certificate delivered to the Administrative Agent setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period, the amount of any required prepayment in respect thereof and the calculation thereof in reasonable detail.
(d) Amounts to be applied in connection with prepayments of Term Loans pursuant to this Section 2.07 shall be applied to the prepayment of the Term Loans in accordance with Section 2.14(a) until paid in full. In connection with any mandatory prepayments by the Borrower of the Term Loans pursuant to this Section 2.07, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar Loans; provided that with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (i) first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.12 and (ii) on a pro rata basis with respect to each Class of Term Loans except to the extent any Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment provides that the Class of Term Loans incurred thereunder is to receive less than its pro rata share, in which case such prepayment shall be allocated to such Class of Term Loans as set forth in such Incremental Assumption Agreement, Extension Amendment or Refinancing Amendment and to the other Classes of Term Loans on a pro rata basis. Each prepayment of the Term Loans under this Section 2.07 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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(e) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to Section 2.07(b) or 2.07(c) at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Term Lender of the contents of any such prepayment notice and of such Term Lenders ratable portion of such prepayment (based on such Lenders pro rata share of each relevant Class of the Term Loans). Any Term Lender (a Declining Term Lender) may elect, by delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Lenders receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to Section 2.07(b) or 2.07(c) not be made (the aggregate amount of such prepayments declined by the Declining Term Lenders, the Declined Prepayment Amount). If a Term Lender fails to deliver notice setting forth such rejection of a prepayment to the Administrative Agent within the time frame specified above or such notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. In the event that the Declined Prepayment Amount is greater than $0, such Declined Prepayment Amount shall be retained by the Borrower. For the avoidance of doubt, the Borrower may, at its option, apply any amounts retained in accordance with the immediately preceding sentence to prepay loans in accordance with Section 2.07(a).
(f) Notwithstanding any other provisions of this Section 2.05, (i) to the extent that any of or all the Net Proceeds of any Asset Sale by a Foreign Subsidiary (Foreign Asset Sale), the Net Proceeds of any Recovery Event from a Foreign Subsidiary (a Foreign Recovery Event) or Excess Cash Flow attributable to Foreign Subsidiaries would be prohibited or delayed by applicable local law from being repatriated to the United States, an amount equal to the Net Proceeds or Excess Cash Flow that would be so affected were the Borrower or a Restricted Subsidiary to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.07 so long, but only so long, as the applicable local law would not permit repatriation to the United States and, if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any such affected Net Proceeds or Excess Cash Flow is permissible under the applicable local law, even if such cash is not actually repatriated at such time, an amount equal to the amount of such Net Proceeds or Excess Cash Flow, as applicable, will be promptly (and in any event not later than ten Business Days) applied (net of an amount equal to the additional taxes of the Borrower, the Subsidiaries and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower or the Restricted Subsidiaries to the repayment of the Term Loans pursuant to this Section 2.07 to the extent provided herein and (ii) to the extent that the Borrower has determined in good faith that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale or Foreign Recovery Event or Excess Cash Flow attributable to Foreign Subsidiaries would have material adverse tax consequences with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.07; provided that the Borrower will use commercially reasonable efforts to eliminate or reduce any such material adverse tax consequences to enable such repayment to be made.
(g) Any prepayment of Term Loans of any Class shall be applied to reduce the subsequent scheduled repayments of the Term Loans of such Class to be made pursuant to Section 2.06 as directed by the Borrower and if not directed by the Borrower, in direct order of maturity thereof, or as otherwise provided in any Extension Amendment, any Incremental Assumption Amendment or any Refinancing Amendment.
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Section 2.08 Fees. The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the dates as set forth in any fee agreements with the Administrative Agent and to perform any other obligations contained therein.
Section 2.09 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Eurodollar Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year). The applicable Alternate Base Rate or Eurodollar Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
Section 2.10 Alternate Rate of Interest.
(a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for a Loan or for the applicable Interest Period; or
(ii) the Administrative Agent is advised by the Required Lenders that the Eurodollar Rate for a Loan or for the applicable Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent (upon the instruction of the Required Lenders in the case of clause (ii) above) notifies the Borrower and the Lenders that the
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circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and the Loans shall be converted to an ABR Borrowing and (ii) if any borrowing request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary,
(ii) the administrator of the LIBOR Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the LIBOR Screen Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the Scheduled Unavailability Date), or
(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a LIBOR Successor Rate), together with any proposed LIBOR Successor Rate Conforming Changes, and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
If no LIBOR Successor Rate has been determined and the circumstances under clause (b)(i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) the Eurodollar Rate component shall no longer be utilized in determining the Alternate Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Alternate Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.
Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
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Section 2.11 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (including any reserve for eurocurrency funding that may be established or reestablished under Regulation D of the Board);
(ii) subject any Lender to any Taxes (other than any Indemnified Taxes, Other Taxes and Excluded Taxes) on its loans, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing, converting into or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or, in the case of paragraph (ii), any Loan) (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lenders holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenders capital or on the capital of such Lenders holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lenders holding company could have achieved but for such Change in Law (taking into consideration such Lenders policies and the policies of such Lenders holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lenders holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lenders right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lenders intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
Section 2.12 Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (for a reason other than the failure of
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any Lender to make a Loan) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.15, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to be an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits in the relevant currency of a comparable amount and period from other banks in the eurocurrency market (but not less than the available Eurodollar Rate quoted for the Eurodollar interest period equal to the period from the date of such event to the last day of the then current Interest Period, or if there is no such Eurodollar interest period, the lower of the Eurodollar Rates quoted for the closest Eurodollar interest periods that are longer and shorter than such period). A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower (with a copy to the Administrative Agent) and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
Section 2.13 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) All payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall, except to the extent required by applicable laws, be made free and clear of and without reduction or withholding for any Taxes.
(ii) If any Loan Party or any other applicable withholding agent shall be required by any applicable laws to withhold or deduct any Taxes from or in respect of any payment made by any Loan Party under any Loan Document (as determined by the applicable withholding agent), then (A) the applicable withholding agent shall withhold or make such deductions as are determined by such withholding agent to be required, (B) the applicable withholding agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or deductions have been made (including withholding or deductions applicable to additional sums payable under this Section 2.13) the Lender (or, in the case of any amount received by the Administrative Agent for its own account, the Administrative Agent), receives an amount equal to the sum it would have received had no withholding or deduction on account of Indemnified Taxes or Other Taxes been made.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable laws.
(c) Tax Indemnification. Without limiting the provisions of subsection (a) or (b) above, the Borrower shall indemnify the Administrative Agent and each Lender, and shall make payment in respect thereof within ten days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13) paid or payable by the Administrative Agent or such Lender, as the case
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may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any 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.
(d) Evidence of Payments. Upon request by any of the Loan Parties or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 2.13, the applicable Loan Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the applicable Loan Party, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times reasonably requested by any Loan Party or the Administrative Agent, such properly completed and executed documentation prescribed by applicable laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or other applicable Loan Party or the Administrative Agent, as the case may be, to determine (A) whether or not payments made by the respective Loan Parties hereunder or under any other Loan Document are subject to withholding or deduction for any Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lenders entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by any Loan Party pursuant to this Agreement or any other Loan Document or otherwise to establish such Lenders status for withholding tax purposes in the applicable jurisdictions. Notwithstanding the preceding sentence, the completion, execution and submission of any documentation with respect to any Tax other than United States federal withholding tax shall not be required if in a Lenders reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Borrower and the 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 request of the Borrower or the Administrative Agent) duly completed, executed originals of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax or such other documentation or information prescribed by applicable laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver 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 request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally eligible to do so), duly completed, executed originals of whichever of the following is applicable
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(1) Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN E, as applicable (or any successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(2) Internal Revenue Service Form W-8ECI (or any successor form),
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit G (a Non-Bank Certificate) to the effect that such Foreign Lender is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a 10 percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or (C) a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code, and that no payments in connection with any Loan Document are effectively connected with such Foreign Lenders conduct of a United States trade or business and (y) Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN E, as applicable (or any successor form),
(4) to the extent a Foreign Lender is not the beneficial owner, Internal Revenue Service Form W-8IMY (or any successor form), accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W 8BEN, Internal Revenue Service Form W-8BEN E, a Non-Bank Certificate, Internal Revenue Service Form W-9, and/or other certification documents (or successor forms) from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, a Non-Bank Certificate may be provided by such Foreign Lender on behalf of such direct and indirect partner(s), or
(5) any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding Tax, together with such supplementary documentation as may be prescribed by applicable laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Internal Revenue 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 Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or has not complied with such Lenders FATCA obligations and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for the purposes of this clause (C), FATCA shall include any amendments made to FATCA after the date of this Agreement.
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(iii) Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.
(iv) Notwithstanding any other provisions of this Section 2.13(e), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(v) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any document provided by such Lender to the Administrative Agent pursuant to this Section 2.13(e).
(f) Treatment of Certain Refunds. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 2.13, it shall pay to the indemnifying Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by any Loan Party under this Section 2.13 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the indemnifying Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph (f) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this paragraph (f) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been if the Indemnified Taxes or Other Taxes giving rise to such refund had never been imposed.
Section 2.14 Pro Rata Treatment and Payments.
(a) Each prepayment by the Borrower on account of principal of any Loans of any Class shall be made pro rata according to the respective outstanding principal amounts of Loans of such Class then held by the Lenders entitled to such payment (subject in the case of Term B Loans to Section 2.07(e)). All repayments of principal of any Loans at stated maturity or upon acceleration shall be allocated pro rata according to the respective outstanding principal amounts of the matured or accelerated Loans then held by the relevant Lenders. All payments of interest in respect of any Loans shall be allocated pro rata according to the outstanding interest payable then owed to the relevant Lenders. Notwithstanding the foregoing, (A) any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise but excluding any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.15 and Section 9.05) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated interest-bearing account and, subject to any applicable Requirements of Law, be applied at such time or times as may be determined by the Administrative Agent: (1) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder (including amounts owed under Section 2.08(b) or 9.04(c)), (2) second, to the funding of any Loan required by this Agreement, as
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determined by the Administrative Agent, (3) third, if so determined by the Administrative Agent and Borrower, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement, (4) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of such Defaulting Lenders breach of its obligations under this Agreement and (5) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction, and (B) if such payment is a prepayment of the principal amount of Loans, such payment shall be applied solely to prepay the Loans of all Non-Defaulting Lenders pro rata (based on the amounts owing to each) prior to being applied to the prepayment of any Loan of any Defaulting Lender.
(b) All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 2:00 p.m., New York City time, on the date when due. All payments received by the Administrative Agent after 2:00 p.m., New York City time, may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest and fees thereon. All such payments shall be made to the Administrative Agents Office except that payments pursuant to Sections 2.11, 2.12, 2.13, 2.19 and 9.04 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. In the case of any extension of any payment of principal, interest thereon shall be payable at the then applicable rate during such extension. Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders 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 the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, 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 Federal Funds Rate.
(c) Subject to the terms of the ABL Intercreditor Agreement, after the exercise of remedies provided for in Section 7.01 or the Collateral Documents (or after any Loans have automatically become immediately due and payable as contemplated by Section 7.01) and irrespective of any other provision of any Loan Document to the contrary, any amounts (including cash, equity securities, debt securities or any other property; provided that if any such amounts are not in the form of cash, then the amount of such securities or other property applied to each of clauses First through Last below shall be an amount with a fair market value equal to the stated amount required to be applied pursuant to each such clause) received on account of the Collateral or in consideration of any waiver of any rights to receive any payment of the Obligations (whether received as a consequence of the exercise of such remedies or as a distribution under any Insolvency or Liquidation Proceeding including payments in respect of adequate protection for the use of Collateral during such proceeding or under any Plan of Reorganization or on account of any liquidation of any Loan Party) shall be turned over to the Administrative Agent (to the extent not received directly by the Administrative Agent) and applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest and fees with respect to the Loans, but including amounts payable under Section 9.04) payable to the Administrative Agent in its capacity as such (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed in any Insolvency or Liquidation Proceeding) until paid in full;
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Second, to payment of that portion of all other Obligations ratably among the Secured Parties in proportion to the amount of such Obligations owing to the Secured Parties described in this Clause Second until paid in full;
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Section 2.15 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, or if any Lender gives notice to the Borrower (through the Administrative Agent) pursuant to Section 2.21, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.11 or 2.13, as the case may be, or permit such Lender to rescind any notice delivered to the Borrower pursuant to Section 2.21, 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. Each Lender may designate a different lending office for funding or booking its Loans hereunder or assign its rights and obligations hereunder to another of its offices, branches or affiliates; provided that the exercise of this option shall not affect the obligations of the Borrower to repay the Loan in accordance with the terms of this Agreement.
(b) If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, or if any Lender gives notice to the Borrower (through the Administrative Agent) pursuant to Section 2.21, or if any Lender is a Defaulting 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 Section 9.05), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, 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) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to Section 2.13, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and 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.
(c) If any Lender (such Lender, a Non-Consenting Lender) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.02 requires the consent of all Lenders or all of the Lenders affected and with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans hereunder to one or more assignees reasonably acceptable to the Administrative Agent, provided that: (a) all amounts owing to such Non-Consenting Lender being
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replaced (other than principal and interest) shall be paid in full to such Non-Consenting Lender concurrently with such assignment, and (b) the replacement Lender (each such Lender, a Replacement Lender) shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon. In connection with any such assignment the Borrower, Administrative Agent, such Non-Consenting Lender and the Replacement Lender shall otherwise comply with Section 9.05.
(d) Notwithstanding anything herein to the contrary, each party hereto agrees that any assignment pursuant to the terms of Section 2.15(c) may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender making such assignment need not be a party thereto.
Section 2.16 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) The Commitments and Loans of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.02); provided that this Section 2.16(a) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification effecting the reduction or excuse of principal amount of, or interest or fees payable on, such Defaulting Lenders Loans or the postponement of the scheduled date of payment of such principal amount, interest or fees to such Defaulting Lender.
(b) The rights and remedies against a Defaulting Lender under this Agreement are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect to any funding default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any funding default. In the event that the Administrative Agent and the Borrower each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender; provided that no adjustments will be made retroactively with respect to payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lenders having been a Defaulting Lender.
Section 2.17 Extensions of Loans.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers made from time to time by the Borrower to all Lenders of any Class of Term Loans on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class), and on the same terms to each such Lender (Pro Rata Extension Offers), the Borrower is hereby permitted to consummate transactions with individual Lenders, each acting in its sole and individual discretion, that agree to such transactions from time to time to extend the maturity date of such Lenders Loans of such Class and to otherwise modify the terms of such Lenders Loans of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lenders Loans and/or modifying the amortization schedule in respect of such Lenders Loans). For the avoidance of doubt, the reference to on the same terms in the preceding sentence shall mean, in the case of an offer to the Lenders under
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any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an Extension) agreed to between the Borrower and any such Lender (an Extending Lender) will be established under this Agreement by implementing a Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an Extended Term Loan). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five (5) Business Days after the date on which the Pro Rata Extension Offer is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(b) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an amendment to this Agreement (an Extension Amendment) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans of such Extending Lender. Each Extension Amendment shall specify the terms of the applicable Extended Term Loans; provided, that (i) except as to interest rates, fees and any other pricing terms, amortization, final maturity date, participation in prepayments and covenants and other provisions applicable only to the period after the maturity date of the existing Class of Term Loans from which such Extended Term Loans are extended (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall, subject to clauses (ii) and (iii) of this proviso, have (x) the same terms as the existing Class of Term Loans from which they are extended or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Extended Term Loans shall be no earlier than the maturity date of the Class of Term Loans to which such offer relates, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, and (iv) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Extension Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans evidenced thereby as provided for in Section 9.02(c). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Upon the effectiveness of any such Extension, the applicable Extending Lenders Term Loan will be automatically designated an Extended Term Loan.
(d) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.17), (i) no Extended Term Loan is required to be in any minimum amount or any minimum increment, (ii) any Extending Lender may extend all or any portion of its Term Loans pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the case of over participation) (including the extension of any Extended Term Loan), (iii) there shall be no condition to any Extension of any Loan at any time or from time to time other than notice to the Administrative Agent of such Extension and the terms of the Extended Term Loan implemented thereby, (iv) all Extended Term Loans and all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that rank equally and ratably in right of security with all other Obligations of the Class being extended and (v) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of any such Extended Term Loans.
(e) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such Extension, including, without limitation, timing, rounding and other adjustments.
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Section 2.18 Refinancing Amendments.
(a) Notwithstanding anything to the contrary in this Agreement, the Borrower may by written notice to the Administrative Agent establish one or more additional tranches of term loans under this Agreement (such loans, Refinancing Term Loans), all proceeds of which are used to refinance in whole or in part any Class of Term Loans pursuant to Section 2.07(b). Each such notice shall specify the date (each, a Refinancing Effective Date) on which the Borrower proposes that the Refinancing Term Loans shall be made, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its sole discretion); provided, that:
(i) before and after giving effect to the Borrowing of such Refinancing Term Loans on the Refinancing Effective Date each of the conditions set forth in Section 4.02 shall be satisfied;
(ii) the final maturity date of the Refinancing Term Loans shall be no earlier than the maturity date of the refinanced Term Loans;
(iii) the Weighted Average Life to Maturity of such Refinancing Term Loans shall be no shorter than the then-remaining Weighted Average Life to Maturity of the refinanced Term Loans;
(iv) the aggregate principal amount of the Refinancing Term Loans shall not exceed the outstanding principal amount of the refinanced Term Loans plus amounts used to pay fees, expenses, commissions, underwriting discounts and premiums and accrued interest associated therewith;
(v) all other terms applicable to such Refinancing Term Loans (other than provisions relating to original issue discount, upfront fees, interest rates and any other pricing terms, optional prepayment or mandatory prepayment or redemption terms shall be as agreed between the Borrower and the Lenders providing such Refinancing Term Loans) taken as a whole shall (as determined by the Borrower in good faith) be substantially similar to, or no more restrictive to the Borrower and its Restricted Subsidiaries than, the terms, taken as a whole, applicable to the Term Loans being refinanced (except to the extent such covenants and other terms apply solely to any period after the Latest Maturity Date or are otherwise reasonably acceptable to the Administrative Agent);
(vi) there shall be no borrower (other than the Borrower) and no guarantors (other than the Subsidiary Guarantors) in respect of such Refinancing Term Loans;
(vii) Refinancing Term Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral; and
(viii) Refinancing Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments (other than as provided otherwise in the case of such prepayments pursuant to Section 2.07(b)) hereunder, as specified in the applicable Refinancing Amendment.
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(b) The Borrower may approach any Lender or any other person that would be a permitted assignee pursuant to Section 9.05 to provide all or a portion of the Refinancing Term Loans; provided, that any Lender offered or approached to provide all or a portion of the Refinancing Term Loans may elect or decline, in its sole discretion, to provide a Refinancing Term Loan. Any Refinancing Term Loans made on any Refinancing Effective Date shall be designated an additional Class of Term Loans for all purposes of this Agreement; provided, further, that any Refinancing Term Loans may, to the extent provided in the applicable Refinancing Amendment governing such Refinancing Term Loans, be designated as an increase in any previously established Class of Term Loans made to the Borrower.
(c) The Borrower and each Lender providing the applicable Refinancing Term Loans shall execute and deliver to the Administrative Agent an amendment to this Agreement (a Refinancing Amendment) and such other documentation as the Administrative Agent shall reasonably specify to evidence such Refinancing Term Loans. For purposes of this Agreement and the other Loan Documents, if a Lender is providing a Refinancing Term Loan, such Lender will be deemed to have a Term Loan having the terms of such Refinancing Term Loan. Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.18), (i) no Refinancing Term Loan is required to be in any minimum amount or any minimum increment, (ii) there shall be no condition to any incurrence of any Refinancing Term Loan at any time or from time to time other than those set forth in clause (a) above and (iii) all Refinancing Term Loans and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that rank equally and ratably in right of security with the refinanced Term Loans and all Obligations in respect thereof.
(d) Each party hereto hereby agrees that, upon the Refinancing Effective Date of any Refinancing Term Loans, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Refinancing Term Loans evidenced thereby as provided for in Section 9.02. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.18 (including, without limitation, to provide for the establishment of Refinancing Term Loans) and any such collateral and other documentation shall be deemed Loan Documents hereunder and may be memorialized in writing between the Administrative Agent and the Borrower and furnished to the other parties hereto.
Section 2.19 Loan Repurchases.
(a) Subject to the terms and conditions set forth or referred to below, the Borrower may from time to time, at its discretion, conduct modified Dutch auctions in order to purchase its Term Loans of one or more Classes (as determined by the Borrower) (each, a Purchase Offer), each such Purchase Offer to be managed by a financial institution chosen by the Borrower and reasonably acceptable to the Administrative Agent (in such capacity, the Auction Manager (it being understood that the Administrative Agent shall be under no obligation to act as Auction Manager)), so long as the following conditions are satisfied:
(i) each Purchase Offer shall be conducted in accordance with the procedures, terms and conditions set forth in this Section 2.19 and the Auction Procedures;
(ii) no Default or Event of Default shall have occurred and be continuing on the date of the delivery of each notice of an auction and at the time of (and immediately after giving effect to) the purchase of any Term Loans in connection with any Purchase Offer;
(iii) the principal amount (calculated on the face amount thereof) of each and all Classes of Term Loans that the Borrower offers to purchase in any such Purchase Offer shall be no less than $25,000,000 (unless another amount is agreed to by the Administrative Agent) (across all such Classes);
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(iv) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans of the applicable Class or Classes so purchased by the Borrower shall automatically be cancelled and retired by the Borrower on the settlement date of the relevant purchase (and may not be resold), and in no event shall the Borrower be entitled to any vote hereunder in connection with such Term Loans;
(v) no more than one Purchase Offer with respect to any Class may be ongoing at any one time;
(vi) any Purchase Offer with respect to any Class shall be offered to all Term Lenders holding Term Loans of such Class on a pro rata basis;
(vii) no Purchase Offer may be funded with drawings under the ABL Credit Agreement; and
(viii) all parties to the relevant transactions shall render customary big-boy disclaimer letters.
(b) The Borrower must terminate any Purchase Offer if it fails to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of purchase of Term Loans pursuant to such Purchase Offer. If the Borrower commences any Purchase Offer (and all relevant requirements set forth above which are required to be satisfied at the time of the commencement of such Purchase Offer have in fact been satisfied), and if at such time of commencement the Borrower reasonably believes that all required conditions set forth above which are required to be satisfied at the time of the consummation of such Purchase Offer shall be satisfied, then the Borrower shall have no liability to any Lender for any termination of such Purchase Offer as a result of its failure to satisfy one or more of the conditions set forth above which are required to be met at the time which otherwise would have been the time of consummation of such Purchase Offer, and any such failure shall not result in any Default or Event of Default hereunder. With respect to all purchases of Term Loans of any Class or Classes made by the Borrower pursuant to this Section 2.19, the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if any, on the purchased Term Loans of the applicable Class or Classes up to the settlement date of such purchase.
(c) The Administrative Agent and the Lenders hereby consent to the Purchase Offers and the other transactions effected pursuant to and in accordance with the terms of this Section 2.19; provided, that notwithstanding anything to the contrary contained herein, no Lender shall have an obligation to participate in any such Purchase Offer. For the avoidance of doubt, it is understood and agreed that the provisions of Sections 2.12, 2.14 and 9.05 will not apply to the purchases of Term Loans pursuant to Purchase Offers made pursuant to and in accordance with the provisions of this Section 2.19. The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Article VIII and Section 9.04 to the same extent as if each reference therein to the Agents were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction Manager in order to enable it to perform its responsibilities and duties in connection with each Purchase Offer.
Section 2.20 MIRE Event. Notwithstanding anything to the contrary herein, the making, increasing, extension or renewal of any Loans pursuant to this Agreement (including any incremental credit facilities, but excluding any continuation or conversion of Borrowings) after the Closing Date shall be subject to flood insurance due diligence in accordance with Section 5.09(e)(i) and flood insurance compliance in accordance with Section 5.05 hereto.
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Section 2.21 Illegality. If any Lender determines that any Requirement of Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender to maintain Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to maintain or continue Eurodollar Rate Loans or to convert ABR Loans to Eurodollar Rate Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender maintaining ABR Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), convert all Eurodollar Rate Loans of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
Section 3.01 Organization; Powers. Each Loan Party (i) is duly organized, validly existing and, if applicable, in good standing under the laws of the jurisdiction of its organization and (ii) has all requisite power and authority to carry on its business as now conducted and is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, except, in the case of this clause (ii), where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.02 Authorization; Enforceability. The Transactions (including the performance of the Loan Documents) are within the corporate or other organizational powers of the Loan Parties and have been duly authorized by all necessary corporate or other organizational action. This Agreement has been and each other Loan Document will be duly executed and delivered by each Loan Party party thereto. This Agreement constitutes, and each other Loan Document when executed and delivered will constitute, a legal, valid and binding obligation of each Loan Party party thereto, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors rights or remedies generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
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Section 3.03 Governmental Approvals; No Conflicts. The Transactions (including the performance of the Loan Documents) (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect or those which the failure to obtain would not be reasonably expected to result in a Material Adverse Effect and (ii) the filings referred to in Section 3.12, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any other Loan Party or any order of any Governmental Authority except where any such violation would not reasonably expected to result in a Material Adverse Effect, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any other Loan Party or its assets except as would not reasonably expected to result in a Material Adverse Effect, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Material Subsidiaries (other than any Permitted Lien).
Section 3.04 Financial Position.
(a) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of December 31, 2017, and the related consolidated statements of income, cash flow and shareholders equity of the Borrower and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Lender, fairly present the financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with in accordance with GAAP consistently applied throughout the period covered thereby.
(b) The consolidated balance sheets of the Borrower and its Consolidated Subsidiaries as of March 31, 2018, and June 30, 2018, and the related consolidated statements of income, cash flow and shareholders equity of the Borrower and its Consolidated Subsidiaries for the fiscal quarter then ended, copies of which have been furnished to each Lender, fairly present the financial condition of the Borrower and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Borrower and its Consolidated Subsidiaries for the period ended on such date, all in accordance with GAAP consistently applied throughout the period covered thereby.
Section 3.05 Properties; Flood Documentation.
(a) Each of the Borrower and its Material Subsidiaries has good title to, or valid leasehold interests in, all of the Real Property and all its personal property material to its business, except for minor defects in title and Permitted Liens that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes or as, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(b) Each of the Borrower and its Material Subsidiaries owns, or is validity licensed to use, all Intellectual Property used or held for use by such entities or necessary to operate their respective business as currently conducted and contemplated to be conducted, and the operation of their respective businesses by the Borrower and its Material Subsidiaries does not infringe upon or otherwise violate the rights of any other Person, except for any such Intellectual Property or infringements or violations that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(c) As to all improved Mortgaged Properties, (i) the Administrative Agent has received the Flood Documentation with respect to such Mortgaged Property on or prior to the granting of such Mortgage thereon, and (ii) all flood hazard insurance policies required pursuant to Section 5.05 with respect to any such Mortgaged Property have been obtained and remain in full force and effect to the extent required by such Section 5.05.
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Section 3.06 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of its Restricted Subsidiaries (i) that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) on the Closing Date, that would reasonably be expected to materially and adversely affect the legality, validity or enforceability of this Agreement or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any Environmental Permit, (ii) has become subject to any liability under Environmental Law, (iii) has received written notice of any Environmental Action or (iv) knows of any basis reasonably likely to result in any liability under Environmental Law.
Section 3.07 Compliance with Laws and Agreements. Each of the Borrower and its Material Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except (a) in such instances in which such compliance (or failure to comply) is being contested in good faith by appropriate proceedings diligently conducted or (b) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.08 Investment Company Status; Margin Stock.
(a) No Loan Party is an investment company as defined in, or subject to regulation under, the Investment Company Act of 1940. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X.
(b) Following application of the proceeds of each Loan to the Borrower, less than 25% of the value of the assets of the Borrower and its Consolidated Subsidiaries will consist of Margin Stock.
(c) The Borrower is not principally engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
Section 3.09 Taxes. Each of the Borrower and its Material Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Material Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
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Section 3.10 ERISA.
(a) Except to the extent that it could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws and each Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Internal Revenue Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status, except to the extent that it could not reasonably be expected to have a Material Adverse Effect.
(b) There are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(c) Except to the extent that it could not reasonably be expected to have a Material Adverse Effect, (i) no ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan or Multiemployer Plan; (ii) the Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(d) The assets of the Borrower are not and will not be deemed to include plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans.
Section 3.11 Disclosure.
(a) Neither the Lender Presentation nor any of the other reports, financial statements, certificates or other written information furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken as a whole, contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading as of the date furnished; provided that with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time.
(b) As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
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Section 3.12 Liens; Security Interests in the Collateral.
(a) The Security Agreement and the Pledge Agreement (and the other Collateral Documents, upon execution thereof will, to the extent required thereby) are effective to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a security interest in the Collateral described therein (subject to any limitations specified therein). When financing statements specified on Schedule 3.12 in appropriate form are filed in the offices specified on Schedule 3.12, the Administrative Agent shall have a perfected Lien on, and security interest in, all right, title and interest of the Loan Parties and the Specified Pledgors in such Collateral (subject to any limitations specified therein) to the extent perfection of such security interest can be perfected by the filing of a financing statement, as security for the Obligations, in each case prior and superior in right to any other Person (subject to Permitted Liens). Upon the taking of possession or control by the Administrative Agent of Collateral with respect to which a security interest may be perfected by possession or control, the Liens created by the Collateral Documents shall constitute first priority perfected Liens on, and security interests in, such Collateral (subject to Permitted Liens).
(b) When the Security Agreement or an ancillary document thereunder is properly filed and recorded in the United States Patent and Trademark Office and the United States Copyright Office, and, with respect to Collateral in which a security interest cannot be perfected by such filings, upon the proper filing of the financing statements referred to in clause (a) above, the Administrative Agent (for the benefit of the Secured Parties) shall have a fully perfected Lien on, and security interest in, all right, title and interest of the Loan Parties thereunder in the United States Intellectual Property included in the Collateral listed in such ancillary document (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a Lien on material registered trademarks and patents, trademark and patent applications and registered copyrights acquired by the Loan Parties after the Closing Date).
(c) The Mortgages shall be effective to create in favor of the Administrative Agent (for the benefit of the Secured Parties) or, if so contemplated by the respective Mortgage, the Administrative Agent and the other Secured Parties, legal, valid and enforceable Liens on all of the Loan Parties rights, titles and interests in and to the Mortgaged Property thereunder and the proceeds thereof, and when such Mortgages are validly filed, registered or recorded in the proper real estate filing, registration or recording offices, and all required mortgage Taxes and recording and registration charges are duly paid, the Administrative Agent (for the benefit of the Secured Parties) shall have valid Liens with record or registered notice to third parties on all rights, titles and interests of the Loan Parties in such Mortgaged Property.
Section 3.13 No Change. Since December 31, 2017, there has been no material adverse change in the business, financial condition, results of operations or properties of the Borrower and its Restricted Subsidiaries, taken as a whole.
Section 3.14 Subsidiaries. (a) Schedule 3.14 sets forth, as of the Closing Date, (i) the name and jurisdiction of organization of each Subsidiary that is a Loan Party and each of its direct Subsidiaries, (ii) the name and jurisdiction of organization of each Subsidiary that is a Specified Pledgor and each of its direct Foreign Subsidiaries and (iii) as to each such Subsidiary and first tier Foreign Subsidiary, the number of each class of its Equity Interests authorized, the number outstanding, the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights and the percentage of each class of Equity Interests owned by any Loan Party or Specified Pledgor on the Closing Date, (b) all Equity Interests of the Borrower and its Subsidiaries are duly and validly issued and are fully paid and, in the case of common stock of a corporation that is a Domestic Subsidiary or a first tier Foreign Subsidiary, non-assessable, and, as of the Closing Date, other than the Equity Interests of the Borrower
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and except as set forth in Schedule 3.14, are owned by the Borrower, directly or indirectly through Wholly Owned Subsidiaries, (c) each Loan Party is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by it under the Security Agreement, free of any and all Liens, except the security interest created by the Security Agreement and Permitted Liens, (d) each Specified Pledgor is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by it under the Pledge Agreement, free of any and all Liens, except the security interest created by the Pledge Agreement and Permitted Liens and (e) as of the Closing Date, no party other than the Borrower or its Subsidiaries owns any outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than directors and directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) of any nature relating to any Equity Interest of any of the Domestic Subsidiaries and the first tier Foreign Subsidiaries. No consent of any Person, including any other general or limited partner any other member of a limited liability company, any shareholder or any trust beneficiary, that has not been received is necessary in connection with the creation, perfection or first priority status (subject to Permitted Liens) of the security interest of the Administrative Agent in any Equity Interests pledged to the Administrative Agent for the benefit of the Secured Parties under the Security Agreement or the Pledge Agreement or the exercise by the Administrative Agent of the voting or other rights provided for in the Security Agreement or the Pledge Agreement or the exercise of remedies in respect thereof.
Section 3.15 Solvency. Immediately after the consummation of the Transactions to occur on the Closing Date, including the making of each Loan to be made on the Closing Date and the application of the proceeds of such Loans, the Borrower and its Subsidiaries on a consolidated basis are Solvent.
Section 3.16 No Default. No Default or Event of Default has occurred and is continuing.
Section 3.17 OFAC. Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any Person that is (i) the target of any Sanctions, (ii) included on OFACs List of Specially Designated nationals, HMTs Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.
Section 3.18 Anti-Corruption Laws. The Borrower and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions (collectively, Anti-Corruption Laws) and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
Section 3.19 EEA Financial Institutions. No Loan Party is an EEA Financial Institution.
Section 3.20 Use of Proceeds. The Borrower will use the proceeds of the Term B Loans to finance the Transactions, to pay fees and expenses in connection therewith, and for working capital and other general corporate purposes.
Section 3.21 Insurance. The Borrower and its Material Subsidiaries maintain, with financially sound and responsible insurance companies (which may include so-called captive insurance companies), such insurance against such risks as are customarily insured against by Persons engaged in similar businesses; provided that the Borrower and its Material Subsidiaries may self-insure to the same extent as such other Persons.
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Section 3.22 USA PATRIOT Act. Borrower and each of its subsidiaries is in compliance with the applicable provisions of the USA PATRIOT Act in all material respects.
ARTICLE IV
Conditions
Section 4.01 Closing Date. The obligations of the Lenders to make the initial Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received (including by telecopy or email transmission) from each Loan Party party to the relevant Loan Document, a counterpart of this Agreement, the Guarantee Agreement, the Security Agreement, the Pledge Agreement and the ABL Intercreditor Agreement, in each case signed on behalf of such Loan Party.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent and the Lenders as of the Closing Date and dated the Closing Date) of (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Borrower and certain of the Loan Parties and (ii) the local counsel identified on Schedule 4.01, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received (i) a certificate of the Secretary of each Loan Party certifying (x) copies attached thereto of the resolutions of the board of directors or other applicable authorizing body or Person of such Loan Party authorizing and empowering certain officers of such Loan Party to effect such borrowings or other transactions hereunder as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (y) copies attached thereto of the Certificate of Incorporation and by-laws (or similar organizational documents) of such Loan Party and (z) the names and true signatures of the officers of such Loan Party executing this Agreement and the other documents to be executed and delivered by such Loan Party hereunder, substantially in the form of Exhibit E, and (ii) a certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party.
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of the Borrower, confirming that (a) the representations and warranties contained in Article III are correct in all material respects on and as of the Closing Date and (b) as of the Closing Date, no Default or Event of Default has occurred and is continuing.
(e) There shall have been delivered to the Administrative Agent an executed Perfection Certificate.
(f) The Administrative Agent shall have received a solvency certificate in the form of Exhibit I, dated the Closing Date and signed by a Financial Officer of the Borrower.
(g) Substantially concurrently with the funding of the Loans on the Closing Date, the Administrative Agent, the Lead Arrangers and the Lenders shall have received all reasonable accrued fees and other amounts due and payable on or prior to the Closing Date, including, to the
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extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the reasonable and documented fees of Cahill Gordon & Reindel LLP, legal counsel to the Administrative Agent, the Lead Arrangers and the Lenders) required to be reimbursed or paid by the Borrower hereunder.
(h) (i) Since December 31, 2017, there has been no material adverse change in the business, financial condition, results of operations or properties of the Borrower and its Restricted Subsidiaries, taken as a whole and (ii) there shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Borrower or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of the Borrower, threatened, that could reasonably be expected to have a Material Adverse Effect.
(i) The Administrative Agent shall have received the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.05 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent.
(j) The Administrative Agent shall have received, to the extent required to be delivered to the Administrative Agent pursuant to the Security Agreement and/or the Pledge Agreement, the certificates representing the certificated Equity Interests pledged pursuant to the Security Agreement and/or the Pledge Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and all Debt owing to any Loan Party, other than Excluded Property, shall have been pledged or assigned for security purposes pursuant to the Collateral Documents and the Administrative Agent shall have received, to the extent required to be delivered to the Administrative Agent pursuant to the Security Agreement and/or the Pledge Agreement, instruments evidencing such Debt, endorsed in blank.
(k) Each Uniform Commercial Code financing statement or other filing required by the Security Agreement shall be in proper form for filing.
(l) (i) Each Loan Party shall have provided the documentation and other information requested by the Lenders that is required by authorities under applicable know your customer and anti-money laundering rules and regulations, including without limitation, the Act, in each case as requested at least five (5) Business Days prior to the Closing Date and (ii) to the extent the Borrower qualifies as a legal entity customer under the Beneficial Ownership Regulation, the Borrower shall have provided a Beneficial Ownership Certification in relation to the Borrower at least three (3) Business Days prior to the Closing Date.
(m) The Administrative Agent shall have received an executed promissory note with respect to each Lender that requested such promissory note at least one Business Day prior to the Closing Date and in a form approved by the Administrative Agent.
(n) The Borrower shall have paid as of the Closing Date immediately after giving effect thereto to the Administrative Agent for the account of each of the Lenders, an upfront fee as separately agreed.
(o) Substantially concurrently with the funding of the Loans on the Closing Date, the debt securities tendered in connection with the Tender Offers on or prior to the Early Tender Date (as defined in the offering materials for the Tender Offers) and accepted for purchase by the Borrower will be repurchased by the Borrower pursuant to the Tender Offers.
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(p) The Administrative Agent shall have received an executed amendment to the ABL Credit Agreement in form and substance reasonably satisfactory to the Administrative Agent.
The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Section 4.02 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than a continuation or conversion of an existing Borrowing) and any extension of credit pursuant to Section 2.02, 2.17 or 2.18 is subject to the satisfaction of the following conditions, subject to Section 1.08 with respect to Incremental Term Loans only:
(a) The representations and warranties contained in this Agreement shall be true and correct in all material respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) on and as of the date of such Borrowing, except to the extent that any such representation and warranty relates to an earlier date (in which case such representation and warranty shall have been true and correct in all material respects (except to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects) as of such earlier date); provided that in the case of any Incremental Facility used to finance a Limited Condition Transaction permitted hereunder, to the extent the Lenders participating in such Incremental Facility agree, this Section 4.02(a) shall require only the Specified Representations and customary acquisition agreement representations (i.e., those representations of the seller or target (as applicable) in the applicable acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable subsidiary has the right to terminate its obligations under the applicable acquisition agreement as a result of the failure of such representations to be accurate) be true and correct in all material respects (except, in the case of the Specified Representations, to the extent that any such representation and warranty is qualified by materiality or Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects).
(b) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(c) The Administrative Agent shall have received a Committed Loan Notice in accordance with Section 2.03.
Each Borrowing (other than a continuation or conversion of an existing Borrowing) shall be deemed to constitute a representation and warranty by the Borrower or other applicable Loan Party on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the principal of and interest on each Loan, all fees payable hereunder and all other Obligations (other than contingent obligations not yet accrued and payable) shall have been paid in full and all Commitments have been terminated, the Borrower covenants and agrees with the Lenders that:
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Section 5.01 Financial Statements; Other Information. The Borrower will furnish to the Administrative Agent (for delivery to the Lenders) and, in the case of clause (h), each requesting Lender:
(a) within 120 days after the end of each fiscal year of the Borrower, but in no case earlier than when such report shall be required to be filed with the Commission, a copy of the Borrowers Annual Report on Form 10 K filed with the Commission for such year, or any similar annual report required to be filed by the Borrower with the Commission (provided that if the Borrower shall no longer be required to so file with the Commission, the Borrower will nonetheless thereafter continue to furnish to the Lenders such financial statements and related materials as would have comprised such filings, at such times as the Borrower would have otherwise delivered the same to the Commission), together with (x) customary management discussion and analysis of financial condition and results of operations and (y) an audit opinion by Deloitte & Touche LLP or other independent public accountants of recognized national standing with respect to the Borrowers consolidated financial statements for such fiscal year (without a going concern or like qualification or exception (other than with respect to, or resulting from, an upcoming maturity date of Debt that is scheduled to occur within one year from the time such opinion is delivered or any potential inability to satisfy any financial maintenance covenant on a future date or in a future period) and without any qualification or exception as to the scope of such audit except as to the effectiveness of internal control over financial reporting with respect to any subsidiary acquired during such fiscal year in accordance with Regulation S-X under the Exchange Act, as interpreted by the implementation guidance of the U.S. Securities Exchange Commission) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by such accountants and disclosed therein);
(b) within 60 days after the end of each of the first three quarters of each fiscal year of the Borrower, but in no case earlier than when such report shall be required to be filed with the Commission, a copy of the Borrowers Quarterly Report on Form 10 Q filed with the Commission for such quarter, or any similar quarterly report required to be filed by the Borrower with the Commission (provided that if the Borrower shall no longer be required to so file with the Commission, the Borrower shall nonetheless thereafter continue to furnish to the Lenders such financial statements and related materials as would have comprised such filings, at such times as the Borrower would have otherwise delivered the same to the Commission), together with customary management discussion and analysis of financial condition and results of operations;
(c) not later than 120 days following the first day of each fiscal year of the Borrower, a forecast (including projected quarterly income and cash flow statements and annual balance sheets for the Borrower and its Subsidiaries on a consolidated basis) with appropriate principal assumptions upon which such forecast is based;
(d) simultaneously with the delivery of the reports referred to in clauses (a) and (b) above, a certificate of a Responsible Officer of the Borrower (i) stating whether there exists on the date of such certificate any Default or Event of Default and setting forth the details thereof and the action which the Borrower is taking with respect thereto and (ii) in the case of certificates delivered simultaneously with the delivery of the reports referred to in clause (a) above, setting forth in reasonable detail the calculations for Excess Cash Flow for such period and Available Amount as of the end of such period;
(e) promptly after the sending or filing thereof, copies of all reports which the Borrower sends to any of its security holders, and copies of all reports and registration statements (other than Form S-8 or any similar form) which the Borrower files with the Commission or any national securities exchange;
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(f) concurrently with the delivery of financial statements pursuant to clause (a) above, a Perfection Certificate Supplement (or a certificate confirming that there has been no change in information since the date of the Perfection Certificate or latest Perfection Certificate Supplement), signed by a Responsible Officer of the Borrower;
(g) simultaneously with the delivery of the reports referred to in clauses (a) and (b) above, the related consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements (or other reconciliation reasonably acceptable to the Administrative Agent);
(h) promptly following any request therefor, information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable know your customer and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation; and
(i) promptly following any reasonable request therefor, such other information regarding the operations, business affairs and financial position of the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent (on its own behalf or at the request of any Lender) may reasonably request.
Documents required to be delivered pursuant to this Section 5.01 (to the extent any such documents are included in materials otherwise filed with the Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrowers website on the Internet at the website address listed on Schedule 9.01; or (ii) on which such documents are posted on the Borrowers behalf on the Platform (or such other Internet or intranet website, if any, to which each Lender and the Administrative Agent have access whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that (i) the Borrower shall deliver (including by electronic mail) paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Section 5.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent for delivery to each Lender written notice of the following promptly following any Responsible Officers knowledge thereof:
(a) the occurrence of any Default;
(b) the institution of, or any adverse final judgment in, any litigation, arbitration proceeding or governmental proceeding which, in the Borrowers judgment, would reasonably be expected to have a Material Adverse Effect; and
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(c) the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
Section 5.03 Existence; Conduct of Business. The Borrower will, and will cause each of its Material Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business except in each case (i) where the failure to do so would not reasonably be expected to result in a Material Adverse Effect or (ii) as such action is not prohibited under Sections 6.05 or 6.06 or pursuant to a Disposition not prohibited by the terms of this Agreement.
Section 5.04 Payment of Taxes. The Borrower will, and will cause each of its Restricted Subsidiaries to, pay its Tax liabilities that, if not paid, would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest would not reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect.
Section 5.05 Maintenance of Properties; Insurance. The Borrower will, and will cause each of its Restricted Subsidiaries to:
(a) Keep and maintain all property useful and necessary to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so would not have a Material Adverse Effect.
(b) Maintain, with financially sound and reputable insurance companies (which may include so-called captive insurance companies), or in accordance with self-insurance policies to the extent as companies engaged in similar businesses, insurance (subject to customary deductibles and retentions) against such risks as are customarily insured against by companies engaged in the same or similar business as reasonably determined by the Borrower and cause the Administrative Agent to be listed as a lenders loss payee or additional insured, as applicable, on the general and umbrella liability and property insurance (including business interruption) of the Borrower and the other Loan Parties. Notwithstanding the foregoing, Borrower and the subsidiaries may (i) maintain all such insurance with any combination of primary and excess insurance, and (ii) maintain any or all such insurance pursuant to master or so-called blanket policies insuring any or all Collateral and/or other Real Property which does not constitute Collateral (and in such event the loss payee endorsement shall be limited or otherwise modified accordingly).
(c) At the time of delivery of the applicable Mortgage (or such later date as may be agreed to by the Administrative Agent in its reasonable discretion), cause such property insurance policy with respect to the Mortgaged Property subject to such Mortgage to be endorsed or otherwise amended to include a standard lenders loss payable mortgage endorsement, in form and substance reasonably satisfactory to the Administrative Agent; deliver a certificate of insurance with respect to such Mortgaged Property to the Administrative Agent; and deliver to the Administrative Agent, prior to or concurrently with the cancellation or nonrenewal of any such policy of insurance covered by this clause (c), a copy of a renewal or replacement (or other evidence of renewal of a policy previously delivered to the Administrative Agent) insurance certificate with respect thereto.
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(d) If any building or mobile home on an improved Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area (each a Special Flood Hazard Area) with respect to which flood insurance has been made available under the Flood Insurance Laws, (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.
Section 5.06 Books and Records; Inspection Rights. The Borrower will, and will cause each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true and correct entries in all material respects are made of all financial transactions of the Borrower and each such Restricted Subsidiary in accordance with generally accepted accounting principles. The Borrower will, and will cause each of its Restricted Subsidiaries to, upon reasonable notice from the Administrative Agent, permit any representatives designated by the Administrative Agent to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants all at such reasonable times during normal business hours as are mutually agreed by the Borrower and as often as reasonably requested, provided that such visits, inspections, examinations and discussions shall, so long as no Event of Default has occurred and is continuing, take place no more often than one time per fiscal year on a date to be determined by, and shall be coordinated by, the Borrower and the Administrative Agent; provided further, that the Administrative Agent shall have delivered a written request for such inspection to the Borrower prior to the date of any such inspection and that the information provided to the Lenders pursuant to this Section 5.06 shall be subject to the provisions of Section 9.13; provided further, that neither the Administrative Agent nor any of its representatives shall discuss the affairs of the Borrower with the Borrowers independent accountants except in the presence of a Responsible Officer of the Borrower. Neither the Administrative Agent nor any Lender shall have any duty to any Loan Party to make any inspection, nor to share any results of any inspection, appraisal or report with any Loan Party. Notwithstanding anything to the contrary in this Section 5.06, none of the Borrower nor any of its Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making of extracts, or discussion of, any documents, information or other matter that (i) in respect of which disclosure to the Administrative Agent is then prohibited by law, rule or regulation or any agreement binding on the Borrower or any of its Restricted Subsidiaries, as long as such agreement was not entered into in contemplation of or in connection with such inspection or (ii) in any of the Borrower or any of its Restricted Subsidiaries reasonable judgment, would compromise, or likely cause the Borrower or any Restricted Subsidiary of the Borrower to lose the benefit of protection in respect of, any attorney-client privilege, privilege afforded to attorney work product or similar privilege.
Section 5.07 Compliance with Laws. The Borrower will, and will cause each of its Restricted Subsidiaries to, comply in all material respects with all applicable laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 5.08 Use of Proceeds. The proceeds of the Loans will be used only to finance the general corporate purposes of the Borrower and its Restricted Subsidiaries, including to fund the Transactions. No proceeds of any Loan will be used, directly or indirectly, or contributed or otherwise made available to any Subsidiary or other Person, in violation of Anti-Corruption Laws, or to fund any
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activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the target of Sanctions, or in any other manner that will result in a violation by a party to this Agreement or any of its Related Parties (including any individual or entity participating in the transaction, whether as Lender, Lead Arranger, Administrative Agent or otherwise) of Sanctions.
Section 5.09 Guarantors and Collateral.
(a) Subject to the terms of the ABL Intercreditor Agreement and, with respect to any Material Real Property, clause (e) below, with respect to any property acquired after the Closing Date by any Loan Party (including, without limitation, any acquisition pursuant to an LLC Division) that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, promptly (and in any event within 90 days after the acquisition thereof, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Permitted Liens and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable requirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Borrower shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the Administrative Agent shall require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a Domestic Subsidiary (including, without limitation, pursuant to an LLC Division) (other than (1) a Domestic Subsidiary of a Foreign Subsidiary that is a CFC, (2) a Domestic Subsidiary that owns (directly or through one or more entities that are disregarded for U.S. federal income tax purposes) no material assets other than Equity Interests in one or more Foreign Subsidiaries that are CFCs, (3) an Unrestricted Subsidiary or (4) any Domestic Subsidiary that is prohibited (but only for so long as such Domestic Subsidiary would be prohibited) by applicable law or by contractual obligations existing at the time of acquisition (but not entered into in contemplation thereof) from guaranteeing the Obligations or if guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization unless in each case of clause (1), (2), (3) and (4), each Subsidiary is an obligor or guarantor under the ABL Credit Agreement) that is a Material Subsidiary after the Closing Date, (i) cause such new Domestic Subsidiary, promptly (and in any event within 90 days after such Person becomes a Material Subsidiary, or such longer period as may be agreed to by the Administrative Agent in its sole discretion) (A) to become a party to the Guarantee Agreement, (B) to become a party to the Security Agreement and (C) to take all actions necessary or advisable in the opinion of the Administrative Agent to cause the Liens or security interests created by the Collateral Documents to be duly perfected to the extent required by such agreement in accordance with all applicable requirements of law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and (ii) deliver to the Administrative Agent the certificates, if any, representing all of the Equity Interests of such Subsidiary (and those held by such Subsidiary in other Subsidiaries to the extent required by the Security Agreement), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and, to the extent required by the Security Agreement, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party.
(c) With respect to any Person that becomes a Specified Pledgor or any Specified Pledgor that acquires Equity Interests of a first tier Foreign Subsidiary, within 90 days (x) if such Specified Pledgor is not party to the Pledge Agreement, cause such Specified Pledgor to execute a joinder agreement to the Pledge Agreement in substantially the form annexed thereto and (y) cause such Specified Pledgor to take all actions necessary or advisable to cause the Liens created by the Pledge Agreement to be duly perfected to the extent required by the Pledge Agreement.
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(d) For the avoidance of doubt and notwithstanding anything to the contrary in any of the Loan Documents, in no event shall any (i)(x) non-Wholly Owned Subsidiary or (y) newly-formed Subsidiary that is intended to be and becomes a non-Wholly Owned Subsidiary within 90 days of its formation, be required to become a Subsidiary Guarantor or party to the Security Agreement; and (ii) action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction).
(e) With respect to any Closing Date Mortgaged Property, within one hundred twenty (120) days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), and with respect to any Material Real Property acquired after the Closing Date, within one hundred twenty (120) days after such acquisition (but in no event prior to forty-five (45) days after the Borrower has given notice of such acquisition to the Administrative Agent and in no event prior to the Borrower receiving confirmation from the Administrative Agent that flood insurance due diligence and compliance in accordance with Section 5.09(e)(i) has been completed or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion) or such later date as the Administrative Agent may agree to in its reasonable discretion), the Borrower shall, or shall cause the applicable Loan Party to, grant to the Administrative Agent a Mortgage on such Material Real Property, which Mortgage shall constitute valid and enforceable Liens on the applicable Loan Partys right, title and interest in and to such Material Real Property, subject to no other Liens except Permitted Encumbrances, and record, register or file, the Mortgage in such manner and in such places as is required by law to establish the Liens in favor of the Administrative Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Loan Party to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording, registration or filing of the Mortgages. Unless otherwise waived by the Administrative Agent or the applicable Lender (solely with respect to clause (i)(B) below), with respect to each such Mortgage, the Borrowers shall cause the following requirements to be satisfied with respect to such Mortgaged Property:
(i) (A) the Administrative Agent shall have received with respect to each Mortgaged Property the Flood Documentation and (B) each Lender shall have received (through the Administrative Agent) any other reasonable documents or information reasonably requested by such Lender (through the Administrative Agent) to enable such Lender to comply, in the determination of the Administrative Agent, with any applicable Flood Insurance Laws and all applicable rules and regulations promulgated pursuant thereto;
(ii) the Administrative Agent shall have received:
(A) counterparts of each Mortgage to be entered into with respect to each such Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property and suitable for recording, registering or filing (together with any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all filing, registration or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid and enforceable Lien subject to no other Liens except Permitted Encumbrances, at the time of filing, registration or recordation thereof, and
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(B) with respect to the Mortgage encumbering each such Mortgaged Property, opinions of local counsel regarding the enforceability of the Mortgages and such other matters customarily covered in real estate mortgage counsel opinions as the Administrative Agent may reasonably request, if and to the extent, and in such form, as local counsel customarily provides such opinions as to such other matters, and
(iii) the Administrative Agent shall have received:
(A) a policy or policies or marked up unconditional binder of title insurance (Mortgage Policy), in the amount of the book value of the respective Mortgaged Property, issued by a nationally recognized title insurance company (Title Insurer) insuring the Lien of each Mortgage as a valid first priority Lien on the Mortgaged Property described therein, free of any other Liens except Permitted Encumbrances, together with such customary endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request and which are available at commercially reasonable rates in the jurisdiction where the applicable Mortgaged Property is located (provided, however, that in lieu of a zoning endorsement, Administrative Agent shall accept a zoning report from a nationally recognized zoning report provider), and
(B) either (x) a survey of each Mortgaged Property (including all improvements, easements and other customary matters thereon reasonably required by the Administrative Agent), as applicable, for which all necessary fees (where applicable) have been paid, which (A) complies in all material respects with the minimum detail requirements of the American Land Title Association and American Congress of Surveying and Mapping as such requirements are in effect on the date of preparation of such survey and (B) is sufficient for such Title Insurer to remove all standard survey exceptions from the title insurance policy relating to such Mortgaged Property or otherwise reasonably acceptable to the Administrative Agent; provided, however, that so long as the Title Insurer shall accept the same to eliminate the standard survey exceptions from such policy or policies, in lieu of a new or revised survey Borrowers may provide a no material change affidavit with respect to any prior survey for the respective Mortgaged Property (which prior survey otherwise substantially complies with the foregoing survey requirements), or (y) if Borrower so elects, an ExpressMap (each of (x) and (y), a Survey).
Section 5.10 Further Assurances. Promptly upon the reasonable request by the Administrative Agent, the Borrower shall, and shall cause the Subsidiary Guarantors to, (a) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Loan Document, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts, deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably require from time to time in order to (i) carry out the purposes of the Loan Documents, (ii) to the fullest extent permitted by applicable law, subject any Loan Partys assets, including Equity Interests to the Liens granted by the Security Agreement and the other Collateral Documents to the extent required thereunder and (iii) except as otherwise contemplated by the Collateral Documents, perfect and maintain the validity, effectiveness and priority (subject to the terms of the ABL Intercreditor Agreement) of the Collateral Documents and any of the Liens created thereunder. Upon the exercise by the Administrative Agent of any power, right, privilege or remedy pursuant to any Loan Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, execute and deliver all applications, certifications, instruments and other documents and papers that the Administrative Agent may reasonably require. If requested by the Administrative Agent or any Lender, the Borrower will, and will cause each of its Subsidiary Guarantors to cooperate with and provide any information necessary for the Administrative Agent or such Lender, as the case may be, to conduct its flood due diligence and flood insurance compliance.
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Section 5.11 Information Regarding Collateral and Loan Documents. The Borrower shall not and shall not permit any other Loan Party or Specified Pledgor to effect any change in (i) such Loan Partys or Specified Pledgors legal name, (ii) the location of such Loan Partys or Specified Pledgors chief executive office, (iii) such Loan Partys or Specified Pledgors identity or organizational structure, (iv) such Loan Partys or Specified Pledgors Federal Taxpayer Identification Number or organizational identification number, if any, or (v) such Loan Partys or Specified Pledgors jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), until (A) it shall have given the Administrative Agent not less than 10 days prior written notice (in a form bearing the signature of a Responsible Officer), or such lesser notice period agreed to by the Administrative Agent, of its intention so to do, clearly describing such change and providing such other information in connection therewith as the Administrative Agent may reasonably request and (B) it shall have taken all action reasonably satisfactory to the Administrative Agent to maintain the perfection and priority of the security interest of the Administrative Agent for the benefit of the Secured Parties in the Collateral, if applicable. Each Loan Party agrees to promptly provide the Administrative Agent with certified organization documents reflecting any of the changes described in the preceding sentence.
Section 5.12 Conference Calls. The Borrower shall, within 10 days (or such later date as the Administrative Agent may agree in its reasonable discretion) after the date of the delivery of the quarterly and annual financial information pursuant to clause (a) or (b) of Section 5.01, hold a conference call or teleconference, at a time selected by the Borrower and reasonably acceptable to the Administrative Agent, with all of the Lenders that choose to participate, to review the financial results of the previous fiscal quarter or year, as the case may be, of the Borrower (it being understood that any such call may be combined with any similar call held for any of the Borrowers other lenders or security holders).
Section 5.13 Ratings. The Borrower shall use commercially reasonable efforts to obtain and to maintain public ratings from Moodys and S&P for the Term Loans; provided, however, that the Borrower shall not be required to obtain or maintain any specific rating.
Section 5.14 Post-Closing Requirements.
(a) Within 30 days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the Borrower shall deliver insurance certificates and endorsements contemplated by Section 5.05(b), in form and substance reasonably satisfactory to the Administrative Agent.
(b) Within 20 Business Days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the applicable Loan Parties shall, to the extent required under the Security Agreement, enter into new, or amend existing, Deposit Account Control Agreements (as defined in the Security Agreement) and Securities Account Control Agreements (as defined in the Security Agreement) in form and substance reasonably satisfactory to the Administrative Agent.
(c) Within 30 days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), (x) the Administrative Agent shall have received certified copies of UCC lien searches in such jurisdictions requested by the Administrative Agent, listing all effective financing statements that name Chicago Delivery Inc., Courier Advisory Group, Inc., Courier Logistics Services, LLC, Courier Corporation, Esselte Corporation, Esselte Newco, Inc., United Express System, Inc., and Valid USA, Inc., as debtor and (y) the Borrower will take such actions as may be reasonably requested by the Administrative Agent based on the results of the searches described in clause (x) above.
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(d) Within 10 Business Days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the Administrative Agent shall have received (x) all certificates, agreements or instruments representing or evidencing the Specified LLC Equity Interests (as defined in the Security Agreement) in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, to the extent such Specified LLC Equity Interests are represented or evidenced by any such certificates, agreements or instruments and (y) a Pledge Amendment (as defined in the Security Agreement) with respect to the Specified LLC Equity Interests, which Pledge Amendment shall be deemed to supplement Schedule 9(a) of the Perfection Certificate and Schedule 1 of the Security Agreement with respect to the Specified LLC Equity Interests.
(e) Within 10 Business Days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the instrument described below shall have been properly endorsed, assigned and delivered to the Revolving Credit Collateral Agent (as defined in the ABL Intercreditor Agreement), accompanied by instruments of transfer or assignment duly executed in blank:
Issuer |
Borrower | Amount | Date of Issuance |
Interest Rate |
Maturity Date |
|||||||||||||
RR Donnelley & Sons Company |
TMC SUPPLY CHAIN SOLUTIONS | $ | 5,441,390.00 | 9/18/17 | 0 | % | 1/1/27 |
ARTICLE VI
Negative Covenants
Until the principal of and interest on each Loan, all fees payable hereunder and all other Obligations (other than contingent obligations not yet accrued and payable) shall have been paid in full and all Commitments have been terminated, the Borrower covenants and agrees with the Lenders that:
Section 6.01 Debt. The Borrower will not, and will not permit any Restricted Subsidiary to, create or suffer to exist any Debt other than:
(a) (i) Debt under the Loan Documents and (ii) Debt incurred pursuant to the ABL Credit Agreement and the related credit documents in an aggregate principal amount not to exceed $800,000,000, and, in the case of this clause (ii), to the extent constituting Debt, any Secured Cash Management Obligations (other than in respect of letters of credit or indebtedness for borrowed money) and any Secured Hedge Obligations (in each case, as defined in the ABL Credit Agreement) secured by the Collateral securing the obligations under the ABL Credit Agreement pursuant to the ABL Loan Documents, and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of the Debt referred to in this clause (ii) that meets the definition of Permitted Refinancing (it being understood that if the amount of any Debt is increased in connection with any extension, renewal or replacement, the amount permitted as a Permitted Refinancing shall be permitted under this clause (a)(ii) and the amount above the amount permitted as a Permitted Refinancing shall be permitted if permitted under another clause of this Section 6.01);
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(b) Debt issued and outstanding or available under existing lines of credit or other facilities on the Closing Date so long as such Debt is listed on Schedule 6.01 hereto, and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof that meets the definition of Permitted Refinancing (it being understood that if the amount of any Debt is increased in connection with any extension, renewal or replacement, the amount permitted as a Permitted Refinancing shall be permitted under this clause (b) and the amount above the amount permitted as a Permitted Refinancing shall be permitted if permitted under another clause of this Section 6.01);
(c) Debt (i) among Loan Parties, (ii) from a Restricted Subsidiary that is not a Loan Party owing to a Loan Party to the extent permitted by Section 6.02, or (iii) among Restricted Subsidiaries that are not Loan Parties;
(d) cash management obligations and Debt incurred in respect of netting services, overdraft protection and similar arrangements;
(e) Debt of a Person that existed at the time such Person is acquired and becomes a Restricted Subsidiary of the Borrower or Debt of a Person that existed at the time such Person is merged or consolidated with a Restricted Subsidiary or Debt acquired by a Restricted Subsidiary in connection with an Asset Acquisition, in each case, to the extent such Debt was not created in contemplation of such acquisition, merger or consolidation and is not secured by any assets other than those acquired so long as (i) on a Pro Forma Basis after giving effect thereto, the Total Leverage Ratio does not exceed 5.00 to 1.00 and (ii) all such Debt outstanding pursuant to this clause (e) incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor shall not exceed $100,000,000 in the aggregate at any time;
(f) any earn-out obligation that comprises a portion of the consideration for an acquisition or Debt consisting of obligations under deferred compensation or other similar arrangements incurred in connection with an acquisition;
(g) capital lease obligations and purchase money obligations for the purchase of goods on ordinary trade terms, fixed assets or capital assets so long as all such Debt outstanding pursuant to this clause (g) shall not exceed $50,000,000 in the aggregate at any time;
(h) Guarantees with respect to Debt of Loan Parties permitted under this Section 6.01, but, in the case of any Guarantee by any Restricted Subsidiary of Debt of the Borrower, other than Debt incurred by the Borrower pursuant to clauses (b), (e) or (k)(i) of this Section 6.01;
(i) Debt at Restricted Subsidiaries that are not Subsidiary Guarantors, so long as all Debt outstanding pursuant to this clause (i) shall not exceed $150,000,000 in the aggregate;
(j) other Debt in the aggregate not to exceed $100,000,000;
(k) additional Debt so long as on a Pro Forma Basis after giving effect to such transaction, (i) in the case of unsecured Debt of the Borrower that is not Guaranteed by any Subsidiary of the Borrower, the Total Leverage Ratio is 5.00 to 1.00 or less, (ii) in the case of First Priority Debt of the Borrower or any Restricted Subsidiary, the First Priority Debt Leverage Ratio is 2.00 to 1.00 or less and (iii) in the case of Priority Debt that is not First Priority Debt, the Priority Debt Leverage Ratio is 3.00 to 1.00 or less; provided that all such Debt (other than Debt incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor) shall not mature prior to the Latest Maturity Date in effect at the time such Debt is incurred and shall not have a Weighted
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Average Life to Maturity shorter than the Weighted Average Life to Maturity of the Term Loans at the time such Debt is incurred; provided, further, that all such Debt outstanding pursuant to this clause (k) incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor shall not exceed $150,000,000 in the aggregate at any time;
(l) Debt of a Restricted Subsidiary that is a joint venture so long as all Debt outstanding pursuant to this clause (l) shall not exceed $75,000,000 in the aggregate;
(m) Incremental Equivalent Debt in an amount not to exceed, when taken together with all other Incremental Equivalent Debt and Incremental Facilities, the Incremental Amount, and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof that meets the definition of Permitted Refinancing (it being understood that if the amount of any Debt is increased in connection with any extension, renewal or replacement, the amount permitted as a Permitted Refinancing shall be permitted under this clause (m) and the amount above the amount permitted as a Permitted Refinancing shall be permitted if permitted under another clause of this Section 6.01);
(n) Debt in respect of bid, performance, surety bonds or completion bonds issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business, including guarantees or obligations of the Borrower or any Restricted Subsidiary with respect to letters of credit supporting such bid, performance, surety or completion obligations; and
(o) Hedging Obligations under Swap Contracts entered into for non-speculative purposes.
Section 6.02 Investments. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, make or hold any Investments, except:
(a) Investments in cash and Permitted Investments;
(b) Investments by the Borrower and its Restricted Subsidiaries outstanding on the Closing Date and listed on Schedule 6.02 hereto and any modification or replacement thereof not involving an increase in the aggregate amount of such Investments as of the Closing Date (it being understood that if the amount of any Investment is increased in connection with any modification or replacement, the amount outstanding on the Closing Date shall be permitted under this clause (b)(i) and the increased amount shall be permitted if permitted under another clause or sub-clause of this Section 6.02);
(c) Investments in current assets, including extensions of credit in the nature of accounts receivable or notes receivable and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors in the ordinary course of business;
(d) Guarantees permitted by Section 6.01;
(e) Permitted Acquisitions;
(f) Investments (i) by the Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary Guarantor in the Borrower, (iii) by a Subsidiary Guarantor in another Subsidiary Guarantor, (iv) by a Restricted Subsidiary that is not a Loan Party in another Restricted Subsidiary (including a Loan Party to the extent any Debt of a Loan Party is subordinated to the Secured Obligations pursuant to a global intercompany note), and (v) not exceeding $100,000,000 in the aggregate at any time from the Borrower or a Subsidiary Guarantor in a Restricted Subsidiary that is not a Subsidiary Guarantor;
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(g) Investments in an amount not to exceed the portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.02(g); provided that after giving effect thereto no Event of Default shall have occurred and be continuing;
(h) loans and advances to directors, employees and officers of the Borrower or any Restricted Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate principal amount for the Borrower and its Restricted Subsidiaries not to exceed $10,000,000 at any one time outstanding;
(i) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower; provided that the issuance of such Equity Interests are not included in any determination of the Available Amount;
(j) Investments arising out of the receipt by the Borrower or a Restricted Subsidiary of non-cash consideration for the sale of assets not prohibited by the terms of this Agreement; and
(k) other Investments not to exceed $150,000,000 in the aggregate at any time outstanding.
Section 6.03 Restricted Payments. The Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, declare or make, directly or indirectly, any Restricted Payment, other than, in each case:
(a) the payment by the Borrower or any Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with this Section 6.03 (assuming, in the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); provided that any Restricted Payment pursuant to this clause (a) shall be deemed to have utilized capacity under the exception that such Restricted Payment would have been permitted to have been made in reliance of at the time of declaration or notice of redemption, as applicable;
(b) a Restricted Subsidiary may make a dividend or distribution (A) to the Borrower or another Restricted Subsidiary (and, in the case of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to each owner of Equity Interests of such Restricted Subsidiary such that the Borrower or Restricted Subsidiary receives at least its pro rata share of such dividend or distribution) or (B) to the extent required by applicable law, regulation or order, any other Person;
(c) the Borrower or a Restricted Subsidiary may declare and pay dividends and other payments solely in Qualified Equity Interests of the Borrower or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, Qualified Equity Interests of the Borrower or through accretion or accumulation of such dividends on such Equity Interests; provided that the issuance of such Equity Interests are not included in any determination of the Available Amount;
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(d) the Borrower or any Restricted Subsidiary may, in the ordinary course of business, (x) repurchase its equity interests owned by retiring directors, officers or employees of the Borrower and (y) make payments to directors, officers or employees of the Borrower or any of its Restricted Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity or equity-based incentives pursuant to management or other incentive plans or in connection with the death or disability of such employees;
(e) the Borrower or any Restricted Subsidiary may, in the ordinary course of business, repurchase restricted equity interests of the Borrower issued as compensation to officers, directors and employees upon the vesting of such restricted equity interests if the Fair Market Value of such repurchased equity interests represent an amount equal to the tax withholding obligations of such officers, directors and employees that result from the vesting of such restricted equity interests;
(f) any Restricted Payment made out of the net cash proceeds of the substantially concurrent sale of, or made by exchange for, Qualified Equity Interests or Junior Debt of the same payment and lien priority of any Junior Debt being prepaid or exchanged therefor pursuant to this clause (f) of the Borrower (other than Qualified Equity Interests issued or sold to a Restricted Subsidiary of the Borrower or an employee stock ownership plan or to a trust established by the Borrower or any of its Restricted Subsidiaries for the benefit of their employees) or a substantially concurrent cash capital contribution received by the Borrower from its stockholders; provided that such net cash proceeds are not included in any determination of the Available Amount;
(g) payments or distributions to dissenting stockholders of a Person acquired by the Borrower or a Restricted Subsidiary pursuant to an Asset Acquisition permitted by Section 6.02;
(h) Restricted Payments in the form of quarterly dividend payments on the Borrowers common stock not to exceed $0.03 per share; provided that after giving effect thereto no Event of Default shall have occurred and be continuing;
(i) the Borrower may make other Restricted Payments of $60,000,000 in the aggregate, subject to no Event of Default immediately before and immediately after giving pro forma effect thereto;
(j) Restricted Payments in an amount not to exceed the portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 6.03(j); provided that after giving effect thereto on a Pro Forma Basis (i) no Event of Default shall have occurred and be continuing and (ii) the Total Leverage Ratio is equal to or less than 4.70 to 1.00;
(k) the Borrower may consummate the Tender Offers; and
(l) the Borrower may make Junior Debt Restricted Payments in respect of the Inside Maturity Notes.
Section 6.04 Burdensome Agreements. The Borrower shall not, nor shall it permit its Material Subsidiaries to, enter into, or permit to exist, any consensual Contractual Obligation that (a) encumbers or restricts the ability of such Material Subsidiary to (i) make dividends or distributions to the Borrower, (ii) pay any Debt or other obligation owed to the Borrower, (iii) make loans or advances to the Borrower or (iv) transfer any of its property to the Borrower or (b) encumbers or restricts the ability of the Borrower or such Material Subsidiary to pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extensions thereof (other than pursuant to the ABL
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Intercreditor Agreement), except, in each case, those (1) existing under (x) the Loan Documents and any other agreement in effect on the Closing Date and (y) the ABL Credit Agreement and the other ABL Loan Documents, and in each case any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, than those contained in such existing agreement, (2) existing under, by reason of, or with respect to, applicable law, rule, regulation or order, (3) with respect to any Person or the property or assets of a Person acquired by the Borrower or any Material Subsidiary existing at the time of such acquisition and not incurred in connection with or in contemplation of such acquisition and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances or restrictions in any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements, or refinancings are not materially more restrictive, taken as a whole, than those in effect at the time of the acquisition, (4) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract or are customary provisions restricting the subletting or assignment thereof, (5) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Borrower or any Material Subsidiary not otherwise prohibited by the Loan Documents, (6) arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, materially detract from the value of any property or assets of the Borrower or any Material Subsidiary, (7) existing under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the capital stock of, or property and assets of, a Material Subsidiary that restrict distributions by that Material Subsidiary pending such sale or other disposition, (8) existing under, by reason of, or with respect to, customary supermajority voting provisions and customary provisions with respect to the disposition or distribution of assets or property, in each case contained in joint venture, partnership or limited liability company agreements, (9) restrictions on cash or other deposits or net worth imposed by customers or lessors or required by insurance, surety or bonding companies, in each case, under contracts, leases or other agreements entered into in the ordinary course of business, (10) with respect to any Lien that is permitted to be incurred pursuant to Section 6.05, and (11) encumbrances or restrictions contained in the documents governing any Debt or other instrument or agreement entered into after the Closing Date that, as determined by the Borrower, will not materially adversely affect the Borrowers ability to make payments on the Loans.
Section 6.05 Liens. The Borrower shall not create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien, upon or with respect to any of its properties or assets, whether now owned or hereafter acquired, in each case to secure any Debt of any Person or entity, other than the following:
(a) Liens existing on the Closing Date and listed on Schedule 6.05 hereto;
(b) Liens arising in connection with the obligations of the Borrower or any Restricted Subsidiary under industrial revenue bonds;
(c) Liens on assets of a Restricted Subsidiary of a Loan Party to secure Debt of such Restricted Subsidiary to any Loan Party;
(d) purchase money Liens claimed by sellers of goods on ordinary trade terms provided that no financing statement has been filed to perfect such Liens, and provided that no such Lien shall extend to assets of any character other than the goods being acquired;
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(e) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by such Person in the ordinary course of business not prohibited by this Agreement;
(f) Liens securing Debt or other obligations on property of a Person that becomes a Restricted Subsidiary of the Borrower or of any of its Restricted Subsidiaries after the date hereof in accordance with Section 6.02 and existing at the time such corporation is merged or consolidated with the Borrower or any Restricted Subsidiary, at the time such corporation or firm (or division thereof) becomes a Restricted Subsidiary of the Borrower or any of its Restricted Subsidiaries, or at the time of a sale, lease or other disposition of the properties of a corporation or a firm (or division thereof) as an entirety or substantially as an entirety to the Borrower or a Restricted Subsidiary, provided that such Liens were not created in contemplation of such merger, consolidation, acquisition, sale, lease or disposition and do not extend to assets other than those of the Person merged into or consolidated with the Borrower or such Restricted Subsidiary or acquired by the Borrower or such Restricted Subsidiary and such Debt was permitted by Section 6.01(e); provided that such Liens, with respect to ABL Collateral only, are expressly made junior to the Liens in favor of the Administrative Agent;
(g) Liens on life insurance policies owned by the Borrower or any Restricted Subsidiary, securing Insurance Policy Debt;
(h) (i) pledges or deposits by such Person under workers compensation laws, unemployment insurance laws or other social security legislation, and deposits securing liability to insurance carriers under related insurance or self-insurance arrangements, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies related to the items specified in the foregoing clause (i), or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of the items set forth in clauses (i) and (ii) of this clause (h);
(i) (i) deposits to secure the performance of bids, tenders, contracts (other than for borrowed money) or leases to which such Person is a party, (ii) deposits to secure public or statutory obligations of such Person, surety and appeal bonds, performance bonds and other obligations of a like nature, (iii) deposits as security for contested taxes, import duties or the payment of rent, and (iv) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of items set forth in clauses (i) and (ii) of this clause (i);
(j) Liens consisting of pledges or deposits of cash or securities made by such Person as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy other similar requirements of, any applicable Governmental Authority;
(k) Liens imposed by law, such as (i) carriers, warehousemens and mechanics materialmens, landlords, or repairmens Liens, or (ii) other like Liens arising in the ordinary course of business securing obligations which are not overdue by more than 60 days or which if more than 60 days overdue, the period of grace, if any, related thereto has not expired or which are being contested in good faith by appropriate proceedings;
(l) Liens arising out of judgments or awards not constituting an Event of Default;
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(m) Liens for property taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings and as to which appropriate reserves are being maintained to the extent required in accordance with GAAP;
(n) survey exceptions, encumbrances, easements or reservations of, or rights of others for rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or other restrictions or encumbrances as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially impair their use in the ordinary operation of the business of such Person;
(o) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to bankers Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto and pooling and netting arrangements) or other funds maintained with a depository institution or securities intermediary;
(p) any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority;
(q) Liens arising from precautionary UCC financing statement filings (or similar filings under applicable law) regarding leases entered into by such Person;
(r) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(s) purchase money Liens on fixed and capital assets financed with Debt permitted under Section 6.01(g), including Liens constituting the interest of a lessor under a lease that would be capitalized on the lessees balance sheet in accordance with GAAP as in effect on the Closing Date, or under a sale-leaseback transaction, in each case relating to equipment, provided that after giving effect thereto the related Debt was permitted under Section 6.01(g);
(t) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any Liens referred to in the foregoing clause (a); provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, plus accrued interest, plus any premium or other payment required to be paid in connection with such refinancing, plus, in either case, the amount of fees and reasonable expenses of the Borrower or any of its Restricted Subsidiaries incurred in connection with such refinancing, and that such extension, renewal or replacement Lien shall be limited to all or a part of the property which is subject to the Lien so extended, renewed or replaced (plus improvements on such property);
(u) (i) Liens securing the Obligations and any Debt incurred pursuant to Section 6.01(m), and (ii) Liens securing Debt and other obligations at Restricted Subsidiaries that are not Subsidiary Guarantors if such Liens are solely on non-Subsidiary Guarantor assets;
(v) Liens on Collateral securing obligations in respect of Debt permitted by Section 6.01(a)(ii) or Section 6.01(k)(ii); provided that (x) with respect to ABL Collateral only, subject to the ABL Intercreditor Agreement, such Liens may be senior to the Liens in favor of the Administrative Agent (and if such Liens are senior to the Liens in favor of the Administrative Agent with respect to ABL Collateral, then such Liens must be junior to the Liens in favor of the
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Administrative Agent with respect to Collateral not constituting ABL Collateral), (y) to the extent any such Debt is secured by Liens on Collateral ranking pari passu with the Term Loans, Section 2.02(b)(iv) shall apply and (z) such Debt shall be subject to the ABL Intercreditor Agreement or another customary intercreditor agreement reasonably acceptable to the Administrative Agent;
(w) additional Liens so long as the aggregate principal outstanding amount of the obligations secured thereby does not exceed $50,000,000 at any time;
(x) Liens securing obligations in respect of trade-related letters of credit and covering the goods (or the documents of title in respect of such goods) financed or the purchase of which is supported by such letters of credit and the proceeds and products thereof;
(y) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition and any Permitted Refinancing in respect thereof;
(z) with respect to the Mortgaged Properties, (i) any exceptions listed on the Mortgage Policies accepted by the Administrative Agent with respect to such Mortgaged Properties and (ii) matters that are disclosed by a Survey accepted by the Administrative Agent;
(aa) licenses, sublicenses, covenants not to sue, releases or other rights under Intellectual Property granted to others in the ordinary course of business or in the reasonable business judgment of the Borrower or any Restricted Subsidiary;
(bb) Liens on the Equity Interests of any Unrestricted Subsidiary; and
(cc) Liens securing obligations in respect of Debt permitted by Section 6.01(k)(iii); provided that, if such Liens are on Collateral, (x) such Liens shall be junior to the Liens in favor of the Administrative Agent and (y) the Debt secured by such Liens shall be subject to the ABL Intercreditor Agreement or another customary intercreditor agreement reasonably acceptable to the Administrative Agent.
Section 6.06 Merger; Sale of Assets. The Borrower shall not, and shall not permit its Restricted Subsidiaries to, merge or consolidate with or into any other Person, or sell, transfer, lease or otherwise dispose of all or substantially all of its assets (including, in each case, pursuant to an LLC Division) (whether now owned or hereafter required), except:
(a) the Borrower or a Restricted Subsidiary may merge or consolidate with or into any other Person; provided that, if the Borrower is a party to such merger or consolidation, the Borrower is the surviving entity and if a Subsidiary Guarantor is a party to such merger or consolidation a Subsidiary Guarantor is the surviving entity;
(b) any Restricted Subsidiary that is a Subsidiary Guarantor may sell or otherwise dispose of any or all of its assets to the Borrower or a Subsidiary Guarantor, and any Restricted Subsidiary that is not a Subsidiary Guarantor may sell or otherwise dispose of any or all of its assets to any other Person; provided that (i) after giving effect to such merger, consolidation, sale or other disposition, no Default or Event of Default shall exist, and (ii) in the case of a transaction involving a Restricted Subsidiary, the assets to be sold or conveyed do not constitute all or substantially all of the assets of the Borrower and its Restricted Subsidiaries, taken as a whole; and
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(c) the Borrower or a Restricted Subsidiary may consummate Permitted Acquisitions not involving a merger of the Borrower.
For the avoidance of doubt, nothing contained in this Section 6.06 shall prohibit the ability of the Borrower and its Restricted Subsidiaries to make Investments not prohibited by Section 6.02, to make Restricted Payments not prohibited by Section 6.03 or to consummate Dispositions not prohibited by the terms of this Agreement.
Section 6.07 Conduct of Business. The Borrower and its Restricted Subsidiaries will not engage in any material line of business substantially different from the lines of business conducted by the Borrower and its Restricted Subsidiaries on the Closing Date and any Related Business.
Section 6.08 Transactions with Affiliates. The Borrower shall not, and shall not permit its Restricted Subsidiaries to, enter into any transaction of any kind with any Affiliate of the Borrower that is not a Restricted Subsidiary of the Borrower, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arms length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to (a) transactions for Fair Market Value of less than $25,000,000, (b) transactions between or among the Borrower and its Restricted Subsidiaries, (c) entering into employment and severance arrangements with directors, officers and employees, (d) Restricted Payments not prohibited under Section 6.03, (e) Investments permitted under Section 6.02 that would be subject to this Section 6.08 because the Borrower or a Restricted Subsidiary owns Equity Interests in or otherwise Controls such Person, (f) any transaction with an Affiliate where the only consideration paid by the Borrower or any Restricted Subsidiary is Qualified Equity Interests and (g) any other transaction approved by a majority of the disinterested members of the Borrower as being fair to the Borrower and its Restricted Subsidiaries.
For purposes of this Section 6.08, any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in the language preceding the proviso in this Section 6.08, if such transaction has been approved by the board of directors of the Borrower or Restricted Subsidiary of the Borrower, as applicable.
Section 6.09 Changes in Fiscal Periods. The Borrower will not change its fiscal year to end on a day other than December 31 or change its method of determining fiscal quarters without the Administrative Agents prior written consent (such consent not to be unreasonably withheld) and, in any event, no more than one (1) time while this Agreement is in effect.
Section 6.10 Restrictions on Amendments of Certain Documents.
(a) The Borrower will not, and will not permit any Restricted Subsidiary to, amend its organizational documents in a manner that is materially adverse to the Lenders.
(b) The Borrower will not, and will not permit any Restricted Subsidiary to, amend the terms of any Junior Debt in a manner that is materially adverse to the Lenders.
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Section 6.11 Asset Sales. The Borrower shall not, and shall not permit any Restricted Subsidiary to, consummate any Asset Sale, unless (i) at the time of such Asset Sale, no Event of Default pursuant to clauses (a), (b) or (g) of Section 7.01 has occurred and is continuing or would result from such Asset Sale, and (ii) at least 75% of the purchase price for such asset shall be paid to the Borrower or such Restricted Subsidiary in cash or Permitted Investments; provided that (1) any Designated Non-Cash Consideration received in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (1) from and after the Closing Date, not in excess of $250,000,000, with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed cash and (2) any liabilities or obligations that are assumed by the transferee in connection with such Disposition shall be deemed cash and any securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee or Affiliates in connection with such Asset Sale shall be deemed cash if the Borrower or the applicable Restricted Subsidiary intends at the time of receipt to convert such securities, notes or other obligations to cash within fifteen months of receipt thereof (with the proceeds thereof being cash proceeds upon any such conversion); provided, further, that any such Asset Sale shall be for Fair Market Value.
ARTICLE VII
Events of Default
Section 7.01 Events of Default. If any of the following events (Events of Default) shall have occurred and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five Business Days;
(c) any written representation or warranty, certification or statement made or deemed made by the Borrower or any other Loan Party in this Agreement or any other Loan Document or in any certificate furnished pursuant to this Agreement or any other Loan Document, shall prove to have been incorrect in any material respect when made or deemed made;
(d) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03 (with respect to the Borrowers existence) or 5.08 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document to which it is a party (other than those specified in clause (a), (b), (c) or (d) of this Section 7.01), and such failure shall continue unremedied for a period of 30 days after written notice thereof from the Administrative Agent to the Borrower;
(f) the Borrower or any Material Subsidiary shall fail to pay any principal of or premium or interest on any Debt, any obligations in respect of acceptances, letters of credit or other similar instruments, of the Borrower or such Material Subsidiary which is outstanding in a principal amount of at least $75,000,000 in the aggregate (but excluding Debt arising under this Agreement), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or
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other obligation; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt or other obligation and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Debt or other obligation; or any Debt or other such obligation in which the outstanding principal exceeds $75,000,000 shall be otherwise declared to be due and payable (by acceleration or otherwise) or required to be prepaid, redeemed, defeased or otherwise repurchased by the Borrower or any Material Subsidiary (other than by a regularly-scheduled required prepayment), or any offer to prepay, redeem, defease or purchase such Debt shall be required to be made, prior to the stated maturity thereof; or there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from any event of default under such Swap Contract as to which the Borrower or any Material Subsidiary is the Defaulting Party (as defined in such Swap Contract) and the Swap Termination Value owed by the Borrower or such Material Subsidiary as a result thereof is greater than $75,000,000;
(g) (i) the Borrower or any Material Subsidiary (A) shall generally not pay its debts as such debts become due, or (B) shall admit in writing its inability to pay its debts generally, or (C) shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against the Borrower or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the event of any such proceeding instituted against the Borrower or any Material Subsidiary (but not instituted by it), such proceeding shall remain undismissed or unstayed for a period of 60 days or shall result in the entry of an order for relief, the appointment of a trustee or receiver, or other action in such proceeding or result adverse to the Borrower or such Material Subsidiary, as applicable; (iii) the Borrower or any Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (g)(i)(B), (i)(C) or (ii);
(h) one or more final judgments or orders for the payment of money, in an aggregate amount exceeding $75,000,000 at any one time outstanding (exclusive of judgment amounts fully covered by insurance, to the extent the insurer has not denied in writing liability in respect thereof), shall be rendered against the Borrower or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) such judgments or orders shall not be discharged (or provision shall not have been made for such discharge), a stay of execution thereof shall not be obtained, or such judgments or orders shall not be paid or bonded, within 60 days from the date of entry thereof, and the Borrower or such Material Subsidiary, as the case may be, shall not, within such 60-day period, appeal therefrom and cause the execution thereof to be stayed pending such appeal;
(i) (i) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC that would reasonably be expected to have a Material Adverse Effect, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any payment or payments with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Borrower in an aggregate amount in excess of $75,000,000;
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(j) any Collateral Document after delivery thereof including pursuant to Section 5.09 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (in the case of Mortgaged Property, subject to Permitted Encumbrances and in the case of all other Collateral, subject to Permitted Liens) on the Collateral purported to be covered thereby; provided that it shall not be an Event of Default under this clause (j) if the Administrative Agent shall not have, or shall cease to have, a valid and perfected first priority Lien (subject to Permitted Liens) on Collateral purported to be covered thereby that has a fair market value, individually or in the aggregate, of less than $20,000,000;
(k) this Agreement or the Guarantee Agreement, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Borrower or any Loan Party contests the validity or enforceability of any material provision of this Agreement or the Guarantee Agreement; or the Borrower or any Loan Party denies that it has any or further liability or obligation under any material provision of this Agreement (with respect to the Borrower) or the Guarantee Agreement (with respect to any other Loan Party), or purports to revoke, terminate or rescind any material provision of this Agreement or the Guarantee Agreement; or
(l) a Change of Control shall occur;
then, and in every such event (other than an event with respect to the Borrower described in clause (g) of this Section 7.01), and at any time thereafter during the continuance of such event, the Administrative Agent, at the request of the Required Lenders, shall, by notice to the Borrower, declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable during the continuation of such event) by the Borrower, and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind (other than notice from the Administrative Agent), all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (g) of this Section 7.01, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Section 8.01 Appointment and Authorization. Each of the Lenders hereby irrevocably appoints Bank of America, 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 and of the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto (including, for the avoidance of doubt, exercising any discretion under Section 5.14 or otherwise). In this connection, the Administrative Agent, as collateral agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section
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8.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article VIII and Article IX (including Section 9.04, as though such co-agents, sub-agents and attorneys-in-fact were the collateral agent under the Loan Documents) as if set forth in full herein with respect thereto.
Section 8.02 Administrative Agent and Affiliates. The bank 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 such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Restricted Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
Section 8.03 Action by Administrative Agent. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the 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 necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 9.02) or otherwise, in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered under or in connection with this Agreement or any other Loan Document, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or in any other Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the other Loan Documents or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien purported to be created by the Collateral Documents or the value or sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article IV or elsewhere herein or in any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Without limiting the generality of the foregoing, the use of the term contractual representative or agent (or similar term) in this Agreement or any other Loan Document with reference to Bank of America, as Administrative Agent, is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender.
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Section 8.04 Consultation with Experts. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), 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.
Section 8.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers 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 through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. 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 non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct with respect to the actions of such sub-agents or their selection.
Section 8.06 Successor Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders 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, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 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, appoint a successor Administrative Agent meeting the qualifications set forth above, provided that in no event shall any such successor Administrative Agent be a Defaulting Lender or Disqualified Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the Removal Effective Date), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.
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(c) With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then 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 directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 9.06 and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the 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 or removed Administrative Agents resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 9.04 shall continue in effect for the benefit of such retiring or removed 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 (i) while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including (a) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (b) in respect of any actions taken in connection with transferring the agency to any successor Administrative Agent.
Section 8.07 Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the 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 Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document, any related agreement or any document furnished hereunder or thereunder.
Section 8.08 Lead Arrangers; Co-Syndication Agents; Co-Documentation Agents. Notwithstanding anything to the contrary herein, none of the Lead Arrangers, the Co-Syndication Agents or Co-Documentation Agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, if applicable, as the Administrative Agent or a Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Lead Arrangers, the Co-Syndication Agents or the Co-Documentation Agents in deciding to enter into this Agreement or any other Loan Document or in taking or not taking any action hereunder or thereunder.
Section 8.09 Tax Indemnification by the Lenders. To the extent required by any applicable Requirements of Law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 2.13, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, all Taxes and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from any amounts paid to or for the account of such Lender for any reason
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(including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective), whether or not such Taxes are correctly or legally asserted. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 8.09. The agreements in this Section 8.09 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all other Obligations.
Section 8.10 Administrative Agent May File Proofs of Claim; Credit Bidding. 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 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
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under this Agreement) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under this Agreement.
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 any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender or in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, or (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to
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the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof, shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), and (iii) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
Section 8.11 ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using plan assets (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lenders entrance into, participation in, administration of and performance of the Loans or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lenders entrance into, participation in, administration of and performance of the Loans and this Agreement,
(iii) (A) such Lender is an investment fund managed by a Qualified Professional Asset Manager (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans 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 Lenders entrance into, participation in, administration of and performance of the Loans and this Agreement, or
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(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent or the Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender involved in such Lenders entrance into, participation in, administration of and performance of the Loans 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).
ARTICLE IX
Miscellaneous
Section 9.01 Notices.
(a) Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Borrower or the Administrative Agent, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 9.01; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging, 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 pursuant to Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may each, 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.
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Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the senders 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), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrowers, any Loan Partys or the Administrative Agents transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Each of the Borrower and the Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower and the Administrative Agent. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the Private Side Information or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lenders compliance procedures and Requirements of Law, including United States Federal and state securities Requirements of Law, to make reference to Borrower Materials that are not made available through the Public Side Information portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
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(e) The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic notices and Committed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
Section 9.02 Waivers; Amendments.
(a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended, amended and restated or modified except as provided in Sections 2.02, 2.17 and 2.18 or pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders and acknowledged by the Administrative Agent or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce or forgive the principal amount of any Loan or reduce (subject to Section 2.10(b)) or forgive the rate of interest thereon, or reduce or forgive any fees payable hereunder, without the written consent of each Lender directly affected thereby (it being understood that the waiver of (or amendment to the terms of) any obligation to pay amounts pursuant to Section 2.09(c) or a defined term related thereto shall not constitute a reduction or forgiveness of principal, interest or fees), (iii) postpone the scheduled date of payment of the principal amount of any Loan, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly affected thereby, (iv) except as provided in Section 9.15, release all or substantially all of the Collateral securing the Obligations or all or substantially all of the value of the Guarantees provided by the Guarantors taken as a whole without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of Required Lenders or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; provided that such provisions may be amended or amended and restated pursuant to the establishment of Incremental Term Loans pursuant to Section 2.02, Extended Term Loans pursuant to Section 2.17 or Refinancing Term Loans pursuant to Section 2.18, in each case, in order to restrict affiliated lenders and other persons from being included in such definitions, (vi) change any of the provisions of Section 2.14 that would alter the waterfall or pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby or (vii) subordinate the Obligations or, except as expressly permitted hereunder, the Liens securing the Obligations without the written consent of each Lender directly affected hereby; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent.
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(c) Notwithstanding the foregoing, technical and conforming modifications to the Loan Documents may be made (including by amendment and restatement) with the consent of the Borrower and the Administrative Agent (but without the consent of any Lender) to the extent necessary (A) to effectuate any Incremental Facilities, Refinancing Term Loans or Extended Term Loans in a manner consistent with Sections 2.02, 2.17 and 2.18 and as may be necessary to establish such Incremental Facilities, Refinancing Term Loans or Extended Term Loans as a separate Class or tranche from any existing Term Loans and, in the case of Extended Term Loans, to reduce the amortization schedule of the related existing Class of Term Loans proportionately, (B) to effectuate a transaction permitted pursuant to the second paragraph of the definition of Change of Control, (C) to implement a LIBOR Successor Rate and any LIBOR Successor Rate Conforming Changes in accordance with Section 2.10(b), (D) to incorporate terms favorable to the Lenders in accordance with Section 2.02 or (E) to cure any ambiguity, omission, error, defect or inconsistency and, in each case under this clause (E), such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within ten Business Days following receipt of notice thereof.
Section 9.03 Enforcement. Notwithstanding anything to the contrary contained herein or in any other Loan Document (but subject to the terms of the ABL Intercreditor Agreement), the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.01 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 9.09 (subject to the terms of Section 2.14 and the ABL Intercreditor Agreement), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) subject to the ABL Intercreditor Agreement, the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 7.01 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to the ABL Intercreditor Agreement and Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Section 9.04 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable, documented, out-of-pocket expenses incurred by the Administrative Agent and its Related Parties (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, restatements, modifications or waivers (or any proposed amendments, restatements, modifications or waivers) of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable, documented, out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender) 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 hereunder, including all such reasonable, documented, out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans.
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(b) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof) and each Lender, each Lead Arranger 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 reasonable, documented, out-of-pocket related expenses (including the reasonable, documented fees, charges and disbursements of (A) one primary counsel for all Indemnitees in any one action and (B) one local counsel in each applicable jurisdiction unless, in each case, in the reasonable opinion of such counsel representation of all Indemnitees would be inappropriate due to the existence of an actual or potential conflict of interest) that may be incurred by any Indemnitee or asserted against any Indemnitee by any third party or by 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 hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by a Borrower or any of its Subsidiaries, or any Environmental Actions related in any way to a Borrower 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 or by any such persons directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties or (y) result from a claim brought by the Borrower against an Indemnitee for breach in bad faith or a material breach of such Indemnitees obligations hereunder or under any other Loan Document, if such Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(c) To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by the Borrower to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, such Lenders Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) 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) in connection with such capacity.
(d) To the fullest extent permitted by applicable law, the parties shall not assert, and each hereby waives, any claim against any Indemnitee, the Borrower or any of its Subsidiaries, 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,
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any Loan or the use of the proceeds thereof; provided that the foregoing shall not in any way limit the indemnification obligations of the Borrower pursuant to clause (b) above to the extent that such special, indirect, consequential or punitive damages are included in any claim by a third party unaffiliated with the applicable Indemnitee with respect to which the applicable Indemnitee is entitled to indemnification pursuant to clause (b) above. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee or any of its Related Parties as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
Section 9.05 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. 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 (c) 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.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees (assignee or assignees) all or a portion of its rights and obligations under this Agreement (including all or a portion of the Loans at the time owing to it) with the prior written consent of:
(A) the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided that no consent of the Borrower shall be required for an assignment (i) of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (ii) if an Event of Default pursuant to Section 7.01(a), (b) or (g) has occurred and is continuing, any other assignee; provided, further, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice of the proposed assignment; and
(B) the Administrative Agent (such consent not to be unreasonably withheld or delayed), provided that no consent of the Administrative Agent shall be required for an assignment of any Term Loan to an assignee that is a Lender, an Affiliate of a Lender or an Approved Fund.
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(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lenders Loans of any Class, the amount 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) shall not be less than $1,000,000, unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default under clause (a), (b) or (g) of Section 7.01 has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders rights and obligations under this Agreement;
(C) 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 (unless waived by the Administrative Agent in its sole discretion);
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire;
(E) the assignee shall not be (i) the Borrower or any of the Borrowers Affiliates except in accordance with Section 2.19 and clause (e) below or (ii) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person); and
(F) no Ineligible Institution shall constitute a permitted assignee under this Agreement.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto 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 Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.11, 2.12, 2.13 and 9.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.05 shall be subject to clause (f) below.
(iv) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices 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 amount (and related 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, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender (with respect to such Lenders own interests only), at any reasonable time and from time to time upon reasonable prior notice.
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(v) Upon its receipt of a duly completed Assignment and Assumption with respect to a permitted assignment executed by an assigning Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section (unless waived), and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks, institutions or other entities (a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of the Loans owing to it); provided that (A) such Lenders obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenders rights and/or obligations under this Agreement and the other Loan Documents. 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 the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; 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 the first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.12 and 2.13 (subject to the requirements and limitations of such Sections and Section 2.15); provided that any documentation required to be provided pursuant to Section 2.13(e) shall be provided solely 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. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant shall be subject to Section 2.14(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest) of each Participants interest in the Loans or other obligations under the Loan Documents (the Participant Register); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participants interest in any Loans or other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary in connection with a Tax audit or other proceeding or other governmental inquiry to establish that such Loans or other obligations are 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 the parties hereto 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.
(ii) A Participant shall not be entitled to receive any greater payment under Section 2.11 or 2.13 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law after the Participant becomes a Participant.
(d) 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 without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other applicable central bank that governs or regulates the activities of such Lender, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
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(e) Any Lender may, so long as no Default or Event of Default has occurred and is continuing, at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to the Borrower or one of its Subsidiaries through (x) Dutch auctions open to all Lenders on a pro rata basis in accordance with procedures of the type described in Section 2.19 or (y) notwithstanding any other provision in this Agreement, open market purchase on a non-pro rata basis; provided that in connection with assignments pursuant to clauses (x) and (y) above:
(i) if a Subsidiary is the assignee, upon such assignment, transfer or contribution, such Subsidiary shall automatically be deemed to have contributed the principal amount of such Term Loans, plus all accrued and unpaid interest thereon, to the Borrower; or
(ii) if the assignee is the Borrower (including through contribution or transfers set forth in clause (i) above), (A) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (B) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower and (C) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register;
(iii) no such purchase shall be funded with a drawing under the ABL Credit Agreement;
(iv) all parties to the relevant transactions shall render customary big-boy disclaimer letters; and
(v) at the time any the Borrower or any of its Subsidiaries is making purchases of Term Loans it shall enter into an assignment and assumption agreement reasonably satisfactory to the Administrative Agent documenting the foregoing;
(f) (i) No assignment or, to the extent the DQ List has been posted on the Platform for all Lenders, participation, shall be made to any Person that was a Disqualified Lender as of the date (the Trade Date) on which the applicable Lender entered into a binding agreement to sell and assign or participate all or a portion of its rights and/or obligations under this Agreement to such Person (unless the Borrower has consented to such assignment as otherwise contemplated by this Section 9.05, in which case such Person will not be considered a Disqualified Institution for the purpose of such assignment). For the avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Lender after the applicable Trade Date, (x) such assignee shall not retroactively be disqualified from becoming a Lender or participant and (y) the execution by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Lender. Any assignment in violation of this clause (f)(i) shall not be void, but the other provisions of this clause (f) shall apply.
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(ii) If any assignment is made to any Disqualified Lender without the Borrowers prior consent in violation of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) in the case of outstanding Term Loans held by Disqualified Lenders, prepay such Term Loan by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents and/or (B) require such Disqualified Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interest, rights and obligations under this Agreement and related Loan Documents to another assignee that shall assume such obligations at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and the other Loan Documents; provided that (i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in clause (b)(ii)(C) of this Section 9.05, and (ii) such assignment does not conflict with applicable laws.
(iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Lenders (A) will not (x) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter, and (y) for purposes of voting on any Plan of Reorganization, each Disqualified Lender party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2) if such Disqualified Lender does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be designated pursuant to Section 1126(e) of the Bankruptcy Code of the United States (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy Code of the United States (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by an applicable court of competent jurisdiction effectuating the foregoing clause (2).
(iv) The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Lenders provided by the Borrower and any updates thereto from time to time (collectively, the DQ List) on the Platform, including that portion of the Platform that is designated for public side Lenders or (B) provide the DQ List to each Lender requesting the same.
Section 9.06 Survival. All covenants, agreements, representations and warranties made by any Loan Parties herein, in the other Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or the other Loan Documents shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the other Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as
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the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid. The provisions of Sections 2.11, 2.12, 2.13 and 9.04 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments, any assignment of rights by or replacement of a Lender or the termination of this Agreement or any provision hereof.
Section 9.07 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent or the Lead Arranger 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. This Agreement shall become effective as provided in Section 4.01, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by email or telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 9.08 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 9.09 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Each Lender agrees to notify 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 9.10 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby (including any power of attorney set forth in the Loan Documents) and thereby shall be governed by and construed in accordance with the law of the State of New York.
(b) The Borrower and each other Loan Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York sitting in New York County, and any appellate court from any thereof, and each of the parties hereto irrevocably
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and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against the Borrower or any other Loan Party or their respective properties in the courts of any jurisdiction.
(c) The Borrower and each other Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, 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 the other Loan Documents in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
Section 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED TO IT, 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 AND THE OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.13 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or under thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors)
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to any swap or derivative transaction relating to the Borrower and its obligations (it being understood that the DQ List may be disclosed to any assignee or Participant, or prospective assignee or Participant), (g) with the consent of the Borrower, (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or an agreement described in clause (f) hereof or (ii) becomes available to the Administrative Agent or any Lender on a non-confidential basis from a source other than the Borrower, (i) on a confidential basis to (x) any rating agency in connection with rating the Borrower or any of its subsidiaries or the Loans hereunder, (y) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the facilities or (z) market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent in connection with the administration and management of this Agreement and the other Loan Documents or (j) subject to an agreement containing provisions substantially the same as those of this Section, to any Person to whom or for whose benefit that such Lender pledges or assigns a security interest pursuant to Section 9.05(d). For purposes of this Section, Information means all information received from the Borrower or its Affiliates relating to the Borrower, its subsidiaries or their businesses, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Borrower or its Affiliates and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. 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 reasonably accord to its own confidential information.
Subject to Section 9.18, each Lender acknowledges that information furnished to it pursuant to this Agreement or the other Loan Documents may include material non-public information concerning the Borrower and its Affiliates and their related parties or their respective securities, and confirms that it has developed compliance procedures regarding the use of material non-public information and that it will handle such material non-public information in accordance with those procedures and applicable law, including Federal and state securities laws.
Subject to Section 9.18, all information, including requests for waivers and amendments, furnished by the Borrower or the Administrative Agent pursuant to, or in the course of administering, this Agreement or the other Loan Documents will be syndicate level information, which may contain material non-public information about the Borrower and its Affiliates and their related parties or their respective securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that it has identified in its administrative questionnaire a credit contact who may receive information that may contain material non-public information in accordance with its compliance procedures and applicable law, including Federal and state securities laws.
Section 9.14 USA PATRIOT Act. Each Lender subject to the Act hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the Act), it is hereby 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 to identify the Borrower in accordance with the Act.
Section 9.15 Collateral and Guarantee Matters.
(a) The Lenders irrevocably authorize the Administrative Agent to enter into the ABL Intercreditor Agreement and any other customary intercreditor agreement or arrangement in form and substance reasonably satisfactory to the Administrative Agent with the holders of any Debt secured by Liens on the Collateral (or any agent thereof) permitted under this Agreement that in the good faith determination of the Administrative Agent is necessary to effectuate the incurrence of such Debt.
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(b) Any Lien on any property granted to or held by the Administrative Agent under any Loan Document shall, subject to the provisions of the ABL Intercreditor Agreement, automatically be released, and each of the Lenders irrevocably authorizes the Administrative Agent to take any action to release any such Lien on or to file any UCC-3 amendment related to any property granted to or held by the Administrative Agent under any Loan Document: (i) upon termination of the Commitments and payment in full of all Obligations (other than contingent indemnification obligations), (ii) that is sold, transferred or conveyed to a Person that is not a Loan Party (and in the case of Equity Interests of first tier Foreign Subsidiaries, to a Person that is not a Loan Party or a Specified Pledgor) as part of or in connection with any sale, transfer or conveyance permitted hereunder or under any other Loan Document, (iii) that is or becomes Excluded Property or is not and is not required to be collateral to secure the Obligations, (iv) if approved, authorized or ratified in writing in accordance with Section 9.02, (v) that is owned by a Subsidiary Guarantor upon (or substantially simultaneously with) release of such Subsidiary Guarantor from its obligations under the Guarantee Agreement pursuant to clause (c) below or (vi) as expressly provided in the ABL Intercreditor Agreement.
(c) Any Subsidiary Guarantor shall, subject to the provisions of the ABL Intercreditor Agreement, automatically be released from its obligations under the Guarantee Agreement, and each of the Lenders irrevocably authorizes the Administrative Agent to take any action to release any such Subsidiary Guarantor from its obligations under the Guarantee Agreement, if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder.
(d) Each of the Lenders irrevocably authorizes the Administrative Agent, upon request of the Borrower or any Subsidiary Guarantor, to subordinate (or release, in the case of Liens permitted under Section 6.05(d) or Section 6.05(s)) any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted (i) to exist or to be incurred pursuant to Section 6.05(d), Section 6.05(s) or Section 6.05(v) or (ii) to be superior to the Lien of the applicable Collateral Documents by Section 6.05.
(e) Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agents authority to release or subordinate its interest in particular types or items of property, release any Subsidiary Guarantor from its obligations under the Guarantee Agreement, or enter into an intercreditor agreement pursuant to this Section 9.15. In each case as specified in this Section 9.15, the Administrative Agent will, at the Loan Parties expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release or subordination of such item of Collateral from the assignment and security interest granted under the Collateral Documents, or to release such Subsidiary Guarantor from its obligations under the Guarantee Agreement, in each case in accordance with the terms of the Loan Documents and this Section 9.15, subject to receipt by the Administrative Agent at its reasonable request of a certificate of an authorized officer of the Borrower certifying that such transaction and release or subordination are permitted under this Agreement and the other Loan Documents.
(f) 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 Agents 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 for any failure to monitor or maintain any portion of the Collateral.
Section 9.16 No Advisory or Fiduciary Relationship. In connection with all aspects of each transaction contemplated hereby, the Borrower acknowledges and agrees for itself and on behalf of the Loan Parties that (i) the Loans provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof
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or of any other Loan Document) are an arms-length commercial transaction between the Loan Parties, on the one hand, and the Agent Parties and the Lenders, on the other hand, and the Loan Parties are capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof); (ii) in connection with the process leading to such transaction, each of the Agent Parties and the Lenders is and has been acting solely as a principal and is not the agent or fiduciary for the Loan Parties; (iii) the Lead Arrangers, Agent Parties and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Lead Arrangers or the Agent Parties has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (iv) the Agent Parties and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.
Section 9.17 Platform; Borrower Materials. The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, Borrower Materials) by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system (the Platform) and (b) certain of the Lenders (each a Public Lender) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.13); (y) all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated as Public Side Information; and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform that is not marked as Public Side Information. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials PUBLIC.
Section 9.18 Electronic Execution of Assignments and Certain Other Documents. The words execution, execute, signed, signature, and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other loan notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
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Section 9.19 Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Solely to the extent any Lender that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or Issuing Bank that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(A) a reduction in full or in part or cancellation of any such liability;
(B) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(C) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
Section 9.20 California Judicial Reference. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a provisional remedy as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 9.04, the Borrower shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.
Section 9.21 ABL Intercreditor Agreement.
(a) EACH LENDER PARTY HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT (AND EACH OF ITS SUCCESSORS AND ASSIGNS) AND EACH OTHER LENDER (AND EACH OF THEIR SUCCESSORS AND ASSIGNS) SHALL BE BOUND BY THE ABL INTERCREDITOR AGREEMENT, WHICH IN CERTAIN CIRCUMSTANCES MAY REQUIRE (AS MORE FULLY PROVIDED THEREIN) THE TAKING OF CERTAIN ACTIONS BY THE LENDERS.
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(b) THE PROVISIONS OF THIS SECTION 9.21 ARE NOT INTENDED TO SUMMARIZE OR FULLY DESCRIBE THE PROVISIONS OF THE ABL INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE ABL INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE ABL INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT OR ANY OF AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE ABL INTERCREDITOR AGREEMENT. A COPY OF THE ABL INTERCREDITOR AGREEMENT MAY BE OBTAINED FROM THE ADMINISTRATIVE AGENT.
[Remainder of page intentionally left blank.]
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WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the day and year first written above.
R. R. DONNELLEY & SONS COMPANY
| ||
By: | /s/ Terry Peterson | |
Name: Terry Peterson | ||
Title: Executive Vice President and | ||
Chief Financial Officer |
[Signature Page to Credit Agreement]
BANK OF AMERICA, N.A., | ||
as Administrative Agent
| ||
By: | /s/ Vikas Singh | |
Name: Vikas Singh | ||
Title: Director
| ||
BANK OF AMERICA, N.A., as a Lender
| ||
By: | /s/ Vikas Singh | |
Name: Vikas Singh | ||
Title: Director |
[Signature Page to Credit Agreement]
EXHIBIT A
FORM OF
ASSIGNMENT AND ASSUMPTION
Reference is made to the Credit Agreement, dated as of October 15, 2018, (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the Credit Agreement), among R.R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the Lenders party thereto, Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the Administrative Agent) and the other parties thereto. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[The][Each] Assignor identified on Schedule 1 hereto ([the][each, an] Assignor) and [the][each] Assignee identified on Schedule 1 hereto ([the][each, an] Assignee) agree as follows:
1. [The][Each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], without recourse to [the][each] Assignor, and [the][each] Assignee hereby irrevocably purchases and assumes from such Assignor, without recourse to [the][such] Assignor, as of the Effective Date (as defined below), the interest described in Schedule 1 hereto (the Assigned Interest), in and to [the][such] Assignors rights and obligations under the Credit Agreement with respect to those credit facilities contained in the Credit Agreement as are set forth on Schedule 1 hereto (individually, an Assigned Facility; collectively, the Assigned Facilities), in a principal amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. [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] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it has reviewed the list of Disqualified Lenders and the Assignee is not a Disqualified 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.
3. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under the terms of the Credit Agreement (subject to such consents, if any, as may be required under the terms of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and the other Loan Documents as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] 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 the terms of the
Credit Agreement, 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] Assigned Interest, (vi) it has, independently and without reliance upon the 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] Assigned Interest, (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee and (viii) it has reviewed the list of Disqualified Lenders and the Assignee is not a Disqualified Lender or an Affiliate of a Disqualified Lender; and (b) agrees that (i) it will, independently and without reliance upon eithe Administrative Agent, [the][any] Assignor or 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 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.
4. ERISA. (a) [The][Each] Assignee (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases being a Lender party to the Credit Agreement, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i) [the][such] Assignee is not using plan assets (within the meaning of Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to [the][such] Assignees entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and acquisition and holding of the Assigned Interest,
(iii) (A) [the][such] Assignee is an investment fund managed by a Qualified Professional Asset Manager (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of [the][such] Assignee to enter into, participate in, administer and perform the Loans, the Commitments and the Credit Agreement and acquire and hold the Assigned Interest, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and the acquisition and holding of the Assigned Interest satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of [the][such] Assignee, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to [the][such] Assignees entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and acquisition and holding of the Assigned Interest, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and [the][such] Assignee.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to [the][an] Assignee or [the][such] Assignee has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), [the][such] Assignee further (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases being a Lender party to the Credit Agreement, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that none of the Administrative Agent and its Affiliates is a fiduciary with respect to the assets of [the][such] Assignee (including in connection with the reservation or exercise of any rights by the Administrative Agent under the Credit Agreement, any Loan Document or any documents related to thereto).
(c) The Administrative Agent hereby informs [the][each] Assignee that it is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby or by the Credit Agreement, and that it has a financial interest in the transactions contemplated hereby or by the Credit Agreement in that it or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and the Credit Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by [the][such] Assignee or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankers acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
For the purposes of this Section 4, the following terms shall have the following meanings:
Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA) that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such employee benefit plan or plan.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
PTE means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
5. The effective date of this Assignment and Assumption shall be the Effective Date of Assignment described in Schedule 1 hereto (the Effective Date). Following the execution of this Assignment and Assumption, it will be delivered to the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by the Administrative Agent).
6. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall make all payments in respect of each Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][each] Assignor for amounts which have accrued to the Effective Date and to the Assignee for amounts which have accrued subsequent to the Effective Date or accrue subsequent to the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this Assignment and Assumption directly between themselves.
7. From and after the Effective Date, (a) [the][each] Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Assumption, have the rights and obligations of a Lender thereunder and shall be bound by the provisions hereof and (b) [the][each] Assignor shall, to the extent provided in this Assignment and Assumption, relinquish its rights and be released from its obligations under the Credit Agreement (but shall continue to be entitled to the benefits of Sections 2.11, 2.12, 2.13 and 9.04 with respect to facts and circumstances prior to the Effective Date).
8. This Assignment and Assumption shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and Assumption to be executed as of the date first above written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Assumption with respect to
the Credit Agreement, dated as of October 15, 2018,
among R.R. Donnelley & Sons Company (the Borrower),
the Lenders party thereto, Bank of America, N.A., as Administrative Agent,
and the other parties thereto
Name of Assignor[s]:
Name of Assignee[s]:
Effective Date of Assignment:
Credit Facility Assigned |
Principal |
| ||
Term B Facility | $____________ | _______.________% |
[Name of Assignee] | [Name of Assignor] | |||||||
By: |
|
By: |
| |||||
Name: | Name: | |||||||
Title: | Title: | |||||||
[Consented to and]2 Accepted for recordation in the Register: | ||||||||
Bank of America, N.A., as Administrative Agent | ||||||||
By: |
|
|||||||
Name: | ||||||||
Title: |
1 | Percentage of all Loans of all Lenders thereunder, carried out to the ninth decimal place. |
2 | Signature block to be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
[Consented to:]3 | ||
R.R. DONNELLEY & SONS COMPANY | ||
By: |
| |
Name: | ||
Title: |
3 | Signature block to be added only if the consent of the Borrower is required by the terms of the Credit Agreement. |
EXHIBIT B
FORM OF
BORROWER PURCHASING PARTY ASSIGNMENT
Reference is made to the Credit Agreement, dated as of October 15, 2018, (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the Credit Agreement), among R.R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the Lenders party thereto, Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the Administrative Agent) and the other parties thereto. Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[The][Each] Assignor identified on Schedule 1 hereto ([the][each, an] Assignor) and [the][each] Assignee identified on Schedule 1 hereto ([the][each, an] Assignee) agree as follows:
1. [The][Each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees[, without recourse to [the][such] Assignor, and [the][each] Assignee hereby irrevocably purchases and assumes from [the][such] Assignor, without recourse to [the][such] Assignor, as of the Effective Date (as defined below), the interest described in Schedule 1 hereto (the Assigned Interest), in and to the Assignors rights and obligations under the Credit Agreement with respect to those credit facilities contained in the Credit Agreement as are set forth on Schedule 1 hereto (individually, an Assigned Facility; collectively, the Assigned Facilities), in a principal amount for each Assigned Facility as set forth on Schedule 1 hereto.
2. [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] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (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 (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.
3. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) no Default or Event of Default has occurred or is continuing, and (iii) the purchase of the Assigned Facilities is not being funded with a drawing under the ABL Credit Agreement; and (b) agrees that [(i) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (ii) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower and (iii) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register]4[(i) it shall automatically be deemed to have contributed the
4 | To be used if Assignee is the Borrower. |
principal amount of such Term Loans, along with all accrued and unpaid interest thereon, to the Borrower, (ii) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (iii) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower and (iv) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register]5.
4. ERISA. (a) [The][Each] Assignee (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective Date to the date such Person ceases being a Lender party to the Credit Agreement, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i) [the][such] Assignee is not using plan assets (within the meaning of Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to [the][such] Assignees entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and acquisition and holding of the Assigned Interest,
(iii) (A) [the][such] Assignee is an investment fund managed by a Qualified Professional Asset Manager (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of [the][such] Assignee to enter into, participate in, administer and perform the Loans, the Commitments and the Credit Agreement and acquire and hold the Assigned Interest, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and the acquisition and holding of the Assigned Interest satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of [the][such] Assignee, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to [the][such] Assignees entrance into, participation in, administration of and performance of the Loans, the Commitments and the Credit Agreement and acquisition and holding of the Assigned Interest, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and [the][such] Assignee.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to [the][an] Assignee or [the][such] Assignee has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), [the][such] Assignee further (x) represents and warrants, as of the Effective Date, to, and (y) covenants, from the Effective
5 | To be used if Assignee is a Subsidiary of the Borrower. |
Date to the date such Person ceases being a Lender party to the Credit Agreement, for the benefit of, the Administrative Agent, the Lead Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrowers or any other Loan Party, that none of the Administrative Agent, the Lead Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of [the][such] Assignee (including in connection with the reservation or exercise of any rights by the Administrative Agent under the Credit Agreement, any Loan Document or any documents related to thereto).
(c) The Administrative Agent hereby informs [the][each] Assignee that it is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby or by the Credit Agreement, and that it has a financial interest in the transactions contemplated hereby or by the Credit Agreement in that it or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and the Credit Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by [the][such] Assignee or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankers acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
For the purposes of this Section 4, the following terms shall have the following meanings:
Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA) that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Internal Revenue Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the assets of any such employee benefit plan or plan.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
PTE means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
5. The effective date of this Assignment and Assumption shall be the Effective Date of Assignment described in Schedule 1 hereto (the Effective Date). Following the execution of this Borrower Purchasing Party Assignment, it will be delivered to the Administrative Agent for acceptance by it and recording by the Administrative Agent pursuant to the Credit Agreement, effective as of the Effective Date (which shall not, unless otherwise agreed to by the Administrative Agent, be earlier than five Business Days after the date of such acceptance and recording by the Administrative Agent).
6. Upon such acceptance and recording, from and after the Effective Date, the Administrative Agent shall reflect the cancellation of the applicable Term Loans in the Register.
7. This Borrower Purchasing Party Assignment shall be governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Borrower Purchasing Party Assignment to be executed as of the date first above written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Borrower Purchasing Party Assignment with respect to
the Credit Agreement, dated as of October 15, 2018,
among R.R. Donnelley & Sons Company (the Borrower),
the Lenders party thereto, Bank of America, N.A., as Administrative Agent,
and the other parties thereto
Name of Assignor[s]:
Name of Assignee[s]:
Effective Date of Assignment:
Credit Facility Assigned |
Principal |
Commitment Percentage Assigned6 | ||
Term B Facility | $____________ | _______.________% |
[Name of Assignee] | [Name of Assignor] | |||||||
By: |
|
By: |
| |||||
Name: | Name: | |||||||
Title: | Title: | |||||||
Accepted for recordation in the Register: | ||||||||
Bank of America, N.A., as Administrative Agent | ||||||||
By: |
|
|||||||
Name: | ||||||||
Title: |
6 | Percentage of all Loans of all Lenders thereunder, carried out to the ninth decimal place. |
[Consented to:]7 R.R. DONNELLEY & SONS COMPANY | ||
By: |
| |
Name: | ||
Title: |
7 | Signature block to be added if Assignee is a Subsidiary. |
EXHIBIT C
[SEE ATTACHED]
FORM OF GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of October 15, 2018, made by each of the signatories hereto (together with any other entity that may become a party hereto as provided herein, the Guarantors), in favor of Bank of America, N.A., as administrative agent (in such capacity, the Administrative Agent) for the Secured Parties in connection with the Credit Agreement, dated as of the date hereof (as amended, supplemented or otherwise modified from time to time, the Credit Agreement), among R. R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the banks and other financial institutions or entities parties thereto as Lenders (the Lenders), the Administrative Agent, and certain other parties.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;
WHEREAS, each Guarantor will derive substantial direct and indirect benefit from the making or maintaining of the extensions of credit under the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement that the Guarantors shall have executed and delivered this Agreement to the Administrative Agent for the benefit of the Secured Parties.
NOW, THEREFORE in consideration of the premises and to induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to induce the Lenders to make their respective Loans to the Borrower, each Guarantor hereby agrees with the Administrative Agent, for the benefit of the Secured Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions.
(a) Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
Agreement: this Guarantee Agreement, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
Funding Office: the office of the Administrative Agent specified in Section 4.2 or such other office as may be specified from time to time by the Administrative Agent as its funding office by written notice to the Borrower and the Lenders.
Termination Date: the date when all Obligations (other than contingent obligations not yet accrued and payable) have been paid in full.
1.2 Other Definitional Provisions. The rules of construction and other interpretive provisions specified in Section 1.03, Section 1.04, Section 1.05, Section 1.06 and Section 1.07 of the Credit Agreement shall apply to this Agreement, including terms defined in the preamble and recitals hereto.
SECTION 2. GUARANTEE
2.1 Guarantee.
(a) Each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable foreign, federal and state bankruptcy, insolvency or receivership laws, any applicable law relating to fraudulent conveyance or fraudulent transfer or any similar foreign, federal or state law to the extent applicable to this guarantee and each Guarantors obligations hereunder (after giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time and from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the guarantee contained in this Section 2 or affecting the rights and remedies of the Administrative Agent.
(d) The guarantee contained in this Section 2 shall remain in full force and effect until the Termination Date.
(e) No payment made by the Borrower, any of the Guarantors, any other guarantor or any other Person or received or collected by the Administrative Agent or any Secured Party from the Borrower, any of the Guarantors, any other guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Obligations or any payment received or collected from such Guarantor in respect of the Obligations), remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Termination Date.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment. Each Guarantors right of contribution shall be subject to the terms and conditions of Section 2.3. The provisions of this Section 2.2 shall in no respect limit the obligations and liabilities of any Guarantor to the Administrative Agent and the Secured Parties, and each Guarantor shall remain liable to the Administrative Agent and the Secured Parties for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor hereunder or any set-off or application of funds of any Guarantor by the Administrative Agent or any Secured Party, no Guarantor shall be entitled to be subrogated to any of the rights of the Administrative Agent or any Secured Party against the Borrower or any other Guarantor or any collateral security or guarantee or right of offset held by the Administrative Agent or any Secured Party for the payment of the Obligations, nor shall any Guarantor seek or be entitled to seek any contribution or reimbursement from the Borrower or any other Guarantor in respect of payments made by such Guarantor hereunder, until the Termination Date. If any amount shall be paid to any Guarantor on account of such subrogation rights at any time prior to the Termination Date, such amount shall be held by such Guarantor in trust for the Administrative Agent, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent, if required), to be applied against the Obligations, whether matured or unmatured, in accordance with Section 2.14(c) of the Credit Agreement.
2.4 Amendments, etc. with Respect to the Obligations. Each Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against any Guarantor and without notice to or further assent by any Guarantor, any demand for payment of any of the Obligations made by the Administrative Agent may be rescinded by the Administrative Agent and any of the Obligations continued, and the Obligations, or the liability of any other Person upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Administrative Agent, and the Credit Agreement and the other Loan Documents and any other documents executed and delivered in connection therewith may be amended, amended and restated, modified, supplemented or terminated, in whole or in part, as the Administrative Agent, the Required Lenders or the Lenders, as the case may be, may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Administrative Agent for the payment of the Obligations may be sold, exchanged, waived, surrendered or released.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Administrative Agent or any Secured Party upon the guarantee contained in this Section 2 or acceptance of the guarantee contained in this Section 2; the Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in this Section 2; and all dealings between the Borrower and any of the Guarantors, on the one hand, and the Administrative Agent and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in this
Section 2. Each Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or any of the Guarantors with respect to the Obligations (other than any notice required pursuant to the terms of the Credit Agreement). Each Guarantor understands and agrees that the guarantee contained in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity or enforceability of the Credit Agreement or any other Loan Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Administrative Agent or any Secured Party, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) which may at any time be available to or be asserted by the Borrower or any other Person against the Administrative Agent or any Secured Party, or (c) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or such Guarantor) which constitutes an equitable or legal discharge of the Borrower for the Obligations, or of such Guarantor under the guarantee contained in this Section 2, in bankruptcy or in any other instance. When making any demand hereunder or otherwise pursuing its rights and remedies hereunder against any Guarantor, the Administrative Agent may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as it may have against the Borrower, any other Guarantor or any other Person or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Administrative Agent to make any such demand, to pursue such other rights or remedies or to collect any payments from the Borrower, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower, any other Guarantor or any other Person or any such collateral security, guarantee or right of offset, shall not relieve any Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Administrative Agent against any Guarantor. For the purposes hereof demand shall include the commencement and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or any Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.
2.7 Payments and Application. Payments hereunder will be paid to the Administrative Agent without set-off or counterclaim in Dollars at the Funding Office. If the Administrative Agent or any Secured Party shall receive any amount pursuant to this Section 2, such amount shall be applied to the payment of the Obligations in the order set forth in, and in accordance with, Section 2.14(c) of the Credit Agreement.
SECTION 3. THE ADMINISTRATIVE AGENT
3.1 Duty of Administrative Agent. Neither the Administrative Agent, any Secured Party nor any of their respective officers, directors, employees or agents shall be liable for failure to demand or collect upon any guarantee obligation pursuant to Section 2 or for any delay in doing so or to take any other action whatsoever with regard to guarantee obligations pursuant to Section 2. The powers conferred on the Administrative Agent hereunder are solely to protect the Administrative Agents interests and shall not impose any duty upon the Administrative Agent to exercise any such powers. The Administrative Agent shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither it nor any of its Related Parties shall be responsible to any Guarantor for any act or failure to act hereunder, except as determined by a court of competent jurisdiction in a final non appealable judgment to have resulted from their own gross negligence, bad faith or willful misconduct. The exculpatory provisions of Article VIII of the Credit Agreement shall apply to the Administrative Agent and its Related Parties and shall apply to its activities as provided herein or in any Loan Document.
3.2 Authority of Administrative Agent. Each Guarantor acknowledges that the rights and responsibilities of the Administrative Agent under this Agreement with respect to any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative Agent of any option, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Administrative Agent and the Secured Parties, be governed by this Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Administrative Agent and the Guarantors, the Administrative Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Guarantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 4. MISCELLANEOUS
4.1 Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Section 9.02 of the Credit Agreement.
4.2 Notices. All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to the Borrower or any other Guarantor shall be given to it in care of the Borrower as provided in Section 9.01 of the Credit Agreement.
4.3 No Waiver by Course of Conduct; Cumulative Remedies. The Administrative Agent shall not by any act (except by a written instrument pursuant to Section 4.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default. No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Administrative Agent of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Administrative Agent would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
4.4 Enforcement Expenses; Indemnification.
(a) Each Guarantor agrees to pay or reimburse the Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred hereunder and indemnify the Administrative Agent for its actions in connection herewith as provided in Section 9.04 of the Credit Agreement.
(b) The agreements in this Section 4.4 shall survive and remain in full force and effect regardless of the repayment of the Loans, the expiration or termination of the Commitments, any assignment of rights by or replacement of a Lender or the termination of this Agreement or any provision hereof.
4.5 Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Guarantor and shall inure to the benefit of the Administrative Agent and its successors and assigns; provided that no Guarantor may assign, transfer or delegate any of its rights or obligations under this Agreement unless permitted under Section 9.05 of the Credit Agreement and the other Loan Documents.
4.6 Set-Off. If an Event of Default shall have occurred and be continuing, each Secured Party and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Secured Party or Affiliate to or for the credit or the account of any Guarantor against any of and all the obligations of such Guarantor now or hereafter existing under this Agreement held by such Secured Party, irrespective of whether or not such Secured Party shall have made any demand under this Agreement and although such obligations may be unmatured.
4.7 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by email or telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
4.8 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
4.9 Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.
4.10 Integration. This Agreement and the other Loan Documents represent the agreement of the Guarantors, the Administrative Agent and the Secured Parties with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Secured Party relative to subject matter hereof and thereof not expressly set forth or referred to herein or in the other Loan Documents.
4.11 Governing Law; Jurisdiction; Consent to Service of Process. Section 9.10 of the Credit Agreement is incorporated herein, mutatis mutandis, as if a part hereof.
4.12 WAIVER OF JURY TRIAL. Section 9.11 of the Credit Agreement are incorporated herein, mutatis mutandis, as if a part hereof.
4.13 Acknowledgements. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Secured Party has any fiduciary relationship with or duty to any Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Guarantors, on the one hand, and the Administrative Agent and Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Guarantors and the Secured Parties.
4.14 Additional Guarantors. Each subsidiary of the Borrower that is required to become a party to this Agreement after the Closing Date pursuant to Section 5.09 of the Credit Agreement shall become a Guarantor for all purposes of this Agreement upon execution and delivery by such subsidiary of an Assumption Agreement in the form of Annex 1 hereto. Each subsidiary of the Borrower that elects to become a party to this Agreement may become a Guarantor for all purposes of this Agreement upon execution and delivery by such subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
4.15 Termination.
(a) On the Termination Date, this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent and each Guarantor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party in accordance with Section 9.15 of the Credit Agreement. At the request and sole expense of the Borrower or any Guarantor following any such termination, the Administrative Agent shall execute and deliver to the Borrower or such Guarantor such documents as the Borrower or such Guarantor shall reasonably request to evidence such termination.
(b) Each Subsidiary Guarantor shall be released from its obligations hereunder in the event that such Subsidiary Guarantor shall cease to be a subsidiary of the Borrower and each Subsidiary Guarantor shall be released from its obligations hereunder in the event that such Guarantor shall cease to be required to be a Guarantor in a transaction permitted
by the Credit Agreement without delivery of any instrument or performance of any act by any party in accordance with Section 9.15 of the Credit Agreement, and, at the request and sole expense of the Borrower or any Guarantor, the Administrative Agent shall execute and deliver to the Borrower or such Guarantor all releases and other documents as the Borrower or such Guarantor shall reasonably request to evidence such release.
4.16 ABL Intercreditor Agreement. This Agreement and the other Loan Documents are subject to the provisions of the ABL Intercreditor Agreement in all respects and, in the event of any conflict between the terms of the ABL Intercreditor Agreement and this Agreement, the terms of the ABL Intercreditor Agreement shall govern. Notwithstanding anything herein to the contrary, the Lien and security interest granted to the Administrative Agent pursuant to any Loan Document and the exercise of any right or remedy in respect of the Pledged Collateral by the Administrative Agent (or any Secured Party) under any Loan Document are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and any Loan Document, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.
AMERICAN LITHOGRAPHERS, INC. AGS CUSTOM GRAPHICS, INC. BANTA CORPORATION BANTA GLOBAL TURNKEY LLC BRIDGETOWN PRINTING CO. CHAS. P. YOUNG COMPANY CLEAR VISIONS, INC. COLUMBIA COLOR, INC. CONSOLIDATED CARQUEVILLE PRINTING COMPANY CONSOLIDATED GRAPHICS INTERNATIONAL, INC. CONSOLIDATED GRAPHICS PROPERTIES II, INC. CONSOLIDATED GRAPHICS SERVICES, INC. CONSOLIDATED GRAPHICS, INC. COPY-MOR, INC. COURIER PRINTING COMPANY CP SOLUTIONS, INC. DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. EGT PRINTING SOLUTIONS, LLC ELECTRIC CITY PRINTING COMPANY EMERALD CITY GRAPHICS, INC. FREDERIC PRINTING COMPANY GARNER PRINTING COMPANY GILLILAND PRINTING, INC. GSL FINE LITHOGRAPHERS H&N PRINTING & GRAPHICS, INC. HICKORY PRINTING SOLUTIONS, LLC IRONWOOD LITHOGRAPHERS, INC. KELMSCOTT COMMUNICATIONS LLC LINCOLN PRINTING CORPORATION | ||
By |
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Name: | ||
Title: |
MERCURY PRINTING COMPANY, LLC METROPOLITAN PRINTING SERVICES, LLC NIES/ARTCRAFT, INC. OFFICETIGER HOLDINGS INC. OFFICETIGER LLC PBM GRAPHICS, INC. PRECISION DIALOGUE DIRECT, INC. PRECISION DIALOGUE MARKETING, LLC PRECISION DIALOGUE, INC. PRECISION LITHO, INC. PRINTING CONTROL SERVICES INCORPORATED RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. RRD DUTCH HOLDCO, INC. RRD WEST CALDWELL, LLC SPANGLER GRAPHICS, LLC STORTERCHILDS PRINTING CO., INC. TEWELL WARREN PRINTING COMPANY THE HENNEGAN COMPANY THE JACKSON GROUP LLC THE JARVIS PRESS, INC. THE MCKAY PRESS, INC. THEO. DAVIS SONS, INCORPORATED THOUSAND OAKS PRINTING & SPECIALTIES, INC. TUCKER PRINTERS, INC. VERITAS DOCUMENT SOLUTIONS, LLC WENTWORTH CORPORATION WETZEL BROTHERS, LLC | ||
By |
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Name: | ||
Title: |
Annex 1 to
Guarantee Agreement
ASSUMPTION AGREEMENT, dated as of , 20 , made by (the Additional Guarantor), in favor of Bank of America, N.A., as administrative agent (the Administrative Agent) for the banks and other financial institutions or entities (the Lenders) parties to the Credit Agreement referred to below. All capitalized terms not defined herein shall have the meaning ascribed to them in the Guarantee Agreement referred to below.
W I T N E S S E T H :
WHEREAS, R. R. Donnelly & Sons Company (the Borrower), the Lenders, the Administrative Agent and certain other parties have entered into a Credit Agreement, dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement);
WHEREAS, in connection with the Credit Agreement, certain subsidiaries of the Borrower (other than the Additional Guarantor) have entered into the Guarantee Agreement, dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Guarantee Agreement), in favor of the Administrative Agent for the benefit of the Secured Parties;
WHEREAS, the Credit Agreement requires the Additional Guarantor to become a party to the Guarantee Agreement or the Additional Guarantor has elected to become a party to the Guarantee Agreement; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver this Assumption Agreement in order to become a party to the Guarantee Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee Agreement. By executing and delivering this Assumption Agreement, the Additional Guarantor, as provided in Section 4.14 of the Guarantee Agreement, hereby becomes a party to the Guarantee Agreement as a Guarantor thereunder with the same force and effect as if originally named therein as a Guarantor and, without limiting the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a Guarantor thereunder.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR] | ||
By: |
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Name: | ||
Title: |
EXHIBIT D-1
[SEE ATTACHED]
FORM OF SECURITY AGREEMENT
This SECURITY AGREEMENT dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof, this Agreement) made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), and each of the other entities (other than the Administrative Agent) listed on the signature pages hereof or that becomes a party hereto pursuant to Section 3.5 or otherwise (the Guarantors), as pledgors, assignors and debtors (the Borrower, together with the Guarantors, in such capacities and together with any successors in such capacities, the Pledgors, and each, a Pledgor), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement (as hereinafter defined), as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the Administrative Agent).
R E C I T A L S:
1. The Borrower, the Administrative Agent and the lending institutions listed therein have, in connection with the execution and delivery of this Agreement, entered into that certain credit agreement, dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement; which term shall also include and refer to any increase in the amount of indebtedness under the Credit Agreement and any refinancing or replacement of the Credit Agreement (whether under a bank facility, securities offering or otherwise) or one or more successor or replacement facilities whether or not with a different group of agents or lenders (whether under a bank facility, securities offering or otherwise) and whether or not with different obligors upon the Administrative Agents acknowledgment of the termination of the predecessor Credit Agreement).
2. Each Guarantor has, pursuant to the Credit Agreement, unconditionally guaranteed the Obligations.
3. The Borrower and each Guarantor will receive substantial benefits from the execution, delivery and performance of the obligations under the Credit Agreement and the other Loan Documents and each is, therefore, willing to enter into this Agreement.
4. This Agreement is given by each Pledgor in favor of the Administrative Agent for the benefit of the Secured Parties to secure the payment and performance of all of the Obligations.
5. It is a condition to the obligations of the Lenders to make the Loans under the Credit Agreement that each Pledgor execute and deliver the applicable Loan Documents, including this Agreement.
A G R E E M E N T :
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Administrative Agent hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions
(a) Unless otherwise defined herein or in the Credit Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC; provided that in any event, the following terms shall have the meanings assigned to them in the UCC:
Accounts; Account Debtor; Bank; Chattel Paper; Commercial Tort Claim; Deposit Account; Documents; Electronic Chattel Paper; Equipment; General Intangibles; Goods, Inventory; Letter-of-Credit Rights; Letters of Credit; Money; Payment Intangibles; Proceeds; Records; Securities Account; Software; Supporting Obligations; and Tangible Chattel Paper.
(b) Terms used but not otherwise defined herein that are defined in the Credit Agreement shall have the meanings given to them in the Credit Agreement.
(c) The following terms shall have the following meanings:
Administrative Agent shall have the meaning assigned to such term in the Preamble hereof.
Agreement shall have the meaning assigned to such term in the Preamble hereof.
Borrower shall have the meaning assigned to such term in the Preamble hereof.
Copyrights shall mean, collectively, all copyrights (whether statutory or common law, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished) and all copyright registrations and applications, together with any and all (i) rights and privileges arising under applicable law with respect to the use of such copyrights, (ii) renewals, supplements and extensions thereof and amendments thereto, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof.
Copyright Security Agreement shall mean an agreement substantially in the form of Exhibit 3 hereto.
Credit Agreement shall have the meaning assigned to such term in Recital A hereof.
Deposit Account Control Agreement shall mean a control agreement reasonably satisfactory to the Administrative Agent executed by an institution maintaining a Deposit Account for a Loan Party, to perfect the Administrative Agents Lien on such Deposit Account.
Distributions shall mean, collectively, with respect to each Pledgor, all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in exchange for any or all of the Pledged Securities.
Excluded Deposit Account shall mean (a) any Deposit Account maintained by Loan Parties and used solely for payroll, payroll taxes, withholding tax, employee benefits, escrow, customs and other fiduciary accounts and any trust account, in each case of the foregoing for the benefit of unaffiliated third parties, (b) any zero-balance disbursement account (i.e., any account used only for disbursement purposes in which balance of zero is maintained by automatically transferring funds from another account in an amount only large enough to cover checks presented), (c) any segregated Deposit Account maintained by the Loan Parties that holds solely the identifiable proceeds of assets that do not constitute Pledged Collateral or Collateral (as defined in the Credit Agreement) and (d) other Deposit Accounts as long as the balance in any individual Deposit Account does not exceed $5,000,000 and the aggregate balance in all such other Deposit Accounts does not exceed $15,000,000 at any time.
Excluded Property shall mean
(a) any permit, license or other right issued or granted by a Governmental Authority to any Pledgor or any contract, agreement, instrument, undertaking or other arrangement to which any Pledgor is a party, in each case, only to the extent and for so long as (i) the terms of such permit, license, right, contract, instrument, undertaking, agreement or arrangement or any requirement of law applicable thereto, prohibit the creation by such Pledgor of a security interest in such permit, license, right, contract, instrument, undertaking, agreement or arrangement in favor of the Administrative Agent (in each case, after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law, or (ii) the grant of a security interest under the Loan Documents (A) would invalidate any underlying right of such Pledgor in such permit, license, right, contract, instrument, undertaking, agreement or arrangement, (B) would give any other party to such permit, license, right, contract, instrument, undertaking, agreement or arrangement the right to terminate its obligations or limit its performance thereunder or (C) is not permitted without consent of a third party (other than a Pledgor) (in each case, after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law;
(b) any United States trademark or service mark application filed on the basis of any Pledgors intent-to-use such mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance by the U.S. Patent and Trademark Office of a verified Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto;
(c) assets owned by any Pledgor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a purchase money Lien permitted to be incurred pursuant to the provisions of the Credit Agreement to the extent and for so long as (i) the contract or other agreement in which such Lien is granted (or the documentation providing for such purchase money Lien) prohibits the creation of any other Lien on such assets and proceeds, or (ii) the grant of a security interest under the Loan Documents (A) would invalidate any underlying rights of such Pledgor in such assets, (B) would give any other party to such contract or agreement the right to terminate its obligations or limit its performance thereunder or (C) is not permitted without consent of a third party (other than a Pledgor);
(d) any property of a person existing at the time such person is acquired or merged with or into or consolidated with any Pledgor that is subject to a Lien permitted by Section 6.05(b) of the Credit Agreement to the extent and for so long as the contract or other agreement in which such Lien is granted validly prohibits the creation of any other Lien on such property (in each case, after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law;
(e) (i) any Equity Interests acquired after the date hereof in accordance with the Credit Agreement if, and to the extent that, and for so long as the grant of such security interest under the Loan Documents would violate applicable law or any Contractual Obligation binding on such Equity Interests at the time of such acquisition (other than organization documents of wholly owned subsidiaries) or would require the consent of a Governmental Authority (in each case, after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or other applicable law and (ii) any property or asset held any Pledgor if, and to the extent that, and for so long as, the creation by such Pledgor of a security interest therein (A) is prohibited pursuant to the terms of any requirement of law applicable thereto, (B) requires the consent of a Governmental Authority or (C) in the case of property or assets acquired after the date hereof (either through direct purchase or through the acquisition of the Equity Interests of the Person that owns such property or asset) is prohibited by a Contractual Obligation binding on such property or asset at the time of the acquisition and not entered in connection with such acquisition (in each case, after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or other applicable law;
(f) motor vehicles and any other assets subject to certificates of title;
(g) Margin Stock;
(h) voting Equity Interests in each (i) Foreign Subsidiary and (ii) Domestic Subsidiary that owns (directly or through one or more entities that are disregarded for U.S. federal income tax purposes) no material assets other than equity interests of one or more Foreign Subsidiaries that are CFCs, in each case in excess of 65% of the total combined voting power of the Equity Interests of such Subsidiary;
(i) any fee owned real property, other than Material Real Properties, and any leasehold rights and interests in real property;
provided, however, that Excluded Property shall not include (x) any assets included in the Borrowing Base (as defined in the ABL Credit Agreement) and (y) any Proceeds, substitutions or replacements of any Excluded Property (unless such Proceeds, substitutions or replacements would constitute Excluded Property).
Excluded Securities Account shall mean Securities Accounts as long as the balance in any individual Securities Account does not exceed $5,000,000 and the aggregate balance in all such other Securities Accounts does not exceed $15,000,000 at any time.
Guarantors shall have the meaning assigned to such term in the Preamble hereof.
Indenture Threshold Amount shall have the meaning assigned to such term in Section 2.1.
Instruments shall mean, collectively, with respect to each Pledgor, all instruments, as such term is defined in Article 9, rather than Article 3, of the UCC, and shall include all promissory notes, drafts, bills of exchange or acceptances.
Intellectual Property shall mean, collectively, Patents, Trademarks, Copyrights and Technology.
Intellectual Property Collateral shall mean, collectively, all Patents, Trademarks, Copyrights, Technology and Intellectual Property Licenses of each Pledgor, whether now or hereafter owned, licensed or acquired.
Intellectual Property Licenses shall mean, collectively, with respect to each Pledgor, all license and distribution agreements with, and covenants not to sue, any other party with respect to any Intellectual Property, whether such Pledgor is a licensor or licensee, distributor or distributee under any such license or distribution agreement, together with any and all (i) renewals, extensions, supplements, amendments and continuations thereof, (ii) income, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements, breaches or violations thereof and (iii) rights to sue for past, present and future infringements, breaches or violations thereof.
Intercompany Notes shall mean, with respect to each Pledgor, all intercompany notes described in Schedule 10 to the Perfection Certificate and intercompany notes hereafter acquired by such Pledgor and all certificates, instruments or agreements evidencing such intercompany notes, and all assignments, amendments, restatements, supplements, extensions, renewals, replacements or modifications thereof to the extent permitted pursuant to the terms hereof.
Investment Property means investment property as defined in the UCC, other than Pledged Securities.
Patents shall mean, collectively, all patents and all patent applications (whether issued, allowed, pending or recorded in the United States or any other country or any political subdivision thereof), together with any and all (i) rights and privileges arising under applicable law with respect to any such patents or patent applications, (ii) inventions, discoveries, designs and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, reexaminations, extensions and
continuations-in-part thereof and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future infringements thereof.
Patent Security Agreement shall mean an agreement substantially in the form of Exhibit 4 hereto.
Pledge Amendment shall have the meaning assigned to such term in Section 5.1 hereof.
Pledged Collateral shall have the meaning assigned to such term in Section 2.1 hereof.
Pledged Securities shall mean, collectively, in each case other than Excluded Property, (i) all issued and outstanding Equity Interests owned by each Pledgor as of the date hereof, including all issued and outstanding Equity Interests of each issuer set forth on Schedules 9(a) and 9(b) to the Perfection Certificate as being owned by any Pledgor and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by such Pledgor (including by issuance), together with all rights, privileges, authority and powers of such Pledgor relating to such Equity Interests or under any organizational document of any such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such Equity Interests, (ii) all Equity Interests of any issuer, which Equity Interests are hereafter acquired by such Pledgor (including by issuance) and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by such Pledgor (including by issuance), together with all rights, privileges, authority and powers of such Pledgor relating to such Equity Interests or under any organizational document of any such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such Equity Interests, from time to time acquired by such Pledgor in any manner and (iii) all Equity Interests issued in respect of the Equity Interests referred to in clauses (i) and (ii) upon any consolidation or merger of any issuer of such Equity Interests; provided that no Equity Interests of any first tier Foreign Subsidiary in excess of 65% shall constitute Pledged Securities.
Pledgor shall have the meaning assigned to such term in the Preamble hereof.
Receivables shall mean all (i) Accounts, (ii) a right to payment evidenced by Chattel Paper or Instruments and (iii) Payment Intangibles, and all other rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered regardless of how classified under the UCC, together with all of the Pledgors rights, if any, in any goods or other property giving rise to such right to payment and all collateral support and Supporting Obligations related thereto and all Records relating thereto.
Restricted Property shall have the meaning assigned to such term in Section 2.1.
Securities Account Control Agreement shall mean a control agreement reasonably satisfactory to the Administrative Agent executed by an institution maintaining a Securities Account for a Loan Party, to perfect the Administrative Agents Lien on such Securities Account.
Securities Act shall mean the Securities Act of 1933, as amended.
Securities Collateral shall mean, collectively, the Pledged Securities and the Distributions. The actions required to be taken with respect to the Securities Collateral shall be limited by the provisions of Sections 3.1 and 3.2.
Specified LLC Equity Interests means the Equity Interests of Banta Global Turnkey LLC, Digital Page Brazil, LLC, EGT Printing Solutions, LLC, Kelmscott Communications LLC, Mercury Printing Company, LLC, Metropolitan Printing Services, LLC, OfficeTiger LLC, Precision Dialogue Marketing, LLC, RRD Netherlands LLC, RRD West Caldwell, LLC, Spangler Graphics Property, LLC, Spangler Graphics, LLC, The Jackson Group LLC, Veritas Document Solutions, LLC and Wetzel Brothers, LLC.
Technology shall mean, collectively, all trade secrets, know how, technology (whether patented or not), rights in Software (including source code and object code), rights in data and databases, rights in Internet web sites, proprietary information, methods, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, confidential information and the right to limit the use or disclosure thereof by any person, and confidential customer and supplier lists, pricing and cost information, and business and marketing plans and proposals, together with any and all (i) rights and privileges arising under applicable law with respect to the foregoing, (ii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future misappropriations or violations thereof, (iii) rights corresponding thereto throughout the world and (iv) rights to sue for past, present and future misappropriations or violations thereof.
Trademarks shall mean, collectively, all trademarks (including service marks), slogans, logos, certification marks, trade dress, uniform resource locators (URLs), domain names, corporate names, brand names, and trade names, whether registered or unregistered, and all registrations and applications for the foregoing (whether statutory or common law and whether established, applied for or registered in the United States or any other country or any political subdivision thereof), together with any and all (i) goodwill associated with the foregoing, (ii) rights and privileges arising under applicable law with respect to any of the foregoing, (iii) extensions and renewals thereof and amendments thereto, (iv) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements, dilutions or violations thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present and future infringements, dilutions or violations thereof.
Trademark Security Agreement shall mean an agreement substantially in the form of Exhibit 5 hereto.
UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Administrative Agents and the Secured Parties security interest in any item or portion of the Pledged Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term UCC shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
SECTION 1.2 Interpretation. The rules of interpretation specified in the Credit Agreement (including Section 1.02 thereof) shall be applicable to this Agreement.
SECTION 1.3 Resolution of Drafting Ambiguities. Each Pledgor acknowledges and agrees that it was represented by counsel in connection with the execution and delivery hereof, that it and its counsel reviewed and participated in the preparation and negotiation hereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Administrative Agent) shall not be employed in the interpretation hereof.
SECTION 1.4 Perfection Certificate. The Administrative Agent and each Secured Party agree that the Perfection Certificate and all descriptions of Pledged Collateral, schedules, amendments and supplements thereto are and shall at all times remain a part of this Agreement.
ARTICLE II
GRANT OF SECURITY AND OBLIGATIONS
SECTION 2.1 Grant of Security Interest. As collateral security for the payment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured Parties, a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under the following property, in all cases wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the Pledged Collateral):
(i) all Accounts and Receivables;
(ii) all General Intangibles;
(iii) all Equipment, Inventory and Goods;
(iv) all Securities Collateral;
(v) all Investment Property;
(vi) all Money, all Deposit Accounts and all Securities Accounts;
(vii) all Intellectual Property Collateral;
(viii) the Commercial Tort Claims described on Schedule 12 to the Perfection Certificate and on any joinder thereto pursuant to Section 3.5;
(ix) all Letter-of-Credit Rights and Supporting Obligations;
(x) all books and records relating to the foregoing;
(xi) all Documents, Instruments and Chattel Paper; and
(xii) all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with respect to any of the foregoing.
Notwithstanding anything to the contrary contained in clauses (i) through (xii) above, the security interest created by this Agreement shall not extend to, and the term Pledged Collateral shall not include, any Excluded Property.
Notwithstanding any of the other provisions set forth in this Article II or anything else contained in this Agreement or any other Loan Document, the aggregate amount of all Obligations secured under the Collateral Documents by Principal Property (as defined in each Indenture) or any shares of capital stock or indebtedness (as defined in each Indenture) of any Restricted Subsidiary (as defined in each Indenture) and owned by the Borrower or any Restricted Subsidiary (as defined in each Indenture) (collectively, the Restricted Property) shall not, at any time, exceed the aggregate amount (such amount, the Indenture Threshold Amount) of indebtedness (as defined in each Indenture) that may be secured by Restricted Property under each Indenture, determined in accordance with the terms of each Indenture, without requiring holders of the Securities or Notes (as defined in and issued under each applicable Indenture) to be equally and ratably secured in accordance with the terms of such Indenture. It is understood and acknowledged by the parties hereto (including, by its acceptance of the benefit of this Agreement, each Secured Party) that (v) as of the Closing Date, the total amount of Obligations is in excess of the Indenture Threshold Amount as of the Closing Date, (w) from time to time after the Closing Date, the total amount of the Obligations may be in excess of the Indenture Threshold Amount then in effect, (x) as of the Closing Date, the Obligations in excess of the Indenture Threshold Amount are not secured by any Restricted Property hereunder or under any other Collateral Document, (y) at any time after the Closing Date, any Obligations in excess of the Indenture Threshold Amount in effect at such time shall not be secured by any Restricted Property hereunder or under any other Collateral Document and (z) in no event shall any mortgage (as defined in each Indenture) on any Restricted Property in favor of any Secured Party created hereunder or under any other Collateral Document at any time secure any Obligations in excess of the Indenture Threshold Amount then in effect. For the avoidance of doubt, the calculation of the Indenture Threshold Amount at any date of determination shall take into account all outstanding Attributable Debt (as defined in each Indenture) of all Sale and Lease-Back Transactions (as defined in each Indenture) permitted pursuant to the last paragraph of Section 407 or 1007 of each Indenture, as applicable, as of such date and all indebtedness (as defined in each Indenture) of the Borrower and its Restricted Subsidiaries (as defined in each Indenture) secured by mortgages (as defined in each Indenture) permitted pursuant to the last paragraph of Section 406 or 1006 of each Indenture as of such date.
SECTION 2.2 Filings.
(a) Each Pledgor hereby irrevocably authorizes the Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment relating to the Pledged Collateral, including (i) whether such Pledgor is an organization, the type of organization and any organizational identification number issued to such Pledgor, and (ii) any financing or continuation statements or other documents without the signature of such Pledgor where permitted by law and that describe the Pledged Collateral in any manner as the Administrative Agent may determine, in its reasonable discretion, as is necessary to ensure the perfection of the security interest in the collateral granted to the Administrative Agent in connection herewith (including, without limitation, as all assets of the Debtor, whether now owned or hereafter acquired or words of similar effect or with greater detail). Each Pledgor agrees to provide all information described in the immediately preceding sentence to the Administrative Agent promptly upon reasonable request by the Administrative Agent.
(b) Each Pledgor hereby ratifies its authorization for the Administrative Agent to file in any relevant jurisdiction any financing statements relating to the Pledged Collateral if filed prior to the date hereof.
(c) Each Pledgor hereby further authorizes the Administrative Agent to file filings with the United States Patent and Trademark Office or United States Copyright Office (or any successor office), including in the form of the Copyright Security Agreement, the Patent Security Agreement and the Trademark Security Agreement, or other similar documents, for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by such Pledgor hereunder, without the signature of such Pledgor, and naming such Pledgor, as debtor, and the Administrative Agent, as secured party.
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 3.1 Delivery of Certificated Securities Collateral. Each Pledgor represents and warrants that all certificates, agreements or instruments representing or evidencing the Securities Collateral in existence on the date hereof have been delivered (and with respect to the Specified LLC Equity Interests will be delivered in accordance with Section 5.14 of the Credit Agreement) to the Administrative Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that the Administrative Agent has a perfected first priority security interest therein (subject only to Permitted Liens) and subject to the terms of the Intercreditor Agreement. Each Pledgor hereby agrees that all certificates or instruments representing or evidencing Securities Collateral acquired by such Pledgor after the date hereof shall promptly (but in any event within 90 days after acquisition thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) be delivered to and held by or on behalf of the Administrative Agent pursuant hereto. All certificated Securities Collateral shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall
have the right, at any time upon the occurrence and during the continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in the name of the Administrative Agent or any of its nominees or endorse for negotiation any or all of the Securities Collateral, without any indication that such Securities Collateral is subject to the security interest hereunder. In addition, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right at any time to exchange certificates representing or evidencing Securities Collateral for certificates of smaller or larger denominations. Notwithstanding the foregoing, Section 5.1 hereof or anything herein to the contrary, certificated Securities Collateral shall not be required to be delivered to the Administrative Agent unless (a) such certificated Securities Collateral represents the Equity Interests of a Loan Party or a Specified Pledgor, (b) such certificated Securities Collateral represents the Equity Interests of a Material Subsidiary or (c) such certificated Securities Collateral represents the Equity Interests of a first tier Foreign Subsidiary.
SECTION 3.2 Perfection of Uncertificated Securities Collateral. Each Pledgor represents and warrants that the Administrative Agent has a perfected first priority security interest (subject only to Permitted Liens) and subject to the terms of the Intercreditor Agreement in all uncertificated Pledged Securities pledged by it hereunder that are in existence on the date hereof under the UCC. Each Pledgor agrees that after the occurrence and during the continuation of an Event of Default, upon request of the Administrative Agent to (i) cause such pledge to be recorded on the equityholder register of the books of the issuer and give the Administrative Agent the right to transfer such Pledged Securities in the pursuit of remedies under the terms hereof and (ii) cause such Pledged Securities to become certificated (to the extent possible under applicable law) and delivered to the Administrative Agent in accordance with the provisions of Section 3.1.
SECTION 3.3 Financing Statements and Other Filings; Maintenance of Perfected Security Interest. Each Pledgor represents and warrants that all financing statements, agreements, instruments and other documents necessary to perfect the security interest (to the extent such security interests can be perfected by filing in each governmental, municipal or other office specified in Schedule 6 to the Perfection Certificate) granted by it to the Administrative Agent in respect of the Pledged Collateral have been delivered to the Administrative Agent in completed and, to the extent necessary or appropriate, duly executed in a form for filing in each governmental, municipal or other office specified in Schedule 6 to the Perfection Certificate. Each Pledgor agrees that at the sole cost and expense of the Pledgors, such Pledgor will maintain the security interest created by this Agreement in the Pledged Collateral as a perfected first priority security interest (to the extent such security interests can be perfected by filing in each governmental, municipal or other office specified in Schedule 6 to the Perfection Certificate) subject only to Permitted Liens and file all UCC-3 continuations statements necessary to continue the perfection of the security interest created by this Agreement.
SECTION 3.4 Other Actions. In order to further ensure the attachment, perfection and priority of, and the ability of the Administrative Agent to enforce, the Administrative Agents security interest in the Pledged Collateral, each Pledgor represents and warrants (as to itself) as follows and agrees, in each case at such Pledgors own expense, to take the following actions with respect to the following Pledged Collateral:
(a) Instruments and Tangible Chattel Paper. As of the date hereof, no amounts payable under or in connection with any of the Pledged Collateral either (a) in excess of $5 million individually or (b) below $5 million individually but in excess of $20 million in the aggregate for all Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper for
all Pledgors with an amount below $5 million individually (in which event Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper with an amount below $5 million shall be Pledged Collateral such that such aggregate amount under this clause (b) does not exceed $20 million) are evidenced by any Instrument or Tangible Chattel Paper other than such Instruments and Tangible Chattel Paper listed in Schedule 10 to the Perfection Certificate. Each Instrument and each item of Tangible Chattel Paper listed in Schedule 10 to the Perfection Certificate either (a) in excess of $5 million individually or (b) below $5 million individually but in excess of $20 million in the aggregate for all Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper for all Pledgors with an amount below $5 million individually (in which event Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper with an amount below $5 million shall be Pledged Collateral such that such aggregate amount under this clause (b) does not exceed $20 million), in each case has been properly endorsed, assigned and delivered to the Administrative Agent, accompanied by instruments of transfer or assignment duly executed in blank. If any amount then payable under or in connection with any of the Pledged Collateral shall be evidenced by any Instrument or Tangible Chattel Paper, and such amount, together with all amounts payable evidenced by any Instrument or Tangible Chattel Paper not previously delivered to the Administrative Agent either (a) exceeds $5 million individually or (b) is below $5 million individually but exceeds $20 million in the aggregate for all Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper for all Pledgors with an amount below $5 million individually (in which event Pledged Collateral evidenced by any Instrument or Tangible Chattel Paper with an amount below $5 million shall be Pledged Collateral such that such aggregate amount under this clause (b) does not exceed $20 million), the Pledgor acquiring such Instrument or Tangible Chattel Paper shall promptly (but in any event within 90 days after acquisition thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) endorse, assign and deliver the same to the Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank as the Administrative Agent may from time to time specify.
(b) Letter-of-Credit Rights. If any Pledgor is at any time a beneficiary under a Letter of Credit that constitutes Pledged Collateral now or hereafter issued in favor of such Pledgor for an amount either (a) in excess of $5 million individually or (b) below $5 million individually but in excess of $20 million in the aggregate for all Letters of Credit for all Pledgors with an amount below $5 million individually (in which event Letters of Credit with an amount below $5 million shall be notified hereunder such that such aggregate amount under this clause (b) not notified does not exceed $20 million), other than a Letter of Credit issued pursuant to the Credit Agreement, such Pledgor shall promptly (but in any event within 90 days after issuance thereof in favor of such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) notify the Administrative Agent thereof and such Pledgor shall, at the request of the Administrative Agent, pursuant to an agreement in form and substance reasonably satisfactory to the Administrative Agent, either (i) arrange for the issuer and any confirmer of such Letter of Credit to consent to an assignment to the Administrative Agent of the proceeds of any drawing under the Letter of Credit or (ii) arrange for the Administrative Agent to become the transferee beneficiary of such Letter of Credit, with the Administrative Agent agreeing, in each case, that the proceeds of any drawing under the Letter of Credit are to be applied as provided in the Credit Agreement.
(c) Commercial Tort Claims. As of the date hereof, each Pledgor hereby represents and warrants that it holds no Commercial Tort Claims that constitute Pledged Collateral individually in excess of $5 million other than those listed in Schedule 11 to the Perfection Certificate. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim either (a) in excess of $5 million individually or (b) below $5 million individually but in excess of $20 million in the aggregate for all Commercial Tort Claims for all Pledgors with an amount below $5 million individually (in which event Commercial Tort Claims with an amount below $5 million shall be notified hereunder such that such aggregate amount under this clause (b) not notified does not exceed $20 million), such Pledgor shall promptly (but in any event within 90 days after acquisition thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) notify the Administrative Agent in writing signed by such Pledgor of the brief details thereof and grant to the Administrative Agent in such writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent.
(d) Electronic Chattel Paper and Transferable Records. As of the date hereof, no amount under or in connection with any of the Pledged Collateral is evidenced by any Electronic Chattel Paper or any transferable record (as that term is defined in Section 201 of the Federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction) other than such Electronic Chattel Paper and transferable records listed in Schedule 10 to the Perfection Certificate. If any amount payable under or in connection with any of the Pledged Collateral shall be evidenced by any Electronic Chattel Paper or any transferable record, the Pledgor acquiring such Electronic Chattel Paper or transferable record shall promptly (but in any event within 90 days after acquisition thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) notify the Administrative Agent thereof and shall take such action as the Administrative Agent may reasonably request to vest in the Administrative Agent control of such Electronic Chattel Paper under Section 9-105 of the UCC or control under Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record. The requirement in the preceding sentence shall not apply to the extent that such amount, together with all amounts payable evidenced by Electronic Chattel Paper or any transferable record in which the Administrative Agent has not been vested control within the meaning of the statutes described in the immediately preceding sentence, either (a) does not exceed $5 million individually or (b) is below $5 million individually but exceeds $20 million in the aggregate for all amounts payable evidenced by Electronic Chattel Paper or any transferable record for all Pledgors with an amount below $5 million individually (in which event amounts payable evidenced by Electronic Chattel Paper or any transferable record with an amount below $5 million shall be pledged hereunder such that such aggregate amount under this clause (b) does not exceed $20 million). The Administrative Agent agrees with such Pledgor that the Administrative Agent will arrange, pursuant to procedures satisfactory to the Administrative Agent and so long as such procedures will not result in the Administrative Agents loss of control, for the Pledgor to make alterations to the Electronic Chattel Paper or transferable record permitted under Section 9-105 of the UCC or, as the case may be, Section 201 of the Federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to allow without loss of control, unless an Event of Default has occurred and is continuing or would occur after taking into account any action by such Pledgor with respect to such Electronic Chattel Paper or transferable record.
(e) Schedule 1 hereto sets forth all Equity Interests constituting Pledged Securities held by a Pledgor as of the date hereof; provided that, with respect to the Specified LLC Equity Interests, the Pledgors may supplement Schedule 1 hereto by delivering a Pledge Amendment with respect thereto pursuant to Section 5.14 of the Credit Agreement, which Pledge Amendment shall be deemed to supplement Schedule 1 hereto with respect to the Specified LLC Equity Interests).
(f) As of the date hereof, no Pledgor has any Deposit Accounts other than the accounts listed in Schedule 13 to the Perfection Certificate. Subject to Section 5.14(b) of the Credit Agreement, each Grantor shall deliver a Deposit Account Control Agreement to the Administrative Agent within 20 Business Days of the Closing Date with respect to each Deposit Account (other than Excluded Deposit Accounts) existing on the Closing Date, and, with respect to any Deposit Account (other than Excluded Deposit Accounts) established or acquired after the Closing Date, within 90 days of the date so acquired or established (or, in each case, such later date as may be agreed to in writing by the Administrative Agent in its sole discretion). Upon execution and delivery of a Deposit Account Control Agreement, the Administrative Agent will have a security interest in each such Deposit Account (other than an Excluded Deposit Account), which security interest will be perfected by control. Each Deposit Account (other than an Excluded Deposit Account) shall be subject to a Deposit Account Control Agreement which shall perfect the Administrative Agents security interest by control at all times after (x) with respect to Deposit Accounts maintained on the Closing Date, 20 Business Days after the Closing Date and (y) with respect to Deposit Accounts acquired or established after the Closing Date, 90 days after the date so acquired or established. Each Grantor agrees that, subject to the ABL Intercreditor Agreement, once the Administrative Agent sends an instruction or notice to a Bank exercising its control over any Deposit Account subject to a Deposit Account Control Agreement, such Grantor shall not give any instructions or orders with respect to such Deposit Account including, without limitation, instructions for distribution or transfer of any funds in such Deposit Account.
(g) As of the date hereof, no Grantor has any Securities Accounts other than the accounts listed in Schedule 13 to the Perfection Certificate. Subject to Section 5.14(b) of the Credit Agreement, each Grantor shall deliver a Securities Account Control Agreement to the Administrative Agent within 20 Business Days of the Closing Date with respect to each Securities Account (other than Excluded Securities Accounts) existing on the Closing Date, and, with respect to any Securities Account (other than Excluded Securities Accounts) established or acquired after the Closing Date, within 90 days of the date so acquired or established (or such later date as may be agreed to in writing by the Administrative Agent in its sole discretion). Each Pledgor shall take all actions necessary to establish the Administrative Agents control of each such Securities Account (other than Excluded Securities Accounts). Each Securities Account (other than an Excluded Securities Account) shall be subject to a Securities Account Control Agreement which shall perfect the Administrative Agents security interest by control at all times after (x) with respect to Securities Accounts maintained on the Closing Date, 20 Business Days after the Closing Date and (y) with respect to Securities Accounts acquired or established
after the Closing Date, 90 days after the date so acquired or established. Each Pledgor shall be the sole account holder of each Securities Account (other than Excluded Securities Accounts) maintained by it and shall not allow any other Person (other than, subject to the ABL Intercreditor Agreement, the Revolving Credit Administrative Agent (as defined in the ABL Intercreditor Agreement) and the Administrative Agent) to have control over a Securities Account (other than Excluded Securities Accounts) or any Property deposited therein. Each Pledgor shall promptly notify the Administrative Agent in writing of any opening or closing of a Deposit Account or Securities Account (other than Excluded Deposit Accounts or Excluded Securities Accounts as applicable), which notice shall include the account number and institution where such Deposit Account or Securities Account is maintained. Notwithstanding any other provisions contained in any Loan Documents, the Borrower and the other Pledgors shall not open or close any Deposit Account or Securities Account during the occurrence of an Event of Default without the Administrative Agents advance written consent. Each Pledgor hereby authorizes and directs each securities intermediary to deliver to the Administrative Agent, upon request, all balances in any Deposit Account or Securities Account (other than Excluded Deposit Accounts or Excluded Securities Accounts) maintained for such Pledgor without inquiry into the authority or right of the Administrative Agent to make such request.
SECTION 3.5 Joinder of Additional Guarantors. The Pledgors shall cause each Subsidiary of the Borrower which, from time to time, after the date hereof shall be required to pledge any assets to the Administrative Agent for the benefit of the Secured Parties pursuant to the provisions of the Credit Agreement, (a) to execute and deliver to the Administrative Agent (i) a Joinder Agreement substantially in the form attached as Exhibit 2 hereto and (ii) a Perfection Certificate with respect to such Subsidiary, in each case, promptly after (but in any event within 90 days of) the date on which (i) it was acquired or created or (ii) it became a Material Subsidiary that is required to pledge any assets to the Administrative Agent for the benefit of the Security Parties pursuant to the provisions of the Credit Agreement, or, in each case, such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion, and, upon such execution and delivery, such Subsidiary shall constitute a Guarantor and a Pledgor for all purposes hereunder and under the other Loan Documents with the same force and effect as if originally named as a Guarantor and Pledgor herein. The execution and delivery of such Joinder Agreement shall not require the consent of any Pledgor hereunder or any other Loan Party. The rights and obligations of each Pledgor hereunder and each other Loan Party under the other Loan Documents shall remain in full force and effect notwithstanding the addition of any new Guarantor and Pledgor as a party to this Agreement and the Credit Agreement.
SECTION 3.6 Supplements; Further Assurances. Each Pledgor shall take such further actions, and execute and/or deliver to the Administrative Agent such additional financing statements, amendments, assignments, agreements, supplements, powers and instruments, as the Administrative Agent may in its reasonable judgment deem necessary or appropriate in order to perfect, preserve and protect the security interest in the Pledged Collateral as provided herein and the rights and interests granted to the Administrative Agent hereunder, to carry into effect the purposes hereof or better to assure and confirm the validity, enforceability and priority of the Administrative Agents security interest in the Pledged Collateral or permit the Administrative Agent to exercise and enforce its rights, powers and remedies hereunder with respect to any Pledged Collateral, including the filing of financing statements, continuation
statements and other documents (including this Agreement) under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby wherever required by law to perfect, continue and maintain the validity, enforceability and priority of the security interest in the Pledged Collateral as provided herein and to preserve the other rights and interests granted to the Administrative Agent hereunder, as against third parties, with respect to the Pledged Collateral. Without limiting the generality of the foregoing, each Pledgor shall make, execute, endorse, acknowledge, file or refile and/or deliver to the Administrative Agent from time to time upon reasonable request by the Administrative Agent such lists, schedules, descriptions and designations of the Pledged Collateral, as the Administrative Agent shall reasonably request. If an Event of Default has occurred and is continuing, the Administrative Agent may institute and maintain, in its own name or in the name of any Pledgor, such suits and proceedings as the Administrative Agent may be advised by counsel shall be necessary or expedient to prevent any impairment of the security interest in or the perfection thereof in the Pledged Collateral. All of the foregoing shall be at the sole cost and expense of the Pledgors.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants as follows:
SECTION 4.1 Title. Except for the security interest granted to the Administrative Agent for the benefit of the Secured Parties pursuant to this Agreement and except for Permitted Liens, such Pledgor owns or has rights, and, as to Pledged Collateral acquired by it from time to time after the date hereof, will own or have rights, in each item of Pledged Collateral pledged by it hereunder, free and clear of any and all Liens. Schedule 14(a) and Schedule 14(b) of the Perfection Certificate set forth true, correct and complete lists (in all material respects) of all registered and applied for Patents, Trademarks and Copyrights owned by each such Pledgor and material exclusive licenses of registered Copyrights with respect to which such Pledgor is a licensee.
SECTION 4.2 Validity of Security Interest. The security interest in and Lien on the Pledged Collateral granted to the Administrative Agent for the benefit of the Secured Parties hereunder constitutes (a) a legal and valid security interest in all the Pledged Collateral securing the payment and performance of the Obligations, and (b) subject to the filings and other actions described in Schedule 6 to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made), a perfected security interest in all the Pledged Collateral, except as otherwise permitted in this Agreement and subject to the limitations and deliveries contemplated pursuant to Sections 3.1 to 3.4 and the filings contemplated pursuant to Section 3.3 and Section 6.3. The security interest and Lien granted to the Administrative Agent for the benefit of the Secured Parties pursuant to this Agreement in and on the Pledged Collateral, except as otherwise provided in this Agreement and subject to the limitations set forth herein, will at all times constitute a perfected, continuing security interest therein (to the extent such security interests can be perfected by filing in each governmental, municipal or other office specified in Schedule 6 to the Perfection Certificate), prior to all other Liens on the Pledged Collateral except for Permitted Liens. Upon
the taking of possession or control by the Administrative Agent of Pledged Collateral with respect to which a security interest may be perfected by possession or control, the Liens created by this Agreement shall constitute first priority perfected Liens on, and security interests in such Pledged Collateral.
SECTION 4.3 Defense of Claims; Transferability of Pledged Collateral. Each Pledgor shall, at its own cost and expense, defend title to the Pledged Collateral pledged by it hereunder and the security interest therein and Lien thereon granted to the Administrative Agent and the priority thereof against all claims and demands of all persons, at its own cost and expense, at any time claiming any interest therein adverse to the Administrative Agent or any other Secured Party, other than Permitted Liens and except as to claims and demands that if determined adversely to such Pledgor would not reasonably be expected to have a Material Adverse Effect. Except as permitted by the Credit Agreement (including Permitted Liens and sales or other transfers permitted by Sections 6.06 and 6.11 of the Credit Agreement), this Agreement or any other Loan Document, there is no agreement to which any Pledgor is a party, and no Pledgor shall enter into any agreement or take any other action, that would restrict the transferability of any of the Pledged Collateral or otherwise impair or conflict in any material respect with such Pledgors obligations or the rights of the Administrative Agent hereunder (other than customary anti-assignment provisions in Intellectual Property Licenses).
SECTION 4.4 Other Financing Statements. It has not filed, nor to its knowledge has it authorized any third party to file, any currently valid and effective financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Pledged Collateral, except such as have been filed in favor of the Administrative Agent pursuant to this Agreement or in favor of any holder of a Permitted Lien with respect to such Permitted Lien or financing statements or public notices relating to the termination statements listed on Schedule 8(b) to the Perfection Certificate. No Pledgor shall execute, authorize or permit to be filed in any public office any financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) relating to any Pledged Collateral, except financing statements and other statements and instruments filed or to be filed in respect of and covering the security interests granted by such Pledgor to the holder of the Permitted Liens.
SECTION 4.5 Due Authorization and Issuance. All of the Pledged Securities issued by the Pledgor or a Subsidiary existing on the date hereof have been, and to the extent any Pledged Securities issued by the Pledgor or a Subsidiary are hereafter issued, such Pledged Securities will be, upon such issuance, duly authorized, validly issued and fully paid and non-assessable to the extent applicable. There is no amount or other financial obligation owing by any Pledgor to any issuer of the Pledged Securities in exchange for or in connection with the issuance of the Pledged Securities or any Pledgors status as a partner or a member of any issuer of the Pledged Securities, except as set forth in the organizational documents of such issuer of Pledged Securities with respect to non-corporate issuers.
SECTION 4.6 Consents, etc. In the event that, so long as an Event of Default shall have occurred and be continuing, the Administrative Agent desires to exercise any remedies, voting or consensual rights or attorney-in-fact powers set forth in this Agreement and determines it necessary to obtain any approvals or consents of any Governmental Authority or
any other person therefor, then, upon the reasonable request of the Administrative Agent, such Pledgor agrees to use its commercially reasonable efforts to assist and aid the Administrative Agent to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers.
SECTION 4.7 Pledged Collateral. All information set forth herein, including the schedules hereto, and all information contained in any documents, schedules and lists heretofore delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in connection with this Agreement, in each case, relating to the Pledged Collateral, is accurate and complete when set forth or delivered, in all material respects.
SECTION 4.8 Insurance. In the event that the proceeds of any insurance claim are paid to any Pledgor after the Administrative Agent has exercised its right to foreclose after an Event of Default shall have occurred and be continuing, such proceeds shall be held in trust for the benefit of the Administrative Agent and promptly after receipt thereof shall be paid to the Administrative Agent for application in accordance with the Credit Agreement.
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1 Pledge of Additional Securities Collateral. Subject to the limitations set forth in Section 3.1 and 3.2, each Pledgor shall, upon obtaining after the Closing Date any Pledged Securities of any person, accept the same in trust for the benefit of the Administrative Agent and promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) deliver to the Administrative Agent a pledge amendment, duly executed by such Pledgor, in substantially the form of Exhibit 2 hereto (each, a Pledge Amendment), and the certificates and other documents required under Section 3.1 and Section 3.2 hereof in respect of the additional Pledged Securities which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Securities. Each Pledgor hereby authorizes the Administrative Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Securities listed on any Pledge Amendment delivered to the Administrative Agent shall for all purposes hereunder be considered Pledged Collateral.
SECTION 5.2 Voting Rights; Distributions; etc. So long as no Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Securities Collateral or any part thereof for any purpose not inconsistent with the terms or purposes hereof, the Credit Agreement or any other document evidencing the Obligations; provided, however, that no Pledgor shall in any event exercise such rights in any manner which would reasonably be expected to have a Material Adverse Effect.
(ii) Each Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien hereof, any and all Distributions, but only if and to the extent made in accordance with the provisions of the Credit Agreement; provided, however, that any and all such Distributions consisting of rights or interests in the form of certificated securities shall be promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) delivered to the Administrative Agent to hold as Pledged Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the Administrative Agent, be segregated from the other property or funds of such Pledgor and be promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) delivered to the Administrative Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).
(b) So long as no Event of Default shall have occurred and be continuing, the Administrative Agent shall be deemed without further action or formality to have granted to each Pledgor all necessary consents relating to voting rights and shall, if necessary, upon written request of any Pledgor and at the sole cost and expense of the Pledgors, from time to time execute and deliver (or cause to be executed and delivered) to such Pledgor all such instruments as such Pledgor may reasonably request in order to permit such Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 5.2(a)(i) hereof and to receive the Distributions which it is authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof.
(c) Upon the occurrence and during the continuance of any Event of Default:
(i) All rights of each Pledgor to exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 5.2(a)(i) hereof shall immediately cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights.
(ii) All rights of each Pledgor to receive Distributions which it would otherwise be authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof shall immediately cease and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to receive and hold as Pledged Collateral such Distributions.
(d) Each Pledgor shall, at its sole cost and expense, from time to time execute and deliver to the Administrative Agent appropriate instruments as the Administrative Agent may reasonably request in order to permit the Administrative Agent to exercise the voting and other rights which it may be entitled to exercise pursuant to Section 5.2(c)(i) hereof and to receive all Distributions which it may be entitled to receive under Section 5.2(c)(ii) hereof.
(e) All Distributions which are received by any Pledgor contrary to the provisions of Section 5.2(a)(ii) hereof shall be received in trust for the benefit of the Administrative Agent, shall be segregated from other funds of such Pledgor and shall promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) be paid over to the Administrative Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).
SECTION 5.3 Defaults, etc. Each Pledgor hereby represents and warrants that such Pledgor is not in violation of any provisions of any agreement to which such Pledgor is a party relating to Pledged Securities pledged by it, or otherwise in default or violation thereunder, except for such defaults or violations that would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, no Securities Collateral pledged by such Pledgor is subject to any defense, offset or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any person with respect thereto except as have been disclosed to the Administrative Agent, and as of the date hereof, there are no certificates, instruments, documents or other writings (other than the organizational documents and certificates representing such Pledged Securities that have been delivered to the Administrative Agent) which evidence any Pledged Securities of such Pledgor.
SECTION 5.4 Certain Agreements of Pledgors As Issuers and Holders of Equity Interests.
(a) In the case of each Pledgor which is an issuer of Securities Collateral, such Pledgor agrees to be bound by the terms of this Agreement relating to the Securities Collateral issued by it and will comply with such terms insofar as such terms are applicable to it.
(b) In the case of each Pledgor which is a partner, shareholder or member, as the case may be, in a partnership, limited liability company or other entity, such Pledgor hereby consents to the extent required by the applicable organizational document to the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Securities in such partnership, limited liability company or other entity and, upon the occurrence and during the continuance of an Event of Default, to the transfer of such Pledged Securities to the Administrative Agent or its nominee and to the substitution of the Administrative Agent or its nominee as a substituted partner, shareholder or member in such partnership, limited liability company or other entity with all the rights, powers and duties of a general partner, limited partner, shareholder or member, as the case may be.
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL
PROPERTY COLLATERAL
SECTION 6.1 Grant of Intellectual Property License. For the purpose of enabling the Administrative Agent, during the continuance of an Event of Default, to exercise rights and remedies under Article IX hereof at such time as the Administrative Agent shall be lawfully entitled to exercise such rights and remedies, and for no other purpose, each Pledgor
hereby grants to the Administrative Agent an irrevocable (during the term of this Agreement), non-exclusive, worldwide, and royalty-free (and free of any other obligation of payment) license or sublicense to use or otherwise exploit any of the Intellectual Property Collateral now owned, licensed or hereafter acquired by such Pledgor, wherever the same may be located; provided, that (i) such license shall be subject to the rights of any licensee under any exclusive license granted prior to such Event of Default, (ii) the quality of any services or products in connection with which any Trademarks included in the Intellectual Property Collateral are used will not be material inferior to the quality of such services and products sold by such Pledgor under such Trademarks immediately prior to such Event of Default, and such Pledgor shall have the reasonable right to inspect any such services and products to monitor compliance with such standard, and (iii) to the extent such license is a sublicense of Pledgors rights as licensee under an Intellectual Property License, the license to the Administrative Agent shall be in accordance with any limitations in such Intellectual Property License, including any prohibitions on further sublicensing. Such license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout hereof.
SECTION 6.2 Protection of Administrative Agents Security. On a continuing basis, each Pledgor shall, at its sole cost and expense, (i) promptly following its becoming aware thereof, notify the Administrative Agent of any adverse determination in any proceeding or the institution of any proceeding in any federal, state or local court or administrative body or in the United States Patent and Trademark Office or the United States Copyright Office regarding any material Intellectual Property Collateral, such Pledgors right to register such Intellectual Property Collateral or its right to keep and maintain such registration in full force and effect (other than office actions or other determinations in the ordinary course of prosecution before the United States Patent and Trademark Office or the United States Copyright Office or any foreign counterpart), (ii) maintain and not permit to lapse or become abandoned any material Intellectual Property Collateral that is not obsolete or used in services or products sold by such Pledgor, and not settle or compromise any pending or future litigation or administrative proceeding with respect to any such Intellectual Property Collateral, in either case except as shall be consistent with commercially reasonable business judgment, (iii) upon such Pledgor obtaining knowledge thereof, promptly notify the Administrative Agent in writing of any event which may be reasonably expected to materially and adversely affect the value or utility of any material Intellectual Property Collateral or the rights and remedies of the Administrative Agent in relation thereto including a levy or threat of levy or any legal process against any such Intellectual Property Collateral, (iv) not license any Intellectual Property Collateral or otherwise disclose any confidential Technology or source code other than licenses entered into by such Pledgor in, or incidental to, the ordinary course of business or as part of a commercially reasonable licensing strategy, or amend or permit the amendment of any of the Intellectual Property Licenses in a manner that materially and adversely affects the right to receive payments thereunder, or in any manner that would materially impair the value of any Intellectual Property Collateral or the Lien on and security interest in the Intellectual Property Collateral created therein hereby, without the consent of the Administrative Agent (v) diligently keep adequate records respecting all Intellectual Property Collateral and (vi) furnish to the Administrative Agent from time to time upon the Administrative Agents request therefor reasonably detailed statements and amended schedules further identifying and describing the Intellectual Property Collateral and such other materials evidencing or reports pertaining to any Intellectual Property Collateral as the Administrative Agent may from time to time request.
SECTION 6.3 After-Acquired Property. If any Pledgor shall at any time after the date hereof (i) obtain any rights to any additional Intellectual Property Collateral or (ii) become entitled to the benefit of any additional Intellectual Property Collateral or any renewal or extension thereof, including any reissue, division, continuation, or continuation-in-part of any Intellectual Property Collateral, or any improvement on any Intellectual Property Collateral, or if any intent-to use trademark application is no longer subject to clause (c) of the definition of Excluded Property, the provisions hereof shall automatically apply thereto and any such item enumerated in the preceding clause (i) or (ii) shall automatically constitute Intellectual Property Collateral as if such would have constituted Intellectual Property Collateral at the time of execution hereof and be subject to the Lien and security interest created by this Agreement without further action by any party. In connection with the delivery of each Perfection Certificate Supplement, each Pledgor shall, upon the Administrative Agents request, confirm the attachment of the Lien and security interest created by this Agreement to any rights described in clauses (i) and (ii) above by execution of an instrument in the Copyright Security Agreement, the Patent Security Agreement or the Trademark Security Agreement, or other form reasonably acceptable to the Administrative Agent, and the filing of any instruments or statements as shall be reasonably necessary to create, preserve, protect or perfect the Administrative Agents security interest in such Intellectual Property Collateral, including prompt recordals with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. Further, each Pledgor authorizes the Administrative Agent to modify this Agreement by amending Schedules 11(a) and 11(b) to the Perfection Certificate to include any Intellectual Property Collateral of such Pledgor acquired or arising after the date hereof.
SECTION 6.4 Litigation. Unless there shall occur and be continuing any Event of Default, each Pledgor shall have the right to commence and prosecute in its own name, as the party in interest, for its own benefit and at the sole cost and expense of the Pledgors, such applications for protection of the Intellectual Property Collateral and suits, proceedings or other actions to prevent and/or obtain a recovery for the infringement, counterfeiting, unfair competition, dilution, diminution in value or other damage as are necessary to protect the Intellectual Property Collateral. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall have the right but shall in no way be obligated to file applications for protection of the Intellectual Property Collateral and/or bring suit in the name of any Pledgor, the Administrative Agent or the Secured Parties to enforce the Intellectual Property Collateral and any license thereunder. In the event of such suit, each Pledgor shall, at the reasonable request of the Administrative Agent, do any and all lawful acts and execute any and all documents requested by the Administrative Agent in aid of such enforcement and the Pledgors shall promptly reimburse and indemnify the Administrative Agent for all costs and expenses incurred by the Administrative Agent in the exercise of its rights under this Section 6.4 in accordance with Section 8.03 of the Credit Agreement. In the event that an Event of Default has occurred and is continuing and the Administrative Agent shall elect not to bring suit to enforce the Intellectual Property Collateral, each Pledgor agrees, at the reasonable request of the Administrative Agent, to take all commercially reasonable actions necessary, whether by suit, proceeding or other action, to prevent and/or obtain a recovery for the infringement, counterfeiting, unfair competition, dilution, diminution in value of or other damage to any of the Intellectual Property Collateral by any person.
ARTICLE VII
CERTAIN PROVISIONS CONCERNING RECEIVABLES
SECTION 7.1 Maintenance of Records. Each Pledgor shall keep and maintain at its own cost and expense accurate records of each Receivable in all material respects. Each Pledgor shall, at such Pledgors sole cost and expense, upon the Administrative Agents demand made at any time after the occurrence and during the continuance of any Event of Default, deliver all tangible evidence of Receivables, including all documents evidencing Receivables and any books and records relating thereto to the Administrative Agent or to its representatives (copies of which evidence and books and records may be retained by such Pledgor). Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent may transfer a full and complete copy of any Pledgors books, records, credit information, reports, memoranda and all other writings relating to the Receivables to and for the use by any person that has acquired or is contemplating acquisition of an interest in the Receivables or the Administrative Agents security interest therein without the consent of any Pledgor.
SECTION 7.2 Modification of Terms, etc. After the occurrence of and during the continuation of an Event of Default, Pledgor shall rescind or cancel any obligations evidenced by any Receivable or modify any term thereof in any manner that would adversely affect the value as Pledged Collateral or make any adjustment with respect thereto except in the ordinary course of business consistent with current or past business practice, or extend or renew any such obligations except in the ordinary course of business consistent with current or past business practice or compromise or settle any dispute, claim, suit or legal proceeding relating thereto or sell any Receivable or interest therein except in the ordinary course of business consistent with current or past business practice without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed).
SECTION 7.3 Collection. After the occurrence of and during the continuation of an Event of Default, Pledgor shall use commercially reasonable efforts to cause to be collected from the Account Debtor of each of the Receivables, as and when due in the ordinary course of business and consistent with current or past business practice (including Receivables that are delinquent, such Receivables to be collected in accordance with current or past business practice, except that any Pledgor may, with respect to a Receivable, allow in the ordinary course of business (i) a refund or credit due as a result of returned or damaged or defective merchandise and (ii) such extensions of time to pay amounts due in respect of Receivables and such other modifications of payment terms or settlements in respect of Receivables as shall be commercially reasonable in the circumstances, all in accordance with such Pledgors ordinary course of business consistent with its collection practices as in effect from time to time. The reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys fees) of collection, in any case, whether incurred by any Pledgor, the Administrative Agent or any Secured Party, shall be paid by the Pledgors.
ARTICLE VIII
TRANSFERS
SECTION 8.1 Transfers of Pledged Collateral. No Pledgor shall sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral pledged by it hereunder in a manner prohibited by the Credit Agreement.
ARTICLE IX
REMEDIES
SECTION 9.1 Remedies. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent may from time to time exercise in respect of the Pledged Collateral, in addition to the other rights and remedies provided for herein or otherwise available to it, the following remedies:
(i) Personally, or by agents or attorneys, immediately take possession of the Pledged Collateral or any part thereof, from any Pledgor or any other person who then has possession of any part thereof, and for that purpose may enter upon any Pledgors premises where any of the Pledged Collateral is located, remove such Pledged Collateral, remain present at such premises to receive copies of all communications and remittances relating to the Pledged Collateral and use in connection with such removal and possession any and all services, supplies, aids and other facilities of any Pledgor;
(ii) Demand, sue for, collect or receive any money or property at any time payable or receivable in respect of the Pledged Collateral including instructing the obligor or obligors on any agreement, instrument or other obligation constituting part of the Pledged Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Administrative Agent, and in connection with any of the foregoing, compromise, settle, extend the time for payment and make other modifications with respect thereto; provided, however, that in the event that any such payments are made directly to any Pledgor, prior to receipt by any such obligor of such instruction, such Pledgor shall segregate all amounts received pursuant thereto in trust for the benefit of the Administrative Agent and shall promptly (but in no event later than three (3) Business Days after receipt thereof or such later date as may be agreed to in writing by the Administrative Agent in its sole discretion) pay such amounts to the Administrative Agent;
(iii) Sell, assign, grant a license to use or otherwise liquidate, or direct any Pledgor to sell, assign, grant a license to use or otherwise liquidate, any and all investments made in whole or in part with the Pledged Collateral or any part thereof, and take possession of the proceeds of any such sale, assignment, license or liquidation;
(iv) Take possession of the Pledged Collateral or any part thereof, by directing any Pledgor in writing to deliver the same to the Administrative Agent at any place or places so designated by the Administrative Agent, in which event such Pledgor shall at its own expense: (A) promptly cause the same to be moved to the place or places designated by the Administrative Agent and therewith delivered to the Administrative Agent, (B) store and keep any Pledged Collateral so delivered to the Administrative Agent at such place or places pending further action by the Administrative Agent and (C) while the Pledged Collateral shall be so stored and kept, provide such security and maintenance services as shall be necessary to protect the same and to preserve and maintain them in good condition. Each Pledgors obligation to deliver the Pledged Collateral as contemplated in this Section 9.1(iv) is of the essence hereof. Upon application to a court of equity having jurisdiction, the Administrative Agent shall be entitled to a decree requiring specific performance by any Pledgor of such obligation;
(v) Withdraw all moneys, instruments, securities and other property in any bank, financial securities, deposit or other account of any Pledgor constituting Pledged Collateral for application to the Obligations as provided in Article X hereof;
(vi) Retain and apply the Distributions to the Obligations as provided in Article X hereof;
(vii) Exercise any and all rights as beneficial and legal owner of the Pledged Collateral, including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Pledged Collateral; and
(viii) Exercise all the rights and remedies of a secured party on default under the UCC, and the Administrative Agent may also in its sole discretion, without notice except as specified in Section 9.2 hereof, sell, assign or grant a license to use the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, brokers board or at any of the Administrative Agents offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Administrative Agent may deem commercially reasonable. The Administrative Agent or any other Secured Party or any of their respective Affiliates may be the purchaser, licensee, assignee or recipient of the Pledged Collateral or any part thereof at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Pledged Collateral sold, assigned or licensed at such sale, to use and apply any of the Obligations owed to such person as a credit on account of the purchase price of the Pledged Collateral or any part thereof payable by such person at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the property sold, assigned or licensed absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest extent
permitted by law, all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Administrative Agent shall not be obligated to make any sale of the Pledged Collateral or any part thereof regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
SECTION 9.2 Notice of Sale. Each Pledgor acknowledges and agrees that, to the extent notice of sale or other disposition of the Pledged Collateral or any part thereof shall be required by law, ten days prior notice to such Pledgor of the time and place of any public sale or of the time after which any private sale or other intended disposition is to take place shall be commercially reasonable notification of such matters. No notification need be given to any Pledgor if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition.
SECTION 9.3 Waiver of Notice and Claims. Each Pledgor hereby waives, to the fullest extent permitted by applicable law, notice or judicial hearing in connection with the Administrative Agents taking possession or the Administrative Agents disposition of the Pledged Collateral or any part thereof, including any and all prior notice and hearing for any prejudgment remedy or remedies and any such right which such Pledgor would otherwise have under law, and each Pledgor hereby further waives, to the fullest extent permitted by applicable law: (i) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Administrative Agents rights hereunder and (ii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable law. Any sale of, or the grant of options to purchase, or any other realization upon, any Pledged Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in equity against such Pledgor and against any and all persons claiming or attempting to claim the Pledged Collateral so sold, optioned or realized upon, or any part thereof, from, through or under such Pledgor.
SECTION 9.4 Certain Sales of Pledged Collateral.
(a) Each Pledgor recognizes that, by reason of certain prohibitions contained in law, rules, regulations or orders of any Governmental Authority, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who meet the requirements of such Governmental Authority. Each Pledgor acknowledges that any such sales may be at prices and on terms less favorable to the Administrative Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such restricted sale shall be deemed to have been made in a commercially reasonable manner and that, except as may be required by applicable law, the Administrative Agent shall have no obligation to engage in public sales.
(b) Each Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Securities Collateral and Investment Property, to limit purchasers to persons who will agree, among other things, to acquire such Securities Collateral or Investment Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Administrative Agent than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Securities Collateral or Investment Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would agree to do so.
(c) Notwithstanding the foregoing, each Pledgor shall, upon the occurrence and during the continuance of any Event of Default, at the reasonable request of the Administrative Agent, for the benefit of the Administrative Agent, cause any registration, qualification under or compliance with any Federal or state securities law or laws to be effected with respect to all or any part of the Securities Collateral as soon as practicable and at the sole cost and expense of the Pledgors. Each Pledgor will use its commercially reasonable efforts to cause such registration to be effected (and be kept effective) and will use its commercially reasonable efforts to cause such qualification and compliance to be effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribution of such Securities Collateral including registration under the Securities Act (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with all other requirements of any Governmental Authority. Each Pledgor shall use its commercially reasonable efforts to cause the Administrative Agent to be kept advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, shall furnish to the Administrative Agent such number of prospectuses, offering circulars or other documents incident thereto as the Administrative Agent from time to time may request, and shall indemnify and shall cause the issuer of the Securities Collateral to indemnify the Administrative Agent and all others participating in the distribution of such Securities Collateral against all claims, losses, damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material fact contained therein (or in any related registration statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) If the Administrative Agent determines to exercise its right to sell any or all of the Securities Collateral or Investment Property, upon written request, the applicable Pledgor shall from time to time furnish to the Administrative Agent all such information as the Administrative Agent may reasonably request in order to determine the number of securities included in the Securities Collateral or Investment Property which may be sold by the Administrative Agent as exempt transactions under the Securities Act and the rules of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
(e) Each Pledgor further agrees that a breach of any of the covenants contained in this Section 9.4 will cause irreparable injury to the Administrative Agent and the other Secured Parties, that the Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 9.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing.
SECTION 9.5 No Waiver; Cumulative Remedies.
(a) No failure on the part of the Administrative Agent to exercise, no course of dealing with respect to, and no delay on the part of the Administrative Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power, privilege or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power, privilege or remedy; nor shall the Administrative Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. All rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law.
(b) In the event that the Administrative Agent shall have instituted any proceeding to enforce any right, power, privilege or remedy under this Agreement or any other Loan Document by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Administrative Agent, then and in every such case, the Pledgors, the Administrative Agent and each other Secured Party shall be restored to their respective former positions and rights hereunder with respect to the Pledged Collateral, and all rights, remedies, privileges and powers of the Administrative Agent and the other Secured Parties shall continue as if no such proceeding had been instituted.
SECTION 9.6 Certain Additional Actions Regarding Intellectual Property. If any Event of Default shall have occurred and be continuing, upon the written demand of the Administrative Agent, each Pledgor shall execute and deliver to the Administrative Agent an assignment or assignments of such Pledgors rights in the Intellectual Property Collateral and such other documents as are necessary or appropriate to carry out the intent and purposes hereof. Within five (5) Business Days of written notice thereafter from the Administrative Agent, each Pledgor shall make available to the Administrative Agent, to the extent within such Pledgors power and authority, such personnel in such Pledgors employ on the date of the Event of Default as the Administrative Agent may reasonably designate to permit such Pledgor to continue, directly or indirectly, to produce, advertise and sell the products and services sold by such Pledgor under the Intellectual Property Collateral, and such persons shall be made reasonably available to perform their prior functions on the Administrative Agents behalf.
ARTICLE X
APPLICATION OF PROCEEDS
SECTION 10.1 Application of Proceeds. The proceeds received by the Administrative Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Administrative Agent of its remedies shall be applied, together with any other sums then held by the Administrative Agent pursuant to this Agreement, in accordance with the Credit Agreement.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Concerning Administrative Agent.
(a) The Administrative Agent has been appointed as administrative agent pursuant to the Credit Agreement. The actions of the Administrative Agent hereunder are subject to the provisions of the Credit Agreement. The Administrative Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Credit Agreement. The Administrative Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. Each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Pledged Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Administrative Agent for the ratable benefit of the Secured Parties in accordance with the terms of this Agreement. The Administrative Agent may resign and a successor Administrative Agent may be appointed in the manner provided in the Credit Agreement. Upon the acceptance of any appointment as the Administrative Agent by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent under this Agreement, and the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agents resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Administrative Agent.
(b) The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Administrative Agent, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Administrative Agent nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Administrative Agent or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(c) The Administrative Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(d) If any item of Pledged Collateral also constitutes collateral granted to the Administrative Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the provisions of this Agreement shall control unless the other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral expressly states that such document.
(e) The Administrative Agent may rely on advice of counsel as to whether any or all UCC financing statements of the Pledgors need to be amended as a result of any of the changes described in Section 5.11 of the Credit Agreement. If any Pledgor fails to provide information to the Administrative Agent about such changes on a timely basis, the Administrative Agent shall not be liable or responsible to any party for any failure to maintain a perfected security interest in such Pledgors property constituting Pledged Collateral, for which the Administrative Agent needed to have information relating to such changes. The Administrative Agent shall have no duty to inquire about such changes if any Pledgor does not inform the Administrative Agent of such changes, the parties acknowledging and agreeing that it would not be feasible or practical for the Administrative Agent to search for information on such changes if such information is not provided by any Pledgor.
SECTION 11.2 Administrative Agent May Perform; Administrative Agent Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants contained in this Agreement in any material respect or if any representation or warranty on the part of any Pledgor contained herein shall be breached in any material respect, the Administrative Agent may (but shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend funds for such purpose; provided, however, that the Administrative Agent shall in no event be bound to inquire into the validity of any tax, Lien, imposition or other obligation which such Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest in accordance with the provisions of the Credit Agreement. Any and all reasonable and documented amounts so expended by the Administrative Agent shall be paid by the Pledgors in accordance with the provisions of Section 9.04 of the Credit Agreement. Neither the provisions of this Section 11.2 nor any action taken by the Administrative Agent pursuant to the provisions of this Section 11.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any breach of representation or warranty from constituting an Event of Default. Each Pledgor hereby appoints the Administrative Agent its attorney-in-fact, with full power and authority in the place and stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time in the Administrative Agents discretion, to take any action and to execute any instrument consistent with the terms of the Credit Agreement, this Agreement and the other Collateral Documents which the Administrative Agent may deem necessary or
advisable to accomplish the purposes hereof (but the Administrative Agent shall not be obligated to and shall have no liability to such Pledgor or any third party for failure to so do or take action). The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 11.3 Continuing Security Interest; Assignment. This Agreement shall create a continuing security interest in the Pledged Collateral and shall (i) be binding upon the Pledgors, their respective successors and assigns and (ii) inure, together with the rights and remedies of the Administrative Agent hereunder, to the benefit of the Administrative Agent and the other Secured Parties and each of their respective successors, transferees and assigns. No other persons (including any other creditor of any Pledgor) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Secured Party may assign or otherwise transfer any indebtedness held by it secured by this Agreement to any other person, and such other person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party, herein or otherwise, subject however, to the provisions of the Credit Agreement. Each of the Pledgors agrees that its obligations hereunder and the security interest created hereunder shall continue to be effective or be reinstated, as applicable, if at any time payment, or any part thereof, of all or any part of the Obligations is rescinded or must otherwise be restored by the Secured Party upon the bankruptcy or reorganization of any Pledgor or otherwise.
SECTION 11.4 Termination; Release. The Pledged Collateral and the Obligations of any Pledgor shall be released from the Lien of this Agreement in accordance with the provisions of the Credit Agreement, including upon the transfer or sale of the Pledged Collateral (to a person that is not a Loan Party or Specified Pledgor) in a manner not prohibited by the Credit Agreement. Furthermore, upon termination of all Commitments and payment in full of all Obligations (other than contingent indemnification obligations), this Agreement shall terminate. Upon such termination of this Agreement the Pledged Collateral shall be automatically released from the Lien of this Agreement. Upon such release or any release of Pledged Collateral or any part thereof in accordance with the provisions of the Credit Agreement, the Administrative Agent shall, upon the request and at the sole cost and expense of the Pledgors, assign, transfer and deliver to Pledgor, against receipt and without recourse to or warranty by the Administrative Agent except as to the fact that the Administrative Agent has not encumbered the released assets, such of the Pledged Collateral or any part thereof to be released (in the case of a release) as may be in possession of the Administrative Agent and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Pledged Collateral, proper documents and instruments (including UCC-3 termination financing statements or releases) acknowledging the termination hereof or the release of such Pledged Collateral, as the case may be.
SECTION 11.5 Modification in Writing. No amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor therefrom, shall be effective unless the same shall be made in accordance with the terms of the Credit Agreement and unless in writing and signed by the Administrative Agent. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by any Pledgor from the terms of any
provision hereof in each case shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement or any other document evidencing the Obligations, no notice to or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances.
SECTION 11.6 Notices. Unless otherwise provided herein or in the Credit Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Credit Agreement, as to any Pledgor, addressed to it at the address of the Borrower set forth in the Credit Agreement and as to the Administrative Agent, addressed to it at the address set forth in the Credit Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.6.
SECTION 11.7 Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial. Sections 9.10 and 9.11 of the Credit Agreement are incorporated herein, mutatis mutandis, as if a part hereof.
SECTION 11.8 Severability of Provisions. Any provision hereof which is invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting the validity, legality or enforceability of such provision in any other jurisdiction.
SECTION 11.9 Execution in Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 11.10 Business Days. In the event any time period or any date provided in this Agreement ends or falls on a day other than a Business Day, then such time period shall be deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and performance herein may be made on such Business Day, with the same force and effect as if made on such other day.
SECTION 11.11 No Credit for Payment of Taxes or Imposition. Such Pledgor shall not be entitled to any credit against the principal, premium, if any, or interest payable under the Credit Agreement, and such Pledgor shall not be entitled to any credit against any other sums which may become payable under the terms thereof or hereof, by reason of the payment of any Tax on the Pledged Collateral or any part thereof.
SECTION 11.12 No Claims Against Administrative Agent. Nothing contained in this Agreement shall constitute any consent or request by the Administrative Agent, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Pledged Collateral or any part thereof, nor as giving any Pledgor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Administrative Agent in respect thereof or any claim that any Lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.
SECTION 11.13 No Release. Nothing set forth in this Agreement or any other Loan Document, nor the exercise by the Administrative Agent of any of the rights or remedies hereunder, shall relieve any Pledgor from the performance of any term, covenant, condition or agreement on such Pledgors part to be performed or observed under or in respect of any of the Pledged Collateral or from any liability to any person under or in respect of any of the Pledged Collateral or shall impose any obligation on the Administrative Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Pledgors part to be so performed or observed or shall impose any liability on the Administrative Agent or any other Secured Party for any act or omission on the part of such Pledgor relating thereto or for any breach of any representation or warranty on the part of such Pledgor contained in this Agreement, the Credit Agreement or the other Loan Documents, or under or in respect of the Pledged Collateral or made in connection herewith or therewith. Anything herein to the contrary notwithstanding, neither the Administrative Agent nor any other Secured Party shall have any obligation or liability under any contracts, agreements and other documents included in the Pledged Collateral by reason of this Agreement, nor shall the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of any Pledgor thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Pledged Collateral hereunder. The obligations of each Pledgor contained in this Section 11.13 shall survive the termination hereof and the discharge of such Pledgors other obligations under this Agreement, the Credit Agreement and the other Loan Documents.
SECTION 11.14 Obligations Absolute. All obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any other Pledgor;
(ii) any lack of validity or enforceability of the Credit Agreement or any other Loan Document, or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement or any other Loan Document or any other agreement or instrument relating thereto;
(iv) any pledge, exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(v) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect hereof, the Credit Agreement or any other Loan Document except as specifically set forth in a waiver granted pursuant to the provisions of Section 11.5 hereof; or
(vi) any other circumstances which might otherwise constitute a defense available to, or a discharge of, any Pledgor.
SECTION 11.15 Intercreditor Agreement. In the event of any conflict between the terms of the ABL Intercreditor Agreement and this Agreement (other than Section 2.1 hereof), the terms of the ABL Intercreditor Agreement shall govern. Notwithstanding anything herein to the contrary, the priority of the Lien and security interest granted to the Administrative Agent pursuant to any Loan Document and the exercise of any right or remedy in respect of the Pledged Collateral by the Administrative Agent (or any Secured Party) hereunder or under any other Loan Document are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and any Loan Document, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy. Notwithstanding anything herein to the contrary, prior to the Discharge of Revolving Credit Obligations (as defined in the ABL Intercreditor Agreement), (i) the delivery or granting of control (as defined in the UCC) to the extent only one Person can be granted control therein under applicable law of any ABL Collateral (as defined in the ABL Intercreditor Agreement) by the administrative agent under the ABL Credit Agreement pursuant to the terms of the Revolving Credit Collateral Documents (as defined in the ABL Intercreditor Agreement) shall satisfy any such control requirement hereunder or under any other Loan Document with respect to any ABL Collateral to the extent that such control is consistent with the terms of the ABL Intercreditor Agreement and (ii) the possession of any ABL Collateral by the administrative agent under the ABL Credit Agreement pursuant to the terms of the Revolving Credit Collateral Documents (as defined in the ABL Intercreditor Agreement) shall satisfy any such possession requirement hereunder or under any other Loan Document with respect to ABL Collateral to the extent that such possession is consistent with the terms of the ABL Intercreditor Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each Pledgor and the Administrative Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.
R. R. DONNELLEY & SONS COMPANY, as Pledgor | ||
By: |
| |
Name: Title: |
AMERICAN LITHOGRAPHERS, INC. AGS CUSTOM GRAPHICS, INC. BANTA CORPORATION BANTA GLOBAL TURNKEY LLC BRIDGETOWN PRINTING CO. CHAS. P. YOUNG COMPANY CLEAR VISIONS, INC. COLUMBIA COLOR, INC. CONSOLIDATED CARQUEVILLE PRINTING COMPANY CONSOLIDATED GRAPHICS INTERNATIONAL, INC. CONSOLIDATED GRAPHICS PROPERTIES II, INC. CONSOLIDATED GRAPHICS SERVICES, INC. CONSOLIDATED GRAPHICS, INC. COPY-MOR, INC. COURIER PRINTING COMPANY CP SOLUTIONS, INC. DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. EGT PRINTING SOLUTIONS, LLC ELECTRIC CITY PRINTING COMPANY EMERALD CITY GRAPHICS, INC. FREDERIC PRINTING COMPANY GARNER PRINTING COMPANY GILLILAND PRINTING, INC. GSL FINE LITHOGRAPHERS H&N PRINTING & GRAPHICS, INC. HICKORY PRINTING SOLUTIONS, LLC IRONWOOD LITHOGRAPHERS, INC. KELMSCOTT COMMUNICATIONS LLC LINCOLN PRINTING CORPORATION as Pledgors | ||
By |
| |
Name: Title: |
MERCURY PRINTING COMPANY, LLC METROPOLITAN PRINTING SERVICES, LLC NIES/ARTCRAFT, INC. OFFICETIGER HOLDINGS INC. OFFICETIGER LLC PBM GRAPHICS, INC. PRECISION DIALOGUE DIRECT, INC. PRECISION DIALOGUE MARKETING, LLC PRECISION DIALOGUE, INC. PRECISION LITHO, INC. PRINTING CONTROL SERVICES INCORPORATED RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. RRD DUTCH HOLDCO, INC. RRD WEST CALDWELL, LLC SPANGLER GRAPHICS, LLC STORTERCHILDS PRINTING CO., INC. TEWELL WARREN PRINTING COMPANY THE HENNEGAN COMPANY THE JACKSON GROUP LLC THE JARVIS PRESS, INC. THE MCKAY PRESS, INC. THEO. DAVIS SONS, INCORPORATED THOUSAND OAKS PRINTING & SPECIALTIES, INC. TUCKER PRINTERS, INC. VERITAS DOCUMENT SOLUTIONS, LLC WENTWORTH CORPORATION WETZEL BROTHERS, LLC as Pledgors | ||
By |
| |
Name: Title: |
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: |
| |
Name: Title: |
SCHEDULE 1
PLEDGED SECURITIES
Current Legal Entities Owned |
Record Owner |
Certificate |
No. |
% |
EXHIBIT 1
[Form of]
SECURITIES PLEDGE AMENDMENT
This Securities Pledge Amendment, dated as of [ ], 20[ ] is delivered pursuant to Section 5.14 of the Credit Agreement and Section 5.1 of the Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of October 15, 2018, made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the Guarantors party thereto and BANK OF AMERICA, N.A., as collateral agent (in such capacity and together with any successors in such capacity, the Administrative Agent). The undersigned hereby agrees that this Securities Pledge Amendment may be attached to the Security Agreement and that the Pledged Securities listed on this Securities Pledge Amendment shall be deemed to be and shall become part of the Pledged Collateral and shall secure all Obligations.
PLEDGED SECURITIES
ISSUER |
RECORD |
CERTIFICATE |
NUMBER |
PERCENTAGE |
% PLEDGED |
REQUIRED |
[ ], as Pledgor | ||
By: |
| |
Name: Title: |
AGREED TO AND ACCEPTED:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: |
| |
Name: Title: |
EXHIBIT 2
[Form of]
JOINDER TO SECURITY AGREEMENT
[Name of New Pledgor]
[Address of New Pledgor]
[Date]
Ladies and Gentlemen:
Reference is made to (i) the Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), dated as of October 15, 2018, made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), and the Guarantors party thereto, as pledgors, assignors and debtors in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacity, the Administrative Agent) and (ii) the Credit Agreement, dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement), among the Borrower, the Lenders from time to time party thereto and Bank of America, N.A., as the administrative agent. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement or the Credit Agreement, as applicable.
This Joinder to Security Agreement and Guaranty (this Joinder Agreement) supplements the Security Agreement and the Guaranty and is delivered by the undersigned, [ ] (the New Pledgor), pursuant to Section 3.5 of the Security Agreement and Section 5.09(b) of the Credit Agreement.
The New Pledgor hereby agrees to be bound as a Pledgor party to the Security Agreement by all of the terms, covenants and conditions set forth in the Security Agreement to the same extent that it would have been bound if it had been a signatory to the Security Agreement on the date of the Security Agreement. Without limiting the generality of the foregoing, the New Pledgor hereby grants and pledges to the Administrative Agent, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, a Lien on and security interest in, all of its right, title and interest in, to and under the Pledged Collateral and expressly assumes all obligations and liabilities of a Guarantor and Pledgor thereunder. New Pledgor makes all of the representations and warranties in the Security Agreement as of the date hereof.
Notwithstanding any of the other provisions set forth in this Joinder Agreement or anything else contained in the Security Agreement or any other Loan Document, the aggregate amount of all Obligations secured under the Collateral Documents by Principal Property (as defined in each Indenture) or any shares of capital stock or indebtedness (as defined in each Indenture) of any Restricted Subsidiary (as defined in each Indenture) and owned by the Borrower or any Restricted Subsidiary (as defined in each Indenture) (collectively, the Restricted Property) shall not, at any time, exceed the aggregate amount (such amount, the Indenture Threshold Amount) of indebtedness (as defined in each Indenture) that may be secured by Restricted Property under each Indenture, determined in accordance with the terms of each Indenture, without requiring holders of the Securities or Notes (as defined in and issued under each applicable Indenture) to be equally and ratably secured in accordance with the terms of such Indenture. It is understood and acknowledged by the parties hereto (including, by its acceptance of the benefit of this Agreement, each Secured Party) that (v) as of the date hereof, the total amount of Obligations is in excess of the Indenture Threshold Amount as of the Closing Date, (w) from time to time after the Closing Date, the total amount of the Obligations may be in excess of the Indenture Threshold Amount then in effect, (x) as of the date hereof, the Obligations in excess of the Indenture Threshold Amount are not secured by any Restricted Property hereunder or under any other Collateral Document, (y) at any time after the date hereof, any Obligations in excess of the Indenture Threshold Amount in effect at such time shall not be secured by any Restricted Property hereunder or under any other Collateral Document and (z) in no event shall any mortgage (as defined in each Indenture) on any Restricted Property in favor of any Secured Party created hereunder or under any other Collateral Document at any time secure any Obligations in excess of the Indenture Threshold Amount then in effect. For the avoidance of doubt, the calculation of the Indenture Threshold Amount at any date of determination shall take into account all outstanding Attributable Debt (as defined in each Indenture) of all Sale and Lease-Back Transactions (as defined in each Indenture) permitted pursuant to the last paragraph of Section 407 or 1007 of each Indenture, as applicable, as of such date and all indebtedness (as defined in each Indenture) of the Borrower and its Restricted Subsidiaries (as defined in each Indenture) secured by mortgages (as defined in each Indenture) permitted pursuant to the last paragraph of Section 406 or 1006 of each Indenture as of such date.
Annexed hereto are supplements to each of the schedules to the Security Agreement and the Credit Agreement, as applicable, with respect to the New Pledgor. Such supplements shall be deemed to be part of the Security Agreement or the Credit Agreement, as applicable.
This Joinder Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Pledgor has caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.
[NEW PLEDGOR] | ||
By: |
| |
Name: Title: |
AGREED TO AND ACCEPTED:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: |
| |
Name: Title: |
[Schedules to be attached]
EXHIBIT 3
[Form of]
Copyright Security Agreement
Copyright Security Agreement (this Copyright Security Agreement), dated as of [ ], by [ ] and [ ] (individually, a Pledgor, and, collectively, the Pledgors), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement (in such capacity, the Administrative Agent).
W I T N E S S E T H:
WHEREAS, the Pledgors are party to a Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), dated as of October 15, 2018, made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the Guarantors party thereto in favor of the Administrative Agent pursuant to which the Pledgors are required to execute and deliver this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby agree with the Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement. For purposes of this Copyright Security Agreement, Copyrights shall mean, collectively, all copyrights (whether statutory or common law, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished) and all copyright registrations and applications, together with any and all (i) rights and privileges arising under applicable law with respect to the use of such copyrights, (ii) renewals, supplements and extensions thereof and amendments thereto, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including damages and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof.
SECTION 2. Grant of Security Interest in Copyright Collateral. Each Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured Parties a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under all the following property, in all cases wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the Copyright Collateral):
(a) all Copyrights of such Pledgor, including those listed on Schedule I attached hereto;
(b) all material Intellectual Property Licenses under which such Pledgor is the exclusive licensee with respect to any registered Copyright; and
(c) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in clauses (a) through (c) above, the security interest created by this Copyright Security Agreement shall not extend to any Excluded Property.
SECTION 3. Security Agreement. The security interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Administrative Agent with respect to the security interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Administrative Agent shall otherwise determine.
SECTION 4. Termination. Upon the payment in full of the Obligations and termination of the Security Agreement, this Copyright Security Agreement shall terminate, and the Administrative Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the lien and security interest in the Copyright Collateral granted under this Copyright Security Agreement.
SECTION 5 Intercreditor Agreement Governs. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Administrative Agent pursuant to this Copyright Security Agreement and the exercise of any right or remedy in respect of the Copyright Collateral by the Administrative Agent (or any Secured Party) hereunder are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and this Copyright Security Agreement, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy.
SECTION 6. Counterparts. This Copyright Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Copyright Security Agreement by signing and delivering one or more counterparts.
SECTION 7. Governing Law. This Copyright Security Agreement and the transactions contemplated hereby, and all disputes between the parties under or relating to this Copyright Security Agreement or the facts or circumstances leading to its execution, whether in contract, tort or otherwise, shall be construed in accordance with and governed by the laws (including statutes of limitation) of the State of New York, without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Copyright Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours,
|
[PLEDGORS]
|
By: |
Name: |
Title: |
Accepted and Agreed:
|
BANK OF AMERICA, N.A., as Administrative Agent
|
By: |
Name: |
Title: |
SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS
Copyright Registrations:
OWNER |
REGISTRATION NUMBER |
TITLE |
Copyright Applications:
OWNER |
TITLE |
EXHIBIT 4
[Form of]
Patent Security Agreement
Patent Security Agreement (this Patent Security Agreement), dated as of [ ], by [ ] and [ ] (individually, a Pledgor, and, collectively, the Pledgors), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement (in such capacity, the Administrative Agent).
W I T N E S S E T H:
WHEREAS, the Pledgors are party to a Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), dated as of October 15, 2018, made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the Guarantors party thereto in favor of the Administrative Agent pursuant to which the Pledgors are required to execute and deliver this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby agree with the Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement. For purposes of this Patent Security Agreement, Patents shall mean, collectively, all patents and all patent applications (whether issued, allowed, pending or recorded in the United States or any other country or any political subdivision thereof), together with any and all (i) rights and privileges arising under applicable law with respect to any such patents or patent applications, (ii) inventions, discoveries, designs and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, reexaminations, extensions and continuations-in-part thereof and amendments thereto, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future infringements thereof.
SECTION 2. Grant of Security Interest in Patent Collateral. Each Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured Parties a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under all the following property, in all cases wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the Patent Collateral):
(a) all Patents of such Pledgor, including those listed on Schedule I attached hereto; and
(b) all Proceeds of any and all of the foregoing
Notwithstanding anything to the contrary contained in clauses (a) or (b) above, the security interest created by this Patent Security Agreement shall not extend to any Excluded Property.
SECTION 3. Security Agreement. The security interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Administrative Agent with respect to the security interest in the Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Patent Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Administrative Agent shall otherwise determine.
SECTION 4. Termination. Upon the payment in full of the Obligations and termination of the Security Agreement, this Patent Security Agreement shall terminate, and the Administrative Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the lien and security interest in the Patent Collateral granted under this Patent Security Agreement.
SECTION 5. Intercreditor Agreement Governs. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Administrative Agent pursuant to this Patent Security Agreement and the exercise of any right or remedy in respect of the Patent Collateral by the Administrative Agent (or any Secured Party) hereunder are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and this Patent Security Agreement, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy.
SECTION 6. Counterparts. This Patent Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Patent Security Agreement by signing and delivering one or more counterparts.
SECTION 7. Governing Law. This Patent Security Agreement and the transactions contemplated hereby, and all disputes between the parties under or relating to this Patent Security Agreement or the facts or circumstances leading to its execution, whether in contract, tort or otherwise, shall be construed in accordance with and governed by the laws (including statutes of limitation) of the State of New York, without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours, | ||
[PLEDGORS] | ||
By: | ||
Name: | ||
Title: |
Accepted and Agreed: | ||
BANK OF AMERICA, N.A., | ||
as Administrative Agent | ||
By: | ||
Name: | ||
Title: |
SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS AND PATENT APPLICATIONS
Patent Registrations:
OWNER |
REGISTRATION NUMBER |
NAME |
||||||
Patent Applications:
OWNER |
APPLICATION NUMBER |
NAME |
||||||
EXHIBIT 5
[Form of]
Trademark Security Agreement
Trademark Security Agreement (this Trademark Security Agreement), dated as of [ ], by [________] and [________] (individually, a Pledgor, and, collectively, the Pledgors), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement (in such capacity, the Administrative Agent).
W I T N E S S E T H:
WHEREAS, the Pledgors are party to a Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Security Agreement), dated as of October 15, 2018, made by R. R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the Guarantors party thereto in favor of the Administrative Agent pursuant to which the Pledgors are required to execute and deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Administrative Agent, for the benefit of the Secured Parties, to enter into the Credit Agreement, the Pledgors hereby agree with the Administrative Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agreement. For purposes of this Trademark Security Agreement, Trademarks shall mean, collectively, all trademarks (including service marks), slogans, logos, certification marks, trade dress, uniform resource locators (URLs), domain names, corporate names, brand names, and trade names, whether registered or unregistered, and all registrations and applications for the foregoing (whether statutory or common law and whether established, applied for or registered in the United States or any other country or any political subdivision thereof), together with any and all (i) goodwill associated with the foregoing, (ii) rights and privileges arising under applicable law with respect to any of the foregoing, (iii) extensions and renewals thereof and amendments thereto, (iv) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements, dilutions or violations thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present and future infringements, dilutions or violations thereof.
SECTION 2. Grant of Security Interest in Trademark Collateral. Each Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured Parties a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under all the following property, in all cases wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the Trademark Collateral):
(a) all Trademarks of such Pledgor, including those listed on Schedule I attached hereto; and
(b) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in clauses (a) or (b) above, the security interest created by this Trademark Security Agreement shall not extend to any Excluded Property, including any United States trademark or service mark application filed on the basis of any Pledgors intent-to-use such mark filed pursuant to Section 1(b) of the Lanham Act, 15 U.S.C. § 1051, prior to the filing and acceptance by the U.S. Patent and Trademark Office of a verified Statement of Use pursuant to Section 1(d) of the Lanham Act or an Amendment to Allege Use pursuant to Section 1(c) of the Lanham Act with respect thereto.
SECTION 3. Security Agreement. The security interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interest granted to the Administrative Agent pursuant to the Security Agreement and Pledgors hereby acknowledge and affirm that the rights and remedies of the Administrative Agent with respect to the security interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control unless the Administrative Agent shall otherwise determine.
SECTION 4. Termination. Upon the payment in full of the Obligations and termination of the Security Agreement, this Trademark Security Agreement shall terminate, and the Administrative Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the lien and security interest in the Trademark Collateral granted under this Trademark Security Agreement.
SECTION 5. Intercreditor Agreement Governs. Notwithstanding anything herein to the contrary, the lien and security interest granted to the Administrative Agent pursuant to this Trademark Security Agreement and the exercise of any right or remedy in respect of the Trademark Collateral by the Administrative Agent (or any Secured Party) hereunder are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and this Trademark Security Agreement, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy.
SECTION 6. Counterparts. This Trademark Security Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Trademark Security Agreement by signing and delivering one or more counterparts.
SECTION 7. Governing Law. This Trademark Security Agreement and the transactions contemplated hereby, and all disputes between the parties under or relating to this Trademark Security Agreement or the facts or circumstances leading to its execution, whether in contract, tort or otherwise, shall be construed in accordance with and governed by the laws (including statutes of limitation) of the State of New York, without regard to conflicts of law principles that would require the application of the laws of another jurisdiction.
[signature page follows]
IN WITNESS WHEREOF, each Pledgor has caused this Trademark Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours, | ||
[PLEDGORS] | ||
By: | ||
Name: | ||
Title: |
Accepted and Agreed: | ||
BANK OF AMERICA, N.A., | ||
as Administrative Agent | ||
By: | ||
Name: | ||
Title: |
SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS
Trademark Registrations:
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Trademark Applications:
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EXHIBIT D-2
[SEE ATTACHED]
FORM OF PLEDGE AGREEMENT
This PLEDGE AGREEMENT dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the provisions hereof, this Agreement) made by RRD NETHERLANDS LLC, a Delaware limited liability company (RRD Netherlands) and each of the other entities that becomes a party hereto pursuant to Section 3.5 or otherwise, as pledgors, assignors and debtors (in such capacities, together with any successors in such capacities, the Pledgors, and each, a Pledgor), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement (as hereinafter defined), as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the Administrative Agent).
R E C I T A L S:
6. R.R. Donnelley and Sons Company, a Delaware corporation (the Borrower), the Administrative Agent and the lending institutions listed therein have, in connection with the execution and delivery of this Agreement, entered into that certain credit agreement, dated as of October 15, 2018 (as amended, amended and restated, supplemented or otherwise modified from time to time, the Credit Agreement; which term shall also include and refer to any increase in the amount of indebtedness under the Credit Agreement and any refinancing or replacement of the Credit Agreement (whether under a bank facility, securities offering or otherwise) or one or more successor or replacement facilities whether or not with a different group of agents or lenders (whether under a bank facility, securities offering or otherwise) and whether or not with different obligors upon the Administrative Agents acknowledgment of the termination of the predecessor Credit Agreement).
7. Each Pledgor will receive substantial benefits from the execution, delivery and performance of the obligations under the Credit Agreement and the other Loan Documents and each is, therefore, willing to enter into this Agreement.
8. This Agreement is given by each Pledgor in favor of the Administrative Agent for the benefit of the Secured Parties to secure the payment and performance of all of the Obligations.
9. It is a condition to the obligations of the Lenders to make the Loans under the Credit Agreement that each Pledgor execute and deliver the applicable Loan Documents, including this Agreement.
A G R E E M E N T :
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Administrative Agent hereby agree as follows:
ARTICLE XII
DEFINITIONS AND INTERPRETATION
SECTION 12.1 Definitions
(a) Unless otherwise defined herein or in the Credit Agreement, capitalized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC;
(b) Terms used but not otherwise defined herein that are defined in the Credit Agreement shall have the meanings given to them in the Credit Agreement.
(c) The following terms shall have the following meanings:
Administrative Agent shall have the meaning assigned to such term in the Preamble hereof.
Agreement shall have the meaning assigned to such term in the Preamble hereof.
Borrower shall have the meaning assigned to such term in Recital A hereof.
Credit Agreement shall have the meaning assigned to such term in Recital A hereof.
Distributions shall mean, collectively, with respect to each Pledgor, all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in exchange for any or all of the Pledged Securities.
Excluded Equity means any Equity Interests in any first tier Foreign Subsidiary in excess of 65% of the Equity Interest in such Issuer.
Indenture Threshold Amount shall have the meaning assigned to such term in Section 2.1.
Issuer means each of the entities listed under the heading Issuer on Schedule 1 hereto.
Pledge Amendment shall have the meaning assigned to such term in Section 5.1 hereof.
Pledged Collateral shall have the meaning assigned to such term in Section 2.1 hereof.
Pledged Securities shall mean, collectively, (i) all of the Equity Interests issued by RRD Holdings C.V., a Dutch commanditaire vennototschap other than Excluded Equity, (ii) all of the Equity Interests of each first tier Foreign Subsidiary, now owned or hereafter acquired, including, without limitation, the Equity Interests set forth on Schedule 1 hereto, together with all rights, privileges, authority and powers of such Pledgor relating to such Equity Interests or under any organizational document of any such issuer, and the certificates, instruments and
agreements representing such Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such Equity Interests, from time to time acquired by such Pledgor in any manner and (iii) all Equity Interests issued in respect of the Equity Interests referred to in clauses (i) and (ii) upon any consolidation or merger of any issuer of such Equity Interests; other than, in the case of clauses (ii) and (iii), Excluded Equity.
Pledgor shall have the meaning assigned to such term in the Preamble hereof.
Restricted Property shall have the meaning assigned to such term in Section 2.1.
Securities Act shall mean the Securities Act of 1933, as amended.
Securities Collateral shall mean, collectively, the Pledged Securities and the Distributions. The actions required to be taken with respect to the Securities Collateral shall be limited by the provisions of Sections 3.1 and 3.2.
UCC shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provisions of law, any or all of the perfection or priority of the Administrative Agents and the Secured Parties security interest in any item or portion of the Pledged Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term UCC shall mean the Uniform Commercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such provisions.
SECTION 12.2 Interpretation. The rules of interpretation specified in the Credit Agreement (including Section 1.03 thereof) shall be applicable to this Agreement.
SECTION 12.3 Resolution of Drafting Ambiguities. Each Pledgor acknowledges and agrees that it was represented by counsel in connection with the execution and delivery hereof, that it and its counsel reviewed and participated in the preparation and negotiation hereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Administrative Agent) shall not be employed in the interpretation hereof.
SECTION 12.4 Perfection Certificate. The Administrative Agent and each Secured Party agree that the Perfection Certificate and all descriptions of Pledged Collateral, schedules, amendments and supplements thereto (including each Perfection Certificate Supplement) are and shall at all times remain a part of this Agreement.
ARTICLE XIII
GRANT OF SECURITY AND OBLIGATIONS
SECTION 13.1 Grant of Security Interest. As collateral security for the payment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Administrative Agent for the benefit of the Secured Parties, a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under the following property , in all cases wherever located, whether now existing or hereafter arising or acquired from time to time (collectively, the Pledged Collateral):
(i) all Pledged Securities;
(ii) all Distributions;
(iii) all books and records relating to the foregoing; and
(iv) all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with respect to any of the foregoing.
Notwithstanding any of the other provisions set forth in this Article II or anything else contained in this Agreement or any other Loan Document, the aggregate amount of all Obligations secured under the Collateral Documents by Principal Property (as defined in each Indenture) or any shares of capital stock or indebtedness (as defined in each Indenture) of any Restricted Subsidiary (as defined in each Indenture) and owned by the Borrower or any Restricted Subsidiary (as defined in each Indenture) (collectively, the Restricted Property) shall not, at any time, exceed the aggregate amount (such amount, the Indenture Threshold Amount) of indebtedness (as defined in each Indenture) that may be secured by Restricted Property under each Indenture, determined in accordance with the terms of each Indenture, without requiring holders of the Securities or Notes (as defined in and issued under each applicable Indenture) to be equally and ratably secured in accordance with the terms of such Indenture. It is understood and acknowledged by the parties hereto (including, by its acceptance of the benefit of this Agreement, each Secured Party) that (v) as of the Closing Date, the total amount of Obligations is in excess of the Indenture Threshold Amount as of the Closing Date, (w) from time to time after the Closing Date, the total amount of the Obligations may be in excess of the Indenture Threshold Amount then in effect, (x) as of the Closing Date, the Obligations in excess of the Indenture Threshold Amount are not secured by any Restricted Property hereunder or under any other Collateral Document, (y) at any time after the Closing Date, any Obligations in excess of the Indenture Threshold Amount in effect at such time shall not be secured by any Restricted Property hereunder or under any other Collateral Document and (z) in no event shall any mortgage (as defined in each Indenture) on any Restricted Property in favor of any Secured Party created hereunder or under any other Collateral Document at any time secure any Obligations in excess of the Indenture Threshold Amount then in effect. For the avoidance of doubt, the calculation of the Indenture Threshold Amount at any date of determination shall take into account all outstanding Attributable Debt (as defined in each Indenture) of all Sale and Lease-Back Transactions (as defined in each Indenture) permitted pursuant to the last paragraph of Section 407 or 1007 of each Indenture, as applicable, as of such date and all indebtedness (as defined in each Indenture) of the Borrower and its Restricted Subsidiaries (as defined in each Indenture) secured by mortgages (as defined in each Indenture) permitted pursuant to the last paragraph of Section 406 or 1006 of each Indenture as of such date.
SECTION 13.2 Filings.
(a) Each Pledgor hereby irrevocably authorizes the Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment relating to the Pledged Collateral, including (i) whether such Pledgor is an organization, the type of organization and any organizational identification number issued to such Pledgor, and (ii) any financing or continuation statements or other documents without the signature of such Pledgor where permitted by law and that describe the Pledged Collateral in any manner as the Administrative Agent may determine, in its reasonable discretion, as is necessary to ensure the perfection of the security interest in the collateral granted to the Administrative Agent in connection herewith. Each Pledgor agrees to provide all information described in the immediately preceding sentence to the Administrative Agent promptly upon reasonable request by the Administrative Agent.
(b) Each Pledgor hereby ratifies its authorization for the Administrative Agent to file in any relevant jurisdiction any financing statements relating to the Pledged Collateral if filed prior to the date hereof.
ARTICLE XIV
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES;
USE OF PLEDGED COLLATERAL
SECTION 14.1 Delivery of Certificated Securities Collateral. Each Pledgor represents and warrants that all certificates, agreements or instruments representing or evidencing the Securities Collateral in existence on the date hereof have been delivered to the Administrative Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that the Administrative Agent has a perfected first priority security interest therein (subject only to Permitted Liens) under the UCC. Each Pledgor hereby agrees that all certificates or instruments representing or evidencing Securities Collateral acquired by such Pledgor after the date hereof shall promptly (but in any event within 90 days after acquisition thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) be delivered to and held by or on behalf of the Administrative Agent pursuant hereto. All certificated Securities Collateral shall be in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall have the right, at any time upon the occurrence and during the continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in the name of the Administrative Agent or any of its nominees or endorse for negotiation any or all of the Securities Collateral, without any indication that such Securities Collateral is subject to the security interest hereunder. In addition, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have the right at any time to exchange certificates representing or evidencing Securities Collateral for certificates of smaller or larger denominations.
SECTION 14.2 Perfection of Uncertificated Securities Collateral. Each Pledgor represents and warrants that the Administrative Agent has a perfected first priority security interest (subject only to Permitted Liens) in all uncertificated Pledged Securities pledged by it hereunder under the UCC that are in existence on the date hereof. Each Pledgor agrees that after the occurrence and during the continuation of an Event of Default, upon request of the Administrative Agent to (i) cause such pledge to be recorded on the equityholder register of the books of the issuer and give the Administrative Agent the right to transfer such Pledged Securities in the pursuit of remedies under the terms hereof and (ii) cause such Pledged Securities to become certificated (to the extent possible under applicable law) and delivered to the Administrative Agent in accordance with the provisions of Section 3.1.
SECTION 14.3 Financing Statements and Other Filings; Maintenance of Perfected Security Interest. Each Pledgor represents and warrants that all financing statements, agreements, instruments and other documents necessary to perfect the security interest (to the extent such security interests can be perfected by filing under the UCC) granted by it to the Administrative Agent in respect of the Pledged Collateral have been delivered to the Administrative Agent in completed and, to the extent necessary or appropriate, duly executed in a form for filing in the filing offices listed on Schedule 6 to the Perfection Certificate. Set forth on Schedule 6 to the Perfection Certificate is the correct filing office with respect to such filings. Each Pledgor agrees that at the sole cost and expense of the Pledgors, such Pledgor will maintain the security interest created by this Agreement in the Pledged Collateral as a perfected first priority security interest (to the extent such security interests can be perfected under the UCC) subject only to Permitted Liens and file all UCC-3 continuations statements necessary to continue the perfection of the security interest created by this Agreement.
SECTION 14.4 [Reserved]
SECTION 14.5 Joinder of Additional Pledgors. From time to time, after the date hereof, additional Specified Pledgors required pursuant to the provisions of the Credit Agreement to become a Pledgor hereunder shall execute and deliver to the Administrative Agent (i) a Joinder Agreement substantially in the form attached as Exhibit 2 hereto and (ii) a Perfection Certificate with respect to such Specified Pledgor, and, upon such execution and delivery, such Specified Pledgor shall constitute a Pledgor for all purposes hereunder with the same force and effect as if originally named as a Pledgor herein. The execution and delivery of such Joinder Agreement shall not require the consent of any Pledgor hereunder. The rights and obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Pledgor as a party to this Agreement.
SECTION 14.6 Supplements; Further Assurances. Each Pledgor shall take such further actions, and execute and/or deliver to the Administrative Agent such additional financing statements, amendments, assignments, agreements, supplements, powers and instruments, as the Administrative Agent may in its reasonable judgment deem necessary or appropriate in order to perfect, preserve and protect the security interest in the Pledged Collateral as provided herein and the rights and interests granted to the Administrative Agent hereunder, to carry into effect the purposes hereof or better to assure and confirm the validity, enforceability and priority of the Administrative Agents security interest in the Pledged Collateral or permit the Administrative Agent to exercise and enforce its rights, powers and remedies hereunder with respect to any Pledged Collateral, including the filing of financing statements, continuation statements and other documents (including this Agreement) under the Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby wherever required by law to perfect, continue and maintain the validity, enforceability and priority of the security interest in the Pledged Collateral as provided herein and to preserve the other rights and interests granted to the Administrative Agent hereunder, as against third parties, with respect to the Pledged Collateral. Without limiting the generality of the foregoing, each Pledgor shall make, execute, endorse, acknowledge, file or refile and/or
deliver to the Administrative Agent from time to time upon reasonable request by the Administrative Agent such lists, schedules, descriptions and designations of the Pledged Collateral, as the Administrative Agent shall reasonably request. If an Event of Default has occurred and is continuing, the Administrative Agent may institute and maintain, in its own name or in the name of any Pledgor, such suits and proceedings as the Administrative Agent may be advised by counsel shall be necessary or expedient to prevent any impairment of the security interest in or the perfection thereof in the Pledged Collateral. All of the foregoing shall be at the sole cost and expense of the Pledgors.
ARTICLE XV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants as follows:
SECTION 15.1 Title. Except for the security interest granted to the Administrative Agent for the benefit of the Secured Parties pursuant to this Agreement and except for Permitted Liens, such Pledgor owns or has rights, and, as to Pledged Collateral acquired by it from time to time after the date hereof, will own or have rights, in each item of Pledged Collateral pledged by it hereunder, free and clear of any and all Liens.
SECTION 15.2 Validity of Security Interest. The security interest in and Lien on the Pledged Collateral granted to the Administrative Agent for the benefit of the Secured Parties hereunder constitutes (a) a legal and valid security interest in all the Pledged Collateral securing the payment and performance of the Obligations under the UCC, and (b) subject to the filings and other actions described in Schedule 6 to the Perfection Certificate a perfected security interest in all the Pledged Collateral under the UCC. The security interest and Lien granted to the Administrative Agent for the benefit of the Secured Parties pursuant to this Agreement in and on the Pledged Collateral, except as otherwise provided in this Agreement and subject to the limitations set forth herein, will at all times constitute a perfected, continuing security interest therein (to the extent such security interests can be perfected by filing under the UCC), prior to all other Liens on the Pledged Collateral except for Permitted Liens. Upon the taking of possession or control by the Administrative Agent of Pledged Collateral with respect to which a security interest may be perfected by possession or control, the Liens created by this Agreement shall constitute first priority perfected Liens on, and security interests in such Pledged Collateral.
SECTION 15.3 Defense of Claims; Transferability of Pledged Collateral. Each Pledgor shall, at its own cost and expense, defend title to the Pledged Collateral pledged by it hereunder and the security interest therein and Lien thereon granted to the Administrative Agent and the priority thereof against all claims and demands of all persons, at its own cost and expense, at any time claiming any interest therein adverse to the Administrative Agent or any other Secured Party, other than Permitted Liens and except as to claims and demands that if determined adversely to such Pledgor would not reasonably be expected to have a Material Adverse Effect. Except as permitted by the Credit Agreement (including Permitted Liens and sales or other transfers permitted by Sections 6.06 and 6.11 of the Credit Agreement), this Agreement or any other Loan Document, there is no agreement to which any Pledgor is a party, and no Pledgor shall enter into any agreement or take any other action, that would restrict the transferability of any of the Pledged Collateral or otherwise impair or conflict in any material respect with such Pledgors obligations or the rights of the Administrative Agent hereunder.
SECTION 15.4 Other Financing Statements. It has not filed, nor to its knowledge has it authorized any third party to file, any currently valid and effective financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Pledged Collateral, except such as have been filed in favor of the Administrative Agent pursuant to this Agreement or in favor of any holder of a Permitted Lien with respect to such Permitted Lien or financing statements. No Pledgor shall execute, authorize or permit to be filed in any public office any financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) relating to any Pledged Collateral, except financing statements and other statements and instruments filed or to be filed in respect of and covering the security interests granted by such Pledgor to the holder of the Permitted Liens.
SECTION 15.5 Due Authorization and Issuance. All of the Pledged Securities issued by a Subsidiary existing on the date hereof have been, and to the extent any Pledged Securities issued by the Pledgor or a Subsidiary are hereafter issued, such Pledged Securities will be, upon such issuance, duly authorized, validly issued and fully paid and non-assessable to the extent applicable. There is no amount or other financial obligation owing by any Pledgor to any issuer of the Pledged Securities in exchange for or in connection with the issuance of the Pledged Securities or any Pledgors status as a partner or a member of any issuer of the Pledged Securities, except as set forth in the organizational documents of such issuer of Pledged Securities with respect to non-corporate issuers.
SECTION 15.6 Consents, etc. In the event that, so long as an Event of Default shall have occurred and be continuing, the Administrative Agent desires to exercise any remedies, voting or consensual rights or attorney-in-fact powers set forth in this Agreement and determines it necessary to obtain any approvals or consents of any Governmental Authority or any other person therefor, then, upon the reasonable request of the Administrative Agent, such Pledgor agrees to use its commercially reasonable efforts to assist and aid the Administrative Agent to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers.
SECTION 15.7 Pledged Collateral. All information set forth herein, including the schedules hereto, and all information contained in any documents, schedules and lists heretofore delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in connection with this Agreement, in each case, relating to the Pledged Collateral, is accurate and complete when set forth or delivered, in all material respects.
SECTION 15.8 Insurance. In the event that the proceeds of any insurance claim are paid to any Pledgor after the Administrative Agent has exercised its right to foreclose after an Event of Default shall have occurred and be continuing, such proceeds shall be held in trust for the benefit of the Administrative Agent and promptly after receipt thereof shall be paid to the Administrative Agent for application in accordance with the Credit Agreement.
SECTION 15.9 Equity Interests. Schedule 1 hereto sets forth all Equity Interests of first tier Foreign Subsidiaries held by a Pledgor as of the date hereof.
ARTICLE XVI
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 16.1 Pledge of Additional Securities Collateral. Subject to the limitations set forth in Section 3.1, each Pledgor shall, upon obtaining after the Closing Date any Pledged Securities of any person, accept the same in trust for the benefit of the Administrative Agent and promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) deliver to the Administrative Agent a pledge amendment, duly executed by such Pledgor, in substantially the form of Exhibit 1 hereto (each, a Pledge Amendment), and the certificates and other documents required under Section 3.1 hereof in respect of the additional Pledged Securities which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Securities. Each Pledgor hereby authorizes the Administrative Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Securities listed on any Pledge Amendment delivered to the Administrative Agent shall for all purposes hereunder be considered Pledged Collateral.
SECTION 16.2 Voting Rights; Distributions; etc. So long as no Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Securities Collateral or any part thereof for any purpose not inconsistent with the terms or purposes hereof, the Credit Agreement or any other document evidencing the Obligations; provided, however, that no Pledgor shall in any event exercise such rights in any manner which would reasonably be expected to have a Material Adverse Effect.
(ii) Each Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien hereof, any and all Distributions, but only if and to the extent made in accordance with the provisions of the Credit Agreement; provided, however, that any and all such Distributions consisting of rights or interests in the form of certificated securities shall be promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) delivered to the Administrative Agent to hold as Pledged Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the Administrative Agent, be segregated from the other property or funds of such Pledgor and be promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) delivered to the Administrative Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).
(b) So long as no Event of Default shall have occurred and be continuing, the Administrative Agent shall be deemed without further action or formality to have granted to each Pledgor all necessary consents relating to voting rights and shall, if necessary, upon written request of any Pledgor and at the sole cost and expense of the Pledgors, from time to time execute and deliver (or cause to be executed and delivered) to such Pledgor all such instruments as such Pledgor may reasonably request in order to permit such Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 5.2(a)(i) hereof and to receive the Distributions which it is authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof.
(c) Upon the occurrence and during the continuance of any Event of Default:
(i) All rights of each Pledgor to exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 5.2(a)(i) hereof shall immediately cease, and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to exercise such voting and other consensual rights.
(ii) All rights of each Pledgor to receive Distributions which it would otherwise be authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof shall immediately cease and all such rights shall thereupon become vested in the Administrative Agent, which shall thereupon have the sole right to receive and hold as Pledged Collateral such Distributions.
(d) Each Pledgor shall, at its sole cost and expense, from time to time execute and deliver to the Administrative Agent appropriate instruments as the Administrative Agent may reasonably request in order to permit the Administrative Agent to exercise the voting and other rights which it may be entitled to exercise pursuant to Section 5.2(c)(i) hereof and to receive all Distributions which it may be entitled to receive under Section 5.2(c)(ii) hereof.
(e) All Distributions which are received by any Pledgor contrary to the provisions of Section 5.2(c)(ii) hereof shall be received in trust for the benefit of the Administrative Agent, shall be segregated from other funds of such Pledgor and shall promptly (but in any event within 90 days after receipt thereof by such Pledgor or such longer period as may be agreed to in writing by the Administrative Agent in its sole discretion) be paid over to the Administrative Agent as Pledged Collateral in the same form as so received (with any necessary endorsement).
SECTION 16.3 Defaults, etc. Each Pledgor hereby represents and warrants that such Pledgor is not in violation of any provisions of any agreement to which such Pledgor is a party relating to Pledged Securities pledged by it, or otherwise in default or violation thereunder, except for such defaults or violations that would not reasonably be expected to have a Material Adverse Effect. To the knowledge of the Borrower, no Securities Collateral pledged by such Pledgor is subject to any defense, offset or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any person with respect thereto except as have been disclosed to the Administrative Agent, and as of the date hereof, there are no certificates, instruments, documents or other writings (other than the organizational documents and certificates representing such Pledged Securities that have been delivered to the Administrative Agent) which evidence any Pledged Securities of such Pledgor.
SECTION 16.4 Certain Agreements of Pledgors As Issuers and Holders of Equity Interests.
(a) [Reserved]
(b) In the case of each Pledgor which is a partner, shareholder or member, as the case may be, in a partnership, limited liability company or other entity, such Pledgor hereby consents to the extent required by the applicable organizational document to the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Securities in such partnership, limited liability company or other entity and, upon the occurrence and during the continuance of an Event of Default, to the transfer of such Pledged Securities to the Administrative Agent or its nominee and to the substitution of the Administrative Agent or its nominee as a substituted partner, shareholder or member in such partnership, limited liability company or other entity with all the rights, powers and duties of a general partner, limited partner, shareholder or member, as the case may be.
ARTICLE XVII
[RESERVED]
ARTICLE XVIII
TRANSFERS
SECTION 18.1 Transfers of Pledged Collateral. No Pledgor shall sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the Pledged Collateral pledged by it hereunder in a manner prohibited by the Credit Agreement.
ARTICLE XIX
REMEDIES
SECTION 19.1 Remedies. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent may from time to time exercise in respect of the Pledged Collateral, in addition to the other rights and remedies provided for herein or otherwise available to it, the following remedies:
(i) Retain and apply the Distributions to the Obligations as provided in Article IX hereof;
(ii) Exercise any and all rights as beneficial and legal owner of the Pledged Collateral, including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Pledged Collateral; and
(iii) Exercise all the rights and remedies of a secured party on default under the UCC, and the Administrative Agent may also in its sole discretion, without notice except as specified in Section 8.2 hereof, sell, assign or grant a license to use the Pledged Collateral or any part thereof in one or more parcels at public or private sale, at any exchange, brokers board or at any of the Administrative Agents offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Administrative Agent may deem commercially reasonable. The Administrative Agent or any other Secured Party or any of their respective Affiliates may be the purchaser, licensee, assignee or recipient of the Pledged Collateral or any part thereof at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Pledged Collateral sold, assigned or licensed at such sale, to use and apply any of the Obligations owed to such person as a credit on account of the purchase price of the Pledged Collateral or any part thereof payable by such person at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the property sold, assigned or licensed absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest extent permitted by law, all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Administrative Agent shall not be obligated to make any sale of the Pledged Collateral or any part thereof regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.
SECTION 19.2 Notice of Sale. Each Pledgor acknowledges and agrees that, to the extent notice of sale or other disposition of the Pledged Collateral or any part thereof shall be required by law, ten days prior notice to such Pledgor of the time and place of any public sale or of the time after which any private sale or other intended disposition is to take place shall be commercially reasonable notification of such matters. No notification need be given to any Pledgor if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition.
SECTION 19.3 Waiver of Notice and Claims. Each Pledgor hereby waives, to the fullest extent permitted by applicable law, notice or judicial hearing in connection with the Administrative Agents taking possession or the Administrative Agents disposition of the Pledged Collateral or any part thereof, including any and all prior notice and hearing for any prejudgment remedy or remedies and any such right which such Pledgor would otherwise have under law, and each Pledgor hereby further waives, to the fullest extent permitted by applicable law: (i) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Administrative Agents rights hereunder and (ii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable law. Any sale of, or the grant of options to purchase, or any other realization upon, any Pledged Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in equity against such Pledgor and against any and all persons claiming or attempting to claim the Pledged Collateral so sold, optioned or realized upon, or any part thereof, from, through or under such Pledgor.
SECTION 19.4 Certain Sales of Pledged Collateral.
(a) Each Pledgor recognizes that, by reason of certain prohibitions contained in law, rules, regulations or orders of any Governmental Authority, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to those who meet the requirements of such Governmental Authority. Each Pledgor acknowledges that any such sales may be at prices and on terms less favorable to the Administrative Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such restricted sale shall be deemed to have been made in a commercially reasonable manner and that, except as may be required by applicable law, the Administrative Agent shall have no obligation to engage in public sales.
(b) Each Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, the Administrative Agent may be compelled, with respect to any sale of all or any part of the Pledged Collateral, to limit purchasers to persons who will agree, among other things, to acquire such Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Administrative Agent than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner and that the Administrative Agent shall have no obligation to engage in public sales and no obligation to delay the sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would agree to do so.
(c) Notwithstanding the foregoing, each Pledgor shall, upon the occurrence and during the continuance of any Event of Default, at the reasonable request of the Administrative Agent, for the benefit of the Administrative Agent, cause any registration, qualification under or compliance with any Federal or state securities law or laws to be effected with respect to all or any part of the Pledged Collateral as soon as practicable and at the sole cost and expense of the Pledgors. Each Pledgor will use its commercially reasonable efforts to cause such registration to be effected (and be kept effective) and will use its commercially reasonable efforts to cause such qualification and compliance to be effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribution of such Pledged Collateral including registration under the Securities Act (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securities laws and appropriate compliance with all other requirements of any Governmental Authority. Each Pledgor shall use its commercially reasonable efforts to cause the Administrative Agent to be kept advised in writing as to the progress of each such registration, qualification or compliance and as to the completion thereof, shall furnish to the Administrative Agent such number of prospectuses, offering circulars or other documents incident thereto as the Administrative Agent from time to
time may request, and shall indemnify and shall cause the issuer of the Pledged Collateral to indemnify the Administrative Agent and all others participating in the distribution of such Pledged Collateral against all claims, losses, damages and liabilities caused by any untrue statement (or alleged untrue statement) of a material fact contained therein (or in any related registration statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading.
(d) If the Administrative Agent determines to exercise its right to sell any or all of the Pledged Collateral, upon written request, the applicable Pledgor shall from time to time furnish to the Administrative Agent all such information as the Administrative Agent may reasonably request in order to determine the number of securities included in the Pledged Collateral which may be sold by the Administrative Agent as exempt transactions under the Securities Act and the rules of the Securities and Exchange Commission thereunder, as the same are from time to time in effect.
(e) Each Pledgor further agrees that a breach of any of the covenants contained in this Section 8.4 will cause irreparable injury to the Administrative Agent and the other Secured Parties, that the Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 8.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that no Event of Default has occurred and is continuing.
SECTION 19.5 No Waiver; Cumulative Remedies.
(a) No failure on the part of the Administrative Agent to exercise, no course of dealing with respect to, and no delay on the part of the Administrative Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power, privilege or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power, privilege or remedy; nor shall the Administrative Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. All rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law.
(b) In the event that the Administrative Agent shall have instituted any proceeding to enforce any right, power, privilege or remedy under this Agreement or any other Loan Document by foreclosure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Administrative Agent, then and in every such case, the Pledgors, the Administrative Agent and each other Secured Party shall be restored to their respective former positions and rights hereunder with respect to the Pledged Collateral, and all rights, remedies, privileges and powers of the Administrative Agent and the other Secured Parties shall continue as if no such proceeding had been instituted.
ARTICLE XX
APPLICATION OF PROCEEDS
SECTION 20.1 Application of Proceeds. The proceeds received by the Administrative Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Administrative Agent of its remedies shall be applied, together with any other sums then held by the Administrative Agent pursuant to this Agreement, in accordance with the Credit Agreement.
ARTICLE XXI
MISCELLANEOUS
SECTION 21.1 Concerning Administrative Agent.
(a) The Administrative Agent has been appointed as administrative agent and collateral agent pursuant to the Credit Agreement. The actions of the Administrative Agent hereunder are subject to the provisions of the Credit Agreement. The Administrative Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Pledged Collateral), in accordance with this Agreement and the Credit Agreement. The Administrative Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. Each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Pledged Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Administrative Agent for the benefit of the Secured Parties in accordance with the terms of this Agreement. The Administrative Agent may resign and a successor Administrative Agent may be appointed in the manner provided in the Credit Agreement. Upon the acceptance of any appointment as the Administrative Agent by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent under this Agreement, and the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agents resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Administrative Agent.
(b) The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equivalent to that which the Administrative Agent, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Administrative Agent nor any of the Secured Parties shall have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Administrative Agent or any other Secured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any person with respect to any Pledged Collateral.
(c) The Administrative Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel selected by it.
(d) [Reserved]
(e) The Administrative Agent may rely on advice of counsel as to whether any or all UCC financing statements of the Pledgors need to be amended as a result of any of the changes described in Section 5.11 of the Credit Agreement. If any Pledgor fails to provide information to the Administrative Agent about such changes on a timely basis, the Administrative Agent shall not be liable or responsible to any party for any failure to maintain a perfected security interest in such Pledgors property constituting Pledged Collateral, for which the Administrative Agent needed to have information relating to such changes. The Administrative Agent shall have no duty to inquire about such changes if any Pledgor does not inform the Administrative Agent of such changes, the parties acknowledging and agreeing that it would not be feasible or practical for the Administrative Agent to search for information on such changes if such information is not provided by any Pledgor.
SECTION 21.2 Administrative Agent May Perform; Administrative Agent Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants contained in this Agreement in any material respect or if any representation or warranty on the part of any Pledgor contained herein shall be breached in any material respect, the Administrative Agent may (but shall not be obligated to) do the same or cause it to be done or remedy any such breach, and may expend funds for such purpose; provided, however, that the Administrative Agent shall in no event be bound to inquire into the validity of any tax, Lien, imposition or other obligation which such Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest in accordance with the provisions of the Credit Agreement. Any and all reasonable and documented amounts so expended by the Administrative Agent shall be paid by the Pledgors in accordance with the provisions of Section 9.04 of the Credit Agreement. Neither the provisions of this Section 10.2 nor any action taken by the Administrative Agent pursuant to the provisions of this Section 10.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any breach of representation or warranty from constituting an Event of Default. Each Pledgor hereby appoints the Administrative Agent its attorney-in-fact, with full power and authority in the place and stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time in the Administrative Agents discretion, to take any action and to execute any instrument consistent with the terms of the Credit Agreement, this Agreement and the other Collateral Documents which the Administrative Agent may deem necessary or advisable to accomplish the purposes hereof (but the Administrative Agent shall not be obligated to and shall have no liability to such Pledgor or any third party for failure to so do or take action). The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 21.3 Continuing Security Interest; Assignment. This Agreement shall create a continuing security interest in the Pledged Collateral and shall (i) be binding upon the Pledgors, their respective successors and assigns and (ii) inure, together with the rights and remedies of the Administrative Agent hereunder, to the benefit of the Administrative Agent and the other Secured Parties and each of their respective successors, transferees and assigns. No other persons (including any other creditor of any Pledgor) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Secured Party may assign or otherwise transfer any indebtedness held by it secured by this Agreement to any other person, and such other person shall thereupon become vested with all the benefits in respect thereof granted to such Secured Party, herein or otherwise, subject however, to the provisions of the Credit Agreement. Each of the Pledgors agrees that its obligations hereunder and the security interest created hereunder shall continue to be effective or be reinstated, as applicable, if at any time payment, or any part thereof, of all or any part of the Obligations is rescinded or must otherwise be restored by the Secured Party upon the bankruptcy or reorganization of any Pledgor or otherwise.
SECTION 21.4 Termination; Release. The Pledged Collateral and the Obligations of any Pledgor shall be released from the Lien of this Agreement in accordance with the provisions of the Credit Agreement, including upon the transfer or sale of the Pledged Collateral (to a person that is not a Loan Party or Specified Pledgor) in a manner not prohibited by the Credit Agreement. Furthermore, upon termination of all Commitments and payment in full of all Obligations (other than contingent indemnification obligations), this Agreement shall terminate. Upon such termination of this Agreement the Pledged Collateral shall be automatically released from the Lien of this Agreement. Upon such release or any release of Pledged Collateral or any part thereof in accordance with the provisions of the Credit Agreement, the Administrative Agent shall, upon the request and at the sole cost and expense of the Pledgors, assign, transfer and deliver to Pledgor, against receipt and without recourse to or warranty by the Administrative Agent except as to the fact that the Administrative Agent has not encumbered the released assets, such of the Pledged Collateral or any part thereof to be released (in the case of a release) as may be in possession of the Administrative Agent and as shall not have been sold or otherwise applied pursuant to the terms hereof, and, with respect to any other Pledged Collateral, proper documents and instruments (including UCC-3 termination financing statements or releases) acknowledging the termination hereof or the release of such Pledged Collateral, as the case may be.
SECTION 21.5 Modification in Writing. No amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor therefrom, shall be effective unless the same shall be made in accordance with the terms of the Credit Agreement and unless in writing and signed by the Administrative Agent. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by any Pledgor from the terms of any provision hereof in each case shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement or any other document evidencing the Obligations, no notice to or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in similar or other circumstances.
SECTION 21.6 Notices. Unless otherwise provided herein or in the Credit Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Credit Agreement, as to any Pledgor, addressed to it at the address of the Borrower set forth in the Credit Agreement and as to the Administrative Agent, addressed to it at the address set forth in the Credit Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 10.6.
SECTION 21.7 Governing Law, Consent to Jurisdiction and Service of Process; Waiver of Jury Trial. Sections 9.10 and 9.11 of the Credit Agreement are incorporated herein, mutatis mutandis, as if a part hereof.
SECTION 21.8 Severability of Provisions. Any provision hereof which is invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting the validity, legality or enforceability of such provision in any other jurisdiction.
SECTION 21.9 Execution in Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 21.10 Business Days. In the event any time period or any date provided in this Agreement ends or falls on a day other than a Business Day, then such time period shall be deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and performance herein may be made on such Business Day, with the same force and effect as if made on such other day.
SECTION 21.11 No Credit for Payment of Taxes or Imposition. Such Pledgor shall not be entitled to any credit against the principal, premium, if any, or interest payable under the Credit Agreement, and such Pledgor shall not be entitled to any credit against any other sums which may become payable under the terms thereof or hereof, by reason of the payment of any Tax on the Pledged Collateral or any part thereof.
SECTION 21.12 No Claims Against Administrative Agent. Nothing contained in this Agreement shall constitute any consent or request by the Administrative Agent, express or implied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Pledged Collateral or any part thereof, nor as giving any Pledgor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against the Administrative Agent in respect thereof or any claim that any Lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.
SECTION 21.13 No Release. Nothing set forth in this Agreement or any other Loan Document, nor the exercise by the Administrative Agent of any of the rights or remedies hereunder, shall relieve any Pledgor from the performance of any term, covenant, condition or agreement on such Pledgors part to be performed or observed under or in respect of any of the Pledged Collateral or from any liability to any person under or in respect of any of the Pledged Collateral or shall impose any obligation on the Administrative Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Pledgors part to be so performed or observed or shall impose any liability on the Administrative Agent or any other Secured Party for any act or omission on the part of such Pledgor relating thereto or for any breach of any representation or warranty on the part of such Pledgor contained in this Agreement, the Credit Agreement or the other Loan Documents, or under or in respect of the Pledged Collateral or made in connection herewith or therewith. Anything herein to the contrary notwithstanding, neither the Administrative Agent nor any other Secured Party shall have any obligation or liability under any contracts, agreements and other documents included in the Pledged Collateral by reason of this Agreement, nor shall the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of any Pledgor thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Pledged Collateral hereunder. The obligations of each Pledgor contained in this Section 10.13 shall survive the termination hereof and the discharge of such Pledgors other obligations under this Agreement, the Credit Agreement and the other Loan Documents.
SECTION 21.14 Obligations Absolute. All obligations of each Pledgor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any other Pledgor;
(ii) any lack of validity or enforceability of the Credit Agreement or any other Loan Document, or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Agreement or any other Loan Document or any other agreement or instrument relating thereto;
(iv) any pledge, exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(v) any exercise, non-exercise or waiver of any right, remedy, power or privilege under or in respect hereof, the Credit Agreement or any other Loan Document except as specifically set forth in a waiver granted pursuant to the provisions of Section 10.5 hereof; or
(vi) any other circumstances which might otherwise constitute a defense available to, or a discharge of, any Pledgor.
SECTION 21.15 Intercreditor Agreement. In the event of any conflict between the terms of the ABL Intercreditor Agreement and this Agreement (other than Section 2.1 hereof), the terms of the ABL Intercreditor Agreement shall govern. Notwithstanding anything herein to the contrary, the priority of the Lien and security interest granted to the Administrative Agent pursuant to any Loan Document and the exercise of any right or remedy in respect of the Pledged Collateral by the Administrative Agent (or any Secured Party) hereunder or under any other Loan Document are subject to the provisions of the ABL Intercreditor Agreement and in the event of any conflict between the terms of the ABL Intercreditor Agreement and any Loan Document, the terms of the ABL Intercreditor Agreement shall govern and control with respect to the exercise of any such right or remedy. Notwithstanding anything herein to the contrary, prior to the Discharge of Revolving Credit Obligations (as defined in the ABL Intercreditor Agreement), (i) the delivery or granting of control (as defined in the UCC) to the extent only one Person can be granted control therein under applicable law of any ABL Collateral (as defined in the ABL Intercreditor Agreement) to the administrative agent under the ABL Credit Agreement pursuant to the terms of the Revolving Credit Collateral Documents (as defined in the ABL Intercreditor Agreement) shall satisfy any such delivery or granting of control requirement hereunder or under any other Loan Document with respect to any ABL Collateral to the extent that such delivery or granting of control is consistent with the terms of the ABL Intercreditor Agreement and (ii) the possession of any ABL Collateral by the administrative agent under the ABL Credit Agreement pursuant to the terms of the Revolving Credit Collateral Documents (as defined in the ABL Intercreditor Agreement) shall satisfy any such possession requirement hereunder or under any other Loan Document with respect to ABL Collateral to the extent that such possession is consistent with the terms of the ABL Intercreditor Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each Pledgor and the Administrative Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.
RRD NETHERLANDS LLC, as Pledgor | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Pledge Agreement]
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Pledge Agreement]
SCHEDULE 1
PLEDGED SECURITIES
PLEDGOR |
ISSUER |
CERTIFICATE NO(S). |
NUMBER OF |
PERCENTAGE OF |
PERCENTAGE |
EXHIBIT 1
[Form of]
SECURITIES PLEDGE AMENDMENT
This Securities Pledge Amendment, dated as of [ ], 20[ ] is delivered pursuant to Section 5.1 of the Pledge Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Pledge Agreement; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Pledge Agreement), dated as of October 15, 2018, made by RRD NETHERLANDS LLC, a Delaware limited liability company, the other Pledgors party thereto and BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacities, the Administrative Agent). The undersigned hereby agrees that this Securities Pledge Amendment may be attached to the Pledge Agreement and that the Pledged Securities listed on this Securities Pledge Amendment shall be deemed to be and shall become part of the Pledged Collateral and shall secure all Obligations.
PLEDGED SECURITIES
|
|
NUMBER OF SHARES |
PERCENTAGE OF |
[ ], as Pledgor | ||
By: | ||
Name: | ||
Title: |
AGREED TO AND ACCEPTED:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: | ||
Name: | ||
Title: |
EXHIBIT 2
[Form of]
JOINDER AMENDMENT
[Name of New Pledgor]
[Address of New Pledgor]
[Date]
Ladies and Gentlemen:
Reference is made to the Pledge Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the Pledge Agreement; capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Pledge Agreement), dated as of October 15, 2018, made by RRD NETHERLANDS LLC, a Delaware limited liability company and each of the other entities that becomes a party thereto, as pledgors, assignors and debtors (in such capacities, together with any successors in such capacities, the Pledgors, and each, a Pledgor), in favor of BANK OF AMERICA, N.A., in its capacity as collateral agent pursuant to the Credit Agreement, as pledgee, assignee and secured party (in such capacities and together with any successors in such capacity, the Administrative Agent).
This Joinder Agreement supplements the Pledge Agreement and is delivered by the undersigned, [ ] (the New Pledgor), pursuant to Section 3.5 of the Pledge Agreement. The New Pledgor hereby agrees to be bound as a Pledgor party to the Pledge Agreement by all of the terms, covenants and conditions set forth in the Pledge Agreement to the same extent that it would have been bound if it had been a signatory to the Pledge Agreement on the date of the Pledge Agreement. Without limiting the generality of the foregoing, the New Pledgor hereby grants and pledges to the Administrative Agent, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, a Lien on and security interest in, all of its right, title and interest in, to and under the Pledged Collateral and expressly assumes all obligations and liabilities of a Pledgor thereunder. The New Pledgor makes all of the representations and warranties in the Pledge Agreement as of the date hereof.
Annexed hereto are supplements to each of the schedules to the Pledge Agreement with respect to the New Pledgor. Such supplements shall be deemed to be part of the Pledge Agreement.
This Joinder Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement.
THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Pledgor has caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.
[NEW PLEDGOR] | ||
By: | ||
Name: | ||
Title: |
AGREED TO AND ACCEPTED:
BANK OF AMERICA, N.A., as Administrative Agent | ||
By: | ||
Name: | ||
Title: |
[Schedules to be attached]
EXHIBIT E
[SEE ATTACHED]
Form of Secretarys Certificate
[DATE]
I, [NAME], am the duly elected, qualified and acting [TITLE] of [COMPANY], a [JURISDICTION] [ENTITY TYPE] (the Company).
In connection with the execution and delivery of that certain Credit Agreement, dated as of October 15, 2018 (the Credit Agreement; capitalized terms used herein without definition are used as defined in the Credit Agreement), among R. R. Donnelley & Sons Company, a Delaware corporation (the Borrower), certain subsidiaries of the Borrower party thereto as guarantors, certain financial institutions party thereto as lenders (the Lenders) and Bank of America, N.A., as administrative agent for the Lenders (in such capacity, the Administrative Agent), [and the delivery of an opinion of ________________,] on behalf of the Company, I hereby certify as of the date hereof that:
I am familiar with the facts herein certified.
Attached hereto as Exhibit A is a true, correct and complete copy of the Companys [CHARTER]. No amendment, restatement or modification thereto has been approved by the [GOVERNING ENTITY] of the Company or filed with any public official, except for such amendments, restatements or modifications that are contained in Exhibit A.
Attached hereto as Exhibit B is a true, correct and complete copy of the Companys [GOVERNING DOCUMENTS], as amended, as in effect at the date on which the resolutions described in paragraph 4 below were adopted for the Company and at all subsequent times to and including the date hereof. No amendment, restatement, supplement or modification thereto has been approved by the [GOVERNING ENTITY] of the Company, except for such amendments, restatements, supplements or modifications that are contained in Exhibit B.
Attached hereto as Exhibit C is a true, correct and complete copy of the resolutions duly adopted by the Companys [GOVERNING ENTITY] relating to the execution and delivery of the Credit Agreement, the other Loan Documents and certain other agreements, instruments and documents relating thereto and the performance of the Companys obligations thereunder. Such resolutions constitute the only actions and resolutions taken by the Companys [GOVERNING ENTITY] or [any committee thereof] relating to the foregoing. Such resolutions have not been amended, modified or rescinded since their adoption and are in full force and effect.
Attached hereto as Exhibit D is a true and correct listing of the acting officers and other authorized signatories of the Company, who are duly elected or appointed to and qualified for the offices set forth opposite their respective names and are authorized to execute and deliver the Credit Agreement, the other Loan Documents and other agreements, instruments and documents relating thereto on behalf of the Company. The signature appearing opposite the name of each such officer or other authorized signatory in Exhibit D is such persons genuine signature.
[Signature Page Follows]
IN WITNESS WHEREOF, I, the undersigned, have duly executed this Certificate on behalf of the Company as of the date first written above.
By: | ||||
Name: | ||||
Title: |
I, [NAME], the duly elected, qualified and acting [TITLE] of the Company, do hereby certify as of the date first written above that [NAME] is the duly elected, qualified and acting [TITLE] of the Company and, as such, is authorized to execute this Certificate on behalf of the Company, and that the signature set forth above is the genuine signature of such person.
By: | ||||
Name: | ||||
Title: |
[Signature PageSecretarys Certificate]
Exhibit A
See attached.
Exhibit B
See attached.
Exhibit C
See attached.
Exhibit D
Name |
Title |
Specimen | ||
EXHIBIT F
[SEE ATTACHED]
FORM OF ABL INTERCREDITOR AGREEMENT
This ABL INTERCREDITOR AGREEMENT, is dated as of October 15, 2018, and is entered into by and among Bank of America, N.A. (Bank of America), as Administrative Agent for the holders of the Revolving Credit Obligations (together with its permitted successors and assigns (including in connection with any Refinancing), the Revolving Credit Collateral Agent) and Bank of America, as Administrative Agent for the holders of the Initial Fixed Asset Obligations (together with its permitted successors and assigns (including in connection with any Refinancing), the Initial Fixed Asset Collateral Agent) and acknowledged and agreed to by R.R. Donnelley & Sons Company, a Delaware corporation (the Term Loan Borrower) and certain subsidiaries of the Term Loan Borrower that sign an acknowledgment hereto from time to time as a Grantor.
RECITALS
The Revolving Credit Borrower, the lenders and agents from time to time party thereto, the other Revolving Loan Parties from time to time party thereto and the Revolving Credit Collateral Agent have entered into that certain Second Amended and Restated Credit Agreement, dated as of September 29, 2017, providing a revolving credit and letter of credit facility to the Revolving Credit Borrower, as amended by Amendment No. 1 dated as of the date hereof (the Revolving Amendment), (as further amended, supplemented, amended and restated, replaced, Refinanced or otherwise modified from time to time, the Revolving Credit Agreement);
The Term Loan Borrower, the lenders and agents from time to time party thereto and the Initial Fixed Asset Collateral Agent, have entered into that certain Credit Agreement, dated as of the date hereof, providing a term loan facility to the Term Loan Borrower (as amended, supplemented, amended and restated, replaced, Refinanced or otherwise modified from time to time, the Initial Fixed Asset Facility Agreement and together with the Revolving Credit Agreement, the Credit Agreements);
The Revolving Credit Agreement and the Initial Fixed Asset Facility Agreement permit the Revolving Credit Borrower and the Term Loan Borrower, respectively, to incur additional indebtedness secured by a Lien on the Collateral ranking senior to the Lien securing the applicable Credit Agreement;
In order to induce the Revolving Credit Collateral Agent and the Revolving Credit Lenders to enter into the Revolving Amendment and to make credit extensions under the Revolving Credit Agreement, and in order to induce the Initial Fixed Asset Collateral Agent and the Initial Fixed Asset Lenders to enter into the Initial Fixed Asset Facility Agreement, the Revolving Credit Collateral Agent and the Initial Fixed Asset Collateral Agent have agreed to the relative priority of their respective Liens on the Collateral and certain other rights, priorities and interests as set forth in this Agreement.
AGREEMENT
In consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Definitions.
1.1. Defined Terms. Capitalized terms used in this Agreement have the meanings assigned to them in Section 1 below or, if not otherwise defined, the Revolving Credit Agreement (as
such term is defined above). As used in the Agreement, the following terms shall have the following meanings:
ABL Collateral means the following assets of the Revolving Credit Borrower and the other Revolving Loan Parties: (a) all Accounts and Receivables; (b) all Payment Intangibles representing the right to payment for goods sold or services rendered, in each case, in the ordinary course of business; (c) all Equipment and Inventory; (d) all ABL Securities Collateral, (e) all ABL Investment Property; (f) all Money, all Deposit Accounts and all Securities Accounts; (f) all Supporting Obligations; (g) all books and records and General Intangibles relating to the foregoing (other than, for the avoidance of doubt, Intellectual Property, Fixed Asset Pledged Equity Interests and Intercompany Debt); (h) all Documents, Instruments (other than Intercompany Debt) and Chattel Paper evidencing the foregoing; and (i) all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, and any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Grantor from time to time with respect to any of the foregoing; provided, however, that to the extent that identifiable Proceeds of Fixed Asset Collateral are deposited or held in any Deposit Accounts or Securities Accounts that constitute ABL Collateral after an Enforcement Notice, then (as provided in Section 3.5 below) such Collateral or other identifiable Proceeds shall be treated as Fixed Asset Collateral for purposes of this Agreement. Terms used in this definition and not otherwise defined herein shall have the meanings given to such terms in the UCC.
ABL Investment Property means investment property as defined in the UCC, other than Intercompany Debt and Equity Interests that are not ABL Pledged Equity Interests.
ABL Pledged Equity Interests means, collectively, (i) 65% of the Equity Interests of each first tier Foreign Subsidiary, now owned or hereafter acquired by any Grantor, together with all rights, privileges, authority and powers of such Grantor relating to such Equity Interests or under any organizational document of any such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Grantor in the entries on the books of any financial intermediary pertaining to such Equity Interests, from time to time acquired by such Grantor in any manner and (ii) all Equity Interests issued in respect of the Equity Interests referred to in clause (i) upon any consolidation or merger of any issuer of such Equity Interests, provided that (x) no Equity Interests of any first tier Foreign Subsidiary in excess of 65% shall constitute ABL Pledged Equity Interests and (y) no Excluded Property (as defined in the Revolving Security Agreement) shall constitute ABL Pledged Equity Interests.
ABL Securities Collateral means, collectively, (i) the ABL Pledged Equity Interests and (ii) all dividends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the ABL Pledged Equity Interests, from time to time received, receivable or otherwise distributed to any Grantor in respect of or in exchange for any or all of the ABL Pledged Equity Interests.
Access Acceptance Notice has the meaning assigned to that term in Section 3.3(b).
Access Period means for each parcel of Mortgaged Premises the period, after the commencement of an Enforcement Period, which begins on the day that the Revolving Credit Collateral Agent provides the Controlling Fixed Asset Collateral Agent with the notice of its election to request access to any Mortgaged Premises pursuant to Section 3.3(b) below and ends on the earliest of (i) the 180th day after the Revolving Credit Collateral Agent obtains the ability to use, take physical possession of, remove or otherwise control the use or access to the Collateral located on such Mortgaged Premises following a Collateral Enforcement Action plus such number of days, if any, after the Revolving Credit
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Collateral Agent obtains access to such Collateral that it is stayed or otherwise prohibited by law or court order from exercising remedies with respect to Collateral located on such Mortgaged Premises, (ii) the date on which all or substantially all of the ABL Collateral located on such Mortgaged Premises is sold, collected or liquidated, (iii) the date on which the Discharge of Revolving Credit Obligations occurs and (iv) the date on which the Revolving Credit Default or the Fixed Asset Default that was the subject of the applicable Enforcement Notice relating to such Enforcement Period has been cured to the reasonable satisfaction of the Revolving Credit Collateral Agent or the Controlling Fixed Asset Collateral Agent, as applicable, or waived in writing in accordance with the requirements of the applicable Credit Agreement.
Additional Fixed Asset Claimholders means, at any relevant time, the holders of Additional Fixed Asset Obligations at that time and the trustees, agents and other representatives of the holders of any Additional Fixed Asset Obligations, the beneficiaries of each indemnification obligation undertaken by any Grantor under any Additional Fixed Asset Document and each other holder of, or obligee in respect of, any holder or lender pursuant to any Additional Fixed Asset Document outstanding at such time.
Additional Fixed Asset Collateral Agent means, in the case of any Additional Fixed Asset Instrument and the Additional Fixed Asset Claimholders thereunder, the trustee, administrative agent, collateral agent, security agent or similar agent under such Additional Fixed Asset Instrument that is named as the Collateral Agent in respect of such Additional Fixed Asset Instrument in the applicable Joinder Agreement.
Additional Fixed Asset Collateral Documents means any security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, control agreements, guarantees, notes and any other documents or instruments now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure any Additional Fixed Asset Obligations owed thereunder to any Additional Fixed Asset Claimholders or under which rights or remedies with respect to such Liens are governed.
Additional Fixed Asset Debt means the principal amount of Indebtedness issued or incurred under any Additional Fixed Asset Instrument.
Additional Fixed Asset Documents means any Additional Fixed Asset Instrument, Additional Fixed Asset Collateral Document and any other Loan Document (or equivalent term as defined in any Additional Fixed Asset Instrument) and each of the other agreements, documents and instruments providing for or evidencing any other Additional Fixed Asset Obligations, including any document or instrument executed or delivered at any time in connection with any Additional Fixed Asset Obligations, including any intercreditor or joinder agreement among holders of Additional Fixed Asset Obligations, to the extent such are effective at the relevant time.
Additional Fixed Asset Instrument means any (A) debt facilities, indentures or commercial paper facilities providing for revolving credit loans, term loans, notes, debentures, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers acceptances), or (C) instruments or agreements evidencing any other indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, Refinanced, restated, increased, replaced or refunded in whole or in part from time to time in accordance with each applicable Secured Revolver/Fixed Asset Facility Document; provided that none of the Revolving Credit Agreement, the Initial Fixed Asset Facility Agreement or any Refinancing of any of the foregoing in this proviso shall constitute an Additional Fixed Asset Instrument at any time.
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Additional Fixed Asset Obligations means all obligations of every nature of each Grantor from time to time owed to any Additional Fixed Asset Claimholders or any of their respective Affiliates under any Additional Fixed Asset Documents that are secured on a pari passu or junior basis with the Initial Fixed Asset Obligations, whether for principal, interest, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing. Additional Fixed Asset Obligations shall include all Post-Petition Interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Additional Fixed Asset Document whether or not the claim for such interest is allowed as a claim in such Insolvency or Liquidation Proceeding.
Additional Junior Fixed Asset Obligations means any Additional Fixed Asset Obligations that are not Pari Fixed Asset Obligations.
Additional Pari Fixed Asset Obligations means any Additional Fixed Asset Obligations issued or incurred pursuant to an Additional Fixed Asset Instrument ranking equal in right of security with the Initial Fixed Asset Obligations.
Affiliate means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, control (including, with correlative meanings, the terms controlling, controlled by and under common control with), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by agreement or otherwise.
Agreement means this Intercreditor Agreement, as amended, supplemented, amended and restated, renewed or otherwise modified from time to time.
Bank of America has the meaning assigned to that term in the Preamble to this Agreement.
Bankruptcy Code means Title 11 of the United States Code entitled Bankruptcy, as now and hereafter in effect, or any successor statute.
Bankruptcy Law means each of the Bankruptcy Code, any similar federal, state or foreign laws, rules or regulations for the relief of debtors or any reorganization, insolvency, moratorium or assignment for the benefit of creditors or any other marshalling of the assets and liabilities of any Person and any similar laws, rules or regulations relating to or affecting the enforcement of creditors rights generally.
Borrower means the Term Loan Borrower and the Revolving Credit Borrower.
Business Day means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close.
Claimholders means, collectively, the Revolving Credit Claimholders and the Fixed Asset Claimholders.
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Collateral means all of the assets and property now owned or at any time hereafter acquired by any Grantor, whether real, personal or mixed, constituting Revolving Credit Collateral and Fixed Asset Facility Collateral.
Collateral Agents means, collectively, (i) the Revolving Credit Collateral Agent, (ii) the Initial Fixed Asset Collateral Agent and (iii) each Additional Fixed Asset Collateral Agent.
Collateral Enforcement Action means, collectively or individually for one or more of the Collateral Agents, when a Revolving Credit Default or Fixed Asset Default, as the case may be, has occurred and is continuing, whether or not in consultation with any other Collateral Agent, any action by any Collateral Agent to repossess or join any Person in repossessing, or exercise or join any Person in exercising, or institute or maintain or participate in any action or proceeding with respect to, any remedies with respect to any Collateral or commence the judicial enforcement of any of the rights and remedies under the Credit Documents or under any applicable law, but in all cases (i) including, without limitation, (a) instituting or maintaining, or joining any Person in instituting or maintaining, any enforcement, contest, protest, attachment, collection, execution, levy or foreclosure action or proceeding with respect to any Collateral, whether under any Credit Document or otherwise, (b) exercising any right of set-off or recoupment with respect to any Grantor or (c) exercising any remedy under any Deposit Account Control Agreement, Securities Account Control Agreement and Lien Waiver or similar agreement or arrangement and (ii) excluding the imposition of a default rate or late fee; provided, that notwithstanding anything to the contrary in the foregoing, the exercise of rights or remedies by the Revolving Credit Collateral Agent under any Deposit Account Control Agreement or Securities Account Control Agreement during a Liquidity Period shall not constitute a Collateral Enforcement Action under this Agreement.
Contingent Obligations means at any time, any indemnification or other similar contingent obligations which are not then due and owing at the time of determination and with respect to which no claim has been asserted at the time of determination.
Controlling Additional Fixed Asset Collateral Agent means (i) at any time there is only one Series of Additional Fixed Asset Obligations, the Fixed Asset Collateral Agent for such Series, (ii) at any time there is only one Series of Additional Pari Fixed Asset Obligations, the Fixed Asset Collateral Agent for such Series, (iii) at any time there is more than one Series of Additional Pari Fixed Asset Obligations, the Fixed Asset Collateral Agent designated in writing to the Revolving Credit Collateral Agent by the Fixed Asset Collateral Agents for each Series of Additional Pari Fixed Asset Obligations and (iv) at any time when the Fixed Asset Obligations consist solely of two or more Additional Junior Fixed Asset Obligations, the Fixed Asset Collateral Agent designated in writing to the Revolving Credit Collateral Agent by the Fixed Asset Collateral Agents for each Series of Additional Junior Fixed Asset Obligations.
Controlling Fixed Asset Collateral Agent means (i) until the Discharge of Fixed Asset Obligations that are Initial Fixed Asset Obligations, the Initial Fixed Asset Collateral Agent and (ii) from and after the Discharge of Fixed Asset Obligations that are Initial Fixed Asset Obligations, the Controlling Additional Fixed Asset Collateral Agent.
Credit Agreements has the meaning assigned to that term in the Recitals to this Agreement.
Credit Documents means, collectively, the Revolving Credit Documents and the Fixed Asset Documents.
Deposit Account as defined in the UCC.
DIP Financing has the meaning assigned to that term in Section 6.1(a).
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Discharge of Fixed Asset Obligations means, except to the extent otherwise expressly provided in Sections 4.4, 5.5 and 6.4:
(a) payment in full in cash of the principal of and interest (including Post-Petition Interest), on all Indebtedness outstanding under Fixed Asset Documents and constituting Fixed Asset Obligations;
(b) payment in full in cash of all other Fixed Asset Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (other than Contingent Obligations); and
(c) termination or expiration of all commitments, if any, to extend credit that would constitute Fixed Asset Obligations.
Discharge of Revolving Credit Obligations means, except to the extent otherwise expressly provided in Sections 4.4, 5.5 and 6.4:
(a) payment in full in cash of the principal of and interest (including Post-Petition Interest), on all Indebtedness outstanding under the Revolving Credit Documents and constituting Revolving Credit Obligations (other than (i) obligations that are not due and owing under any Secured Cash Management Obligations or Secured Hedge Obligations (in each case, as defined in the Revolving Credit Agreement) and (ii) Letters of Credit that are cash collateralized or backstopped in accordance with the Revolving Credit Agreement);
(b) payment in full in cash of all other Revolving Credit Obligations that are due and payable or otherwise accrued and owing at or prior to the time such principal and interest are paid (other than (i) obligations that are not due and owing under any Secured Cash Management Obligations or Secured Hedge Obligations (in each case, as defined in the Revolving Credit Agreement) and (ii) Letters of Credit that are cash collateralized or backstopped in accordance with the Revolving Credit Agreement);
(c) termination or expiration of all commitments, if any, to extend credit that would constitute Revolving Credit Obligations; and
(d) termination of all letters of credit issued under the Revolving Credit Documents and constituting Revolving Credit Obligations or providing cash collateral or backstop letters of credit reasonably acceptable to the Revolving Credit Collateral Agent in an amount equal to 103% of the applicable outstanding reimbursement obligation (in a manner reasonably satisfactory to the Revolving Credit Collateral Agent).
Disposition has the meaning assigned to that term in Section 5.1(b).
Documents as defined in the UCC.
Domestic Subsidiary means any Subsidiary of the Borrower that is organized under the laws of the United States, any state thereof or the District of Columbia.
Enforcement Notice means a written notice delivered, at a time when a Revolving Credit Default or Fixed Asset Default has occurred and is continuing, by either (a) in the case of a Revolving Credit Default, the Revolving Credit Collateral Agent to the Controlling Fixed Asset Collateral Agent or (b) in the case of a Fixed Asset Default, the Controlling Fixed Asset Collateral Agent to the Revolving
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Credit Collateral Agent, in each case, announcing that an Enforcement Period has commenced, specifying the relevant event of default and stating the current balance of the Revolving Credit Obligations or the Fixed Asset Obligations, as applicable.
Enforcement Period means the period of time following the receipt by either the Revolving Credit Collateral Agent or the Controlling Fixed Asset Collateral Agent of an Enforcement Notice until the earliest of (i) in the case of an Enforcement Period commenced by the Controlling Fixed Asset Collateral Agent, the Discharge of Fixed Asset Obligations, (ii) in the case of an Enforcement Period commenced by the Revolving Credit Collateral Agent, the Discharge of Revolving Credit Obligations, (iii) the Revolving Credit Collateral Agent or the Controlling Fixed Asset Collateral Agent (as applicable) agrees in writing to terminate its Enforcement Period, or (iv) the date on which the Revolving Credit Default or the Fixed Asset Default that was the subject of the Enforcement Notice relating to such Enforcement Period has been cured to the reasonable satisfaction of the Revolving Credit Collateral Agent or the Controlling Fixed Asset Collateral Agent, as applicable, or waived in writing in accordance with the requirements of the applicable Credit Documents.
Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting; provided that Equity Interests shall not include convertible Debt securities.
Fixed Asset Claimholders means, at any relevant time, the holders of Fixed Asset Obligations at that time, including each Fixed Asset Collateral Agent, the Additional Fixed Asset Claimholders and the Initial Fixed Asset Claimholders.
Fixed Asset Collateral means all Real Estate Assets, Intellectual Property, Fixed Asset Pledged Equity Interests and other Collateral (other than ABL Collateral) and all Supporting Obligations, Documents and books and records relating to any of the foregoing; and all substitutions, replacements, accessions, products or Proceeds (including, without limitation, insurance proceeds) of any of the foregoing.
Fixed Asset Collateral Agents means the Initial Fixed Asset Collateral Agent and each Additional Fixed Asset Collateral Agent.
Fixed Asset Collateral Documents means the Initial Fixed Asset Collateral Documents and any Additional Fixed Asset Collateral Documents.
Fixed Asset Default means an Event of Default or equivalent term (as defined in any of the Fixed Asset Documents).
Fixed Asset DIP Financing has the meaning assigned to that term in Section 6.1(b).
Fixed Asset Documents means the Initial Fixed Asset Documents and any Additional Fixed Asset Documents.
Fixed Asset Facility Collateral means all of the assets and property of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be as security for any Fixed Asset Obligations.
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Fixed Asset Loan Party means each Loan Party as defined in the Initial Fixed Asset Facility Agreement and each Specified Pledgor as defined in the Initial Fixed Asset Facility Agreement.
Fixed Asset Mortgages means a collective reference to each mortgage, deed of trust and other document or instrument under which any Lien on real property owned or leased by any Grantor is granted to secure any Fixed Asset Obligations or (except for this Agreement) under which rights or remedies with respect to any such Liens are governed.
Fixed Asset Obligations means the Initial Fixed Asset Obligations and any Additional Fixed Asset Obligations.
Fixed Asset Pledged Equity Interests means Equity Interests in the Borrower, the other Grantors and their respective Domestic Subsidiaries, in each case other than ABL Pledged Equity Interests.
Fixed Asset Standstill Period has the meaning set forth in Section 3.1(a)(1).
Foreign Subsidiary means a Subsidiary other than a Domestic Subsidiary.
Grantors means the Borrower, each Revolving Loan Party, each Fixed Asset Loan Party and each other Person that has or may from time to time hereafter execute and deliver a Fixed Asset Collateral Document or a Revolving Credit Collateral Document as a grantor or pledgor (or the equivalent thereof).
Indebtedness means and includes all Debt (or comparable term) within the meaning of the Initial Fixed Asset Facility Agreement, the Revolving Credit Agreement or any Additional Fixed Asset Instrument, as applicable.
Initial Fixed Asset Claimholders means, at any relevant time, the holders of Initial Fixed Asset Facility Obligations at that time, including the Secured Parties as defined in the Initial Fixed Asset Facility Agreement.
Initial Fixed Asset Collateral Agent has the meaning assigned to it in the Preamble to this Agreement.
Initial Fixed Asset Collateral Documents means the Collateral Documents (as defined in the Initial Fixed Asset Facility Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted securing any Initial Fixed Asset Obligations or under which rights or remedies with respect to such Liens are governed.
Initial Fixed Asset Documents means the Initial Fixed Asset Facility Agreement, the Initial Fixed Asset Collateral Documents and the other Loan Documents (as defined in the Initial Fixed Asset Facility Agreement), and each of the other agreements, documents and instruments providing for or evidencing any other Initial Fixed Asset Obligation, including, to the extent applicable, any other document or instrument executed or delivered at any time in connection with any Initial Fixed Asset Obligations, including any intercreditor or joinder agreement among holders of Initial Fixed Asset Obligations, to the extent such are effective at the relevant time.
Initial Fixed Asset Facility Agreement has the meaning assigned to that term in the Recitals to this Agreement.
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Initial Fixed Asset Lenders means Lenders as defined under the Initial Fixed Asset Facility Agreement.
Initial Fixed Asset Obligations means all Secured Obligations, as defined in the Initial Fixed Asset Facility Agreement and shall include all obligations of every nature of each Grantor from time to time owed to any Initial Fixed Asset Claimholders or any of their respective Affiliates under the Initial Fixed Asset Documents, whether for principal, interest, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing. Initial Fixed Asset Obligations shall include all Post-Petition Interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Initial Fixed Asset Document whether or not the claim for such Post-Petition Interest is allowed as a claim in such Insolvency or Liquidation Proceeding.
Insolvency or Liquidation Proceeding means:
(a) any voluntary or involuntary case or proceeding under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor;
(b) any other voluntary or involuntary insolvency, reorganization, winding-up or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding with respect to any Grantor or with respect to a material portion of their respective assets (other than any merger or consolidation, liquidation, windup or dissolution not involving bankruptcy that is expressly permitted pursuant to the terms of the Revolving Credit Agreement and the Initial Fixed Asset Facility Agreement);
(c) any liquidation, dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary, and whether or not involving insolvency or bankruptcy (other than any merger or consolidation, liquidation, windup or dissolution not involving bankruptcy that is expressly permitted pursuant to the terms of the Revolving Credit Agreement and the Initial Fixed Asset Facility Agreement);
(d) any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt or other property of any Grantor;
(e) any case or proceeding seeking the entry of an order of relief or the appointment of a custodian, receiver, trustee or other similar proceeding with respect to any Grantor or any property or Indebtedness of any Grantor; or
(f) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Grantor;
Instruments has the meaning assigned to that term in the Revolving Security Agreement.
Intercompany Debt means, with respect to each Grantor, all intercompany indebtedness owed to such Grantor by the Borrower or a Subsidiary of the Borrower.
Joinder Agreement means an agreement substantially in the form of Exhibit A, or in a form otherwise reasonably acceptable to each Collateral Agent, after giving effect to Sections 5.3 and 5.7, as applicable.
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Mortgaged Premises means any Real Estate Assets which shall now or hereafter be subject to a Fixed Asset Mortgage.
New Agent has the meaning assigned to that term in Section 5.5.
New Debt Notice has the meaning assigned to that term in Section 5.5.
Non-Controlling Fixed Asset Collateral Agent means each Fixed Asset Collateral Agent other than the Controlling Fixed Asset Collateral Agent.
Notice of Occupancy has the meaning assigned to that term in Section 3.3(b).
Pari Fixed Asset Obligations means the Initial Fixed Asset Obligations and any Additional Pari Fixed Asset Obligations.
Pledged Collateral has the meaning set forth in Section 5.4(a).
Person means an individual, partnership, corporation (including a company or business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
Post-Petition Interest means interest, fees, expenses and other charges that pursuant to the Fixed Asset Documents or the Revolving Credit Documents, continue to accrue after the commencement of any Insolvency or Liquidation Proceeding, whether or not such interest, fees, expenses and other charges are allowed or allowable under the Bankruptcy Laws of any applicable jurisdiction or in any such Insolvency or Liquidation Proceeding.
Priority Collateral with respect to the Revolving Credit Claimholders, all ABL Collateral, and with respect to the Fixed Asset Claimholders, all Fixed Asset Collateral.
Real Estate Asset means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Grantor in any real property.
Receivables means mean all (i) Accounts, (ii) a right to payment evidenced by Chattel Paper or Instruments and (iii) Payment Intangibles, and all other rights to payment, whether or not earned by performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of, or services rendered or to be rendered, including Commercial Tort Claims, regardless of how classified under the UCC, together with all of the Grantors rights, if any, in any goods or other property giving rise to such right to payment and all collateral support and Supporting Obligations related thereto and all Records relating thereto.
Recovery has the meaning set forth in Section 6.4.
Refinance means, in respect of any Indebtedness, to refinance, extend, renew, defease, amend, modify, supplement, restructure, replace, refund or repay, or to issue other indebtedness, in exchange or replacement for, such Indebtedness in whole or in part, whether with the same or different lenders, arrangers and/or agents and whether with a larger or smaller aggregate principal amount and/or a longer or shorter maturity. Refinanced and Refinancing shall have correlative meanings.
Refinanced Obligations has the meaning set forth in Section 5.5.
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Revolving Amendment has the meaning assigned to that term in the Recitals to this Agreement.
Revolving Credit Agreement has the meaning assigned to that term in the Recitals to this Agreement, including, for the avoidance of doubt, any Refinancing of the Revolving Credit Agreement in effect on the Closing Date.
Revolving Credit Borrower means the Borrower under and as defined in the Revolving Credit Agreement.
Revolving Credit Claimholders means, at any relevant time, the holders of Revolving Credit Obligations at that time, including the Secured Parties as defined in the Revolving Credit Agreement.
Revolving Credit Collateral means all of the assets and property of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any Revolving Credit Obligations.
Revolving Credit Collateral Agent has the meaning assigned to that term in the Preamble to this Agreement.
Revolving Credit Collateral Documents means the Collateral Documents (as defined in the Revolving Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted by any Grantor securing any Revolving Credit Obligations or under which rights or remedies with respect to such Liens are governed.
Revolving Credit Default means an Event of Default (as defined in the Revolving Credit Agreement).
Revolving Credit Documents means the Revolving Credit Agreement and the other Loan Documents (as defined in the Revolving Credit Agreement), any agreement in respect of any Secured Cash Management Obligations and Secured Hedge Obligations (each as defined in the Revolving Credit Agreement) and each of the other agreements, documents and instruments providing for or evidencing any other Revolving Credit Obligation, and any other document or instrument executed or delivered at any time in connection with any Revolving Credit Obligations, including any intercreditor or joinder agreement among holders of Revolving Credit Obligations to the extent such are effective at the relevant time, as each may be amended, supplemented, amended and restated, replaced, Refinanced or otherwise modified from time to time in accordance with the provisions of this Agreement.
Revolving Credit Lenders means the Lenders under and as defined in the Revolving Credit Agreement.
Revolving Credit Obligations means all Secured Obligations (as defined in the Revolving Credit Agreement) and shall include all obligations of every nature of each Grantor from time to time owed to any Revolving Credit Claimholder or any of their respective Affiliates under the Revolving Credit Documents, whether for principal, interest, fees, expenses, indemnification or otherwise and all guarantees of any of the foregoing. Revolving Credit Obligations shall include all Post-Petition Interest accrued or accruing (or which would, absent commencement of an Insolvency or Liquidation Proceeding, accrue) after commencement of an Insolvency or Liquidation Proceeding in accordance with the rate specified in the relevant Revolving Credit Document whether or not the claim for such Post-Petition Interest is allowed as a claim in such Insolvency or Liquidation Proceeding.
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Revolving Credit Standstill Period has the meaning set forth in Section 3.2(a)(1).
Revolving Loan Party means each Loan Party as defined in the Revolving Credit Agreement and each Specified Pledgor as defined in the Revolving Credit Agreement.
Revolving Security Agreement means the Third Amended and Restated Security Agreement, dated as of the date hereof, among the Borrower, each of the other grantors from time to time party thereto and Bank of America, as collateral agent, as it may be amended, supplemented, amended and restated, replaced, renewed or otherwise modified from time to time.
Secured Revolver/Fixed Asset Documents means the Fixed Asset Documents and the Revolving Credit Documents.
Securities Account as defined in the UCC.
Securities Account Control Agreement has the meaning assigned to that term in the Revolving Security Agreement.
Series means, with respect to any Fixed Asset Obligations, each of (i) the Initial Fixed Asset Obligations and (ii) the Additional Fixed Asset Obligations incurred pursuant to any Additional Fixed Asset Document, which pursuant to any Joinder Agreement, are to be represented hereunder by a common Collateral Agent (in its capacity as such for such Additional Fixed Asset Obligations).
Supporting Obligations as defined in the UCC.
Term Loan Borrower has the meaning assigned to that term in the Preamble to this Agreement.
UCC means the Uniform Commercial Code as from time to time in effect in the State of New York; provided, however, that, in the event that, by reason of mandatory provisions of law, any of the attachment, perfection or priority of any Collateral Agents or any secured partys security interest in any Collateral is governed by the Uniform Commercial Code as in effect from time to time in a jurisdiction other than the State of New York, the term UCC shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.
1.2. Terms Generally. The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise:
(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 as amended, supplemented, amended and restated, replaced, renewed or otherwise modified from time to time in accordance with the terms of this Agreement (including in connection with any Refinancing);
(b) any reference herein to any Person shall be construed to include such Persons permitted successors and assigns;
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(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 Sections shall be construed to refer to Sections of this Agreement;
(e) all references to terms defined in the UCC in effect in the State of New York shall have the meaning ascribed to them therein (unless otherwise specifically defined herein); 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.
SECTION 2. Lien Priorities.
2.1. Relative Priorities. Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Fixed Asset Obligations granted on the Collateral or of any Liens securing the Revolving Credit Obligations granted on the Collateral and notwithstanding any provision of any UCC, or any other applicable law or the Revolving Credit Loan Documents or the Fixed Asset Documents or any defect or deficiencies in, or failure to perfect, the Liens securing the Revolving Credit Obligations or Fixed Asset Obligations, and whether or not such Liens securing, or purporting to secure, any Revolving Credit Obligations or Fixed Asset Obligations are subordinated to any Lien securing any other obligation of the Borrower, or any other Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed, or any other circumstance whatsoever, the Revolving Credit Collateral Agent, on behalf of itself and/or the Revolving Credit Claimholders, and each Fixed Asset Collateral Agent, on behalf of itself and/or the applicable Fixed Asset Claimholders, hereby each agrees that:
(a) any Lien of the Revolving Credit Collateral Agent on the ABL Collateral, whether now or hereafter held by or on behalf of the Revolving Credit Collateral Agent or any Revolving Credit Claimholders or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to all Liens on the ABL Collateral securing or purporting to secure any Fixed Asset Obligations; and
(b) any Lien of any Fixed Asset Collateral Agent on the Fixed Asset Collateral, whether now or hereafter held by or on behalf of such Fixed Asset Collateral Agent, any Fixed Asset Claimholder or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects to all Liens on the Fixed Asset Collateral securing or purporting to secure any Revolving Credit Obligations.
2.2. Prohibition on Contesting Liens. Each Fixed Asset Collateral Agent, for itself and on behalf of each applicable Fixed Asset Claimholder, and the Revolving Credit Collateral Agent, for itself and on behalf of each Revolving Credit Claimholder, agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the Revolving Credit Claimholders or any of the Fixed Asset Claimholders in the Collateral, the allowability of the claims asserted with respect to the Fixed Assets Obligations or the Revolving Credit Obligations in any Insolvency or Liquidation Proceeding, or the provisions of this Agreement; provided
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that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent or any Revolving Credit Claimholder or Fixed Asset Claimholder to enforce this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the Obligations as provided in Sections 2.1, 3.1 and 3.2.
2.3. No New Liens. Until the Discharge of Revolving Credit Obligations and the Discharge of Fixed Asset Obligations shall have occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against one or more of the Term Loan Borrower, the Revolving Credit Borrower or any other Grantor, the parties hereto acknowledge and agree that it is their intention that:
(a) subject to Sections 2.5 and 2.6 below, there shall be no Liens on any asset or property to secure any Fixed Asset Obligation unless a Lien on such asset or property also secures the Revolving Credit Obligations; or
(b) subject to Sections 2.5 and 2.6 below, there shall be no Liens on any asset or property of any Grantor to secure any Revolving Credit Obligations unless a Lien on such asset or property also secures the Fixed Asset Obligations.
To the extent any additional Liens are granted on any asset or property as described above, the priority of such additional Liens shall be determined in accordance with Section 2.1. In addition, to the extent that Liens are granted on any asset or property to secure any Fixed Asset Obligation or Revolving Credit Obligation, as applicable, and a corresponding Lien is not granted to secure the Revolving Credit Obligations or Fixed Asset Obligations, as applicable, without limiting any other rights and remedies available hereunder, the Revolving Credit Collateral Agent, on behalf of the Revolving Credit Claimholders and each Fixed Asset Collateral Agent, on behalf of the applicable Fixed Asset Claimholders, agree that, subject to Sections 2.5 and 2.6, (i) such applicable Collateral Agent that has been granted such Lien shall also hold such Lien on behalf of the other Collateral Agent subject to the relative priorities set forth in Section 2.1 and (ii) any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this Section 2.3 shall be subject to Section 4.2.
2.4. Similar Liens and Agreements. Subject to Sections 2.5 and 2.6, the parties hereto agree that it is their intention that the Revolving Credit Collateral and the Fixed Asset Facility Collateral be identical. In furtherance of the foregoing and of Section 8.8, the parties hereto agree, subject to the other provisions of this Agreement, including Sections 2.5 and 2.6:
(a) upon request by the Revolving Credit Collateral Agent or any Fixed Asset Collateral Agent, to cooperate in good faith (and to direct their counsel to cooperate in good faith) from time to time in order to determine the specific items included in the Revolving Credit Collateral and the Fixed Asset Facility Collateral and the steps taken to perfect their respective Liens thereon and the identity of the respective parties obligated under the Revolving Credit Documents and the Fixed Asset Documents; and
(b) that the Revolving Credit Collateral Documents, taken as a whole, and the Fixed Asset Collateral Documents, taken as a whole, shall be in all material respects the same forms of documents other than with respect to differences to reflect the nature of the lending arrangements and the relative priorities of the liens securing the Obligations thereunder with respect to the Fixed Asset Collateral and the ABL Collateral.
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2.5. Cash Collateral; Real Property. Notwithstanding anything in this Agreement to the contrary, Sections 2.3 and 2.4 shall not apply to (i) any cash or cash equivalents pledged to secure Revolving Credit Obligations consisting of reimbursement obligations in respect of letters of credit or otherwise held by the Revolving Credit Collateral Agent or any other Revolving Credit Claimholder pursuant to Sections 2.03, 2.05, 2.15, 2.16 or 9.03 of the Revolving Credit Agreement (or any equivalent successor provision) and any such cash and cash equivalents shall be applied as specified in the Revolving Credit Agreement and will not constitute Collateral hereunder or (ii) any real property a mortgage over which has been granted pursuant to the terms of the Fixed Assets Documents and has not been granted pursuant to the terms of the Revolving Credit Documents.
2.6. Indenture Threshold Amount. Subject to Section 2.5, until the Discharge of Fixed Asset Obligations, Restricted Property (as defined in the Revolving Security Agreement) shall not, at any time, secure indebtedness in an aggregate amount exceeding the Indenture Threshold Amount (as defined in the Revolving Security Agreement), (x) if the aggregate amount of Fixed Asset Obligations outstanding exceeds the Indenture Threshold Amount, then such Restricted Property shall only secure Fixed Asset Obligations in an aggregate amount up to Indenture Threshold Amount, and shall not secure any additional Fixed Asset Obligations or any Revolving Credit Obligations and (y) if the aggregate amount of Fixed Asset Obligations outstanding is less than the Indenture Threshold Amount, then such Restricted Property shall secure (i) all then outstanding Fixed Asset Obligations plus (ii) an additional aggregate amount of Revolving Credit Obligations, in a total aggregate amount not to exceed the Indenture Threshold Amount.
SECTION 3. Enforcement.
3.1. Exercise of Remedies Restrictions on Fixed Asset Collateral Agents.
(a) Until the Discharge of Revolving Credit Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Fixed Asset Collateral Agents and the Fixed Asset Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any ABL Collateral (including the exercise of any right of setoff or recoupment or any right under any lockbox agreement or any control agreement with respect to Deposit Accounts or Securities Accounts) or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, however, that the Controlling Fixed Asset Collateral Agent or any Person authorized by it may exercise any or all such rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (A) the date on which such Controlling Fixed Asset Collateral Agent declared the existence of a Fixed Asset Default and demanded the repayment of all the principal amount of any Fixed Asset Obligations; and (B) the date on which the Revolving Credit Collateral Agent received notice from such Controlling Fixed Asset Collateral Agent of such declaration of a Fixed Asset Default and that the Fixed Assets Obligations are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Fixed Asset Documents (the Fixed Asset Standstill Period); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall any Fixed Asset Collateral Agent or any Fixed Asset Claimholder exercise any rights or remedies with respect to the ABL Collateral if, notwithstanding the expiration of the Fixed Asset Standstill Period, (x) the Revolving Credit Collateral Agent (or any person authorized by it) or Revolving Credit Claimholders shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of such Collateral (prompt notice of such exercise to be given to the Controlling Fixed Asset Collateral Agent) or shall be stayed under applicable law from exercising such rights and remedies, or (y) the demand for repayment of all the principal amount of any Fixed Assets Obligations has been rescinded;
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(2) will not contest, protest or object to, or otherwise interfere with, any foreclosure proceeding or action brought by the Revolving Credit Collateral Agent or any Revolving Credit Claimholder or any other exercise by the Revolving Credit Collateral Agent or any Revolving Credit Claimholder of any rights and remedies relating to the ABL Collateral, whether under the Revolving Credit Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above and except as may be permitted in Section 3.1(c), will not object to the forbearance by the Revolving Credit Collateral Agent or any of the Revolving Credit Claimholders from bringing or pursuing any Collateral Enforcement Action;
provided, however, that, in the case of (1), (2) and (3) above, the Liens granted to secure the Fixed Asset Obligations of the Fixed Asset Claimholders shall attach to the Proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the Discharge of Revolving Credit Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that the Revolving Credit Collateral Agent and the Revolving Credit Claimholders shall (subject to Section 3.1(a)(1)) have the exclusive right to enforce rights and exercise remedies (including set-off, recoupment and the right to credit bid their debt) with respect to ABL Collateral and, in connection therewith (including voluntary Dispositions of ABL Collateral by the respective Grantors after a Revolving Credit Default) to make determinations regarding the release, disposition, or restrictions with respect to the ABL Collateral (including, without limitation, exercising remedies under Deposit Account Control Agreements and Securities Account Control Agreements) without any consultation with or the consent of any Fixed Asset Collateral Agent or any Fixed Asset Claimholder; provided, however, that the Lien securing the Fixed Asset Obligations shall remain on the Proceeds (other than those properly applied to the Revolving Credit Obligations) of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the ABL Collateral, each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that the Revolving Credit Collateral Agent and the Revolving Credit Claimholders may enforce the provisions of the Revolving Credit Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of the ABL Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction. Each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that it will not seek, and hereby waives any right, to have any ABL Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral.
(c) Notwithstanding the foregoing, any Fixed Asset Collateral Agent and any Fixed Asset Claimholder may:
(1) file a claim or statement of interest with respect to the Fixed Asset Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
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(2) take any action in order to create, perfect, preserve or protect (but not enforce subject to Section 3.1(a)(1) with respect to the ABL Collateral) its Lien on any of the Collateral; provided that such action shall not be inconsistent with the terms of this Agreement and shall not be adverse to the priority status of the Liens on the ABL Collateral, or the rights of the Revolving Credit Collateral Agent or the Revolving Credit Claimholders to exercise remedies in respect thereof;
(3) file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of the Fixed Asset Claimholders, including any claims secured by the ABL Collateral, if any, in each case in accordance with the terms of this Agreement;
(4) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with, or prohibited by, the terms of this Agreement;
(5) vote on any plan of reorganization or similar dispositive restructuring plan, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement (including Section 6.7(d)), with respect to the Fixed Asset Obligations and the Fixed Asset Collateral; and
(6) exercise any of its rights or remedies with respect to any of the Collateral after the termination of the Fixed Asset Standstill Period to the extent permitted by Section 3.1(a)(1).
Each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees that it will not take or receive any ABL Collateral or any Proceeds of such Collateral in connection with the exercise of any right or remedy (including set-off or recoupment) with respect to any such Collateral in its capacity as a creditor in violation of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Revolving Credit Obligations has occurred, except as expressly provided in Sections 3.1(a), 6.3(c)(1) and this Section 3.1(c), the sole right of the Fixed Asset Collateral Agents and the Fixed Asset Claimholders with respect to the ABL Collateral is to hold a Lien on such Collateral pursuant to the Fixed Asset Collateral Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of Revolving Credit Obligations has occurred.
(d) Subject to Sections 3.l(a) and (c) and Section 6.3(c)(1):
(1) each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that it will not, except as not prohibited herein, take any action that would hinder or delay any exercise of remedies under the Revolving Credit Documents or that is otherwise prohibited hereunder with respect to ABL Collateral, including any sale, lease, exchange, transfer or other disposition of the ABL Collateral, whether by foreclosure or otherwise;
(2) each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, hereby waives any and all rights it or the applicable Fixed Asset Claimholders may have as a junior lien creditor with respect to the ABL Collateral or otherwise to object to the manner in which the Revolving Credit Collateral Agent or the Revolving Credit Claimholders seek to enforce or collect the Revolving Credit Obligations or the Liens on the ABL
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Collateral securing the Revolving Credit Obligations granted in any of the Revolving Credit Documents or undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of the Revolving Credit Collateral Agent or Revolving Credit Claimholders is adverse to the interest of the Fixed Asset Claimholders; and
(3) each Fixed Asset Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any of the Fixed Asset Collateral Documents or any other Fixed Asset Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Revolving Credit Collateral Agent or the Revolving Credit Claimholders with respect to the ABL Collateral as set forth in this Agreement and the Revolving Credit Documents.
(e) Except as otherwise set forth in, or otherwise prohibited by or inconsistent with, any provision of this Agreement (including Sections 3.1(a) and (d), Section 3.5 and any provision prohibiting or restricting them from taking various actions or making various objections), the Fixed Asset Collateral Agents and the Fixed Asset Claimholders may exercise rights and remedies as unsecured creditors against any Grantor and may exercise rights and remedies with respect to the Fixed Asset Collateral, in each case, in accordance with the terms of the applicable Fixed Asset Documents and applicable law; provided, however, that in the event that any Fixed Asset Claimholder becomes a judgment Lien creditor in respect of ABL Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Fixed Asset Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Revolving Credit Obligations) as the other Liens securing the Fixed Asset Obligations are subject to this Agreement.
(f) Nothing in this Agreement shall prohibit the receipt by any Fixed Asset Collateral Agent or any Fixed Asset Claimholders of payments of interest, principal and other amounts owed in respect of the applicable Fixed Asset Obligations so long as such receipt is not the direct or indirect result of the exercise by such Fixed Asset Collateral Agent or any Fixed Asset Claimholders of rights or remedies with respect to ABL Collateral (including set-off or recoupment) or enforcement of any Lien on ABL Collateral held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the Revolving Credit Collateral Agent or the Revolving Credit Claimholders may have against the Grantors under the Revolving Credit Documents, other than with respect to the Fixed Asset Collateral solely to the extent expressly provided herein.
3.2. Exercise of Remedies Restrictions on Revolving Credit Collateral Agent.
(a) Until the Discharge of Fixed Asset Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Revolving Credit Collateral Agent and the Revolving Credit Claimholders:
(1) will not exercise or seek to exercise any rights or remedies with respect to any Fixed Asset Collateral or institute any action or proceeding with respect to such rights or remedies (including any action of foreclosure); provided, however, that the Revolving Credit Collateral Agent may exercise the rights provided for in Section 3.3 (with respect to any Access Period) and may exercise any or all such other rights or remedies after the passage of a period of at least 180 days has elapsed since the later of: (A) the date on which the Revolving Credit Collateral Agent declared the existence of any Revolving Credit Default and demanded the repayment of all the principal amount of any Revolving Credit Obligations; and (B) the date on which the Controlling Fixed Asset Collateral Agent received notice from the Revolving Credit Collateral Agent of such declaration of a Revolving Credit Default and that the Revolving Credit Obligations are currently due and payable in full (whether as a result of acceleration thereof or
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otherwise) in accordance with the terms of the applicable Revolving Credit Documents (the Revolving Credit Standstill Period); provided, further, however, that notwithstanding anything herein to the contrary, in no event shall the Revolving Credit Collateral Agent or any Revolving Credit Claimholder exercise any rights or remedies (other than those under Section 3.3) with respect to the Fixed Asset Collateral if, notwithstanding the expiration of the Revolving Credit Standstill Period, (x) the Controlling Fixed Asset Collateral Agent (or any person authorized by it) shall have commenced and be diligently pursuing the exercise of their rights or remedies with respect to all or any material portion of such Collateral (prompt notice of such exercise to be given to the Revolving Credit Collateral Agent) or shall be stayed under applicable law from exercising such rights and remedies or (y) the demand for repayment of all the principal amount of any Revolving Credit Obligations has been rescinded;
(2) will not contest, protest or object to, or otherwise interfere with, any foreclosure proceeding or action brought by any Fixed Asset Collateral Agent or any Fixed Asset Claimholder or any other exercise by a Fixed Asset Collateral Agent or any Fixed Asset Claimholder of any rights and remedies relating to the Fixed Asset Collateral, whether under the Fixed Asset Documents or otherwise; and
(3) subject to their rights under clause (a)(1) above and except as may be permitted in Section 3.2(c), will not object to the forbearance by any Fixed Asset Collateral Agent or Fixed Asset Claimholders from bringing or pursuing any Collateral Enforcement Action;
provided, however, that in the case of (1), (2) and (3) above, the Liens granted to secure the Revolving Credit Obligations of the Revolving Credit Claimholders shall attach to the Proceeds thereof subject to the relative priorities described in Section 2.
(b) Until the Discharge of Fixed Asset Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that the Fixed Asset Collateral Agents and the Fixed Asset Claimholders shall (subject to Section 3.2(a)(1)) have the exclusive right to enforce rights and exercise remedies (including set-off, recoupment and the right to credit bid their debt) with respect to the Fixed Asset Collateral and, in connection therewith (including voluntary Dispositions of Fixed Asset Collateral by the respective Grantors after a Fixed Asset Default) to make determinations regarding the release, disposition, or restrictions with respect to the Fixed Asset Collateral without any consultation with or the consent of the Revolving Credit Collateral Agent or any Revolving Credit Claimholder; provided, however, that the Lien securing the Revolving Credit Obligations shall remain on the Proceeds (other than those properly applied to the Fixed Asset Obligations) of such Collateral released or disposed of subject to the relative priorities described in Section 2. In exercising rights and remedies with respect to the Fixed Asset Collateral, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that the Fixed Asset Collateral Agents and the Fixed Asset Claimholders may enforce the provisions of the Fixed Asset Documents and exercise remedies thereunder, all in such order and in such manner as they may determine in the exercise of their sole discretion. Such exercise and enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of the Fixed Asset Collateral upon foreclosure, to incur expenses in connection with such sale or disposition, and to exercise all the rights and remedies of a secured creditor under the UCC and of a secured creditor under the Bankruptcy Laws of any applicable jurisdiction. The Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that it will not seek, and hereby waives any right, to have any Fixed Asset Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral.
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(c) Notwithstanding the foregoing, the Revolving Credit Collateral Agent and any Revolving Credit Claimholder may:
(1) file a claim or statement of interest with respect to the Revolving Credit Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any Grantor;
(2) take any action in order to create, perfect, preserve or protect (but not enforce subject to Section 3.2(a)(1) with respect to the Fixed Asset Collateral) its Lien on any of the Collateral; provided that such action shall not be inconsistent with the terms of this Agreement and shall not be adverse to the priority status of the Liens on the Fixed Asset Collateral, or the rights of any Fixed Asset Collateral Agent or any of the Fixed Asset Claimholders to exercise remedies in respect thereof;
(3) file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of the Revolving Credit Claimholders, including any claims secured by the Fixed Asset Collateral, if any, in each case in accordance with the terms of this Agreement;
(4) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not inconsistent with or prohibited by the terms of this Agreement;
(5) vote on any plan of reorganization or similar dispositive restructuring plan, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement (including Section 6.7(d)), with respect to the Revolving Credit Obligations and the ABL Collateral; and
(6) exercise any of its rights or remedies with respect to any of the Collateral after the termination of the Revolving Credit Standstill Period to the extent permitted by Section 3.2(a)(1).
The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that it will not take or receive any Fixed Asset Collateral or any Proceeds of such Collateral in connection with the exercise of any right or remedy (including set-off or recoupment) with respect to any such Collateral in its capacity as a creditor in violation of this Agreement. Without limiting the generality of the foregoing, unless and until the Discharge of Fixed Asset Obligations has occurred, except as expressly provided in Sections 3.2(a), 3.3, 3.4, 6.3(c)(2) and this Section 3.2(c), the sole right of the Revolving Credit Collateral Agent and the Revolving Credit Claimholders with respect to the Fixed Asset Collateral is to hold a Lien on such Collateral pursuant to the Revolving Credit Collateral Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of Fixed Asset Obligations has occurred.
(d) Subject to Sections 3.2(a) and (c) and Sections 3.3 and 6.3(c)(2):
(1) the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that the Revolving Credit Collateral Agent and the Revolving Credit Claimholders will not, except as not prohibited herein, take any action that would hinder or delay any exercise of remedies under the Fixed Asset Documents or that is otherwise prohibited hereunder with respect to the Fixed Asset Collateral, including any sale, lease, exchange, transfer or other disposition of the Fixed Asset Collateral, whether by foreclosure or otherwise;
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(2) the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, hereby waives any and all rights it or the Revolving Credit Claimholders may have as a junior lien creditor with respect to the Fixed Asset Collateral or otherwise to object to the manner in which the any Fixed Asset Collateral Agent or the Fixed Asset Claimholders seek to enforce or collect the Fixed Asset Obligations or the Liens on the Fixed Asset Collateral securing the Fixed Asset Obligations granted in any of the Fixed Asset Documents or undertaken in accordance with this Agreement, regardless of whether any action or failure to act by or on behalf of any Fixed Asset Collateral Agent or the Fixed Asset Claimholders is adverse to the interest of the Revolving Credit Claimholders; and
(3) the Revolving Credit Collateral Agent hereby acknowledges and agrees that no covenant, agreement or restriction contained in any of the Revolving Credit Collateral Documents or any other Revolving Credit Document (other than this Agreement) shall be deemed to restrict in any way the rights and remedies of the Fixed Asset Collateral Agents or the Fixed Asset Claimholders with respect to the Fixed Asset Collateral as set forth in this Agreement and the Fixed Asset Documents.
(e) Except as otherwise set forth in, or otherwise prohibited by or inconsistent with, any provision of this Agreement (including Sections 3.2(a) and (d), Section 3.5 and any provision prohibiting or restricting them from taking various actions or making various objections), the Revolving Credit Collateral Agent and the Revolving Credit Claimholders may exercise rights and remedies as unsecured creditors against any Grantor and may exercise rights and remedies with respect to the ABL Collateral, in each case, in accordance with the terms of the Revolving Credit Documents and applicable law; provided, however, that in the event that any Revolving Credit Claimholder becomes a judgment Lien creditor in respect of Fixed Asset Collateral as a result of its enforcement of its rights as an unsecured creditor with respect to the Revolving Credit Obligations, such judgment Lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Fixed Asset Obligations) as the other Liens securing the Revolving Credit Obligations are subject to this Agreement.
(f) Nothing in this Agreement shall prohibit the receipt by the Revolving Credit Collateral Agent or any Revolving Credit Claimholders of payments of interest, principal and other amounts owed in respect of the Revolving Credit Obligations so long as such receipt is not the direct or indirect result of the exercise by the Revolving Credit Collateral Agent or any Revolving Credit Claimholders of rights or remedies with respect to Fixed Asset Collateral (including set-off or recoupment) or enforcement of any Lien on the Fixed Asset Collateral held by any of them. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the Fixed Asset Collateral Agents or the Fixed Asset Claimholders may have against the Grantors under the Fixed Asset Documents, other than with respect to the ABL Collateral solely to the extent expressly provided herein.
3.3. Exercise of Remedies Collateral Access Rights.
(a) The Revolving Credit Collateral Agent and the Fixed Asset Collateral Agents agree not to commence any Collateral Enforcement Action until an Enforcement Notice has been given to the other Collateral Agent. Subject to the provisions of Sections 3.1 and 3.2 above, either Collateral Agent may join in any judicial proceedings commenced by the other Collateral Agent to enforce Liens on the Collateral, provided that neither Collateral Agent, nor the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, shall interfere with the Collateral Enforcement Actions of the other with respect to Collateral in which such party has the priority Lien in accordance herewith.
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(b) If any Fixed Asset Collateral Agent, or any agent or representative of any Fixed Asset Collateral Agent, or any receiver, shall obtain possession or physical control of any of the Mortgaged Premises, such Fixed Asset Collateral Agent shall promptly notify the Revolving Credit Collateral Agent of that fact (such notice, a Notice of Occupancy) and the Revolving Credit Collateral Agent shall, within ten (10) Business Days thereafter, notify the Controlling Fixed Asset Collateral Agent as to whether the Revolving Credit Collateral Agent desires to exercise access rights under this Agreement (such notice, an Access Acceptance Notice), at which time the parties shall confer in good faith to coordinate with respect to the Revolving Credit Collateral Agents exercise of such access rights; provided, that it is understood and agreed that the Fixed Asset Collateral Agents shall obtain possession or physical control of the Mortgaged Premises in the manner provided in the applicable Fixed Asset Collateral Documents and in the manner provided herein. Access rights may apply to differing parcels of Mortgaged Premises at differing times, in which case, a differing Access Period may apply to each such property. In the event that the Revolving Credit Collateral Agent elects to exercise its access rights as provided in this Agreement, each Fixed Asset Collateral Agent agrees, for itself and on behalf of the applicable Fixed Asset Claimholders, that in the event that any Fixed Asset Claimholder exercises its rights to sell or otherwise dispose of any Mortgaged Premises, whether before or after the delivery of a Notice of Occupancy to the Revolving Credit Collateral Agent, the Fixed Asset Collateral Agents shall (i) provide access rights to the Revolving Credit Collateral Agent for the duration of the Access Period in accordance with this Agreement and (ii) if such a sale or other disposition occurs prior to the Revolving Credit Collateral Agent delivering an Access Acceptance Notice during the time period provided therefor, or if applicable, the expiration of the applicable Access Period, shall ensure that the purchaser or other transferee of such Mortgaged Premises provides the Revolving Credit Collateral Agent the opportunity to exercise its access rights, and upon delivery of an Access Acceptance Notice to such purchaser or transferee, continued access rights to such Mortgaged Premises for the duration of the applicable Access Period, in the manner and to the extent required by this Agreement.
(c) Upon delivery of notice to the Controlling Fixed Asset Collateral Agent as provided in Section 3.3(b), the Access Period shall commence for the subject parcel of Mortgaged Premises. During the Access Period, the Revolving Credit Collateral Agent and its agents, representatives and designees shall have a non-exclusive right to have access to, and a rent free right to use, the Fixed Asset Collateral for the purpose of arranging for and effecting the sale or disposition of ABL Collateral, including the production, completion, packaging and other preparation of such ABL Collateral for sale or disposition. During any such Access Period, the Revolving Credit Collateral Agent and its agents, representatives and designees (and Persons employed on their respective behalves), may continue to operate, service, maintain, process and sell the ABL Collateral, as well as to engage in bulk sales of ABL Collateral. The Revolving Credit Collateral Agent shall take proper care of any Fixed Asset Collateral that is used by the Revolving Credit Collateral Agent during the Access Period and repair and replace any damage (ordinary wear-and-tear excepted) caused by the Revolving Credit Collateral Agent or its agents, representatives or designees and the Revolving Credit Collateral Agent shall comply with all applicable laws in connection with its use or occupancy of the Fixed Asset Collateral. The Revolving Credit Collateral Agent and the Revolving Credit Claimholders shall (to the extent that there are sufficient available proceeds of ABL Collateral for the purposes of paying such indemnity) indemnify and hold harmless the Fixed Asset Collateral Agents and the Fixed Asset Claimholders for any injury or damage to Persons or property caused by the acts or omissions of Persons under its control. The Revolving Credit Collateral Agent and the Fixed Asset Collateral Agents shall cooperate and use reasonable efforts to ensure that their activities during the Access Period as described above do not interfere materially with the activities of the other as described above, including the right of the Fixed Asset Collateral Agents to show the Fixed Asset Collateral to prospective purchasers and to ready the Fixed Asset Collateral for sale.
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(d) If any order or injunction is issued or stay is granted which prohibits the Revolving Credit Collateral Agent from exercising any of its rights hereunder, then at the Revolving Credit Collateral Agents option, the Access Period granted to the Revolving Credit Collateral Agent under this Section 3.3 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining as required under this Section 3.3. If any Fixed Asset Collateral Agent shall foreclose or otherwise sell any of the Fixed Asset Collateral, such Fixed Asset Collateral Agent will notify the buyer thereof of the existence of this Agreement and that the buyer is acquiring the Fixed Asset Collateral subject to the terms of this Agreement.
(e) The Grantors hereby agree with the Fixed Asset Collateral Agents that the Revolving Credit Collateral Agent shall have access, during the Access Period, as described herein and each such Grantor that owns any of the Mortgaged Premises grants a non-exclusive easement in gross over its property to permit the uses by the Revolving Credit Collateral Agent contemplated by this Section 3.3. Each Fixed Asset Collateral Agent consents to such easement and to the recordation of a collateral access easement agreement, in form and substance reasonably acceptable to the Controlling Fixed Asset Collateral Agent, in the relevant real estate records with respect to each parcel of real property that is now or hereafter subject to a Fixed Asset Mortgage. The Revolving Credit Collateral Agent agrees that upon either a Discharge of Revolving Credit Obligations or the expiration of the final Access Period with respect to any parcel of property covered by a Fixed Asset Mortgage, it shall, upon request, execute and deliver to the Controlling Fixed Asset Collateral Agent, or if a Discharge of Fixed Asset Obligations has occurred, to the respective Grantor, such documentation, in recordable form, as may reasonably be requested to terminate any and all rights with respect to such Access Periods.
3.4. Exercise of Remedies Intellectual Property Rights/Access to Information. Each Fixed Asset Collateral Agent hereby grants (to the full extent of their respective rights and interests) the Revolving Credit Collateral Agent and its agents, representatives and designees (a) a royalty free, rent free non-exclusive license and lease to use all of the Fixed Asset Collateral constituting Intellectual Property, to complete the sale of Inventory or Equipment and (b) a royalty free non-exclusive license (which will be binding on any successor or assignee of the Intellectual Property) to use any and all Intellectual Property, in each case, at any time in connection with its Collateral Enforcement Action; provided, however, the royalty free, rent free non-exclusive license and lease granted in clause (a) shall immediately expire upon the sale, lease, transfer or other disposition of all such Inventory and Equipment.
3.5. Exercise of Remedies Set Off and Tracing of and Priorities in Proceeds.
(a) The Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, acknowledges and agrees that, to the extent the Revolving Credit Collateral Agent or any Revolving Credit Claimholder exercises its rights of setoff against any Grantors Deposit Accounts or Securities Accounts that contain identifiable Proceeds of Fixed Asset Collateral, a percentage of the amount of such setoff equal to the percentage that such Proceeds of Fixed Asset Collateral bear to the total amount on deposit in or credited to the balance of such Deposit Accounts or Securities Accounts shall be deemed to constitute Fixed Asset Collateral, which amount shall be held and distributed pursuant to Section 4.3; provided, however that the foregoing shall not apply to any setoff by the Revolving Credit Collateral Agent against any ABL Collateral to the extent applied to the payment of Revolving Credit Obligations.
(b) Each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, also agrees that prior to an issuance of an Enforcement Notice, all funds deposited in an account subject to a Deposit Account Control Agreement or a Securities Account Control Agreement that constitute ABL Collateral and then applied to the Revolving Credit Obligations shall be treated as ABL Collateral and, unless the Revolving Credit Collateral Agent has actual knowledge to the contrary, any claim that payments made to the Revolving Credit Collateral Agent through the Deposit Accounts and Securities Accounts that are subject to such Deposit Account Control Agreements or
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Securities Account Control Agreements, respectively, are Proceeds of or otherwise constitute Fixed Asset Collateral are waived by the Fixed Asset Collateral Agents and the Fixed Asset Claimholders; provided that after the issuance of an Enforcement Notice by the Controlling Fixed Asset Collateral Agent, all identifiable proceeds of Fixed Asset Collateral shall be deemed Fixed Asset Collateral, whether or not held in an account subject to a control agreement.
(c) The Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, and each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, further agree that prior to an issuance of an Enforcement Notice, any Proceeds of Collateral, whether or not deposited in an account subject to a deposit account control agreement or a securities account control agreement, shall not (as between the Collateral Agents, the Revolving Credit Claimholders and the Fixed Asset Claimholders) be treated as Proceeds of Collateral for purposes of determining the relative priorities in the Collateral.
SECTION 4. Payments.
4.1. Application of Proceeds.
(a) So long as the Discharge of Revolving Credit Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all ABL Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Collateral upon the exercise of remedies by the Revolving Credit Collateral Agent or any Revolving Credit Claimholder, shall be applied by the Revolving Credit Collateral Agent to the Revolving Credit Obligations in such order as specified in the relevant Revolving Credit Documents. Upon the Discharge of Revolving Credit Obligations, the Revolving Credit Collateral Agent shall deliver to the Controlling Fixed Asset Collateral Agent any Collateral and Proceeds of Collateral held by it as a result of the exercise of remedies in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct to be applied by the Controlling Fixed Asset Collateral Agent to the Fixed Asset Obligations in such order as specified in the Fixed Asset Documents.
(b) So long as the Discharge of Fixed Asset Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, subject to any intercreditor arrangements among the Fixed Asset Claimholders referred to in Section 8.17 hereof, all Fixed Asset Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Collateral upon the exercise of remedies by any Fixed Asset Collateral Agent or any Fixed Asset Claimholder, shall be applied by the Controlling Fixed Asset Collateral Agent to the Fixed Asset Obligations in the order specified in the Fixed Asset Documents. Upon the Discharge of Fixed Asset Obligations, each Fixed Asset Collateral Agent shall deliver to the Revolving Credit Collateral Agent any Collateral and Proceeds of Collateral held by it as a result of the exercise of remedies in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct to be applied by the Revolving Credit Collateral Agent to the Revolving Credit Obligations in such order as specified in the Revolving Credit Collateral Documents.
4.2. Payments Over in Violation of Agreement. So long as neither the Discharge of Revolving Credit Obligations nor the Discharge of Fixed Asset Obligations has occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, any Collateral or Proceeds thereof (including assets or Proceeds subject to Liens referred to in the final sentence of Section 2.3) received by any Collateral Agent or any Fixed Asset Claimholders or Revolving Credit Claimholders in connection with the exercise of any right or remedy (including set-off or recoupment) relating to the Collateral or otherwise received in contravention of this Agreement shall be segregated and held in trust and forthwith paid over to the appropriate Collateral Agent for the benefit of the Fixed
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Asset Claimholders or the Revolving Credit Claimholders, as the case may be, in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. Each Collateral Agent is hereby authorized by the other Collateral Agent to make any such endorsements as agent for the other Collateral Agent or any Fixed Asset Claimholders or Revolving Credit Claimholders, as the case may be. This authorization is coupled with an interest and is irrevocable until the Discharge of Revolving Credit Obligations and Discharge of Fixed Asset Obligations.
4.3. Application of Payments. Subject to the other terms of this Agreement, all payments received by (a) the Revolving Credit Collateral Agent or the Revolving Credit Claimholders may be applied, reversed and reapplied, in whole or in part, to the Revolving Credit Obligations to the extent provided for in the Revolving Credit Documents and (b) the Fixed Asset Collateral Agents or the Fixed Asset Claimholders, subject to any intercreditor arrangements among the Fixed Asset Claimholders referred to in Section 8.17 hereof, may be applied, reversed and reapplied, in whole or in part, to the Fixed Asset Obligations to the extent provided for in the Fixed Asset Documents.
4.4. Reinstatement.
(a) To the extent any payment with respect to any Revolving Credit Obligation (whether by or on behalf of any Grantor, as Proceeds of security, enforcement of any right of setoff, recoupment or otherwise) is avoided or otherwise declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Fixed Asset Claimholders, receiver or similar Person, whether in connection with any Insolvency or Liquidation Proceeding or otherwise, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the Revolving Credit Claimholders and the Fixed Asset Claimholders, be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent that any interest, fees, expenses or other charges (including, without limitation, Post-Petition Interest) to be paid pursuant to the Revolving Credit Documents are disallowed by order of any court, including, without limitation, by order of a Bankruptcy Court in any Insolvency or Liquidation Proceeding, such interest, fees, expenses and charges (including, without limitation, Post-Petition Interest) shall, as between the Revolving Credit Claimholders and the Fixed Asset Claimholders, be deemed to continue to accrue and be added to the amount to be calculated as the Revolving Credit Obligations.
(b) To the extent any payment with respect to any Fixed Asset Obligation (whether by or on behalf of any Grantor, as Proceeds of security, enforcement of any right of setoff, recoupment or otherwise) is avoided or otherwise declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Revolving Credit Claimholders, receiver or similar Person, whether in connection with any Insolvency or Liquidation Proceeding or otherwise, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the Fixed Asset Claimholders and the Revolving Credit Claimholders, be deemed to be reinstated and outstanding as if such payment had not occurred. To the extent that any interest, fees, expenses or other charges (including, without limitation, Post-Petition Interest) to be paid pursuant to the Fixed Asset Documents are disallowed by order of any court, including, without limitation, by order of a Bankruptcy Court in any Insolvency or Liquidation Proceeding, such interest, fees, expenses and charges (including, without limitation, Post-Petition Interest) shall, as between the Fixed Asset Claimholders and the Revolving Credit Claimholders, be deemed to continue to accrue and be added to the amount to be calculated as the Fixed Asset Obligations.
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SECTION 5. Other Agreements.
5.1. Releases.
(a) (i) If in connection with the exercise of the Revolving Credit Collateral Agents remedies in respect of any Collateral as provided for in Section 3.1, the Revolving Credit Collateral Agent, for itself or on behalf of any of the Revolving Credit Claimholders, releases any of its Liens on any part of the ABL Collateral, then the Liens, if any, of each Fixed Asset Collateral Agent, for itself or for the benefit of the applicable Fixed Asset Claimholders, on the ABL Collateral sold or disposed of in connection with such exercise, shall be automatically, unconditionally and simultaneously released. Each Fixed Asset Collateral Agent, for itself or on behalf of any such Fixed Asset Claimholders, promptly shall execute and deliver to the Revolving Credit Collateral Agent or such Grantor such termination statements, releases and other documents as the Revolving Credit Collateral Agent or such Grantor may request to effectively confirm such release.
(ii) If in connection with the exercise of the Controlling Fixed Asset Collateral Agents remedies in respect of any Collateral as provided for in Section 3.2, the Controlling Fixed Asset Collateral Agent, for itself or on behalf of any of the Fixed Asset Claimholders, releases any of its Liens on any part of the Fixed Asset Collateral, then the Liens, if any, of the Revolving Credit Collateral Agent, for itself or for the benefit of the Revolving Credit Claimholders, on the Fixed Asset Collateral sold or disposed of in connection with such exercise, shall be automatically, unconditionally and simultaneously released. The Revolving Credit Collateral Agent, for itself or on behalf of any such Revolving Credit Claimholders, promptly shall execute and deliver to the Controlling Fixed Asset Collateral Agent or such Grantor such termination statements, releases and other documents as the Controlling Fixed Asset Collateral Agent or such Grantor may request to effectively confirm such release.
(b) If in connection with any sale, lease, exchange, transfer or other disposition of any Collateral (collectively, a Disposition) permitted under the terms of both the Revolving Credit Documents and the Fixed Asset Documents (other than in connection with the exercise of the respective Collateral Agents rights and remedies in respect of the Collateral as provided for in Sections 3.1 and 3.2), (i) the Revolving Credit Collateral Agent, for itself or on behalf of any of the Revolving Credit Claimholders, releases any of its Liens on any part of the ABL Collateral, in each case other than (A) in connection with the Discharge of Revolving Credit Obligations or (B) after the occurrence and during the continuance of a Fixed Asset Default, then the Liens, if any, of each Fixed Asset Collateral Agent, for itself or for the benefit of the applicable Fixed Asset Claimholders, on such Collateral shall be automatically, unconditionally and simultaneously released, and (ii) the Controlling Fixed Asset Collateral Agent, for itself or on behalf of any of the applicable Fixed Asset Claimholders, releases any of its Liens on any part of the Fixed Asset Collateral, in each case other than (A) in connection with the Discharge of Fixed Asset Obligations or (B) after the occurrence and during the continuance of a Revolving Credit Default, then the Liens, if any, of the Revolving Credit Collateral Agent, for itself or for the benefit of the Revolving Credit Claimholders on such Collateral (or, if such Collateral includes the Equity Interests of any Subsidiary, the Liens on Collateral owned by such Subsidiary) shall be automatically, unconditionally and simultaneously released. The Revolving Credit Collateral Agent and each Fixed Asset Collateral Agent, each for itself and on behalf of any such Revolving Credit Claimholders or Fixed Asset Claimholders, as the case may be, promptly shall execute and deliver to the other Collateral Agents or such Grantor such termination statements, releases and other documents as the other Collateral Agents or such Grantor may request to effectively confirm such release.
(c) Until the Discharge of Revolving Credit Obligations and Discharge of Fixed Asset Obligations shall occur, the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, and each Fixed Asset Collateral Agent, for itself and on behalf of the
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applicable Fixed Asset Claimholders, as the case may be, hereby irrevocably constitutes and appoints the other Collateral Agents and any officer or agent of the other Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the other Collateral Agent or such holder or in the Collateral Agents own name, from time to time in such Collateral Agents discretion, for the purpose of carrying out the terms of this Section 5.1, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary to accomplish the purposes of this Section 5.1, including any endorsements or other instruments of transfer or release.
(d) Until the Discharge of Revolving Credit Obligations and Discharge of Fixed Asset Obligations shall occur, to the extent that the Collateral Agents or the Revolving Credit Claimholders or the Fixed Asset Claimholders (i) have released any Lien on Collateral and such Lien is later reinstated or (ii) obtain any new Liens from any Grantor, then each other Collateral Agent, for itself and for the Revolving Credit Claimholders or applicable Fixed Asset Claimholders, as the case may be, shall be granted a Lien on any such Collateral, subject to the lien priority provisions of this Agreement and subject to Sections 2.5 and 2.6 of this Agreement.
5.2. Insurance.
(a) Unless and until the Discharge of Revolving Credit Obligations has occurred, subject to the terms of, and the rights of the Grantors under, the Revolving Credit Documents, each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders agrees, that (i) in accordance with the terms of the applicable Credit Documents, the Revolving Credit Collateral Agent shall have the sole and exclusive right to adjust settlement for any insurance policy covering the ABL Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting such Collateral; (ii) in accordance with the terms of the applicable Credit Documents, all Proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of such Collateral and to the extent required by the Revolving Credit Documents shall be paid to the Revolving Credit Collateral Agent for the benefit of the Revolving Credit Claimholders pursuant to the terms of the Revolving Credit Documents (including, without limitation, for purposes of cash collateralization of letters of credit) and thereafter, to the extent no Revolving Credit Obligations are outstanding, and subject to the rights of the Grantors under the Fixed Asset Documents, to the Fixed Asset Collateral Agents for the benefit of the Fixed Asset Claimholders to the extent required under the Fixed Asset Collateral Documents and then, to the extent no Fixed Asset Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct, and (iii) in accordance with the terms of the applicable Credit Documents, if any Fixed Asset Collateral Agent or any Fixed Asset Claimholders shall, at any time, receive any Proceeds of any such insurance policy or any such award or payment in contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such Proceeds over to the Revolving Credit Collateral Agent in accordance with the terms of Section 4.2.
(b) Unless and until the Discharge of Fixed Asset Obligations has occurred, subject to the terms of, and the rights of the Grantors under, the Fixed Asset Documents, the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that (i) in accordance with the terms of the applicable Credit Documents, the Controlling Fixed Asset Collateral Agent, for itself and on behalf of the Fixed Asset Claimholders shall have the sole and exclusive right to adjust settlement for any insurance policy covering the Fixed Asset Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting such Collateral; (ii) in accordance with the terms of the applicable Credit Documents, all Proceeds of any such policy and any such award (or any payments with respect to a deed
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in lieu of condemnation) if in respect of such Collateral and to the extent required by the Fixed Asset Documents shall be paid to the Fixed Asset Collateral Agents for the benefit of the Fixed Asset Claimholders pursuant to the terms of the Fixed Asset Documents and thereafter, to the extent no Fixed Asset Obligations are outstanding, and subject to the rights of the Grantors under the Revolving Credit Documents, to the Revolving Credit Collateral Agent for the benefit of the Revolving Credit Claimholders to the extent required under the Revolving Credit Collateral Documents and then, to the extent no Revolving Credit Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct, and (iii) in accordance with the terms of the applicable Credit Documents, if the Revolving Credit Collateral Agent or any Revolving Credit Claimholders shall, at any time, receive any Proceeds of any such insurance policy or any such award or payment in contravention of this Agreement, it shall segregate and hold in trust and forthwith pay such Proceeds over to the Controlling Fixed Asset Collateral Agent in accordance with the terms of Section 4.2.
(c) To the extent any Proceeds are received for business interruption or for any liability or indemnification and those Proceeds are not compensation for a casualty loss with respect to the Fixed Asset Collateral, such Proceeds shall first be applied to repay the Revolving Credit Obligations (to the extent required pursuant to the Revolving Credit Agreement) and then be applied, to the extent required by the Fixed Asset Documents, to the Fixed Asset Obligations.
5.3. Amendments to Revolving Credit Documents and Fixed Asset Documents; Refinancing.
(a) The Fixed Asset Documents may be amended, supplemented, amended and restated, replaced, Refinanced or otherwise modified from time to time in accordance with their terms (including, without limitation, any incremental term loans provided pursuant to Section 2.02 of the Initial Fixed Asset Facility Agreement) and the Fixed Asset Obligations may be Refinanced, in each case, without notice to, or the consent of the Revolving Credit Collateral Agent or the Revolving Credit Claimholders, all without affecting the lien priorities or other provisions of this Agreement; provided, however, that any such Refinancing shall comply with Section 5.5 and shall not contravene any provision of this Agreement.
(b) The Revolving Credit Documents may be amended, supplemented, amended and restated, replaced, Refinanced or otherwise modified from time to time in accordance with their terms (including, without limitation, any incremental increase in commitments provided pursuant to Section 2.01(b) of the Revolving Credit Agreement) and the Revolving Credit Agreement may be Refinanced, in each case, without notice to, or the consent of any Fixed Asset Collateral Agent or the Fixed Asset Claimholders, all without affecting the lien priorities or other provisions of this Agreement; provided, however, that any such Refinancing shall comply with Section 5.5 and shall not contravene any provision of this Agreement.
(c) On or after any Refinancing, and the receipt of notice thereof, which notice shall include the identity of a new or replacement Collateral Agent or other agent serving the same or similar function, each existing Collateral Agent shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as any Grantor or such new or replacement Collateral Agent may reasonably request in order to provide to such new or replacement Collateral Agent the rights, remedies and powers and authorities contemplated hereby, in each case consistent in all respects with the terms of this Agreement.
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(d) The Revolving Credit Collateral Agent and each Fixed Asset Collateral Agent shall each use good faith efforts to notify the other parties hereto of any written amendment or modification to any Revolving Credit Document or any Fixed Asset Document, as applicable, but the failure to do so shall not create a cause of action against the party failing to give such notice or create any claim or right on behalf of any third party.
5.4. Bailees for Perfection.
(a) Except as provided in Section 2.5, each Collateral Agent agrees to hold that part of the Collateral that is in its possession or control (or in the possession or control of its agents or bailees) to the extent that possession or control thereof is taken to perfect a Lien thereon under the UCC (such Collateral being the Pledged Collateral) as bailee and non-fiduciary agent for the benefit or on behalf of the other Collateral Agent, the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be (such bailment or agency being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the UCC) and any assignee solely for the purpose of perfecting the security interest granted under the Revolving Credit Documents and the Fixed Asset Documents, respectively, subject to the terms and conditions of this Section 5.4.
(b) No Collateral Agent shall have any obligation whatsoever to the other Collateral Agents, to any Revolving Credit Claimholder, or to any Fixed Asset Claimholder to ensure that the Pledged Collateral is genuine or owned by any of the Grantors or to preserve rights or benefits of any Person except as expressly set forth in this Section 5.4. The duties or responsibilities of the respective Collateral Agents under this Section 5.4 shall be limited solely to holding possession or control of the Pledged Collateral as bailee and non-fiduciary agent in accordance with this Section 5.4 and delivering the Pledged Collateral upon a Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as the case may be, as provided in paragraph (d) below.
(c) No Collateral Agent acting pursuant to this Section 5.4 shall have by reason of the Revolving Credit Documents, the Fixed Asset Documents, this Agreement or any other document a fiduciary relationship in respect of the other Collateral Agent, or any Revolving Credit Claimholders or any Fixed Asset Claimholders. Each Collateral Agent, for itself and on behalf of each applicable Grantor represented thereby, hereby waives and releases the other Collateral Agent from all claims and liabilities arising pursuant to such Collateral Agents role under this Section 5.4 as bailee with respect to the applicable Pledged Collateral.
(d) Upon the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, as the case may be, the Collateral Agent under the debt facility which has been discharged shall deliver the remaining Pledged Collateral (if any) together with any necessary endorsements and without recourse or warranty, first, to the other Collateral Agent (for the avoidance of doubt, in the case of the Discharge of Revolving Credit Obligations, to the Controlling Fixed Asset Collateral Agent) to the extent the other Obligations (other than Contingent Obligations) remain outstanding, and second, to the applicable Grantor to the extent no Revolving Credit Obligations or Fixed Asset Obligations, as the case may be, remain outstanding (in each case, so as to allow such Person to obtain possession or control of such Pledged Collateral). Each Collateral Agent further agrees, to the extent that any other Obligations (other than applicable Contingent Obligations) remain outstanding, to take all other commercially reasonable action as shall be reasonably requested by the other Collateral Agent, at the sole cost and expense of the Loan Parties, to permit such other Collateral Agent to obtain, for the benefit of the Revolving Credit Claimholders or Fixed Asset Claimholders, as applicable, a first-priority interest in the Collateral or as a court of competent jurisdiction may otherwise direct.
(e) Subject to the terms of this Agreement, (i) so long as the Discharge of Revolving Credit Obligations has not occurred, the Revolving Credit Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its control in accordance with the terms of this Agreement
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and other Revolving Credit Documents, but only to the extent that such Collateral constitutes ABL Collateral, as if the Liens of the Fixed Asset Collateral Agents and Fixed Asset Claimholders did not exist and (ii) so long as the Discharge of Fixed Asset Obligations has not occurred, the Controlling Fixed Asset Collateral Agent shall be entitled to deal with the Pledged Collateral or Collateral within its control in accordance with the terms of this Agreement and other Fixed Asset Documents, but only to the extent that such Collateral constitutes Fixed Asset Collateral, as if the Liens of the Revolving Credit Collateral Agent and Revolving Credit Claimholders did not exist. In furtherance of the foregoing, promptly following the Discharge of Revolving Credit Obligations, unless a New Debt Notice in respect of new Revolving Credit Documents shall have been delivered as provided in Section 5.5 below, the Revolving Credit Collateral Agent hereby agrees to deliver, at the cost and expense of the Loan Parties, to each bank and securities intermediary, if any, that is counterparty to a deposit account control agreement or securities account control agreement, as applicable, written notice as contemplated in such deposit account control agreement or securities account control agreement, as applicable, directing such bank or securities intermediary, as applicable, to comply with the instructions of the Controlling Fixed Asset Collateral Agent (to the extent a party thereto), unless the Discharge of Fixed Asset Obligations has occurred (as certified to the Revolving Credit Collateral Agent by the Term Loan Borrower), in which case, such deposit account control agreement or securities account control agreement, as the case may be, shall be terminated.
(f) Notwithstanding anything in this Agreement to the contrary:
(1) each of the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, agrees that any requirement under any Revolving Credit Collateral Document that any Grantor deliver any Collateral that constitutes Fixed Asset Collateral to the Revolving Credit Collateral Agent, or that requires any Grantor to vest the Revolving Credit Collateral Agent with possession or control (as defined in the UCC) of any Collateral that constitutes Fixed Asset Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Fixed Asset Obligations (other than Contingent Obligations), such Collateral is delivered to the Controlling Fixed Asset Collateral Agent, or the Controlling Fixed Asset Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent) control, in each case, subject to the provisions of Section 5.4; and
(2) each of the Fixed Asset Collateral Agents, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that any requirement under any Fixed Asset Collateral Document that any Grantor deliver any Collateral that constitutes ABL Collateral to such Fixed Asset Collateral Agent, or that requires any Grantor to vest such Fixed Asset Collateral Agent with possession or control (as defined in the UCC) of any Collateral that constitutes ABL Collateral, in each case, shall be deemed satisfied to the extent that, prior to the Discharge of Revolving Credit Obligations (other than Contingent Obligations), such Collateral is delivered to the Revolving Credit Collateral Agent, or the Revolving Credit Collateral Agent shall have been vested with such possession or (unless, pursuant to the UCC, control may be given concurrently to the Fixed Asset Collateral Agent and the Revolving Credit Collateral Agent) control, in each case, subject to the provisions of Section 5.4.
5.5. When Discharge of Revolving Credit Obligations and Discharge of Fixed Asset Obligations Deemed to Not Have Occurred. If in connection with the Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, any Borrower substantially concurrently or subsequently enters into any Refinancing of any Revolving Credit Obligation or Fixed Asset Obligation as the case may be, which Refinancing is permitted by both the Fixed Asset Documents and the
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Revolving Credit Documents, in each case, to the extent such documents will remain in effect following such Refinancing, then such Discharge of Revolving Credit Obligations or the Discharge of Fixed Asset Obligations, shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken pursuant to this Agreement as a result of the occurrence of such Discharge of Revolving Credit Obligations or Discharge of Fixed Asset Obligations, as applicable) and, from and after the date on which the New Debt Notice is delivered to the appropriate Collateral Agents in accordance with the next sentence, the obligations under such Refinancing (the Refinanced Obligations) shall automatically be treated as Revolving Credit Obligations or Fixed Asset Obligations, as applicable, for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Revolving Credit Collateral Agent or Fixed Asset Collateral Agent, as the case may be, under such new Revolving Credit Documents or new Fixed Asset Documents shall be the Revolving Credit Collateral Agent or a Fixed Asset Collateral Agent for all purposes of this Agreement. Upon receipt of a notice (the New Debt Notice) stating that a Borrower has entered into new Revolving Credit Documents or new Fixed Asset Documents (which notice shall include a complete copy of the relevant new documents and provide the identity of the new collateral agent, such agent, the New Agent), the other Collateral Agents shall promptly (a) enter into such documents and agreements (including amendments or supplements to this Agreement) as such Borrower, any Grantor or such New Agent shall reasonably request in order to provide to the New Agent the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement and (b) deliver to the New Agent any Pledged Collateral (that is Fixed Asset Collateral, in the case of a New Agent that is the agent under any new Fixed Asset Documents or that is ABL Collateral, in the case of a New Agent that is the agent under any new Revolving Credit Documents) held by it together with any necessary endorsements (or otherwise allow the New Agent to obtain control of such Pledged Collateral). The New Agent shall agree in a writing addressed to the other Collateral Agents for the benefit of the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, to be bound by the terms of this Agreement by executing and delivering a Joinder Agreement in compliance with Section 5.7.
5.6. [Reserved.]
5.7. Additional Fixed Asset Debt and Refinanced Obligations. The Term Loan Borrower and the other applicable Grantors will be permitted to designate (i) as an additional holder of Fixed Asset Obligations hereunder each Person who is, or who becomes or who is to become, the registered holder of any Additional Fixed Asset Debt incurred by the Term Loan Borrower or such Grantor after the date of this Agreement in accordance with the terms of all then existing Secured Revolver/Fixed Asset Documents and (ii) as a holder of Refinanced Obligations hereunder, each Person who is, or becomes or who is to become, the registered holder of Refinanced Obligations hereunder in accordance with Section 5.5. Upon the issuance or incurrence of any such Additional Fixed Asset Debt or such Refinanced Obligations, as the case may be:
(a) the Term Loan Borrower shall deliver to the Fixed Asset Collateral Agents and the Revolving Credit Collateral Agent a certificate of a Responsible Officer stating that the Term Loan Borrower or such Grantor intends to enter into an Additional Fixed Asset Instrument or incur Refinanced Obligations, as applicable, and certifying (x) in the case of any Additional Fixed Asset Obligations, that the issuance or incurrence of such Additional Fixed Asset Obligations under such Additional Fixed Asset Instrument is permitted by each then existing Secured Revolver/Fixed Asset Documents and specifying if such Additional Fixed Asset Obligations constitute Additional Pari Fixed Asset Obligations or Additional Junior Fixed Asset Obligations or (y) in the case of any Refinanced Obligations, the issuance or incurrence thereof is in accordance with Section 5.5;
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(b) the administrative agent or trustee and collateral agent for such Additional Fixed Asset Debt or the New Agent for such Refinanced Obligations, as applicable, shall execute and deliver to the Collateral Agents a Joinder Agreement;
(a) the Fixed Asset Collateral Documents in respect of such Additional Fixed Asset Debt or the New Agent for such Refinanced Obligations, as applicable, shall be subject to, and shall comply with, Sections 2.3, 2.4, 2.5 and 2.6 of this Agreement; and
(b) each existing Collateral Agent shall promptly enter into such documents and agreements (including amendments or supplements to this Agreement) as the Term Loan Borrower or the administrative agent or trustee and collateral agent for such Additional Fixed Asset Debt or the New Agent for such Refinanced Obligations, as applicable, may reasonably request in order to provide to them the rights, remedies and powers and authorities contemplated hereby, in each consistent in all respects with the terms of this Agreement.
Upon satisfaction of the conditions set forth in the foregoing clauses (a) through (d), the Additional Fixed Asset Collateral Agent for such Additional Fixed Asset Debt or the New Agent for such Refinanced Obligations, as applicable, shall be a Collateral Agent hereunder and the respective obligations will be Additional Fixed Asset Obligations or Refinanced Obligations, as applicable, without further act on the part of any Person.
SECTION 6. Insolvency or Liquidation Proceedings.
6.1. Finance Issues.
(a) Until the Discharge of Revolving Credit Obligations has occurred, if any Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Revolving Credit Collateral Agent shall desire to permit the use of Cash Collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting ABL Collateral on which the Revolving Credit Collateral Agent or any other creditor has a Lien or to permit any Grantor to obtain financing to be secured at least in part by the ABL Collateral, whether from the Revolving Credit Claimholders or any other Person under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (DIP Financing) then each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees that it will raise no objection to such Cash Collateral use or DIP Financing so long as such Cash Collateral use or DIP Financing meets the following requirements: (i) the Fixed Asset Collateral Agents and the Fixed Asset Claimholders retain the right to object to any ancillary agreements or arrangements regarding the Cash Collateral use or the DIP Financing that are materially prejudicial to their interests in the Fixed Asset Collateral, and (ii) the terms of the DIP Financing (A) do not expressly require the liquidation of the Collateral prior to a default under the DIP Financing documentation or Cash Collateral order and (B) do not require that any Lien of the Fixed Asset Collateral Agents on the Fixed Asset Collateral be subordinated to or pari passu with any Lien on the Fixed Asset Collateral securing such DIP Financing. To the extent the Liens securing the Revolving Credit Obligations are subordinated to or pari passu with such DIP Financing which meets the requirements of clauses (i) through (ii) above, each Fixed Asset Collateral Agent will subordinate its Liens in the ABL Collateral to (1) the Liens thereon securing such DIP Financing (and all Obligations relating thereto), (2) all adequate protection Liens thereon granted to the Revolving Credit Claimholders, and (3) to any carve out therefrom for professional and United States Trustee fees that has been agreed to by the Revolving Credit Collateral Agent, and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Revolving Credit Collateral Agent or to the extent permitted by Section 6.3).
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(b) Until the Discharge of Fixed Asset Obligations has occurred, if any Grantor shall be subject to any Insolvency or Liquidation Proceeding and the Controlling Fixed Asset Collateral Agent shall desire to permit the use of Cash Collateral (as such term is defined in Section 363(a) of the Bankruptcy Code) constituting Fixed Asset Collateral on which the Fixed Asset Collateral Agents or any other creditor has a Lien or to permit any Grantor to obtain financing to be secured at least in part by the Fixed Asset Collateral, whether from the Fixed Asset Claimholders or any other Person under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (Fixed Asset DIP Financing) then the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that it will raise no objection to such Cash Collateral use or Fixed Asset DIP Financing so long as such Cash Collateral use or Fixed Asset DIP Financing meets the following requirements: (i) the Revolving Credit Collateral Agent and the Revolving Credit Claimholders retain the right to object to any ancillary agreements or arrangements regarding the Cash Collateral use or the Fixed Asset DIP Financing that are materially prejudicial to their interests in the Revolving Credit Collateral, and (ii) the terms of the Fixed Asset DIP Financing (A) do not expressly require the liquidation of the Collateral prior to a default under the Fixed Asset DIP Financing documentation or Cash Collateral order and (B) do not require that any Lien of the Revolving Credit Collateral Agent on the ABL Collateral be subordinated to or pari passu with any Lien on the ABL Collateral securing such Fixed Asset DIP Financing. To the extent the Liens securing the Fixed Asset Obligations are subordinated to or pari passu with such Fixed Asset DIP Financing which meets the requirements of clauses (i) through (ii) above, the Revolving Credit Collateral Agent will subordinate its Liens in the Fixed Asset Collateral to (1) the Liens thereon securing such Fixed Asset DIP Financing (and all Obligations relating thereto), (2) all adequate protection Liens thereon granted to the Fixed Asset Claimholders, and (3) to any carve out therefrom for professional and United States Trustee fees that has been agreed to by the Controlling Fixed Asset Collateral Agent, and will not request adequate protection or any other relief in connection therewith (except, as expressly agreed by the Controlling Fixed Asset Collateral Agent or to the extent permitted by Section 6.3).
6.2. Relief from the Automatic Stay.
(a) Until the Discharge of Revolving Credit Obligations has occurred, each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees that none of them shall seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the ABL Collateral, without the prior written consent of the Revolving Credit Collateral Agent.
(b) Until the Discharge of Fixed Asset Obligations has occurred, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that none of them shall seek (or support any other Person seeking) relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding in respect of the Fixed Asset Collateral (other than to the extent such relief is required to exercise its rights under Section 3.3), without the prior written consent of the Controlling Fixed Asset Collateral Agent.
6.3. Adequate Protection.
(a) Each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees that none of them shall contest (or support any other Person contesting):
(1) any request by the Revolving Credit Collateral Agent or the Revolving Credit Claimholders for adequate protection with respect to the ABL Collateral; provided that (A) until the Discharge of Fixed Asset Obligations has occurred, such adequate protection claim shall not seek the creation of any Lien over additional assets or property of any Grantor other than with
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respect to assets or property that constitute Revolving Credit Collateral and (B) if such additional assets or property shall also constitute Fixed Asset Collateral, (i) a Lien shall have been created in favor of the Fixed Asset Claimholders in respect of such Collateral and (ii) the Lien in favor of the Revolving Credit Claimholders on such Fixed Asset Collateral shall be subordinated to the extent set forth in this Agreement; or
(2) any objection by the Revolving Credit Collateral Agent or the Revolving Credit Claimholders to any motion, relief, action or proceeding based on the Revolving Credit Collateral Agent or the Revolving Credit Claimholders claiming a lack of adequate protection with respect to the ABL Collateral; provided that if the Revolving Credit Collateral Agent is granted adequate protection in the form of a Lien on additional or replacement collateral, the Fixed Asset Collateral Agents and the Fixed Asset Claimholders may seek or request adequate protection in the form of a Lien on such additional or replacement collateral; it being understood and agreed that (1) if such additional or replacement collateral shall also constitute Fixed Asset Collateral, the Lien on such additional or replacement collateral that constitutes Fixed Asset Collateral in favor of or providing adequate protection for the Revolving Credit Collateral Agent shall be subordinate to the Lien on such Fixed Asset Collateral in favor of or providing adequate protection for the Fixed Asset Collateral Agents and (2) if such additional or replacement collateral shall also constitute ABL Collateral, the Lien on such additional or replacement collateral that constitutes ABL Collateral in favor of or providing adequate protection for the Revolving Credit Collateral Agent shall be senior to the Lien on such ABL Collateral in favor of or providing adequate protection for the Fixed Asset Collateral Agents, in each case with respect to the foregoing clauses (1) and (2), to the extent required by this Agreement.
(b) The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that none of them shall contest (or support any other Person contesting):
(1) any request by the Controlling Fixed Asset Collateral Agent for adequate protection with respect to the Fixed Asset Collateral; provided that (A) until the Discharge of Revolving Credit Obligations has occurred, such adequate protection claim shall not seek the creation of any Lien over additional assets or property of any Grantor other than with respect to assets or property that constitute Fixed Asset Facility Collateral and (B) if such additional assets or property shall also constitute ABL Collateral, (i) a Lien shall have been created in favor of the Revolving Credit Claimholders in respect of such Collateral and (ii) the Lien in favor of the Fixed Asset Claimholders on such ABL Collateral shall be subordinated to the extent set forth in this Agreement; or
(2) any objection by the Controlling Fixed Asset Collateral Agent to any motion, relief, action or proceeding based on the Controlling Fixed Asset Collateral Agent claiming a lack of adequate protection with respect to the Fixed Asset Collateral; provided that if the Fixed Asset Collateral Agents are granted adequate protection in the form of a Lien on additional or replacement collateral, the Revolving Credit Collateral Agent and the Revolving Credit Claimholders may seek or request adequate protection in the form of a Lien on such additional or replacement collateral; it being understood and agreed that (1) if such additional or replacement collateral shall also constitute ABL Collateral, the Lien on such additional or replacement collateral that constitutes ABL Collateral in favor of or providing adequate protection for the Fixed Asset Collateral Agents shall be subordinate to the Lien on such ABL Collateral in favor of and providing adequate protection for the Revolving Credit Collateral Agent and (2) if such additional or replacement collateral shall also constitute Fixed Asset Collateral, the Lien on such additional or replacement collateral that constitutes Fixed Asset Collateral in favor of or providing adequate protection for the Fixed Asset Collateral Agents shall be senior to the Lien on
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such Fixed Asset Collateral in favor of or providing adequate protection for the Revolving Credit Collateral Agent, in each case with respect to the foregoing clauses (1) and (2), to the extent required by this Agreement.
(c) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency or Liquidation Proceeding:
(1) if the Revolving Credit Claimholders (or any subset thereof) are granted adequate protection with respect to the ABL Collateral in the form of a Lien on additional or replacement collateral of the Loan Parties (even if such collateral is not of a type which would otherwise have constituted ABL Collateral) in connection with any Cash Collateral use or DIP Financing or Fixed Asset DIP Financing, then the Controlling Fixed Asset Collateral Agent, on behalf of itself or any of the Fixed Asset Claimholders, may seek or request adequate protection with respect to its interests in such Collateral in the form of a Lien on the same additional or replacement collateral, which Lien on any assets that constitute ABL Collateral will be subordinated to the Liens securing or providing adequate protection for the Revolving Credit Obligations on the same basis as the other Liens of the Fixed Asset Collateral Agents on ABL Collateral;
(2) if the Fixed Asset Claimholders (or any subset thereof) are granted adequate protection with respect to the Fixed Asset Collateral in the form of a Lien on additional or replacement collateral of the Loan Parties (even if such collateral is not of a type which would otherwise have constituted Fixed Asset Collateral) in connection with any Cash Collateral use or DIP Financing or Fixed Asset DIP Financing, then the Revolving Credit Collateral Agent, on behalf of itself or any of the Revolving Credit Claimholders, may seek or request adequate protection with respect to its interests in such Collateral in the form of a Lien on the same additional or replacement collateral, which Lien on any assets that constitute Fixed Asset Collateral will be subordinated to the Liens securing or providing adequate protection for the Fixed Asset Obligations on the same basis as the other Liens of the Revolving Credit Collateral Agent on Fixed Asset Collateral;
(3) in the event the Revolving Credit Collateral Agent, on behalf of itself or any of the Revolving Credit Claimholders, seeks or requests adequate protection in respect of ABL Collateral and such adequate protection is granted in the form of a Lien on additional or replacement collateral of the Loan Parties (even if such collateral is not of a type which would otherwise have constituted ABL Collateral), then the Revolving Credit Collateral Agent, on behalf of itself and any of the Revolving Credit Claimholders, agrees that the Fixed Asset Collateral Agents may also be granted a Lien on the same additional or replacement collateral as adequate protection for the Fixed Asset Obligations and for any Cash Collateral use or DIP Financing or Fixed Asset DIP Financing provided by the Fixed Asset Claimholders, and each Fixed Asset Collateral Agent, on behalf of itself and any of the applicable Fixed Asset Claimholders, agrees that any Lien on such additional or replacement collateral that constitutes ABL Collateral securing or providing adequate protection for the Fixed Asset Obligations shall be subordinated to the Liens on such collateral securing or providing adequate protection for the Revolving Credit Obligations in connection with any such use of Cash Collateral or any such DIP Financing or Fixed Asset DIP Financing provided by the Fixed Asset Claimholders (and all Obligations relating thereto), all on the same basis as the other Liens of the Fixed Asset Collateral Agents on ABL Collateral; and
(4) in the event any Fixed Asset Collateral Agent, on behalf of itself or any of the Fixed Asset Claimholders, seeks or requests adequate protection in respect of Fixed Asset Collateral and such adequate protection is granted in the form of a Lien on additional or
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replacement collateral of the Loan Parties (even if such collateral is not of a type which would otherwise have constituted Fixed Asset Collateral), then each Fixed Asset Collateral Agent, on behalf of itself and any of the Fixed Asset Claimholders, agrees that the Revolving Credit Collateral Agent may also be granted a Lien on the same additional or replacement collateral as adequate protection for the Revolving Credit Obligations and for any Cash Collateral use or DIP Financing or Fixed Asset DIP Financing provided by the Revolving Credit Claimholders, and the Revolving Credit Collateral Agent, on behalf of itself and any of the Revolving Credit Claimholders, agrees that any Lien on such additional or replacement collateral that constitutes Fixed Asset Collateral securing or providing adequate protection for the Revolving Credit Obligations shall be subordinated to the Liens on such collateral securing or providing adequate protection for the Fixed Asset Obligations in connection with any such use of cash Collateral or any such DIP Financing or Fixed Asset DIP Financing provided by the Revolving Credit Claimholders (and all Obligations relating thereto), all on the same basis as the other Liens of the Revolving Credit Collateral Agent on Fixed Asset Collateral.
(d) Except as otherwise expressly set forth in this Section 6 or in connection with the exercise of remedies with respect to (i) the ABL Collateral, nothing herein shall limit the rights of the Fixed Asset Collateral Agents or the Fixed Asset Claimholders from seeking adequate protection with respect to their rights in the Fixed Asset Collateral in any Insolvency or Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic cash payments, administrative claims or otherwise, other than from the proceeds of ABL Collateral) or (ii) the Fixed Asset Collateral, nothing herein shall limit the rights of the Revolving Credit Collateral Agent or the Revolving Credit Claimholders from seeking adequate protection with respect to their rights in the ABL Collateral in any Insolvency or Liquidation Proceeding (including adequate protection in the form of a cash payment, periodic cash payments, administrative claims or otherwise, other than from the proceeds of Fixed Asset Collateral).
6.4. Avoidance Issues. If any Revolving Credit Claimholder or Fixed Asset Claimholder is required in any Insolvency or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the applicable Grantor any amount paid in respect of Revolving Credit Obligations or the Fixed Asset Obligations, as the case may be (a Recovery), then such Revolving Credit Claimholders or Fixed Asset Claimholders shall be entitled to a reinstatement of Revolving Credit Obligations or the Fixed Asset Obligations, as the case may be, with respect to all such recovered amounts for the purposes of this Agreement. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto from such date of reinstatement.
6.5. Post-Petition Interest.
(a) No Fixed Asset Collateral Agent nor any Fixed Asset Claimholder shall oppose or seek to challenge any claim by the Revolving Credit Collateral Agent or any Revolving Credit Claimholder for allowance in any Insolvency or Liquidation Proceeding of Revolving Credit Obligations consisting of Post-Petition Interest to the extent of the value of the Lien securing any Revolving Credit Claimholders claim, without regard to the existence of the Lien of the Fixed Asset Collateral Agent on behalf of the Fixed Asset Claimholders on the Collateral.
(b) Neither the Revolving Credit Collateral Agent nor any other Revolving Credit Claimholder shall oppose or seek to challenge any claim by any Fixed Asset Collateral Agent or any Fixed Asset Claimholder for allowance in any Insolvency or Liquidation Proceeding of Fixed Asset Obligations consisting of Post-Petition Interest to the extent of the value of the Lien securing any Fixed Asset Claimholders claim, without regard to the existence of the Lien of the Revolving Credit Collateral Agent on behalf of the Revolving Credit Claimholders on the Collateral.
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6.6. Waivers 506(c) and 1111(b)(2) Issues.
(a) Each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, waives any claim it may hereafter have against any Revolving Credit Claimholder arising out of the election of any Revolving Credit Claimholder of the application of Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or out of any grant of a security interest in connection with the ABL Collateral in any Insolvency or Liquidation Proceeding.
(b) The Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, waives any claim it may hereafter have against any Fixed Asset Claimholder arising out of the election of any Fixed Asset Claimholder of the application of Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law or out of any grant of a security interest in connection with the Fixed Asset Collateral in any Insolvency or Liquidation Proceeding.
(c) Until the Discharge of the Revolving Credit Obligations has occurred, each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, agrees that it will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens on ABL Collateral securing the Revolving Credit Obligations for costs or expenses of preserving or disposing of any Collateral. Until the Discharge of the Fixed Asset Obligations has occurred, the Revolving Credit Collateral Agent, for itself and on behalf of the other Revolving Credit Claimholders, will not assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens on Fixed Asset Collateral securing the Fixed Asset Obligations for costs or expenses of preserving or disposing of any Collateral.
6.7. Separate Grants of Security and Separate Classification.
(a) Each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, and the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, acknowledges and agrees that the grants of Liens pursuant to the Revolving Credit Collateral Documents and the Fixed Asset Collateral Documents constitute separate and distinct grants of Liens, and because of, among other things, their differing rights in the Collateral, the Fixed Asset Obligations are fundamentally different from the Revolving Credit Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed or adopted in an Insolvency or Liquidation Proceeding. In furtherance of the foregoing, the Fixed Asset Collateral Agent, each for itself and on behalf of the applicable Fixed Asset Claimholders, and the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, each agrees that the Fixed Asset Claimholders and the Revolving Credit Claimholders will vote as separate classes in connection with any plan of reorganization or similar dispositive restructuring plan in any Insolvency or Liquidation Proceeding and that no Collateral Agent nor any Claimholder will seek to vote with the other as a single class in connection with any plan of reorganization or similar dispositive restructuring plan in any Insolvency or Liquidation Proceeding.
(b) To further effectuate the intent of the parties as provided in this Section 6.7, if it is held that the claims of the Fixed Asset Claimholders and the Revolving Credit Claimholders in respect of the Fixed Asset Facility Collateral constitute only one secured claim (rather than separate classes of secured claims subject to the relative Lien priorities set forth herein with respect to such Fixed Asset
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Facility Collateral), then each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders and the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, hereby acknowledges and agrees that, subject to Sections 2.1 and 4.1, all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Fixed Asset Facility Collateral (with the effect being that, to the extent that the aggregate value of the Fixed Asset Collateral is sufficient (for this purpose ignoring all claims held by the Revolving Credit Claimholders), the Fixed Asset Claimholders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest, fees, expenses and other claims, all amounts owing in respect of Post-Petition Interest, including any additional interest payable pursuant to the Fixed Asset Documents, arising from or related to a default, whether or not a claim therefor is allowed or allowable in any Insolvency or Liquidation Proceeding) before any distribution is made from the Fixed Asset Collateral in respect of the claims held by the Revolving Credit Claimholders, with the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, hereby acknowledging and agreeing to turn over to the Controlling Fixed Asset Collateral Agent, for itself and on behalf of the Non-Controlling Fixed Asset Collateral Agent and the Fixed Asset Claimholders, amounts otherwise received or receivable by them from the Fixed Asset Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Revolving Credit Claimholders.
(c) To further effectuate the intent of the parties as provided in this Section 6.7, if it is held that the claims of the Fixed Asset Claimholders and the Revolving Credit Claimholders in respect of the Revolving Credit Collateral constitute only one secured claim (rather than separate classes of secured claims subject to the relative Lien priority set forth herein with respect to such Revolving Credit Collateral), then each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders and the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, hereby acknowledges and agrees that, subject to Sections 2.1 and 4.1, all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Revolving Credit Collateral (with the effect being that, to the extent that the aggregate value of the ABL Collateral is sufficient (for this purpose ignoring all claims held by the Fixed Asset Claimholders), the Revolving Credit Claimholders shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest, fees, expenses and other claims, all amounts owing in respect of Post-Petition Interest, including any additional interest payable pursuant to the Revolving Credit Agreement, arising from or related to a default, whether or not a claim therefor is allowed or allowable in any Insolvency or Liquidation Proceeding) before any distribution is made from the ABL Collateral in respect of the claims held by the Fixed Asset Claimholders, with each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, hereby acknowledging and agreeing to turn over to the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, amounts otherwise received or receivable by them from the ABL Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Fixed Asset Claimholders.
(d) Each Fixed Asset Collateral Agent, for itself and on behalf of the applicable Fixed Asset Claimholders, and the Revolving Credit Collateral Agent, for itself and on behalf of the Revolving Credit Claimholders, acknowledges and agrees that no Revolving Credit Claimholder nor any Fixed Asset Claimholder (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote for, or otherwise support directly or indirectly any plan of reorganization or similar dispositive restructuring plan that is inconsistent with the priorities or other provisions of this Agreement.
(e) If, in any Insolvency or Liquidation Proceeding involving a Grantor, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed or reinstated (in whole or in part) pursuant to a plan of reorganization or similar dispositive
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restructuring plan, both on account of the Revolving Credit Obligations and on account of the Fixed Asset Obligations, then, to the extent the debt obligations distributed on account of the Revolving Credit Obligations and on account of the Fixed Asset Obligations are secured by Liens upon the same property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations.
6.8. Enforceability and Continuing Priority. This Agreement shall be applicable both before and after the commencement of any Insolvency or Liquidation Proceeding and all converted or succeeding cases in respect thereof. The relative rights of Claimholders in or to any distributions from or in respect of any Collateral or Proceeds of Collateral shall continue after the commencement of any Insolvency or Liquidation Proceeding. Accordingly, the provisions of this Agreement (including, without limitation, Section 2.1 hereof) are intended to be and shall be enforceable as a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law.
6.9. Sales. Subject to Sections 3.1(c)(5) and 3.2(c)(5) and 3.3, each Collateral Agent agrees that it will consent, and will not object or oppose, or support any party in opposing, a motion to dispose of any Priority Collateral of the other party free and clear of any Liens or other claims under Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law if the requisite Revolving Credit Claimholders under the Revolving Credit Agreement or Fixed Asset Claimholders under the applicable Fixed Asset Documents, as the case may be, have consented to such disposition of their respective Priority Collateral, such motion does not impair, subject to the priorities set forth in this Agreement, the rights of such party under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (so long as the right of any Fixed Asset Claimholder to offset its claim against the purchase price for any ABL Collateral exists only after the Revolving Credit Obligations have been paid in full in cash, and so long as the right of any Revolving Credit Claimholder to offset its claim against the purchase price for any Fixed Asset Collateral exists only after the Fixed Asset Obligations have been paid in full in cash), and the terms of any proposed order approving such transaction provide for the respective Liens to attach to the proceeds of the Priority Collateral that is the subject of such disposition, subject to the Lien priorities in Section 2.1 and the other terms and conditions of this Agreement. Each Fixed Asset Collateral Agent and the Revolving Credit Collateral Agent further agrees that it will not oppose, or support any party in opposing, the right of the other party to credit bid under Section 363(k) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to its respective Priority Collateral, subject to the provision of the immediately preceding sentence with respect to the Priority Collateral or the other party.
SECTION 7. Reliance; Waivers, Etc.
7.1. Reliance. Other than any reliance on the terms of this Agreement, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders under its Revolving Credit Documents, acknowledges that it and such Revolving Credit Claimholders have, independently and without reliance on any Fixed Asset Collateral Agent or any Fixed Asset Claimholders, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into such Revolving Credit Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Revolving Credit Agreement or this Agreement. Other than any reliance on the terms of this Agreement, each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, acknowledges that it and the Fixed Asset Claimholders have, independently and without reliance on the Revolving Credit Collateral Agent or any Revolving Credit Claimholder, and based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into each of the Fixed Asset Documents and be bound by the terms of this Agreement and they will continue to make their own credit decision in taking or not taking any action under the Fixed Asset Documents or this Agreement.
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7.2. No Warranties or Liability. The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders under the Revolving Credit Documents, acknowledges and agrees that no Fixed Asset Collateral Agent nor any Fixed Asset Claimholder has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Fixed Asset Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided in this Agreement, the Fixed Asset Collateral Agents and the Fixed Asset Claimholders will be entitled to manage and supervise their respective loans and extensions of credit under the Fixed Asset Documents in accordance with law and the Fixed Asset Documents, as they may, in their sole discretion, deem appropriate. Each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, acknowledges and agrees that neither the Revolving Credit Collateral Agent nor any Revolving Credit Claimholder has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectability or enforceability of any of the Revolving Credit Documents, the ownership of any Collateral or the perfection or priority of any Liens thereon. Except as otherwise provided in this Agreement, the Revolving Credit Collateral Agent and the Revolving Credit Claimholders will be entitled to manage and supervise their respective loans and extensions of credit under their respective Revolving Credit Documents in accordance with law and the Revolving Credit Documents, as they may, in their sole discretion, deem appropriate. No Fixed Asset Collateral Agent nor any Fixed Asset Claimholders shall have any duty to the Revolving Credit Collateral Agent or any of the Revolving Credit Claimholders, and the Revolving Credit Collateral Agent and the Revolving Credit Claimholders shall have no duty to any Fixed Asset Collateral Agent or any of the Fixed Asset Claimholders, to act or refrain from acting in a manner which allows, or results in, the occurrence or continuance of an event of default or default under any agreements with any Grantor (including the Revolving Credit Documents and the Fixed Asset Documents), regardless of any knowledge thereof which they may have or be charged with.
7.3. No Waiver of Lien Priorities.
(a) No right of the Collateral Agents, the Revolving Credit Claimholders or the Fixed Asset Claimholders to enforce any provision of this Agreement or any Revolving Credit Document or Fixed Asset Document shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Grantor or by any act or failure to act by such Collateral Agents, Revolving Credit Claimholders or Fixed Asset Claimholders or by any noncompliance by any Person with the terms, provisions and covenants of this Agreement, any of the Revolving Credit Documents or any of the Fixed Asset Documents, regardless of any knowledge thereof which the Collateral Agents or the Revolving Credit Claimholders or Fixed Asset Claimholders, or any of them, may have or be otherwise charged with.
(b) Without in any way limiting the generality of the foregoing paragraph (but subject to the rights of the Grantors under the Revolving Credit Documents and Fixed Asset Documents and subject to the provisions of Sections 2.3, 2.4 and 5.3), the Collateral Agents, the Revolving Credit Claimholders and the Fixed Asset Claimholders may, at any time and from time to time in accordance with the Revolving Credit Documents and Fixed Asset Documents and/or applicable law, without the consent of, or notice to, the other Collateral Agent or the Revolving Credit Claimholders or the Fixed Asset Claimholders (as the case may be), without incurring any liabilities to such Persons and without impairing or releasing the Lien priorities and other benefits provided in this Agreement (even if any right of subrogation or other right or remedy is affected, impaired or extinguished thereby) do any one or more of the following:
(1) change the manner, place or terms of payment or change or extend the time of payment of, or amend, renew, exchange, increase or alter, the terms of any of the Obligations or any Lien or guaranty thereof or any liability of any Grantor, or any
40
liability incurred directly or indirectly in respect thereof (including any increase in or extension of the Obligations, without any restriction as to the tenor or terms of any such increase or extension) or otherwise amend, renew, exchange, extend, modify or supplement in any manner any Liens held by the Collateral Agents or any rights or remedies under any of the Revolving Credit Documents or the Fixed Asset Documents;
(2) sell, exchange, release, surrender, realize upon, enforce or otherwise deal with in any manner and in any order any part of the Collateral (except to the extent provided in this Agreement) or any liability of any Grantor or any liability incurred directly or indirectly in respect thereof;
(3) settle or compromise any Obligation or any other liability of any Grantor or any security therefor or any liability incurred directly or indirectly in respect thereof and apply any sums by whomsoever paid and however realized to any liability in any manner or order that is not inconsistent with the terms of this Agreement; and
(4) exercise or delay in or refrain from exercising any right or remedy against any security or any Grantor or any other Person, elect any remedy and otherwise deal freely with any Grantor.
(c) Except as otherwise provided herein, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, also agrees that the Fixed Asset Claimholders and the Fixed Asset Collateral Agents shall have no liability to the Revolving Credit Collateral Agent or any Revolving Credit Claimholders, and the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, hereby waives any claim against any Fixed Asset Claimholder or any Fixed Asset Collateral Agent, arising out of any and all actions which the Fixed Asset Claimholders or any Fixed Asset Collateral Agent may take or permit or omit to take with respect to:
(1) the Fixed Asset Documents;
(2) the collection of the Fixed Asset Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any Fixed Asset Collateral.
The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees that the Fixed Asset Claimholders and the Fixed Asset Collateral Agents have no duty to them in respect of the maintenance or preservation of the Fixed Asset Collateral, the Fixed Asset Obligations or otherwise.
(d) Except as otherwise provided herein, each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, also agrees that the Revolving Credit Claimholders and the Revolving Credit Collateral Agent shall have no liability to the Fixed Asset Collateral Agents or any Fixed Asset Claimholders, and each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, hereby waives any claim against any Revolving Credit Claimholder or the Revolving Credit Collateral Agent, arising out of any and all actions which the Revolving Credit Claimholders or the Revolving Credit Collateral Agent may take or permit or omit to take with respect to:
(1) the Revolving Credit Documents;
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(2) the collection of the Revolving Credit Obligations; or
(3) the foreclosure upon, or sale, liquidation or other disposition of, any ABL Collateral.
Each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees that the Revolving Credit Claimholders and the Revolving Credit Collateral Agent have no duty to them in respect of the maintenance or preservation of the ABL Collateral, the Revolving Credit Obligations or otherwise.
(e) Until the Discharge of Fixed Asset Obligations, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Fixed Asset Collateral or any other similar rights a junior secured creditor may have under applicable law.
(f) Until the Discharge of Revolving Credit Obligations, each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshalling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the ABL Collateral or any other similar rights a junior secured creditor may have under applicable law.
7.4. Obligations Unconditional. All rights, interests, agreements and obligations of the Revolving Credit Collateral Agent and the Revolving Credit Claimholders and the Fixed Asset Collateral Agents and the Fixed Asset Claimholders, respectively, hereunder shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Revolving Credit Documents or any Fixed Asset Documents;
(b) except as otherwise expressly set forth in this Agreement, any change in the time, manner or place of payment of, or in any other terms of, all or any of the Revolving Credit Obligations or Fixed Asset Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any Revolving Credit Document or any Fixed Asset Document;
(c) except as otherwise expressly set forth in this Agreement, any exchange of any security interest in any Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Revolving Credit Obligations or Fixed Asset Obligations or any guaranty thereof;
(d) the commencement of any Insolvency or Liquidation Proceeding in respect of the any Grantor; or
(e) any other circumstances which otherwise might constitute a defense available to, or a discharge of, any Grantor in respect of the Revolving Credit Collateral Agent, the Revolving Credit Obligations, any Revolving Credit Claimholder, the Fixed Asset Collateral Agent, the Fixed Asset Obligations or any Fixed Asset Claimholder in respect of this Agreement.
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SECTION 8. Miscellaneous.
8.1. Conflicts. In the event of any conflict between the provisions of this Agreement and the provisions of any Revolving Credit Document or any Fixed Asset Document, the provisions of this Agreement shall govern and control.
8.2. Effectiveness; Continuing Nature of this Agreement; Severability. This Agreement shall become effective when executed and delivered by the parties hereto. This is a continuing agreement of lien subordination and the Revolving Credit Claimholders and Fixed Asset Claimholders may continue, at any time and without notice to any Collateral Agent, to extend credit and other financial accommodations and lend monies to or for the benefit of any Grantor in reliance hereon. Each of the Collateral Agents, on behalf of itself and the Revolving Credit Claimholders or the Fixed Asset Claimholders, as the case may be, hereby waives any right it may have under applicable law to revoke this Agreement or any of the provisions of this Agreement. The terms of this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or Liquidation Proceeding. Consistent with, but not in limitation of, the preceding sentence, each Collateral Agent, on behalf of the applicable Claimholders, irrevocably acknowledges that this Agreement constitutes a subordination agreement within the meaning of both New York law and Section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. All references to any Grantor shall include such Grantor as debtor and debtor-in-possession and any receiver or trustee for any Grantor (as the case may be) in any Insolvency or Liquidation Proceeding. This Agreement shall terminate and be of no further force and effect:
(a) with respect to the Revolving Credit Collateral Agent, the Revolving Credit Claimholders and the Revolving Credit Obligations, on the date of the Discharge of Revolving Credit Obligations, subject to the rights of the Revolving Credit Claimholders under Sections 4.4, 5.5 and 6.4; and
(b) with respect to the Fixed Asset Collateral Agents, the Fixed Asset Claimholders and the Fixed Asset Obligations, on the date of the Discharge of Fixed Asset Obligations, subject to the rights of the Fixed Asset Claimholders under Sections 4.4, 5.5 and 6.4.
8.3. Amendments; Waivers; Additional Grantors. No amendment, modification or waiver of any of the provisions of this Agreement by any Fixed Asset Collateral Agent or the Revolving Credit Collateral Agent shall be deemed to be made unless the same shall be in writing signed on behalf of each party hereto or its authorized agent and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. Notwithstanding the foregoing, (a) no Grantor shall have any right to consent to or approve any amendment, modification or waiver of any provision of this Agreement except to the extent that such amendment, modification or waiver (i) adversely affects or impairs its rights hereunder, under the Fixed Asset Documents or under the Revolving Credit Documents, (ii) imposes any additional obligation or liability upon it or (iii) amends, modifies or waives any provision of Section 5.5, Section 6.1, this Section 8.3 or Section 8.15 of this Agreement and (b) this Agreement may be amended without the consent of the Collateral Agents, to include acknowledgments from additional Grantors.
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8.4. Information Concerning Financial Condition of the Grantors and their Subsidiaries. The Revolving Credit Collateral Agent and the Revolving Credit Claimholders, on the one hand, and the Fixed Asset Collateral Agents and the Fixed Asset Claimholders, on the other hand, shall each be responsible for keeping themselves informed of (a) the financial condition of the Grantors and their Subsidiaries and all endorsers and/or guarantors of the Revolving Credit Obligations or the Fixed Asset Obligations and (b) all other circumstances bearing upon the risk of nonpayment of the Revolving Credit Obligations or the Fixed Asset Obligations. Neither the Revolving Credit Collateral Agent and the Revolving Credit Claimholders, on the one hand, nor the Fixed Asset Collateral Agents and the Fixed Asset Claimholders, on the other hand, shall have any duty to advise the other of information known to it or them regarding such condition or any such circumstances or otherwise. In the event that either the Revolving Credit Collateral Agent or any of the Revolving Credit Claimholders, on the one hand, or any Fixed Asset Collateral Agent and the Fixed Asset Claimholders, on the other hand, undertakes at any time or from time to time to provide any such information to any of the others, it or they shall be under no obligation:
(a) to make, and shall not make, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided;
(b) to provide any additional information or to provide any such information on any subsequent occasion;
(c) to undertake any investigation; or
(d) to disclose any information, which pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
8.5. Subrogation.
(a) With respect to the value of any payments or distributions in cash, property or other assets that any of the Fixed Asset Claimholders or any Fixed Asset Collateral Agent pays over to the Revolving Credit Collateral Agent or the Revolving Credit Claimholders under the terms of this Agreement, the Fixed Asset Claimholders and Fixed Asset Collateral Agents shall be subrogated to the rights of the Revolving Credit Collateral Agent and the Revolving Credit Claimholders; provided, however, that, each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of Revolving Credit Obligations has occurred. The Grantors acknowledge and agree that, to the extent permitted by applicable law, the value of any payments or distributions in cash, property or other assets received by any Fixed Asset Collateral Agent or the Fixed Asset Claimholders that are paid over to the Revolving Credit Collateral Agent or the Revolving Credit Claimholders pursuant to this Agreement shall not reduce any of the Fixed Asset Obligations.
(b) With respect to the value of any payments or distributions in cash, property or other assets that any of the Revolving Credit Claimholders or the Revolving Credit Collateral Agent pays over to any Fixed Asset Collateral Agent or the Fixed Asset Claimholders under the terms of this Agreement, the Revolving Credit Claimholders and the Revolving Credit Collateral Agent shall be subrogated to the rights of the Fixed Asset Collateral Agents and the Fixed Asset Claimholders; provided, however, that, the Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, hereby agrees not to assert or enforce all such rights of subrogation it may acquire as a
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result of any payment hereunder until the Discharge of Fixed Asset Obligations has occurred. The Grantors acknowledge and agree that, to the extent permitted by applicable law, the value of any payments or distributions in cash, property or other assets received by the Revolving Credit Collateral Agent or the Revolving Credit Claimholders that are paid over to the Fixed Asset Collateral Agents or the Fixed Asset Claimholders pursuant to this Agreement shall not reduce any of the Revolving Credit Obligations.
8.6. SUBMISSION TO JURISDICTION, WAIVERS.
(a) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY:
(1) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(2) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(3) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 8.7; AND
(4) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (3) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
(b) EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 8.6(b) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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(c) EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER REVOLVING CREDIT DOCUMENT OR FIXED ASSET DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.
8.7. Notices. All notices to the Fixed Asset Claimholders and the Revolving Credit Claimholders permitted or required under this Agreement shall also be sent to the Fixed Asset Collateral Agents and the Revolving Credit Collateral Agent, respectively. Unless otherwise specifically provided herein, any notice hereunder shall be in writing and may be personally served, telexed or sent by telefacsimile or United States mail or courier service and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed. For the purposes hereof, the addresses of the parties hereto shall be as set forth below each partys name on Exhibit B hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
8.8. Further Assurances. The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders under the Revolving Credit Documents, and each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders under the Fixed Asset Documents, and the Grantors, agree that each of them shall take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the Term Loan Borrower, the Revolving Credit Borrower, any Grantor, Revolving Credit Collateral Agent or any Fixed Asset Collateral Agent may reasonably request to effectuate the terms of and the Lien priorities contemplated by this Agreement.
8.9. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8.10. Binding on Successors and Assigns. This Agreement shall be binding upon the Revolving Credit Collateral Agent, the Revolving Credit Claimholders, the Fixed Asset Collateral Agents, the Fixed Asset Claimholders and their respective successors and assigns.
8.11. Specific Performance. Each of the Revolving Credit Collateral Agent and each Fixed Asset Collateral Agent may demand specific performance of this Agreement. The Revolving Credit Collateral Agent, on behalf of itself and the Revolving Credit Claimholders, and each Fixed Asset Collateral Agent, on behalf of itself and the applicable Fixed Asset Claimholders, hereby irrevocably waive any defense based on the adequacy of a remedy at law and any other defense which might be asserted to bar the remedy of specific performance in any action which may be brought by the Revolving Credit Collateral Agent or the Revolving Credit Claimholders or any Fixed Asset Collateral Agent or the Fixed Asset Claimholders, as the case may be.
8.12. Headings. Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.
8.13. Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page
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of this Agreement or any document or instrument delivered in connection herewith by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement or such other document or instrument, as applicable.
8.14. Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement.
8.15. No Third Party Beneficiaries. This Agreement and the rights and benefits hereof shall inure to the benefit of each of the parties hereto and its respective successors and assigns and shall inure to the benefit of each of the Collateral Agents, the Revolving Credit Claimholders, the Fixed Asset Claimholders and, with respect to Sections 5.1, 5.2, 5.3, 5.4, 5.5, 5.7, 8.3, 8.6, 8.8, 8.9, this 8.15 and 8.17, the Borrower and the other Grantors. Nothing in this Agreement shall impair, as between the Grantors and the Revolving Credit Collateral Agent and the Revolving Credit Claimholders, or as between the Grantors and the Fixed Asset Collateral Agents and the Fixed Asset Claimholders, the obligations of the Grantors to pay principal, interest, fees and other amounts as provided in the Revolving Credit Documents and the Fixed Asset Documents, respectively.
8.16. Provisions to Define Relative Rights. The provisions of this Agreement are and are intended for the purpose of defining the relative rights of the Revolving Credit Collateral Agent and the Revolving Credit Claimholders on the one hand and the Fixed Asset Collateral Agents and the Fixed Asset Claimholders on the other hand. Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the Revolving Credit Obligations and the Fixed Asset Obligations as and when the same shall become due and payable in accordance with their terms.
8.17. Intercreditor Agreements. Notwithstanding anything to the contrary contained in this Agreement, each party hereto agrees that the Fixed Asset Claimholders holding Pari Fixed Asset Obligations (as among themselves), the Fixed Asset Claimholders holding Additional Junior Fixed Asset Obligations (as among themselves) and the Fixed Asset Claimholders holding Fixed Asset Obligations (as among each other) may in each case enter into intercreditor agreements (or similar arrangements) with the relevant Collateral Agents governing the rights, benefits and privileges of the Fixed Asset Claimholders holding Pari Fixed Asset Obligations (as among themselves), Fixed Asset Claimholders holding Additional Junior Fixed Asset Obligations (as among themselves) or the Fixed Asset Claimholders holding Fixed Asset Obligations (as among each other), as the case may be, in respect of any or all of the Collateral and the applicable Fixed Asset Documents, including as to the application of proceeds of any Collateral, voting rights, control of any Collateral and waivers with respect to any Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Intercreditor Agreement as of the date first written above.
Initial Fixed Asset Collateral Agent | ||||
BANK OF AMERICA, N.A., as Initial Fixed Asset Collateral Agent |
By: |
| |||
Name: | ||||
Title: |
[Signature Page to ABL Intercreditor Agreement]
Revolving Credit Collateral Agent | ||||
BANK OF AMERICA, N.A., as Revolving Credit Collateral Agent |
By: |
| |||
Name: | ||||
Title: |
[Signature Page to ABL Intercreditor Agreement]
Acknowledged and Agreed to by: | ||
Borrower | ||
R.R. DONNELLEY & SONS COMPANY |
By: |
| |
Name: | ||
Title: |
[Signature Page to ABL Intercreditor Agreement]
Acknowledged and Agreed to by:
Grantors
AMERICAN LITHOGRAPHERS, INC. | ||
AGS CUSTOM GRAPHICS, INC. | ||
BANTA CORPORATION | ||
BANTA GLOBAL TURNKEY LLC | ||
BRIDGETOWN PRINTING CO. | ||
CHAS. P. YOUNG COMPANY | ||
CLEAR VISIONS, INC. | ||
COLUMBIA COLOR, INC. | ||
CONSOLIDATED CARQUEVILLE PRINTING COMPANY | ||
CONSOLIDATED GRAPHICS INTERNATIONAL, INC. | ||
CONSOLIDATED GRAPHICS PROPERTIES II, INC. | ||
CONSOLIDATED GRAPHICS SERVICES, INC. | ||
CONSOLIDATED GRAPHICS, INC. | ||
COPY-MOR, INC. | ||
COURIER PRINTING COMPANY | ||
CP SOLUTIONS, INC. | ||
DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. | ||
EGT PRINTING SOLUTIONS, LLC | ||
ELECTRIC CITY PRINTING COMPANY | ||
EMERALD CITY GRAPHICS, INC. | ||
FREDERIC PRINTING COMPANY | ||
GARNER PRINTING COMPANY | ||
GILLILAND PRINTING, INC. | ||
GSL FINE LITHOGRAPHERS | ||
H&N PRINTING & GRAPHICS, INC. | ||
HICKORY PRINTING SOLUTIONS, LLC | ||
IRONWOOD LITHOGRAPHERS, INC. | ||
KELMSCOTT COMMUNICATIONS LLC | ||
LINCOLN PRINTING CORPORATION |
By |
| |
Name: | ||
Title: |
[Signature Page to ABL Intercreditor Agreement]
MERCURY PRINTING COMPANY, LLC | ||
METROPOLITAN PRINTING SERVICES, LLC | ||
NIES/ARTCRAFT, INC. | ||
OFFICETIGER HOLDINGS INC. | ||
OFFICETIGER LLC | ||
PBM GRAPHICS, INC. | ||
PRECISION DIALOGUE DIRECT, INC. | ||
PRECISION DIALOGUE MARKETING, LLC | ||
PRECISION DIALOGUE, INC. | ||
PRECISION LITHO, INC. | ||
PRINTING CONTROL SERVICES INCORPORATED | ||
RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. | ||
RRD DUTCH HOLDCO, INC. | ||
RRD WEST CALDWELL, LLC | ||
SPANGLER GRAPHICS, LLC | ||
STORTERCHILDS PRINTING CO., INC. | ||
TEWELL WARREN PRINTING COMPANY | ||
THE HENNEGAN COMPANY | ||
THE JACKSON GROUP LLC | ||
THE JARVIS PRESS, INC. | ||
THE MCKAY PRESS, INC. | ||
THEO. DAVIS SONS, INCORPORATED | ||
THOUSAND OAKS PRINTING & SPECIALTIES, INC. | ||
TUCKER PRINTERS, INC. | ||
VERITAS DOCUMENT SOLUTIONS, LLC | ||
WENTWORTH CORPORATION | ||
WETZEL BROTHERS, LLC |
By |
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Name: | ||
Title: |
[Signature Page to ABL Intercreditor Agreement]
Exhibit A
[FORM OF] JOINDER AGREEMENT NO. [ ] dated as of [ ], 20[ ] to the ABL INTERCREDITOR AGREEMENT dated as of October 15, 2018 (the Intercreditor Agreement), among Bank of America, N.A., as Revolving Credit Collateral Agent under the Revolving Credit Agreement, Bank of America, N.A., as Initial Fixed Asset Collateral Agent under the Initial Fixed Asset Facility Agreement, and as Controlling Fixed Asset Collateral Agent Agreement and the Additional Fixed Asset Collateral Agents from time to time a party thereto.
A. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
B. [As a condition to the ability of the Term Loan Borrower or any other Grantor to incur Additional Fixed Asset Debt after the date of the Intercreditor Agreement and to secure such Additional Fixed Asset Debt with the Lien and to have such Additional Fixed Asset Debt guaranteed by the Grantors, in each case under and pursuant to the Fixed Asset Collateral Documents, the [collateral agent] in respect of such Additional Fixed Asset Debt is required to become an Additional Fixed Asset Collateral Agent under, and such Additional Fixed Asset Debt and the Fixed Asset Claimholders in respect thereof are required to become subject to and bound by, the Intercreditor Agreement. Section 5.7(b) of the Intercreditor Agreement provides that such collateral agent may become a Fixed Asset Collateral Agent under, and such Additional Fixed Asset Debt and such Fixed Asset Claimholders may become subject to and bound by, the Intercreditor Agreement, pursuant to the execution and delivery by the New Additional Fixed Asset Collateral Agent (as defined below) of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 5.7 of the Intercreditor Agreement. The undersigned collateral agent (the New Additional Fixed Asset Collateral Agent) is executing this Joinder Agreement in accordance with the requirements of the applicable Secured Revolver/Fixed Asset Documents.]
[As a condition to the ability of the Lead Borrower or any other Grantor to incur Refinanced Obligations after the date of the Intercreditor Agreement and to continue such Refinanced Obligations as [Revolving Credit Obligations][Fixed Asset Obligations] with the Lien priority provided therefor in the Intercreditor Agreement, the collateral agent in respect of such Refinanced Obligations is required to become a party to the Intercreditor Agreement as a New Agent in respect thereof, and are required to become subject to and bound by, the Intercreditor Agreement in accordance with Section 5.5, which provides that a New Agent may become subject to and bound by, the Intercreditor Agreement, pursuant to the execution and delivery by the [New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] (as defined below) of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 5.7 of the Intercreditor Agreement. The undersigned collateral agent (the New [Fixed Asset][Revolving Credit] Collateral Agent) is executing this Joinder Agreement in accordance with the requirements of the Intercreditor Agreement.]
Accordingly, the [New Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] agree as follows:
SECTION 1. In accordance with Section 5.7(b) of the Intercreditor Agreement, the [New Additional Fixed Asset Collateral Agent][Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] by its signature below becomes [the Revolving Credit Collateral Agent][a Fixed Asset Collateral Agent] under, and the related [Additional Fixed Asset Debt][Refinanced Obligations] and related Claimholders become subject to and bound by, the Intercreditor Agreement with the same force and effect as if the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] had originally been named therein as a [Revolving Credit Collateral Agent][Fixed Asset Collateral
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Agent], and the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent], on behalf of itself and its Claimholders, hereby agrees to all the terms and provisions of the Intercreditor Agreement applicable to it as [the Revolving Credit Collateral Agent][a Fixed Asset Collateral Agent] and to the Claimholders that it represents. Each reference to a [Fixed Asset Collateral Agent or Additional Fixed Asset Collateral Agent][Revolving Credit Collateral Agent] in the Intercreditor Agreement shall be deemed to include the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent]. The Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] represents and warrants to the existing Revolving Credit Collateral Agent, the existing Fixed Asset Collateral Agents and the other Claimholders that (i) it has full power and authority to enter into this Joinder Agreement, in its capacity as [agent] [trustee] under [describe new fixed asset/refinanced facility], (ii) this Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, (iii) the Credit Documents relating to such [Additional Fixed Asset Debt][Refinanced Obligations] provide that, upon the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent]s entry into this Joinder Agreement, the Claimholders in respect of such [Additional Fixed Asset Debt][Refinanced Obligations] will [continue to] be subject to and bound by the provisions of the Intercreditor Agreement as [Fixed Asset Claimholders][Revolving Credit Claimholders] and (iv) the applicable Claimholders and the Collateral with respect to such [Additional Fixed Asset Debt][Refinanced Obligations] have agreed to be bound by the terms and conditions of the Intercreditor Agreement.
SECTION 3. This Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Joinder Agreement shall become effective when the existing Revolving Credit Collateral Agent and the existing Controlling Fixed Asset Collateral Agent shall have received a counterpart of this Joinder Agreement that bears the signature of the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent]. Delivery of an executed signature page to this Joinder Agreement by facsimile transmission or other electronic method shall be effective as delivery of a manually signed counterpart of this Joinder Agreement.
SECTION 4. Except as expressly supplemented hereby, the Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Joinder Agreement should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.7 of the Intercreditor Agreement. All communications and notices hereunder to the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] shall be given to it at the address set forth below its signature hereto.
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SECTION 8. The Term Loan Borrower agrees to reimburse the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent for their respective reasonable out-of-pocket expenses in connection with this Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for the Revolving Credit Collateral Agent and the Controlling Fixed Asset Collateral Agent.
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IN WITNESS WHEREOF, the [New Additional Fixed Asset Collateral Agent][New Revolving Credit Collateral Agent][New Fixed Asset Collateral Agent] has duly executed this Joinder Agreement to the Intercreditor Agreement as of the day and year first above written.
[NAME OF NEW [ADDITIONAL FIXED ASSET][FIXED ASSET][REVOLVING CREDIT] COLLATERAL AGENT] | ||
as [ ] for the holders of [ ] | ||
By: |
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Name: | ||
Title: | ||
Address for notices: | ||
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Attention of: | ||
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Telecopy: | ||
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BANK OF AMERICA, N.A., | ||
as Revolving Credit Collateral Agent | ||
By: |
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Name: | ||
Title: | ||
[ ], | ||
as Controlling Fixed Asset Collateral Agent | ||
By: |
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Name: | ||
Title: |
A-4
Acknowledged by: | ||
R.R. DONNELLEY & SONS COMPANY | ||
By: |
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Name: | ||
Title: | ||
THE GRANTORS | ||
LISTED ON SCHEDULE I HERETO | ||
By: |
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Name: | ||
Title: |
A-5
Schedule I to the
Joinder Agreement to the
Intercreditor Agreement
Grantors
[ ]
A-6
Exhibit B
Notice Addresses
Initial Fixed Asset Collateral Agent:
Bank of America, N.A.
Agency Management
900 W Trade Street
Mail Code: NC1-026-06-03
Charlotte, NC 28255-0001
Attention: Kelly Weaver
Telephone: 980-387-5452
Fax: 704-208-2871
Email: Kelly.weaver@baml.com
Revolving Credit Collateral Agent:
Bank of America, N.A.
Attn: Michael Fine, Senior Vice President
Mail Code: IL4-135-09-27
125 S. LaSalle St., Suite 925
Chicago, IL 60603
Phone: 312-992-6105
Fax: 312-453-5086
Email: Michael.fine@baml.com
Grantors:
c/o R.R. Donnelley & Sons Company
35 W. Wacker Dr.
Chicago, IL 60601
Attention: Deborah Steiner, Executive Vice President, General Counsel, Secretary and Chief Compliance Officer
Telephone: 312-326-8129
Fax: 312-326-8594
Email: Deborah.steiner@rrd.com
B-1
EXHIBIT G-1
FORM OF NON-BANK TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Treated As Partnerships For
U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement, dated as of October 15, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, this Agreement), among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined herein) (in such capacities, the Administrative Agent). Terms defined in the Credit Agreement are used herein with the same meanings.
Pursuant to the provisions of Section 2.13(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) no interest payments in connection with any Loan Document are effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent with a duly completed and executed certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or W-BEN-E. 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 in writing and (2) the undersigned shall have furnished the Borrower and the Administrative Agent a properly completed and currently effective certificate in either the calendar year in which payment is to be made to the undersigned, or in either of the two calendar years preceding each such payment.
[Signature Page Follows]
[Foreign Lender] | ||
By: |
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Name: | ||
Title: | ||
[Address] |
Dated: , 20[ ]
EXHIBIT G-2
FORM OF NON-BANK TAX CERTIFICATE
(For Non-U.S. Lenders That Are Treated As Partnerships For
U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement, dated as of October 15, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, this Agreement), among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined herein) (in such capacities, the Administrative Agent). Terms defined in the Credit Agreement are used herein with the same meanings.
Pursuant to the provisions of Section 2.13(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) neither the undersigned nor any of its applicable direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its applicable 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, (v) none of its applicable 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, and (vi) no interest payments in connection with any Loan Document are effectively connected with the undersigneds or its applicable direct or indirect partners/members conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Borrower with a duly completed and executed Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) a duly completed and executed IRS Form W-8BEN or W-8BEN-E or (ii) a duly completed and executed IRS Form W-8IMY accompanied by a duly completed and executed IRS Form W-8BEN or W-8BEN-E from each of such partners/members beneficial owners that is claiming the portfolio interest exemption, together with any other information required to be provided by IRS Form W-8IMY. 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 in writing 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 each such payment.
[Signature Page Follows]
[Foreign Lender] | ||
By: |
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Name: | ||
Title: | ||
[Address] |
Dated: , 20[ ]
EXHIBIT G-3
FORM OF NON-BANK TAX CERTIFICATE
(For Non-U.S. Participants That Are Not Treated As Partnerships For
U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement, dated as of October 15, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, this Agreement), among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined herein) (in such capacities, the Administrative Agent). Terms defined in the Credit Agreement are used herein with the same meanings.
Pursuant to the provisions of Section 2.13(e) 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, (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code, and (v) no interest payments in connection with any Loan Document are effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with a duly completed and executed certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or W-8BEN-E. 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 each such payment.
[Signature Page Follows]
[Foreign Participant] | ||
By: |
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Name: | ||
Title: | ||
[Address] |
Dated: , 20[ ]
EXHIBIT G-4
FORM OF NON-BANK TAX CERTIFICATE
(For Non-U.S. Participants That Are Treated As Partnerships For
U.S. Federal Income Tax Purposes)
Reference is made to the Credit Agreement, dated as of October 15, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, this Agreement), among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), the LENDERS party hereto from time to time, BANK OF AMERICA, N.A., as administrative agent for the Lenders and as collateral agent for the Secured Parties (as defined herein) (in such capacities, the Administrative Agent). Terms defined in the Credit Agreement are used herein with the same meanings.
Pursuant to the provisions of Section 2.13(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) neither the undersigned nor any of its applicable direct or indirect partners/members is a bank within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its applicable 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, (v) none of its applicable 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, and (vi) no interest payments in connection with any Loan Document are effectively connected with the undersigneds or its applicable direct or indirect partners/members conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with a duly completed and executed Internal Revenue Service Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) a duly completed and executed IRS Form W-8BEN or W-8BEN-E or (ii) a duly completed and executed IRS Form W-8IMY accompanied by a duly completed and executed IRS Form W-8BEN or W-8BEN-E from each of such partners/members beneficial owners that is claiming the portfolio interest exemption, together with any other information required to be provided by IRS Form W-8IMY. 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 each such payment.
[Signature Page Follows]
[Foreign Participant] | ||
By: |
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Name: | ||
Title: | ||
[Address] |
Dated: , 20[ ]
EXHIBIT H-1
[SEE ATTACHED]
FORM OF PERFECTION CERTIFICATE
October 15, 2018
Reference is hereby made to (i) that certain Second Amended and Restated Security Agreement, dated as of October 15, 2018 (the ABL Security Agreement), among R. R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the guarantors party thereto and the ABL Administrative Agent (as hereinafter defined), (ii) that certain Pledge Agreement, dated as of September 29, 2017, among the Specified Pledgors and the ABL Administrative Agent and (iii) that certain Second Amended and Restated Credit Agreement dated as of September 29, 2017 (the ABL Credit Agreement) among the Borrower, guarantors party thereto (the ABL Guarantors), certain other parties thereto and Bank of America, N.A., as collateral agent and as administrative agent (in such capacities, the ABL Administrative Agent); (iv) that certain Security Agreement, dated as of October 15, 2018 (the Term Security Agreement; the Term Security Agreement, together with the ABL Security Agreement, the Security Agreements), among the Borrower, the guarantors party thereto and the Term Administrative Agent (as hereinafter defined), (v) that certain Pledge Agreement, dated as of October 15, 2018, among the Specified Pledgors and the Term Administrative Agent and (vi) that certain Credit Agreement dated as of October 15, 2018 (the Term Credit Agreement; the Term Credit Agreement, together with the ABL Credit Agreement, the Credit Agreements) among the Borrower, guarantors party thereto (the Term Guarantors; the Term Guarantors, together with the ABL Guarantors, the Guarantors), certain other parties thereto and Bank of America, N.A., as collateral agent and as administrative agent (in such capacities, the Term Administrative Agent; the Term Administrative Agent together with the ABL Administrative Agent, the Agents) (in each case as to the agreements referenced in clauses (i) through (vi), as the same may be amended, modified, supplemented or otherwise modified on or prior to the date hereof).
Capitalized terms used but not defined herein have the meanings assigned in the Credit Agreements. This Perfection Certificate constitutes a Perfection Certificate as defined in each Security Agreement. Pledged Collateral has the meaning assigned to such term in each Security Agreement, and as used herein, the term Companies means the Borrower and each of the Guarantors, and with respect to Sections 1(a), (b) and (c), Section 2(a), 3, 4, 5, 6, 8 and 9, also includes each Specified Pledgor.
The undersigned hereby certify to the Agents as follows:
1. Names.
(a) The exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a). Each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) and (ii) a registered organization except to the extent disclosed in Schedule 1(a). Also set forth in Schedule 1(a) is the organizational identification number, if any, of each Company that is a registered organization and the jurisdiction of formation of each Company.
(b) Set forth in Schedule 1(b) hereto is a list of any other corporate or organizational names each Company (or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise) has had in the past five years, together with the date of the relevant change.
(c) Set forth in Schedule 1(c) is a list of all other names used by each Company on any filings with the Internal Revenue Service at any time within the five years preceding the date hereof. Except as set forth in Schedule 1(c), no Company has changed its jurisdiction of organization at any time during the past four months.
2. Current Locations.
(a) The chief executive office of each Company is located at the address set forth in Schedule 2(a) hereto.
(b) Set forth on Schedule 2(b) are all the locations where each Company currently maintains any of its tangible personal property with a value in excess of $100,000 that constitutes Collateral (including Goods, Inventory and Equipment) of such Company (indicating whether such Collateral is held by such Company or a landlord, lessor, warehouseman, bailee or a third party).
3. Extraordinary Transactions. Except for those purchases, acquisitions and other transactions described in Schedule 3 attached hereto, or that occurred more than five years before the date of this certificate, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.
4. File Search Reports. Attached hereto as Schedule 4 is a true and accurate summary of file search reports from (A) the Uniform Commercial Code filing offices (i) in each jurisdiction identified in Section 1(a) or Section 2 with respect to each legal name set forth in Section 1 and (ii) in each jurisdiction described in Schedule 1(c) or Schedule 3 relating to any of the transactions described in Schedule (1)(c) or Schedule 3 with respect to each legal name of the person or entity from which each Company purchased or otherwise acquired any of the Collateral and (B) each real estate recording office identified in Schedule 7 with respect to real estate on which Collateral consisting of fixtures is or is to be located. A true copy of each financing statement, including judgment and tax liens, bankruptcy and pending lawsuits or other filings identified in such file search reports has been delivered to the Administrative Agent.
5. UCC Filings. The financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral, attached as Schedule 5 relating to the applicable Security Agreement, the applicable Pledge Agreement or the applicable Mortgage, are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 6 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule of (i) the appropriate filing offices for the financing statements attached hereto as Schedule 5 and (ii) the appropriate filing offices for the Mortgages and fixture filings relating to the Mortgaged Property set forth in Schedule 7.
7. Real Property. Attached hereto as Schedule 7 is a list of (i) all real property to be encumbered by a Mortgage and fixture filing (such real property, the Mortgaged Property) in favor of the ABL Administrative Agent and the Term Administrative Agent, (ii) common names, addresses and uses of each Mortgaged Property and (iii) other information relating thereto required by such Schedule. The Mortgages delivered as of the date hereof are in the appropriate form for filing in the filing offices in the jurisdictions identified in Schedule 6.
8. Termination Statements. Attached hereto as Schedule 8(a) are the duly authorized termination statements in the appropriate form for filing in each applicable jurisdiction identified in Schedule 8(b) hereto with respect to each Lien described therein.
9. Stock Ownership and Other Equity Interests. Attached hereto as Schedule 9(a) is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company and its direct Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests setting forth the percentage of such equity interests pledged under the Security Agreements or the Pledge Agreements. Also set forth in Schedule 9(b) is each equity investment of each Company that represents 50% or less of the equity of the entity in which such investment was made setting forth the percentage of such equity interests pledged under the Security Agreement (excluding any equity investments held in an Excluded Securities Account or held in a Securities Account that is or will be subject to a control agreement).
10. Instruments and Tangible Chattel Paper. Attached hereto as Schedule 10 is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of the date hereof that constitute Pledged Collateral, including all intercompany notes between or among any two or more Companies or any of their Subsidiaries, that constitute Pledged Collateral.
11. Commercial Tort Claims. Attached hereto as Schedule 11 is a true and correct list of all Commercial Tort Claims that constitute Pledged Collateral held by each Company, including a brief description thereof and stating if such commercial tort claims are required to be pledged under the Security Agreement.
12. Letter-of-Credit Rights. Attached hereto as Schedule 12 is a true and correct list of all Letters of Credit that constitute Pledged Collateral issued in favor of each Company, as beneficiary thereunder, stating if letter-of-credit rights with respect to such Letters of Credit are required to be subject to a control arrangement pursuant to the Security Agreement.
13. Deposit Accounts and Securities Accounts. Attached hereto as Schedule 13 is a true and complete list of all Deposit Accounts and Securities Accounts maintained by each Company, including the name of each institution where each such account is held, the name/account number of each such account, the name of each entity that holds each account and
stating if such account is required to be subject to a control agreement pursuant to the Security Agreement and the reason for such account to be excluded from the control agreement requirement.
14. Intellectual Property. (a) Attached hereto as Schedule 14(a) is a schedule setting forth all of each Companys currently active applications for or registrations with the United States Patent and Trademark Office of Patents and Trademarks (each as defined in the Security Agreements), including the name of the registered owner or applicant and the registration, application, or publication number, as applicable, of such Patent or Trademark owned by each Company.
(b) Attached hereto as Schedule 14(b) is a schedule setting forth all of each Companys owned registered Copyrights (as defined in the Security Agreements) and material exclusively licensed registered Copyrights, including the name of the registered owner and the registration number of such Copyright.
[The Remainder of this Page has been intentionally left blank]
IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of the date first written above.
R. R. DONNELLEY & SONS COMPANY | ||
By |
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Name: | ||
Title: |
AMERICAN LITHOGRAPHERS, INC. AGS CUSTOM GRAPHICS, INC. BANTA CORPORATION BANTA GLOBAL TURNKEY LLC BRIDGETOWN PRINTING CO. CHAS. P. YOUNG COMPANY CLEAR VISIONS, INC. COLUMBIA COLOR, INC. CONSOLIDATED CARQUEVILLE PRINTING COMPANY CONSOLIDATED GRAPHICS INTERNATIONAL, INC. CONSOLIDATED GRAPHICS PROPERTIES II, INC. CONSOLIDATED GRAPHICS SERVICES, INC. CONSOLIDATED GRAPHICS, INC. COPY-MOR, INC. COURIER PRINTING COMPANY CP SOLUTIONS, INC. DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. EGT PRINTING SOLUTIONS, LLC ELECTRIC CITY PRINTING COMPANY EMERALD CITY GRAPHICS, INC. FREDERIC PRINTING COMPANY GARNER PRINTING COMPANY GILLILAND PRINTING, INC. GSL FINE LITHOGRAPHERS H&N PRINTING & GRAPHICS, INC. HICKORY PRINTING SOLUTIONS, LLC IRONWOOD LITHOGRAPHERS, INC. KELMSCOTT COMMUNICATIONS LLC LINCOLN PRINTING CORPORATION | ||
By |
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Name: | ||
Title: |
MERCURY PRINTING COMPANY, LLC METROPOLITAN PRINTING SERVICES, LLC NIES/ARTCRAFT, INC. OFFICETIGER HOLDINGS INC. OFFICETIGER LLC PBM GRAPHICS, INC. PRECISION DIALOGUE DIRECT, INC. PRECISION DIALOGUE MARKETING, LLC PRECISION DIALOGUE, INC. PRECISION LITHO, INC. PRINTING CONTROL SERVICES INCORPORATED RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. RRD DUTCH HOLDCO, INC. RRD WEST CALDWELL, LLC SPANGLER GRAPHICS, LLC STORTERCHILDS PRINTING CO., INC. TEWELL WARREN PRINTING COMPANY THE HENNEGAN COMPANY THE JACKSON GROUP LLC THE JARVIS PRESS, INC. THE MCKAY PRESS, INC. THEO. DAVIS SONS, INCORPORATED THOUSAND OAKS PRINTING & SPECIALTIES, INC. TUCKER PRINTERS, INC. VERITAS DOCUMENT SOLUTIONS, LLC WENTWORTH CORPORATION WETZEL BROTHERS, LLC | ||
By |
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Name: | ||
Title: |
IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate as of the date first written above.
RRD NETHERLANDS LLC | ||
By |
| |
Name: | ||
Title: |
Schedule 1(a)
Legal Names, Etc.
Legal Name |
Type of Entity | Registered Organization (Yes/No) |
Organizational Number |
State of Formation |
||||||||||||
Schedule 1(b)
Changes in Corporate Identity; Other Names
Company/Subsidiary |
Corporate Name of Entity |
Action | Date of Action |
State of Formation |
||||||||||||
Schedule 1(c)
Other Organizational Names on IRS Filings; Jurisdictional Changes
Changes in Jurisdiction
Legal Name |
Type of Entity | Prior State of Formation |
Current State of Formation |
Date of Change |
||||||||||||
Names on IRS Filings
Schedule 2(a)
Chief Executive Offices
Company/Subsidiary |
Address | County | State of Organization | |||||||||
Schedule 2(b)
Locations of Tangible Personal Property
Street |
City | State | Location Type | |||||||||
Schedule 3
Transactions Other Than in the Ordinary Course of Business
Date |
Seller / Sold Entity |
Loan Party / Purchaser |
Brief Description of | |||
Schedule 4
File Search Reports
Name of Debtor |
Jurisdiction/ Office |
Type of Search |
Through Date | |||
Companies that Merged Out of Existence Since September 29, 2017 | ||||||
Schedule 5
Copy of Financing Statements To Be Filed
Schedule 6
Filings/Filing Offices
Type of Filing |
Entity |
Applicable Collateral Document |
Jurisdiction | |||
Schedule 7
Real Property
Entity of Record |
Address |
County |
City |
State |
Zip |
Purpose / Type |
Area (sq. ft.) |
Book Value (Land & Buildings) | ||||||||
Schedule 8(a)
Termination Statement Filings
Schedule 8(b)
Termination Statement Filings Jurisdictions
Debtor |
Jurisdiction |
Secured Party |
Original File Date |
Original File Number | ||||
Schedule 9
(a) Equity Interests of Companies and Subsidiaries
Current Legal Entities Owned |
Record Owner |
Certificate No. |
Type |
No. Shares/Interest |
% Pledged |
Issuer Jxn. of Formation | ||||||
(b) Other Equity Interests
Current Legal Entities Owned |
Record Owner |
Security |
No. Shares/Interest |
Percent Pledged | ||||
Schedule 10
Instruments and Tangible Chattel Paper
1. | Intercompany Notes: |
Lender |
Borrower |
Currency |
Amount |
USD equivalent | ||||
2. | Customer Notes: |
Issuer |
Borrower |
Amount |
Date of Issuance |
Interest Rate |
Maturity Date | |||||
3. | Chattel Paper: |
Schedule 11
Commercial Tort Claims
Schedule 12
Letter of Credit Rights
Issuer |
Beneficiary |
Principal Amount |
Date of Issuance |
Maturity Date |
Subject to Control [Yes/No] | |||||
Schedule 13
Deposit Accounts and Securities Accounts
Account Holder |
Depository / Securities |
Account Name / Number |
Subject to Control Agreement (Yes, or reason for exclusion including applicable clause of Excluded Deposit Account) | |||
Schedule 14(a)
Patents and Trademarks
United States Patents
Title |
Patent No. (Appln. No.) |
Registered Owner | ||
United States Trademarks
Trademark |
Reg. No. (Appln No.) |
Owner | ||
Schedule 14(b)
Copyrights
Title |
Registration No. |
Owner | ||
Licensed Copyright Schedule
Title |
Registration No. |
Owner |
License Description | |||
EXHIBIT H-2
FORM OF PERFECTION CERTIFICATE SUPPLEMENT
Reference is hereby made to that certain Security Agreement, dated as of October 15, 2018 (the Security Agreement), among R.R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the guarantors party thereto and the Administrative Agent (as hereinafter defined), (ii) that certain Pledge Agreement, dated as of October 15, 2018, among the Specified Pledgor and the Administrative Agent and (iii) that certain Credit Agreement dated as of October 15, 2018 (the Credit Agreement) among the Borrower, guarantors party thereto (the Guarantors), certain other parties thereto and Bank of America, N.A., as collateral agent and as administrative agent (in such capacities, the Agent) (in each case as to the agreements referenced in clauses (i) through (iii), as the same may be amended, modified, supplemented or otherwise modified on or prior to the date hereof).
This Perfection Certificate Supplement, dated as of [ ] [ ], 20[ ], is delivered pursuant to Section 5.01(f) of the Credit Agreement.
Capitalized terms used but not defined herein have the meanings assigned in the Credit Agreement. This Perfection Certificate Supplement constitutes a Perfection Certificate Supplement as defined in the Credit Agreement. Pledged Collateral has the meaning assigned to such term in the Security Agreement, and as used herein, the term Companies means the Borrower and each of the Guarantors, and with respect to Sections 1(a), (b) and (c), Section 2(a), 3, 4, 5, 6, 8 and 9, also includes each Specified Pledgor.
The undersigned, the [ ] of the Borrower, hereby certifies to the Agent that, as of the date hereof, there has been no change in the information described in the Perfection Certificate delivered on the Closing Date (as supplemented by any perfection certificate supplements delivered prior to the date hereof, the Prior Perfection Certificate), other than as follows:
1. Names.
(a) Except as set forth in Schedule 1(a) hereto and made a part hereof, the exact legal name of each Company, as such name appears in its respective certificate of incorporation or any other organizational document, is set forth in Schedule 1(a) of the Prior Perfection Certificate. Except as set forth in Schedule 1(a) hereto and made a part hereof, each Company is (i) the type of entity disclosed next to its name in Schedule 1(a) of the Prior Perfection Certificate; and (ii) a registered organization except to the extent disclosed in Schedule 1(a) to the Prior Perfection Certificate. Except as set forth in Schedule 1(a) hereto and made a part hereof, set forth in Schedule 1(a) to the Prior Perfection Certificate is the organizational identification number, if any, of each Company that is a registered organization and the jurisdiction of formation of each Company.
(b) Except as set forth in Schedule 1(b) hereto and made a part hereof, set forth in Schedule 1(b) to the Prior Perfection Certificate is a list of any other corporate or organizational names each Company (or any other business or organization to which each Company became the successor by merger, consolidation, acquisition, change in form, nature or jurisdiction of organization or otherwise) has had in the past five years, together with the date of the relevant change.
(c) Except as set forth in Schedule 1(c) hereto and made a part hereof, set forth in Schedule 1(c) to the Prior Perfection Certificate is a list of all other names used by each
Company on any filings with the Internal Revenue Service at any time within the five years preceding the date hereof. Except as set forth in
Schedule 1(c) hereof or on the
Prior Perfection Certificate no Company has changed its jurisdiction of organization at any time during the past four months.
2. Current Locations.
(a) Except as set forth in Schedule 2(a) hereto and made a part hereof the chief executive office of each Company is located at the address set forth in Schedule 2(a) to the Prior Perfection Certificate.
(b) Except as set forth in Schedule 2(b) hereto and made a part hereof, set forth on Schedule 2(b) to the Prior Perfection Certificate are all the locations where each Company currently maintains any of its tangible personal property with a value in excess of $100,000 that constitutes Collateral (including Goods, Inventory and Equipment) of such Company (indicating whether such Collateral is held by such Company or a landlord, lessor, warehouseman, bailee or a third party).
3. Extraordinary Transactions. Except for those purchases, acquisitions and other transactions described in Schedule 3 attached hereto and made a part hereof and on the Prior Perfection Certificate, or that occurred more than five years before the date of this certificate, all of the Collateral has been originated by each Company in the ordinary course of business or consists of goods which have been acquired by such Company in the ordinary course of business from a person in the business of selling goods of that kind.
4. [Reserved].
5. UCC Filings. Except as listed on Schedule 5 hereto and made a part hereof, the financing statements (duly authorized by each Company constituting the debtor therein), including the indications of the collateral, attached as Schedule 5 to the Prior Perfection Certificate relating to the Security Agreement, the Pledge Agreement or the applicable Mortgage, are in the appropriate forms for filing in the filing offices in the jurisdictions identified in Schedule 6 hereto and thereto.
6. Schedule of Filings. Except as listed on Schedule 6 hereto and made a part hereof, attached as Schedule 6 to the Prior Perfection Certificate is a schedule of (i) the appropriate filing offices for the financing statements attached hereto and thereto as Schedule 5 and (ii) the appropriate filing offices for the Mortgages and fixture filings relating to the Mortgaged Property set forth in Schedule 7 hereto and thereto. No other filings or actions are required to create, preserve, protect and perfect the security interests in the Collateral granted to the Collateral Agent pursuant to the Collateral Documents.
7. Real Property. Except as listed on Schedule 7 hereto and made a part hereof, attached as Schedule 7 to the Prior Perfection Certificate is a list of (i) all real property to be encumbered by a Mortgage and fixture filing (such real property, the Mortgaged Property) in favor of the Agent, (ii) common names, addresses and uses of each Mortgaged Property and (iii) other information relating thereto required by such Schedule.
8. [Reserved]
9. Stock Ownership and Other Equity Interests. Except as listed on Schedule 9(a) hereto and made a part hereof, attached as Schedule 9(a) to the Prior Perfection Certificate is a true and correct list of each of all of the authorized, and the issued and outstanding, stock, partnership interests, limited liability company membership interests or other equity interest of each Company and its direct
Subsidiaries and the record and beneficial owners of such stock, partnership interests, membership interests or other equity interests setting forth the percentage of such equity interests pledged under the Security Agreement or the Pledge Agreements. Except as listed on Schedule 9(b) hereto and made a part hereof, set forth in Schedule 9(b) to the Prior Perfection Certificate is each equity investment of each Company that represents 50% or less of the equity of the entity in which such investment was made setting forth the percentage of such equity interests pledged under the Security Agreement (excluding any equity investments held in an Excluded Securities Account or held in a Securities Account that is or will be subject to a control agreement).
10. Instruments and Tangible Chattel Paper. Except as listed on Schedule 10 hereto and made a part hereof, attached as Schedule 10 to the Prior Perfection Certificate is a true and correct list of all promissory notes, instruments (other than checks to be deposited in the ordinary course of business), tangible chattel paper, electronic chattel paper and other evidence of indebtedness held by each Company as of the date hereof that constitute Pledged Collateral, including all intercompany notes between or among any two or more Companies or any of their Subsidiaries, that constitute Pledged Collateral.
11. Commercial Tort Claims. Except as listed on Schedule 11 hereto and made a part hereof, attached as Schedule 11 to the Prior Perfection Certificate is a true and correct list of all Commercial Tort Claims that constitute Pledged Collateral held by each Company, including a brief description thereof and stating if such commercial tort claims are required to be pledged under the Security Agreement.
12. Letter-of-Credit Rights. Except as listed on Schedule 12 hereto and made a part hereof, attached as Schedule 12 to the Prior Perfection Certificate is a true and correct list of all Letters of Credit that constitute Pledged Collateral issued in favor of each Company, as beneficiary thereunder, stating if letter-of-credit rights with respect to such Letters of Credit are required to be subject to a control arrangement pursuant to the Security Agreement.
13. Deposit Accounts and Securities Accounts. Except as listed on Schedule 13 hereto and made a part hereof, attached as Schedule 13 to the Prior Perfection Certificate is a true and complete list of all Deposit Accounts and Securities Accounts maintained by each Company, including the name of each institution where each such account is held, the name/account number of each such account, the name of each entity that holds each account and stating if such account is required to be subject to a control agreement pursuant to the Security Agreement and the reason for such account to be excluded from the control agreement requirement.
14. Intellectual Property. (a) Except as listed on Schedule 14(a) hereto and made a part hereof, attached as Schedule 14(a) to the Prior Perfection Certificate is a schedule setting forth all of each Companys currently active applications for or registrations with the United States Patent and Trademark Office of Patents and Trademarks (each as defined in the Security Agreement), including the name of the registered owner or applicant and the registration, application, or publication number, as applicable, of such Patent or Trademark owned by each Company.
(b) Except as listed on Schedule 14(b) hereto and made a part hereof, attached as Schedule 14(b) to the Prior Perfection Certificate, is a schedule setting forth all of each Companys owned registered Copyrights (as defined in the Security Agreement) and material exclusively licensed registered Copyrights, including the name of the registered owner and the registration number of such Copyright.
[The Remainder of this Page has been intentionally left blank]
IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate Supplement as of the date first written above.
R. R. DONNELLEY & SONS COMPANY |
By |
| |
Name: | ||
Title: |
AMERICAN LITHOGRAPHERS, INC. AGS CUSTOM GRAPHICS, INC. BANTA CORPORATION BANTA GLOBAL TURNKEY LLC BRIDGETOWN PRINTING CO. CHAS. P. YOUNG COMPANY CLEAR VISIONS, INC. COLUMBIA COLOR, INC. CONSOLIDATED CARQUEVILLE PRINTING COMPANY CONSOLIDATED GRAPHICS INTERNATIONAL, INC. CONSOLIDATED GRAPHICS PROPERTIES II, INC. CONSOLIDATED GRAPHICS SERVICES, INC. CONSOLIDATED GRAPHICS, INC. COPY-MOR, INC. COURIER PRINTING COMPANY CP SOLUTIONS, INC. DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. EGT PRINTING SOLUTIONS, LLC ELECTRIC CITY PRINTING COMPANY EMERALD CITY GRAPHICS, INC. FREDERIC PRINTING COMPANY GARNER PRINTING COMPANY GILLILAND PRINTING, INC. GSL FINE LITHOGRAPHERS H&N PRINTING & GRAPHICS, INC. HICKORY PRINTING SOLUTIONS, LLC IRONWOOD LITHOGRAPHERS, INC. KELMSCOTT COMMUNICATIONS LLC LINCOLN PRINTING CORPORATION |
By |
| |
Name: | ||
Title: |
MERCURY PRINTING COMPANY, LLC METROPOLITAN PRINTING SERVICES, LLC NIES/ARTCRAFT, INC. OFFICETIGER HOLDINGS INC. OFFICETIGER LLC PBM GRAPHICS, INC. PRECISION DIALOGUE DIRECT, INC. PRECISION DIALOGUE MARKETING, LLC PRECISION DIALOGUE, INC. PRECISION LITHO, INC. PRINTING CONTROL SERVICES INCORPORATED RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. RRD DUTCH HOLDCO, INC. RRD WEST CALDWELL, LLC SPANGLER GRAPHICS, LLC STORTERCHILDS PRINTING CO., INC. TEWELL WARREN PRINTING COMPANY THE HENNEGAN COMPANY THE JACKSON GROUP LLC THE JARVIS PRESS, INC. THE MCKAY PRESS, INC. THEO. DAVIS SONS, INCORPORATED THOUSAND OAKS PRINTING & SPECIALTIES, INC. TUCKER PRINTERS, INC. VERITAS DOCUMENT SOLUTIONS, LLC WENTWORTH CORPORATION WETZEL BROTHERS, LLC |
By |
| |
Name: | ||
Title: |
IN WITNESS WHEREOF, we have hereunto signed this Perfection Certificate Supplement as of the date first written above.
RRD NETHERLANDS LLC |
By |
| |
Name: | ||
Title: |
Schedule 1(a)
Legal Names, Etc.
Legal Name |
Type of Entity | Registered Organization (Yes/No) |
Organizational Number |
State of Formation |
||||||||||||
Schedule 1(b)
Changes in Corporate Identity; Other Names
Company/Subsidiary |
Corporate Name of Entity |
Action | Date of Action |
State of Formation |
||||||||||||
Schedule 1(c)
Other Organizational Names on IRS Filings; Jurisdictional Changes
Changes in Jurisdiction
Legal Name |
Type of Entity |
Prior State of |
Current |
Date of |
Names on IRS Filings
Schedule 2(a)
Chief Executive Offices
Company/Subsidiary |
Address |
County |
State of Organization |
Schedule 2(b)
Locations of Tangible Personal Property
Street |
City |
State |
Location Type | |||
Schedule 3
Transactions Other Than in the Ordinary Course of Business
Date |
Seller / Sold Entity |
Loan Party / Purchaser |
Brief Description of Collateral Acquired | |||
Schedule 4
[Reserved]
Schedule 5
Copy of Financing Statements To Be Filed
Schedule 6
Filings/Filing Offices
Type of Filing |
Entity |
Applicable Collateral Document |
Jurisdiction | |||
Schedule 7
Real Property
Entity of Record |
Address |
County |
City |
State |
Zip |
Purpose / Type |
Area |
Book Value | ||||||||
Schedule 8(a)
Termination Statement Filings
Schedule 8(b)
Termination Statement Filings Jurisdictions
Debtor |
Jurisdiction |
Secured Party |
Original File Date |
Original File Number | ||||
Schedule 9
(a) Equity Interests of Companies and Subsidiaries
Current Legal Entities Owned |
Record Owner |
Certificate No. |
Type |
No. Shares/Interest |
% Pledged |
Issuer Jxn. of | ||||||
(b) Other Equity Interests
Current Legal Entities Owned |
Record Owner |
Security |
No. Shares/Interest |
Percent Pledged | ||||
Schedule 10
Instruments and Tangible Chattel Paper
1. | Intercompany Notes: |
Lender |
Borrower |
Currency |
Amount |
USD equivalent | ||||
2. | Customer Notes: |
Issuer |
Borrower |
Amount |
Date of Issuance |
Interest Rate |
Maturity Date | |||||
3. | Chattel Paper: |
Schedule 11
Commercial Tort Claims
Schedule 12
Letter of Credit Rights
Issuer |
Beneficiary |
Principal Amount |
Date of Issuance |
Maturity Date |
Subject to Control [Yes/No] | |||||
Schedule 13
Deposit Accounts and Securities Accounts
Account Holder |
Depository / Securities Intermediary |
Account Name / Number |
Subject to Control Agreement (Yes, or reason for exclusion including applicable clause of Excluded Deposit | |||
Schedule 14(a)
Patents and Trademarks
Schedule 14(a)
Patents and Trademarks
United States Patents
Title |
Patent No. (Appln. No.) |
Registered Owner | ||
United States Trademarks
Trademark |
Reg. No. (Appln No.) |
Owner | ||
Schedule 14(b)
Copyrights
Title |
Registration No. |
Owner | ||
Licensed Copyright Schedule
Title |
Registration No. |
Owner |
License Description | |||
H-2-2
EXHIBIT I
FORM OF SOLVENCY CERTIFICATE
I, the undersigned, the chief financial officer of R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Borrower), DO HEREBY CERTIFY on behalf of the Borrower that:
1. This Certificate is furnished pursuant to Section 4.01(f) of the Credit Agreement, (as in effect on the date of this Certificate) (the capitalized terms defined therein being used herein as therein defined) dated as of October 15, 2018, among the Borrower, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as administrative agent and collateral agent (in such capacities, Administrative Agent) for the Lenders, and the other parties thereto (as amended, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the Credit Agreement).
2. Immediately after the consummation of the Transactions to occur on the Closing Date, including the making of each Loan to be made on the Closing Date and the application of the proceeds of such Loans, the Borrower and its Subsidiaries on a consolidated basis are Solvent.
[Signature Page Follows]
IN WITNESS WHEREOF, I have hereunto set my hand this th day of , .
R.R. DONNELLEY & SONS COMPANY | ||
By: | ||
Name: | ||
Title: | Chief Financial Officer |
EXHIBIT J
AUCTION PROCEDURES
This Exhibit J is intended to summarize certain basic terms of the modified Dutch auction (an Auction) procedures pursuant to and in accordance with the terms and conditions of Section 2.19 of that certain Credit Agreement of which this Exhibit J is a part (as amended, restated, amended and restated, supplemented and otherwise modified from time to time, the Credit Agreement). It is not intended to be a definitive statement of all of the terms and conditions of an Auction, the definitive terms and conditions for which shall be set forth in the applicable offering document. None of the Administrative Agent, the Auction Manager, or any of their respective affiliates or any officers, directors, employees, agents or attorneys-in-fact of such Persons (together with the Administrative Agent and its affiliates, the Agent-Related Person) makes any recommendation pursuant to any offering document as to whether or not any Lender should sell its Term Loans to the Borrower pursuant to any offering documents, nor shall the decision by the Administrative Agent, the Auction Manager or any other Agent-Related Person (or any of their affiliates) in its respective capacity as a Lender to sell its Term Loans to the Borrower be deemed to constitute such a recommendation. Each Lender should make its own decision on whether to sell any of its Term Loans and, if it decides to do so, the principal amount of and price to be sought for such Term Loans. In addition, each Lender should consult its own attorney, business advisor or tax advisor as to legal, business, tax and related matters concerning each Auction and the relevant offering documents. Capitalized terms not otherwise defined in this Exhibit J have the meanings assigned to them in the Credit Agreement.
1. Notice Procedures. In connection with each Auction, the Borrower will provide notification to the Auction Manager (for distribution to the Term Lenders of the applicable Class of Term Loans (each, an Auction Notice). Each Auction Notice shall contain (i) the maximum principal amount (calculated on the face amount thereof) of Term Loans of each applicable Class that the Borrower offers to purchase in such Auction (the Auction Amount) which shall be no less than $25,000,000 (unless another amount is agreed to by the Administrative Agent); (ii) the range of discounts to par (the Discount Range) expressed as a range of prices per $1,000, at which the Borrower would be willing to purchase Term Loans of each applicable Class in such Auction; and (iii) the date on which such Auction will conclude, on which date Return Bids (as defined below) will be due by 1:00 p.m. (New York time) (as such date and time may be extended by the Auction Manager, such time the Expiration Time). Such Expiration Time may be extended for a period not exceeding three (3) Business Days upon notice by the Borrower to the Auction Manager received not less than 24 hours before the original Expiration Time; provided that only one extension per offer shall be permitted. An Auction shall be regarded as a failed auction in the event that either (x) the Borrower withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying Bids (as defined below) having been received. In the event of a failed auction, the Borrower shall not be permitted to deliver a new Auction Notice prior to the date occurring three (3) Business Days after such withdrawal or Expiration Time, as the case may be. Notwithstanding anything to the contrary contained herein, the Borrower shall not initiate any Auction by delivering an Auction Notice to the Auction Manager until after the conclusion (whether successful or failed) of the previous Auction (if any), whether such conclusion occurs by withdrawal of such previous Auction or the occurrence of the Expiration Time of such previous Auction.
2. Reply Procedures. In connection with any Auction, each Term Lender of each applicable Class wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation, in the form included in the respective offering document (each, a Return Bid) which shall specify (i) a discount to par that must be expressed as a price per $1,000 in principal amount of Term Loans of each applicable Class (the Reply Price) within the Discount Range and (ii) the principal amount of Term Loans of each applicable Class, in an amount not less than
$1,000,000 or an integral multiple of $1,000 in excess thereof, that such Lender offers for sale at its Reply Price (the Reply Amount). A Term Lender may submit a Reply Amount that is less than the minimum amount and incremental amount requirements described above only if the Reply Amount comprises the entire amount of the Term Loans of each applicable Class held by such Term Lender. Term Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to three (3) component bids (or such larger number of component bids as may be specified in the Auction Notice), each of which may result in a separate Qualifying Bid and each of which will not be contingent on any other component bid submitted by such Term Lender resulting in a Qualifying Bid. In addition to the Return Bid, the participating Term Lender must execute and deliver, to be held by the Auction Manager, an assignment and acceptance in the form included in the Auction Notice (each, an Auction Assignment and Assumption). The Borrower will not purchase any Term Loans of any applicable Class at a price that is outside of the applicable Discount Range, nor will any Return Bids (including any component bids specified therein) submitted at a price that is outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price.
3. Acceptance Procedures. Based on the Reply Prices and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the Borrower, will calculate the lowest purchase price (the Applicable Threshold Price) for such Auction within the Discount Range for such Auction that will allow the Borrower to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Term Loans for which the Borrower has received Qualifying Bids). The Borrower shall purchase Term Loans of each applicable Class from each Term Lender whose Return Bid is within the Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a Qualifying Bid). All Term Loans included in Qualifying Bids (including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply Price lower than the Applicable Threshold Price will be purchased at such applicable Reply Prices and shall not be subject to proration.
4. Proration Procedures. All Term Loans of each applicable Class offered in Return Bids (or, if applicable, any component thereof) constituting Qualifying Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price; provided, that if the aggregate principal amount (calculated on the face amount thereof) of all Term Loans of any applicable Class for which Qualifying Bids have been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Term Loans of such Class to be purchased at prices below the Applicable Threshold Price), the Borrower shall purchase the Term Loans of such Class for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based on the respective principal amounts offered and in an aggregate amount equal to the amount necessary to complete the purchase of the Auction Amount. No Return Bids or any component thereof will be accepted above the Applicable Threshold Price.
5. Notification Procedures. The Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto an internet or intranet site (including an IntraLinks, SyndTrak or other electronic workspace) in accordance with the Auction Managers standard dissemination practices by 4:00 p.m. New York time on the same Business Day as the date the Return Bids were due (as such due date may be extended in accordance with this Exhibit J). The Auction Manager will insert the principal amount of Term Loans of each applicable Class to be assigned and the applicable settlement date into each applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. Upon the request of the submitting Lender, the Auction Manager will promptly return any Auction Assignment and Assumption received in connection with a Return Bid that is not a Qualifying Bid.
6. Auction Assignment and Assumption. Each Auction Notice and Auction Assignment and Assumption shall contain the following representations, warranties and covenants by the Borrower:
(a) | The conditions set forth in Section 2.19 of the Credit Agreement have each been satisfied on and as of the date hereof, except to the extent that such conditions refer to conditions that must be satisfied as of a future date, in which case the Borrower must terminate any Auction if it fails to satisfy one of more of the conditions which are required to be met at the time which otherwise would have been the time of purchase of Term Loans of any applicable Class pursuant to an Auction. |
(b) | The representations and warranties of each Loan Party contained in Article III of the Credit Agreement 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 on and as of the date hereof, 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 as of such earlier date, and except that for purposes hereof, the representations and warranties contained in Section 3.04 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 4.01 or clauses (a) and (b) of Section 5.01 of the Credit Agreement. |
7. Additional Procedures. Once initiated by an Auction Notice, the Borrower may withdraw an Auction only in the event that, (i) as of such time, no Qualifying Bid has been received by the Auction Manager or (ii) the Borrower has failed to meet a condition set forth in Section 2.19 of the Credit Agreement. Furthermore, in connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender. However, an Auction may become void if the conditions to the purchase of Term Loans of any applicable Class by the Borrower required by the terms and conditions of Section 2.19 of the Credit Agreement are not met. The purchase price in respect of each Qualifying Bid for which purchase by the Borrower is required in accordance with the foregoing provisions shall be paid directly by the Borrower to the respective assigning Lender on a settlement date as determined jointly by the Borrower and the Auction Manager (which shall be not later than ten (10) Business Days after the date Return Bids are due). The Borrower shall execute each applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. All questions as to the form of documents and validity and eligibility of Term Loans of each applicable Class that are the subject of an Auction will be determined by the Auction Manager, in consultation with the Borrower, and their determination will be final and binding so long as such determination is not inconsistent with the terms of Section 2.19 of the Credit Agreement or this Exhibit J. The Auction Managers interpretation of the terms and conditions of the offering document, in consultation with the Borrower, will be final and binding so long as such interpretation is not inconsistent with the terms of Section 2.19 of the Credit Agreement or this Exhibit J. None of the Administrative Agent, the Auction Manager, any other Agent-Related Person or any of their respective affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Borrower, the Loan Parties, or any of their affiliates (whether contained in an offering document or otherwise) or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information. This Exhibit J shall not require the Borrower to initiate any Auction.
EXHIBIT K
FORM OF COMMITTED LOAN NOTICE
Date: ,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of October [ ], 2018 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the Agreement; the terms defined therein being used herein as therein defined), among R.R. Donnelley & Sons Company, a Delaware corporation (the Borrower), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned hereby requests (select one): | ||
☐A Borrowing of Term B Loans | ||
☐A conversion or continuation of Term B Loans | ||
1. | On (a Business Day). | |
2. | In the amount of $ 8 | |
3. | Comprised of 9 | |
[Type of Loan requested] | ||
4. | For Eurodollar Rate Loans: with an Interest Period of months. |
[This Committed Loan Notice shall be conditioned upon the occurrence of ].10
[The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a) and (b) of the Agreement shall be satisfied on and as of the date of the applicable Borrowing.]11
8 | Minimum amounts of (a) $5,000,000 and a whole multiple of $1,000,000, in the case of any Eurodollar Borrowing and (b) $500,000 and a whole multiple of $100,000, in the case of ABR Borrowing. |
9 | Select ABR Loan or Eurodollar Loan, as appropriate. |
10 | Include this sentence if this notice is to be conditioned upon the occurrence of any event, together with a description of such event. |
11 | Do not include if in connection with a continuation or conversion of an existing Borrowing. |
R.R. DONNELLEY & SONS COMPANY |
By: | ||
Name: | ||
Title: |
Exhibit 10.2
Execution Version
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this Amendment), dated as of October 15, 2018 (the Amendment No. 1 Execution Date), by and among R. R. Donnelley & Sons Company, a Delaware corporation (the Company), the Guarantors (as defined below), the banks, financial institutions and other institutional lenders party to the Credit Agreement referred to below (collectively, the Lenders), and Bank of America, N.A., as administrative agent (the Administrative Agent) for the Lenders under the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Company, certain subsidiaries of the Company (the Guarantors), the lenders party thereto, the Administrative Agent and the L/C Issuers are parties to the Second Amended and Restated Credit Agreement, dated as of September 29, 2017 (as amended, supplemented or otherwise modified prior to the Amendment No. 1 Effective Date (as defined below), the Credit Agreement; and as amended by this Amendment, the Amended Credit Agreement). Capitalized terms used in this Amendment and not otherwise defined in this Amendment have the same meanings as specified in the Amended Credit Agreement.
(2) The Company desires to amend certain provisions of the Credit Agreement as set forth in this Amendment.
(3) The Required Lenders and the Administrative Agent are, on the terms and subject to the conditions stated below, willing to grant the request of the Company, and the Company, the Guarantors, the Required Lenders and the Administrative Agent have agreed to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to the Credit Agreement.
(a) The Credit Agreement is, effective as of the Amendment No. 1 Effective Date and subject to the satisfaction of the conditions to effectiveness set forth in Section 2 hereof, hereby amended to delete the stricken text (indicated textually in the same manner as the following example:) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Amended Credit Agreement attached as Exhibit A hereto.
(b) Schedule 8.01(b) of the Credit Agreement is, effective as of the Amendment No. 1 Effective Date and subject to the satisfaction of the conditions to effectiveness set forth in Section 2 hereof, hereby amended and restated in its entirety in form attached as Exhibit B hereto.
SECTION 2. Conditions to Effectiveness. This Amendment is subject to the provisions of Section 11.01 of the Credit Agreement and shall become effective upon, and only upon, the satisfaction or waiver of each of the following conditions precedent on or prior to December 31, 2018 in a manner reasonably satisfactory to the Administrative Agent (date of such satisfaction or waiver, the Amendment No. 1 Effective Date):
(a) Amendment. On or before the Amendment No. 1 Execution Date, the Administrative Agent shall have received counterparts of this Amendment executed by the Company, the Guarantors and the Required Lenders.
(b) Term Loan Credit Agreement. The Administrative Agent shall have received a copy of the Term Loan Credit Agreement, duly executed by each of the parties thereto.
(c) Security Agreement Amendment. The Administrative Agent shall have received a Perfection Certificate duly executed by each of the Loan Parties and such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Secured Parties, a Lien on substantially all personal property of the Loan Parties (subject to certain exceptions to be set forth in such Collateral Documents), in each case, in a form reasonably satisfactory to the Administrative Agent and duly executed by each of the Loan Parties.
(d) Lien Searches. Subject to Section 8, the Administrative Agent shall have received certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens).
(e) Securities Collateral. Subject to Section 8, the Administrative Agent shall have received satisfactory evidence that all certificates, agreements or instruments representing or evidencing the Securities Collateral (as defined in the Security Agreement after giving effect to any amendments thereto on the Amendment No. 1 Effective Date) accompanied by instruments of transfer and stock powers undated and endorsed in blank have been delivered to the Term Loan Agent, as bailee for the Administrative Agent pursuant to the terms of the Intercreditor Agreement.
(f) Intercreditor Agreement. The Administrative Agent shall have received the Intercreditor Agreement, substantially consistent with the form attached as Exhibit C hereto (or in such other form as reasonably satisfactory to the Administrative Agent and the Company), duly executed by the Term Loan Agent and acknowledged by all the Loan Parties.
(g) Opinions. The Administrative Agent shall have received (i) an opinion of Skadden, Arps, Slate, Meagher & Flom LLP and (ii) opinions of local counsel to the Borrower identified on Exhibit D hereto, in each case, dated as of the Amendment No. 1 Effective Date and in a form reasonably satisfactory to the Administrative Agent.
-2-
(h) Representations and Warranties. Each of the representations and warranties set forth in Section 3 of this Amendment shall be true and correct in all material respects on and as of the Amendment No. 1 Effective Date with the same effect as though made on and as of such date, unless such representation or warranty is made as of an earlier specified date, in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (in each case, without duplication of any materiality standard set forth in any such representation or warranty).
(i) No Default or Event of Default. No Default or Event of Default shall exist or have occurred and be continuing as of the Amendment No. 1 Effective Date.
(j) Closing Certificate. The Administrative Agent shall have received a certificate of a duly authorized officer of the Company, dated the Amendment No. 1 Effective Date, certifying as of such date as to matters addressed in paragraphs (h) and (i) of this Section 2.
(k) Solvency Certificate. The Administrative Agent shall have received a Solvency Certificate executed by the Chief Financial Officer of the Company on a consolidated basis, dated the Amendment No. 1 Effective Date, certifying as to the matters set forth therein after giving effect to this Amendment.
(l) Corporation Documents.
(i) A certificate of the Secretary of the Company certifying (A) copies attached thereto of the resolutions of the Board of Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B) copies attached thereto of the Certificate of Incorporation and by-laws of the Company and (C) the names and true signatures of the officers of the Company authorized to sign this Agreement and other documents to be executed and delivered by the Company hereunder.
(ii) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party.
(m) KYC Information.
(i) Upon the reasonable request of any Lender made at least 5 days prior to the Amendment No. 1 Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable know your customer and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case at least 3 days prior to the Amendment No. 1 Effective Date.
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(ii) At least 5 days prior to the Amendment No. 1 Effective Date, any Borrower that qualifies as a legal entity customer under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(n) Fees and Expenses. The Administrative Agent shall have received (i) for the account of each Lender that consents to this Amendment, a consent fee equal to 0.075% of the aggregate Loans and unutilized Commitments held by such Lender under the Amended Credit Agreement on the Amendment No. 1 Execution Date and (ii) all other fees required to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel for the Administrative Agent), in each case, on or before the Amendment No. 1 Effective Date.
SECTION 3. Representations and Warranties of the Company. The Company represents and warrants as follows:
(a) The Company is a corporation duly formed, validly existing and in good standing under the laws of its jurisdiction of formation.
(b) No Default or Event of Default exists or has occurred and is continuing as of the Amendment No. 1 Execution Date.
(c) This Amendment has been duly authorized, executed and delivered by the Company and is in full force and effect as of the date hereof (other than Section 1 prior to the Amendment No. 1 Effective Date), and the agreements and obligations of the Company contained herein constitute legal, valid and binding obligations of the Company, enforceable against it in accordance with their terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought.
(d) The execution, delivery and performance of this Amendment by the Company do not violate any law currently in effect (other than violations that, singly or in the aggregate, have not had and are not likely to have a Material Adverse Effect) or any provision of any of the Companys charter or by-laws.
(e) All of the representations and warranties of the Company set forth in the Credit Agreement and the other Loan Documents, each as amended hereby, are true and correct in all material respects on and as of the date hereof, as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct in all material respects as of such earlier date (in each case, without duplication of any materiality standard set forth in any such representation or warranty).
-4-
SECTION 4. Reference to and Effect on the Credit Agreement and the Loan Documents.
(a) On and after the effectiveness of this Amendment, each reference in the Credit Agreement to this Agreement, hereunder, hereof or words of like import referring to the Credit Agreement, and each reference in each of the other Loan Documents to the Credit Agreement, thereunder, thereof or words of like import referring to the Credit Agreement, shall mean and be a reference to the Amended Credit Agreement.
(b) The Credit Agreement and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment of all Obligations of the Loan Parties under the Loan Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Reaffirmation. By executing and delivering a copy hereof, each Loan Party hereby consents to this Amendment and the transactions contemplated thereby and hereby confirms its respective guarantees, pledges and grants of security interests, as applicable, under and subject to the terms of each of the Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Amendment, such guarantees, pledges and grants of security interests, and the terms of each of the Collateral Documents to which it is a party, shall continue to be in full force and effect, including to secure the Secured Obligations. For the avoidance of doubt, on and after the Amendment No. 1 Effective Date, this Amendment shall for all purposes constitute a Loan Document. The parties hereto acknowledge and agree that the amendment of the Credit Agreement pursuant to this Amendment shall not constitute a novation of the Credit Agreement and the other Loan Documents as in effect prior to the Amendment No. 1 Effective Date.
-5-
SECTION 8. Post-Closing Covenant.
(a) Within 30 days following the Amendment No. 1 Effective Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), (x) the Administrative Agent shall have received certified copies of UCC lien searches in such jurisdictions requested by the Administrative Agent, listing all effective financing statements that name Chicago Delivery Inc., Courier Advisory Group, Inc., Courier Logistics Services, LLC, Courier Corporation, Esselte Corporation, Esselte Newco, Inc., United Express System, Inc., and Valid USA, Inc., as debtor and (y) the Borrower will take such actions as may be reasonably requested by the Administrative Agent based on the results of the searches described in clause (x) above.
(b) Within 10 Business Days following the Amendment No. 1 Effective Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), (x) the Administrative Agent (or, to the extent constituting Fixed Asset Collateral (as defined in the ABL Intercreditor Agreement), to the Controlling Fixed Asset Collateral Agent (as defined in the ABL Intercreditor Agreement) pursuant to the Fixed Asset Collateral Documents (as defined in the ABL Intercreditor Agreement) and consistent with the ABL Intercreditor Agreement) shall have received all certificates, agreements or instruments representing or evidencing the Specified LLC Equity Interests (as defined in the Security Agreement) in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and (y) the Administrative Agent shall have received a Pledge Amendment (as defined in the Security Agreement) with respect to the Specified LLC Equity Interests, which Pledge Amendment shall be deemed to supplement Schedule 9(a) of the Perfection Certificate and Schedule 1 of the Security Agreement with respect to the Specified LLC Equity Interests.
(c) Within 10 Business Days following the Amendment No. 1 Effective Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), the instrument described below shall have been properly endorsed, assigned and delivered to the Administrative Agent, accompanied by instruments of transfer or assignment duly executed in blank:
Issuer |
Borrower |
Amount |
Date
of |
Interest |
Maturity |
|||||||||||||
RR Donnelley & Sons Company |
TMC SUPPLY CHAIN SOLUTIONS | $ | 5,441,390.00 | 9/18/17 | 0 | % | 1/1/27 |
[Signature Pages Follow]
-6-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
R. R. DONNELLEY & SONS COMPANY, | ||
a Delaware corporation | ||
By: | /s/ Terry Peterson | |
Name: Terry Peterson | ||
Title: Executive Vice President and Chief Financial Officer |
Signature Page to Amendment No. 1 to Credit Agreement
Acknowledged and agreed:
AMERICAN LITHOGRAPHERS, INC. AGS CUSTOM GRAPHICS, INC. BANTA CORPORATION BANTA GLOBAL TURNKEY LLC BRIDGETOWN PRINTING CO. CHAS. P. YOUNG COMPANY CLEAR VISIONS, INC. COLUMBIA COLOR, INC. CONSOLIDATED CARQUEVILLE PRINTING COMPANY CONSOLIDATED GRAPHICS INTERNATIONAL, INC. CONSOLIDATED GRAPHICS PROPERTIES II, INC. CONSOLIDATED GRAPHICS SERVICES, INC. CONSOLIDATED GRAPHICS, INC. COPY-MOR, INC. COURIER PRINTING COMPANY CP SOLUTIONS, INC. DDM-DIGITAL IMAGING, DATA PROCESSING AND MAILING SERVICES, L.C. EGT PRINTING SOLUTIONS, LLC ELECTRIC CITY PRINTING COMPANY EMERALD CITY GRAPHICS, INC. FREDERIC PRINTING COMPANY GARNER PRINTING COMPANY GILLILAND PRINTING, INC. GSL FINE LITHOGRAPHERS H&N PRINTING & GRAPHICS, INC. HICKORY PRINTING SOLUTIONS, LLC IRONWOOD LITHOGRAPHERS, INC. KELMSCOTT COMMUNICATIONS LLC LINCOLN PRINTING CORPORATION | ||||
By: | /s/ Terry Peterson | |||
Name: | Terry Peterson | |||
Title: | Authorized Signatory |
Signature Page to Amendment No. 1 to Credit Agreement
Acknowledged and agreed:
MERCURY PRINTING COMPANY, LLC METROPOLITAN PRINTING SERVICES, LLC NIES/ARTCRAFT, INC. OFFICETIGER HOLDINGS INC. OFFICETIGER LLC PBM GRAPHICS, INC. PRECISION DIALOGUE DIRECT, INC. PRECISION DIALOGUE MARKETING, LLC PRECISION DIALOGUE, INC. PRECISION LITHO, INC. PRINTING CONTROL SERVICES INCORPORATED RR DONNELLEY LOGISTICS SERVICES WORLDWIDE, INC. RRD DUTCH HOLDCO, INC. RRD WEST CALDWELL, LLC SPANGLER GRAPHICS, LLC STORTERCHILDS PRINTING CO., INC. TEWELL WARREN PRINTING COMPANY THE HENNEGAN COMPANY THE JACKSON GROUP LLC THE JARVIS PRESS, INC. THE MCKAY PRESS, INC. THEO. DAVIS SONS, INCORPORATED THOUSAND OAKS PRINTING & SPECIALTIES, INC. TUCKER PRINTERS, INC. VERITAS DOCUMENT SOLUTIONS, LLC WENTWORTH CORPORATION WETZEL BROTHERS, LLC | ||||
By: | /s/ Terry Peterson | |||
Name: | Terry Peterson | |||
Title: | Authorized Signatory |
Signature Page to Amendment No. 1 to Credit Agreement
BANK OF AMERICA, N.A., | ||||
as Administrative Agent | ||||
By: |
/s/ Philip Nomura | |||
Name: |
Philip Nomura | |||
Title: |
Senior Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
BANK OF AMERICA, N.A., | ||||
as a Lender | ||||
By: |
/s/ Philip Nomura | |||
Name: |
Philip Nomura | |||
Title: |
Senior Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
CITIBANK, N.A., | ||||
as a Lender | ||||
By: |
/s/ Brendan Mack | |||
Name: |
Brendan Mack | |||
Title: |
Vice President and Director |
Signature Page to Amendment No. 1 to Credit Agreement
JPMORGAN CHASE BANK, N.A., | ||||
as a Lender | ||||
By: |
/s/ Gene R. Riego de Dios | |||
Name: |
Gene R. Riego de Dios | |||
Title: |
Executive Director |
Signature Page to Amendment No. 1 to Credit Agreement
WELLS FARGO BANK, N.A., | ||||
as a Lender | ||||
By: |
/s/ Cory R. Moore | |||
Name: |
Cory R. Moore | |||
Title: |
Assistant Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, | ||||
as a Lender | ||||
By: |
/s/ John C. Williams | |||
Name: |
John C. Williams | |||
Title: |
Authorized Bank Officer |
Signature Page to Amendment No. 1 to Credit Agreement
US BANK NATIONAL ASSOCIATION, | ||||
as a Lender | ||||
By: |
/s/ Robert Don | |||
Name: |
Robert Don | |||
Title: |
Assistant Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
SUNTRUST BANK, | ||||
as a Lender | ||||
By: |
/s/ Pavo Hrkac | |||
Name: |
Pavo Hrkac | |||
Title: |
Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
THE NORTHERN TRUST COMPANY, | ||||
as a Lender | ||||
By: |
/s/ Lisa De Cristofaro | |||
Name: |
Lisa De Cristofaro | |||
Title: |
Senior Vice President |
Signature Page to Amendment No. 1 to Credit Agreement
EXHIBIT A
[Amended Credit Agreement]
EXHIBIT B
[Schedule 8.01(b): Certain Existing Debt]
Exhibit B-1
EXHIBIT C
[Form of Intercreditor Agreement]
EXHIBIT D
[Local Counsel List]
EXECUTION VERSION
EXHIBIT A TO AMENDMENT NO. 1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 29, 2017
and amended as of the Amendment No. 1 Effective Date
among
R.R. DONNELLEY & SONS COMPANY,
as the Borrower,
THE GUARANTORS PARTY HERETO,
as Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and an L/C Issuer,
CITIGROUP GLOBAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents,
U.S. BANK NATIONAL ASSOCIATION,
as Documentation Agent,
SUNTRUST BANK and
THE NORTHERN TRUST COMPANY,
as Lenders
and
THE OTHER LENDERS PARTY HERETO
Arranged By:
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIGROUP GLOBAL MARKETS INC.,
JPMORGAN CHASE BANK, N.A.,
PNC BANK, NATIONAL ASSOCIATION and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Book Runners
TABLE OF CONTENTS
Page | ||||||||
ARTICLE I |
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DEFINITIONS AND ACCOUNTING TERMS |
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SECTION |
1.01 | Defined Terms |
1 | |||||
SECTION |
1.02 | Other Interpretive Provisions |
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SECTION |
1.03 | Accounting Terms |
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SECTION |
1.04 | Rounding |
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SECTION |
1.05 | Exchange Rates; Currency Equivalents |
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SECTION |
1.06 | Additional Alternative Currencies |
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SECTION |
1.07 | Change of Currency |
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SECTION |
1.08 | Times of Day; Business Day |
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SECTION |
1.09 | Letter of Credit Amounts |
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SECTION |
1.10 | [Reserved] |
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SECTION |
1.11 | Limited Conditionality |
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ARTICLE II |
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THE COMMITMENTS AND CREDIT EXTENSIONS |
| |||||||
SECTION |
2.01 | Revolving Loans; Overadvance Loans; and Protective Loans |
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SECTION |
2.02 | Borrowings, Conversions and Continuations of Loans |
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SECTION |
2.03 | Letters of Credit |
||||||
SECTION |
2.04 | Swing Line Loans |
||||||
SECTION |
2.05 | Prepayments |
||||||
SECTION |
2.06 | Termination or Reduction of Aggregate Revolving Commitments |
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SECTION |
2.07 | Repayment of Loans |
||||||
SECTION |
2.08 | Interest |
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SECTION |
2.09 | Fees |
||||||
SECTION |
2.10 | Computation of Interest and Fees |
||||||
SECTION |
2.11 | Evidence of Debt |
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SECTION |
2.12 | Payments Generally; Administrative Agents Clawback |
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SECTION |
2.13 | Sharing of Payments by Lenders |
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SECTION |
2.14 | Designated Borrowers |
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SECTION |
2.15 | Cash Collateral |
||||||
SECTION |
2.16 | Defaulting Lenders |
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SECTION |
2.17 | Extension of Maturity Date |
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SECTION |
2.18 | Liquidity Period |
||||||
SECTION |
2.19 | MIRE Event |
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ARTICLE III |
| |||||||
TAXES, YIELD PROTECTION AND ILLEGALITY |
| |||||||
SECTION |
3.01 | Taxes |
||||||
SECTION |
3.02 | Illegality |
||||||
SECTION |
3.03 | Inability to Determine Rates |
||||||
SECTION |
3.04 | Increased Costs |
||||||
SECTION |
3.05 | Compensation for Losses |
||||||
SECTION |
3.06 | Mitigation Obligations; Replacement of Lenders |
||||||
SECTION |
3.07 | Survival |
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Page | ||||||||
ARTICLE IV |
| |||||||
GUARANTY |
| |||||||
SECTION |
4.01 | The Guarantees |
||||||
SECTION |
4.02 | Obligations Unconditional |
||||||
SECTION |
4.03 | Reinstatement |
||||||
SECTION |
4.04 | Certain Additional Waivers |
||||||
SECTION |
4.05 | Remedies |
||||||
SECTION |
4.06 | Guarantee of Payment; Continuing Guarantee |
||||||
SECTION |
4.07 | Limitation of Guarantors Obligations; Contribution |
||||||
SECTION |
4.08 | Keepwell |
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ARTICLE V |
| |||||||
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | ||||||||
SECTION |
5.01 | Conditions Precedent to Effectiveness |
||||||
SECTION |
5.02 | Conditions Precedent to Each Credit Extension |
||||||
SECTION |
5.03 | Conditions Precedent to Initial Advance to Each Designated Borrower |
||||||
SECTION |
5.04 | Conditions Precedent to Real Property Activation Date |
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ARTICLE VI |
| |||||||
REPRESENTATIONS AND WARRANTIES |
| |||||||
SECTION |
6.01 | Representations and Warranties of the Company |
||||||
ARTICLE VII |
| |||||||
AFFIRMATIVE COVENANTS |
| |||||||
SECTION |
7.01 | Compliance with Laws, Etc. |
||||||
SECTION |
7.02 | Reporting Requirements |
||||||
SECTION |
7.03 | Use of Proceeds |
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SECTION |
7.04 | Books and Records; Inspection |
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SECTION |
7.05 | Corporate Existence |
||||||
SECTION |
7.06 | Payment of Taxes |
||||||
SECTION |
7.07 | Maintenance of Property; Insurance |
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SECTION |
7.08 | Additional Collateral; Additional Guarantors |
||||||
SECTION |
7.09 | Information Regarding Collateral and Loan Documents |
||||||
SECTION |
7.10 | Further Assurances |
||||||
SECTION |
7.11 | Post-Closing Requirements |
||||||
SECTION |
7.12 | Borrowing Base Reports |
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SECTION |
7.13 | Accounts |
||||||
SECTION |
7.14 | Inventory |
||||||
SECTION |
7.15 | Deposit Accounts |
||||||
SECTION |
7.16 | General Provisions Regarding Collateral |
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SECTION |
7.17 | Designation of Subsidiaries |
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ARTICLE VIII |
| |||||||
NEGATIVE COVENANTS |
| |||||||
SECTION |
8.01 | Debt |
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Page | ||||||||
SECTION |
8.02 | Investments |
||||||
SECTION |
8.03 | Restricted Payments |
||||||
SECTION |
8.04 | Burdensome Agreements |
||||||
SECTION |
8.05 | Springing Fixed Charge Covenant |
||||||
SECTION |
8.06 | Limitation on Liens, Etc. |
||||||
SECTION |
8.07 | Merger; Sale of Assets |
||||||
SECTION |
8.08 | Conduct of Business |
||||||
SECTION |
8.09 | Transactions with Affiliates |
||||||
SECTION |
8.10 | Dispositions |
||||||
SECTION |
8.11 | [Reserved] |
||||||
SECTION |
8.12 | Prepayments of Debt |
||||||
ARTICLE IX |
| |||||||
EVENTS OF DEFAULT AND REMEDIES |
| |||||||
SECTION |
9.01 | Events of Default |
||||||
SECTION |
9.02 | Remedies Upon Event of Default |
||||||
SECTION |
9.03 | Application of Funds |
||||||
ARTICLE X |
| |||||||
ADMINISTRATIVE AGENT |
| |||||||
SECTION |
10.01 | Appointment and Authority |
||||||
SECTION |
10.02 | Rights as a Lender |
||||||
SECTION |
10.03 | Exculpatory Provisions |
||||||
SECTION |
10.04 | Reliance by Administrative Agent |
||||||
SECTION |
10.05 | Delegation of Duties |
||||||
SECTION |
10.06 | Resignation of Administrative Agent |
||||||
SECTION |
10.07 | Non-Reliance on Administrative Agent and Other Lenders |
||||||
SECTION |
10.08 | No Other Duties; Etc. |
||||||
SECTION |
10.09 | Administrative Agent May File Proofs of Claim; Credit Bidding |
||||||
SECTION |
10.10 | Collateral and Guaranty Matters |
||||||
SECTION |
10.11 | Secured Cash Management Agreements and Secured Hedge Agreements |
||||||
SECTION |
10.12 | Withholding Tax |
||||||
SECTION |
10.13 | ERISA Matters |
||||||
ARTICLE XI |
| |||||||
MISCELLANEOUS |
| |||||||
SECTION |
11.01 | Amendments, Etc. |
||||||
SECTION |
11.02 | Notices; Effectiveness; Electronic Communications |
||||||
SECTION |
11.03 | No Waiver; Cumulative Remedies; Enforcement |
||||||
SECTION |
11.04 | Expenses; Indemnity; and Damage Waiver |
||||||
SECTION |
11.05 | Payments Set Aside |
||||||
SECTION |
11.06 | Successors and Assigns |
||||||
SECTION |
11.07 | Treatment of Certain Information; Confidentiality |
||||||
SECTION |
11.08 | Set-off; License |
||||||
SECTION |
11.09 | Interest Rate Limitation |
||||||
SECTION |
11.10 | Counterparts; Integration; Effectiveness |
||||||
SECTION |
11.11 | Survival of Representations and Warranties |
||||||
SECTION |
11.12 | Severability |
||||||
SECTION |
11.13 | Replacement of Lenders |
-iii-
Page | ||||||||
SECTION |
11.14 | Governing Law; Jurisdiction; Etc. |
||||||
SECTION |
11.15 | Waiver of Right to Trial by Jury | ||||||
SECTION |
11.16 | No Advisory or Fiduciary Responsibility | ||||||
SECTION |
11.17 | Electronic Execution of Assignments and Certain Other Documents | ||||||
SECTION |
11.18 | USA PATRIOT Act Notice | ||||||
SECTION |
11.19 | California Judicial Reference | ||||||
SECTION |
11.20 | Judgment Currency | ||||||
SECTION |
11.21 | Appointment of the Company | ||||||
SECTION |
11.22 | Amendment and Restatement of Existing Credit Agreement | ||||||
SECTION |
11.23 | Acknowledgment and Consent to Bail-In of EEA Financial Institutions | ||||||
SECTION |
11.24 | Intercreditor Agreement | 126 | |||||
SCHEDULES |
||||||||
2.01 |
Commitments and Applicable Percentages | |||||||
2.03 |
Existing Letters of Credit | |||||||
5.01(a)(viii) |
Local Counsel | |||||||
6.01(v) |
Domestic Subsidiaries | |||||||
7.15 |
Deposit Accounts | |||||||
7.16 |
Locations of Inventory and Equipment | |||||||
8.01(b) |
Certain Existing Debt | |||||||
8.02 |
Existing Investments | |||||||
8.06 |
Existing Liens | |||||||
10.10 |
Released Guarantors | |||||||
11.02 |
Certain Addresses for Notices | |||||||
EXHIBITS |
||||||||
2.02 |
Form of Loan Notice | |||||||
2.04 |
Form of Swing Line Notice | |||||||
2.11(a) |
Form of Note | |||||||
2.14(a) |
Form of Designated Borrower Request and Assumption Agreement |
|||||||
2.14(b) |
Form of Designated Borrower Notice |
|||||||
3.01(e) |
Form of Non-Bank Certificate | |||||||
5.01(a)(ix) |
Form of Perfection Certificate | |||||||
5.01(a)(x) |
Form of Security Agreement | |||||||
5.01(a)(xi) |
Form of Pledge Agreement | |||||||
7.02(c) |
Form of Compliance Certificate | |||||||
7.02(g) |
Form of Perfection Certificate Supplement |
|||||||
7.12 |
Form of Borrowing Base Report | |||||||
11.06(b) |
Form of Assignment and Assumption |
-iv-
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of September 29, 2017 among R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the Company), the Guarantors (defined herein) party hereto from time to time, the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer.
The Company has requested that the Lenders provide $800,000,000 in credit facilities for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
ABL Collateral has the meaning specified in the Intercreditor Agreement.
Account has the meaning assigned thereto in Article 9 of the UCC.
Account Debtor has the meaning assigned thereto in Article 9 of the UCC.
Accounts Formula Amount means the sum of (i) 85% of the Value of Eligible Accounts (other than Eligible Accounts that are either owing by an Investment Grade Account Debtor or Accounts that are Insured Accounts) plus (ii) 90% of the Value of Eligible Accounts that are either (x) owing by an Investment Grade Account Debtor or (y) Insured Accounts plus (iii) the lesser of (x)(1) 85% of the Value of Eligible Unbilled Accounts (other than Eligible Unbilled Accounts that are either owing by an Investment Grade Account Debtor or Accounts that are Insured Accounts) plus (2) 90% of the Value of Eligible Unbilled Accounts that are either (a) owing by an Investment Grade Account Debtor or (b) Insured Accounts and (y) $75,000,000.
Acquisition by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions that is accounted for in the financial statements as an acquisition, of either (a) property or assets from another Person or (b) at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person, in each case with a fair market value in excess of $10,000,000.
Additional Commitment Lender has the meaning specified in Section 2.17(d).
Administrative
Agent means Bank of America, in its capacity as the contractual representative and agent for all of the LendersSecured Parties for purposes of this Agreement, as designated and appointed in accordance with
Article X, and any successor thereto as provided herein.
Administrative Agents Office means the Administrative Agents address and, as appropriate, account as set forth on Schedule 11.02 or such other address or account as the Administrative Agent may from time to time notify to the Company and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form supplied by the Administrative Agent.
Affiliate means, with respect to any Person, any other Person that, directly or indirectly, Controls, is controlled by or is under common Control with such Person.
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Agent Parties has the meaning specified in Section 11.02(c).
Aggregate Revolving Commitments means the Revolving Commitments of all the Lenders. The amount of the Aggregate Revolving Commitments in effect on the Closing Date is $800,000,000.
Agreement means this Second Amended and Restated Credit Agreement, as the same may be amended, modified, supplemented and/or restated from time to time.
Alternative Currency means each of Euro, Sterling, Yen, Canadian Dollars and each other currency (other than Dollars) that is approved in accordance with Section 1.06.
Alternative Currency Equivalent means, at any time, with respect to any amount denominated in Dollars, the Equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
Alternative Currency Sublimit means an amount equal to the lesser of the Aggregate Revolving Commitments and $250,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.
Amendment No. 1 means Amendment No. 1 to this Agreement, dated as of October 15, 2018, by and among the Company, the Guarantors, the Administrative Agent, and the Required Lenders party thereto.
Amendment No. 1 Effective Date has the meaning assigned to such term in Amendment No. 1.
Amendment No. 1 Execution Date has the meaning assigned to such term in Amendment No. 1.
Applicable Fee Rate means the unused line fee set forth below, as determined by the Average Usage for the last fiscal quarter:
Level |
Average Usage | Unused Line Fee | ||
I |
< 50% | 0.375% | ||
II |
³ 50% | 0.250% |
From the Closing Date through the last day of the first full fiscal quarter following the Closing Date, the unused line fee shall be determined as if Level I were applicable. Thereafter, the unused line fee shall be subject to increase or decrease on the first day of January, April, July and October.
Applicable Margin means the margin set forth below, as determined by the Average Quarterly Availability for the last fiscal quarter:
Level |
Average Quarterly Availability (expressed as a percentage of the Line Cap) |
Eurocurrency Rate Loans and Letter of Credit Fees |
Base Rate Loans | |||
I |
³ 50% | 1.25% | 0.25% | |||
II |
< 50 | 1.50% | 0.50% |
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From the Closing Date through the last day of the first full fiscal quarter following the Closing Date, margins shall be determined as if Level II were applicable. Thereafter, margins shall be subject to increase or decrease on the first day of January, April, July and October occurring immediately after the last day of the fiscal quarter most recently ended. If the Company fails to deliver any Borrowing Base Report on or before the date required for delivery thereof, then, at the option of the Required Lenders, the Applicable Margin shall be determined as if Level II were applicable, from the first day of the calendar month following the date such Borrowing Base Report was required to be delivered until the date of delivery of such Borrowing Base Report.
Applicable Percentage means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Revolving Commitments represented by such Lenders Revolving Commitment at such time; provided that if the commitment of each Lender to make Revolving Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 9.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. The Applicable Percentages shall be subject to adjustment as provided in Section 2.16.
Applicable Time means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
Applicant Borrower has the meaning specified in Section 2.14.
Approved 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 that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
Arrangers means Bank of America, N.A., Citigroup Global Markets Inc., JPMorgan Chase Bank, N.A., PNC Bank, National Association and Wells Fargo Bank, National Association, in each case solely in the capacity as a joint lead arranger and joint book runner of the credit facilities provided under this Agreement.
Assignee Group means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
Assignment and Assumption means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06(b) or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.
Audit Trigger Event means, with respect to any 12-month period, a date during such 12-month period when Availability has been less than the greater of (i) $110,000,000 and (ii) 15% of the Line Cap, in either case for a period of five consecutive Business Days during such 12-month period.
Auto-Extension Letter of Credit has the meaning specified in Section 2.03(c)(iii).
Availability means, on any date of determination, the Line Cap minus Total Revolving Outstandings as of such date.
Availability Period means, with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of (a) the Business Day immediately preceding the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 9.02.
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Availability Reserve means the sum (without duplication) of (a) the Rent Reserve; (b) the Secured Hedge Agreement Reserve and Secured Cash Management Reserve; (c) the aggregate amount of liabilities secured by Liens upon Collateral included in the Borrowing Base that are senior to the Administrative Agents Liens; (d) the Dilution Reserve; (e) the Debt Maturity Reserve, (f) the Employment Reserve and (g) such additional reserves in such amounts and with respect to such matters, as the Administrative Agent in its Permitted Discretion may elect to impose from time to time; provided that, notwithstanding anything to the contrary herein, (i) the amount of any such reserve shall have a direct and reasonable relationship to the event, condition or other matter affecting the Collateral that is the basis for such reserve, (ii) no reserves shall be duplicative of reserves or changes already accounted for through the definition of Eligible Accounts, Eligible Unbilled Accounts, Eligible Inventory, Eligible In-Transit Inventory, Eligible M&E or Eligible Real Property, or constitute a general reserve applicable to all Inventory, all Accounts, all Equipment or all Real Property that is the functional equivalent of a decrease in the Accounts Formula Amount, the Inventory Formula Amount or the Fixed Asset Component, as applicable, (iii) any such reserve shall be based on facts or events first occurring after the Closing Date or not known to the Administrative Agent prior to the Closing Date except that an Employment Reserve may be established and remain in effect after the Closing Date based on facts or events known by the Administrative Agent prior to the Closing Date at any time that Availability is less than the greater of (x) 10.0% of the Line Cap and (y) $75,000,000 (without giving effect to such Employment Reserve) and (iv) any such reserve shall be based on the facts or events that (x) have or could reasonably be expected to have an adverse effect on the value of the Collateral or (y) could reasonably be expected to have an adverse effect on the enforceability or priority of the Administrative Agents Liens on the Collateral. No reserve may be established without three Business Days prior written notice to the Company, other than reserves to account for mathematical errors, and during such three Business Day period, the Administrative Agent shall, if requested, discuss any such reserve with the Company and the Company may take such action as may be required so that the event, condition or matter that is the basis for such reserve no longer exists or exists in a manner that would result in the establishment of a lower reserve, in a manner and to the extent reasonably satisfactory to the Administrative Agent in its Permitted Discretion. Availability Reserves may only be established against the Borrowing Base and not the Revolving Commitments. No reserves shall be established with regard to Cash Management Agreement and Swap Contracts other that with respect to Qualified Secured Cash Management Agreements and Qualified Secured Hedge Agreements.
Average Quarterly Availability means for any calendar quarter, an amount equal to the sum of the Availability for each day of such calendar quarter (determined as of the close of business of each such day) divided by the actual number of days in such calendar quarter, as determined by the Administrative Agent, which determination shall be conclusive absent manifest error. For purposes of calculating the Applicable Margin, Average Quarterly Availability shall be expressed as a percentage, the numerator of which is Average Quarterly Availability during the applicable period and the denominator of which is the amount of the average Line Cap during the applicable period.
Average Usage means the average utilization of Revolving Commitments during the immediately preceding fiscal quarter.
Bail-In Action means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
Bail-In Legislation means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
Bank of America means Bank of America, N.A., a national banking association, and its successors.
Base Rate means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its prime rate, and (c) the Eurocurrency Rate plus 1.00%. The prime rate is a rate set by Bank of America based upon various factors including Bank of Americas costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
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Base Rate Loan means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
Beneficial Ownership Certification means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
Beneficial Ownership Regulation means 31 C.F.R. § 1010.230.
Benefit Plan means any of (a) an employee benefit plan (as defined in ERISA) that is subject to Title I of ERISA, (b) a plan as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such employee benefit plan or plan.
Borrower means the Company and Borrowers means the Company and the Designated Borrowers, if any.
Borrower Materials has the meaning set forth in Section 7.02.
Borrowing means a borrowing consisting of simultaneous Loans of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
Borrowing Base means, on any date of determination, an amount equal to the sum of (i) the Accounts Formula Amount, plus (ii) the Inventory Formula Amount plus (iii) the Fixed Asset Component, minus (iv) the Availability Reserve. The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Report delivered to the Administrative Agent pursuant to Section 7.12.
The Administrative Agent shall have the right (but no obligation) to review the computations in any Borrowing Base Report and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall notify the Company of any such perceived error. The Administrative Agent and the Company shall in good faith discuss whether an error in calculation has occurred and shall, if the Administrative Agent and the Company agree an error has occurred, correct such error as mutually agreed. Any such correction shall not occur earlier than two Business Days following the Administrative Agent notifying the Company of the perceived error, or such shorter period as the Company and the Administrative Agent may agree.
Borrowing Base Report means a report of the Borrowing Base by the Company submitted by the Company and substantially in the form of Exhibit 7.12, or such other form as is reasonably satisfactory to the Administrative Agent.
Business Day means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, New York, New York and: (a) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars or any Base Rate Loan bearing interest at a rate based on the Eurocurrency Rate, any fundings, disbursements, settlements and payments in Dollars in respect of any such Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Loan, means any such day that is a London Banking Day; (b) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means a TARGET Day; (c) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Canadian Dollars, any other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, Toronto; (d) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in a currency other than Dollars, Canadian Dollars or Euro, means any day on which dealings in deposits in the relevant currency are conducted by and between banks in the
-5-
London or other applicable offshore interbank market for such currency; and (e) if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars, Canadian Dollars or Euro in respect of a Eurocurrency Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.
Canadian Dollars means the lawful currency of Canada.
Capital Expenditures means, without duplication, all expenditures made (whether made in the form of cash or other property) or costs incurred for the acquisition or improvement of fixed or capital assets of the Company and its Restricted Subsidiaries (excluding normal replacements and maintenance which are properly charged to current operations), in each case that are (or should be) set forth as capital expenditures in a consolidated statement of cash flows of the Borrower and its Restricted Subsidiaries for such period, in each case prepared in accordance with GAAP.
Cash Collateralize means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or the applicable L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the applicable L/C Issuer or Swing Line Lender (as applicable) benefitting from such collateral shall agree in its reasonable discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer or the Swing Line Lender (as applicable). Cash Collateral shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
Cash Management Agreement means
(w) any agreement to provide cash management services, including treasury, depository, payroll, automated clearing house, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements, (x) any
arrangements relating to letters of credit, bankers acceptances, bank drafts, bank guarantees or similar instruments existing on the Closing Date and listed by the Borrower on Schedule 8.01(b) that are with a Lender
or an Affiliate of a Lender on the Closing Date and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof permitted by Section 8.01(b) (it being understood
that if the amount of any letter of credit, bankers acceptance, bank draft, bank guarantee or similar instrument, is increased in connection with any extension, renewal or replacement, thesuch
amount is permitted by Section 8.01(b) shall be permitted to be a Cash Management Agreement and the amount above the
amount permitted under Section 8.01(b) shall be permitted to be a Cash Management Agreement if permitted under
Section 8.01(i)(x) (or if such letter of credit, bankers acceptance, bank draft, bank guarantee or similar instrument is not Debt would be permitted by Section 8.01(i)(x) if it were
Debt), in each case to the extent issued by a Person that is a Lender or an Affiliate thereof at the time of issuance, (y) any arrangements relating to bilateral lines incurred by Foreign Subsidiaries existing on the Closing Date
(including bilateral lines providing for letters of credit, bankers acceptances, bank drafts, bank guarantees or similar instruments) and listed by the Borrower on Schedule 8.01(b) that are with a Lender or an
Affiliate of a Lender on the Closing Date and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof permitted by Section 8.01(b) (it being understood that if
the amount of any bilateral line is increased in connection with any extension, renewal or replacement, thesuch amount is permitted by
Section 8.01(b) shall be permitted to be a Cash Management Agreement and the amount above the amount permitted under
Section 8.01(b) shall be permitted to be a Cash Management Agreement if permitted under Section 8.01(i)(x) (or if such letter of credit,
bankers acceptance, bank draft, bank guarantee or similar instrument is not Debt would be permitted by Section 8.01(i)(x) if it were Debt) shall be permitted to be a Cash Management Agreement), in
each case to the extent loaned by a Person that is a Lender or an Affiliate thereof at the time of commitment or incurrence, and (z) any arrangements relating to (i) other Debt created after the date hereof pursuant
to of the type specified in clause (x) and (y) above (other than the fact such Debt did not exist on the Closing Date) or (ii) letter of credit facilities, bankers acceptance facilities,
bank draft facilities or bank guarantee facilities of the type specified in clause (x) and (y) above (other than the fact that such letter of credit facilities, bankers acceptance facilities, bank draft
facilities or bank guarantee facilities did not exist on the Closing Date) incurred by Foreign Subsidiaries, in each case, that is listed by the Borrower in a certificate for the Administrative Agent at the earlier of commitment or incurrence.
-6-
Cash Management Bank means any Person that, at the time it enters into a Cash Management Agreement or, with respect to a Cash Management Agreement existing on the Closing Date, on the Closing Date, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in its capacity as a party to such Cash Management Agreement.
CFC means a Subsidiary that is a controlled foreign corporation within the meaning of Section 957 of the Internal Revenue Code or a Subsidiary of such a Subsidiary.
Change in Law means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) compliance by an Lender (or for purposes of Section 3.04, by any lending office of such Lender or by such Lenders holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives (including the rules for systemically important banks contained in Global systemically important banks: assessment methodology and the additional loss absorbency requirement Rules text published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated) promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States regulatory authorities, in each case pursuant to Basel III ((x) and (y) collectively referred to as Dodd-Frank and Basel III), shall in each case be deemed to be a Change in Law, regardless of the date created, adopted or issued, but only to the extent it is general policy of a Lender to impose applicable increased costs or costs in connection with capital adequacy or liquidity requirements similar to those described in clauses (a) and (b) of Section 3.04 generally on other similarly situated borrowers under similar circumstances under agreements permitting such impositions; provided that such Lender shall only be required to certify compliance with such requirement and shall not be obliged to provide any other information.
Closing Date has the meaning set forth in Section 5.01.
Collateral means all of the Pledged Collateral, Collateral and Mortgaged Property referred to in the Collateral Documents and all of the other property that is subject to Liens in favor of the Administrative Agent for the benefit of the Secured Parties.
Collateral Documents means, collectively, the Security Agreement, the Pledge Agreement, each of the Mortgages, including pursuant to Section 5.04, Section 7.08 or Section 7.10, each of the collateral assignments, joinder agreements to the security agreement, security agreements, pledge agreements or other similar agreements delivered to the Administrative Agent pursuant to the Existing Credit Agreement and each of the other agreements, instruments or documents that creates or purports to create a Lien in favor of the Administrative Agent for the benefit of the Secured Parties provided that no Mortgages or other Related Real Property Documents shall be required until the Real Property Activation Date of the applicable the Real Property being added to the Borrowing Base, as provided in Section 5.04 and Section 7.08.
Commission means the Securities and Exchange Commission or any federal body succeeding to its principal functions.
Commitment means, as to each Lender, the Revolving Commitment of such Lender.
Commodity Exchange Act means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
Company has the meaning set forth in the preamble hereto.
Consolidated Debt means the total debt of the Company and its Consolidated Restricted Subsidiaries, as determined on a consolidated basis in accordance with GAAP.
-7-
Consolidated EBITDA means, for any period,
(a) Consolidated Net Income for such period, plus
(b) to the extent deducted in computing such Consolidated Net Income for such period, the sum (without duplication) of
(1) all income taxes of the Company and its Consolidated Restricted Subsidiaries paid or accrued in accordance with GAAP,
(2) Consolidated Interest Expense,
(3) depreciation and amortization in accordance with GAAP,
(4) any non-cash charges, accruals or reserves for extraordinary, unusual or nonrecurring items,
(5) any non-cash compensation expense,
(6) all other non-cash charges, expenses or losses, including any impairment (including any impairment of intangibles and goodwill) (excluding any non-cash charge, expense or loss that results in an accrual of a reserve for cash charges in any future period and any non-cash charge, expense or loss relating to write-offs, write downs or reserves with respect to accounts receivable or inventory),
(7) any loss or gain on extinguishment of debt, and
(8) any restructuring and impairment charges and any cash charges in respect of non-recurring or unusual items, minus
(c) (i) to the extent added in computing Consolidated Net Income for such period, total interest income, as determined in accordance with GAAP and (ii) the payment of cash, if any, when actually paid, with respect to any charge, accrual or reserve that was deducted in determining Consolidated Net Income in such period, but added back in any prior period pursuant to clause (b)(iv);
(the sum of clauses (a) and (b) minus clause (c) being referred to as Consolidated Unadjusted EBITDA); minus
(d) cash restructuring and impairment charges and cash charges in respect of non-recurring or unusual items pursuant to clause (viii) above (excluding charges and expenses in connection with the Transactions (as defined in the Existing Credit Agreement) that are accrued no later than September 30, 2017 and without duplication of any Pro Forma Basis adjustments) in excess of 10% of Consolidated Unadjusted EBITDA for any measurement period.
Consolidated Interest Expense means, for any period, on a Pro Forma Basis (a) total interest expense of the Company and its Consolidated Restricted Subsidiaries for such period, as determined in accordance with GAAP, plus (b) without duplication, the consolidated interest, fees, yield or discount accrued during such period on the aggregate outstanding investment or claim held by purchasers, assignees or other transferees of (or of interests in) receivables of the Company and its Consolidated Restricted Subsidiaries in connection with securitization transactions (regardless of the accounting treatment of such securitization transactions).
Consolidated Net Income means, for any period, the consolidated net earnings (or loss) after taxes of the Company and its Consolidated Restricted Subsidiaries for such period, as determined in accordance with GAAP.
Consolidated Restricted Subsidiary means any Consolidated Subsidiary that is a Restricted Subsidiary.
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Consolidated Subsidiary means, at any date, any subsidiary the accounts of which would be consolidated with those of the Company in its consolidated financial statements at such date in accordance with GAAP.
Consolidated Total Assets means, as of any date, the amount that would appear opposite the caption total assets (or any like caption) on a consolidated balance sheet of the Company and its Consolidated Restricted Subsidiaries prepared as of such date in accordance with GAAP.
Consolidated Unadjusted EBITDA has the meaning set forth in the definition of Consolidated EBITDA.
Contractual Obligation means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is legally bound.
Control means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. Controlling and Controlled have meanings correlative thereto.
Covenant Trigger Period means a period commencing on any day that Availability shall have been less than the greater of (a) 10% of the Line Cap and (b) $75,000,000 and continuing until Availability has been at least equal to the greater of (x) 10% of the Line Cap and (y) $75,000,000 for at least 30 consecutive days.
Credit Extension means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
Debt means (but without duplication of any item) (i) indebtedness for borrowed money or for the deferred purchase
price of property or services other than (x) trade accounts payable on customary terms in the ordinary course of business and (y) financial obligations under management consulting contracts or noncompete agreements with unaffiliated
Persons entered into in connection with the acquisition of the businesses of such Persons, (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) obligations as lessee under leases which shall have been
or should be, in accordance with GAAP, recorded as capital leases, (iv) the maximum amount available to be drawn under letters of credit (including standby and commercial); provided that letters of credit that are cash collateralized, up
to a maximum aggregate amount of $50,000,000 at any one time, shall not be deemed Debt, (v) net obligations under any Swap Contracts and (vvi) obligations under direct or indirect guaranties in
respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (i), (ii), (iii), (iv)
or (ivv) above.
Debt Maturity Reserve means, as of the date of determination, an Availability Reserve equal to the aggregate principal amount of any Inside Maturity Notes maturing within 60 days of the date of determination.
Debt Maturity Reserve Liquidity Test means that, during any period commencing with the establishment of a Debt Maturity Reserve until the date that such Debt Maturity Reserve is released, (i) Availability shall be not less than $50,000,000 and (ii) the sum of (x) Availability on the date of determination, plus (y) cash on hand of the Loan Parties that is not restricted in a manner that would make such cash unavailable for use for general corporate purposes and is not subject to a Lien of any Person other than the Administrative Agent plus (z) 65% of the cash on hand of each Foreign Subsidiary of the Company that is not restricted in a manner that would make such cash unavailable for use for general corporate purposes and is not subject to a Lien of any Person other than the Administrative Agent shall be not less than $100,000,000.
Debtor Relief Laws means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
Default means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
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Default Rate means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Margin applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Margin) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable law, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Margin for Letter of Credit Fees plus 2% per annum to the fullest extent permitted by applicable law.
Defaulting Lender means, subject to Section 2.16(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two 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 Lenders 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 Swing Line 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 Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, an L/C Issuer or the Swing Line 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 lenders obligation to fund a Loan hereunder and states that such position is based on such Lenders determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, the Swing Line Lender and each other Lender promptly following such determination.
Deposit Account has the meaning assigned thereto in Article 9 of the UCC.
Deposit Account Control Agreement means a control agreement reasonably satisfactory to the Administrative Agent among the Administrative Agent, the institution maintaining a Deposit Account for a Loan Party and the applicable Loan Party, to perfect the Administrative Agents Lien on such Deposit Account.
Designated Borrower means the Restricted Subsidiaries of the Company party hereto pursuant to Section 2.14.
Designated Borrower Notice has the meaning specified in Section 2.14.
Designated Borrower Request and Assumption Agreement has the meaning specified in Section 2.14.
Designated Jurisdiction means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
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Designated Non-Cash Consideration means the fair market value of non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with a Disposition; provided that with respect to any Disposition involving non-cash consideration in excess of $5,000,000, the designation of non-cash consideration shall be evidenced pursuant to an Officers Certificate setting forth the basis of such valuation, executed by a Responsible Officer of the Borrower, less the amount of cash received in connection with a subsequent disposition of or collection on such Designated Non-Cash Consideration.
Dilution Percent means the percent, determined as of the end of the most recent field examination pursuant to Section 7.04, equal to (a) bad debt write-downs or write-offs, divided by (b) gross sales.
Dilution Percentage means at any time, one percentage point (or fraction thereof) for each percentage point (or fraction thereof) by which the Dilution Percent for the Loan Parties exceeds five percent (5.0%).
Dilution Reserve means, as of the date of determination, a reserve equal to the product of (x) the Dilution Percentage times (y) the Value of all Eligible Accounts (other than Insured Accounts).
Disposition or Dispose by any Person, means the disposition by such Person, in a single transaction or in a series of related transactions, of property or assets of such Person or a Subsidiary with fair market value in excess of $10,000,000, including by way of an LLC Division or issuing Equity Interests in a Subsidiary, but excluding any Involuntary Disposition.
Distribution Conditions means, with respect to any transaction undertaken in reliance on the Distribution Conditions, (a) at the time of such transaction and after giving effect thereto, no Event of Default shall have occurred and be continuing and (b) either (1) Availability on a Pro Forma Basis immediately after giving effect to such transaction (and the Availability over the prior 30-day period on a Pro Forma Basis assuming such transaction occurred on the first day of such 30-day prior period) is at least the greater of (i) 15% of the Line Cap and (ii) $110,000,000 and the Company is in compliance on a Pro Forma Basis with the Springing Fixed Charge Covenant recomputed as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.02(a) or (b) (or prior to the first delivery under such sections, the latest financial statements referred to in Section 6.01(e)), whether or not compliance with such Springing Fixed Charge Covenant is otherwise required at such time or (2) Availability on a Pro Forma Basis immediately after giving effect to such transaction (and the Availability over the prior 30-day period on a Pro Forma Basis assuming such transaction occurred on the first day of such 30-day prior period) is at least the greater of (i) 20% of the Line Cap and (ii) $150,000,000.
Document has the meaning assigned thereto in Article 9 of the UCC.
Dodd-Frank and Basel III has the meaning specified in the definition of Change in Law.
Dollars and the sign $ each mean the lawful currency of the United States.
Dollar Equivalent means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the Equivalent amount thereof in Dollars as determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
Domestic Subsidiary means any Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia.
EEA Financial Institution means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
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EEA Member Country means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
EEA Resolution Authority means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
Eligible Assignee means any Person that meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).
Eligible Account means an Account owing to any Loan Party that arise in the ordinary course of business from the sale of goods or rendition of services and is payable in Dollars; provided that no Account shall be an Eligible Account if:
(a) it is unpaid for more than 60 days after the original due date, or more than 120 days after the original invoice date (as may be modified in good faith in the ordinary course of business by any corrective invoice to reflect the actual terms);
(b) 50% or more of the Accounts owing by the Account Debtor are not Eligible Accounts under the foregoing clause (a));
(c) when aggregated with other Accounts owing by the Account Debtor and its Affiliates, it exceeds 15% of the aggregate Eligible Accounts;
(d) it is owing by a creditor or supplier, or is otherwise subject to potential offset, counterclaim, dispute, deduction, discount, recoupment, reserve, defense, chargeback, debit memorandum, short payment, credit or allowance (but ineligibility shall be limited to the amount thereof);
(e) an insolvency proceeding has been commenced by or against the Account Debtor (other than post-petition Accounts owing by an Account Debtor that is a debtor-in-possession under the Bankruptcy Code of the United States (or is subject to a proceeding under any other Debt Relief Laws) acceptable to the Administrative Agent in its sole discretion); or the Account Debtor has suspended or ceased doing business, is liquidating, dissolving or winding up its affairs, is not Solvent, or is subject to any country sanctions program or specially designated nationals list maintained by the Office of Foreign Asset Control of the U.S. Treasury Department, or the Borrower is not able to bring suit or enforce remedies against the Account Debtor through judicial process;
(f) the Account Debtor is organized or has its chief executive office outside the United States unless the Account owed by such Account Debtor is an Insured Account; provided that up to $15,000,000 of Accounts that are not Insured Accounts that are owing by Account Debtors that are organized or have their chief executive office located in Australia, Belgium, Denmark, Finland, France, Germany, Greece, Hong Kong, Italy, Japan, the Netherlands, New Zealand, Singapore, Spain, Sweden, Switzerland and the United Kingdom shall constitute Eligible Accounts;
(g) it is owing by a Governmental Authority, unless the Account Debtor is the United States or any department, agency or instrumentality thereof and the Account has been assigned to the Administrative Agent in compliance with the federal Assignment of Claims Act; provided that, unless a Liquidity Period is in effect, up to $15,000,000 of Accounts owing by the United States or any department, agency or instrumentality thereof not assigned to the Administrative Agent in compliance with the federal Assignment of Claims Act shall constitute Eligible Accounts;
(h) it is not subject to a duly perfected, first priority Lien in favor of the Administrative Agent, or is subject to any other Lien (other than Permitted Liens that are subordinate to the Liens in favor of the Administrative Agent or, if not subordinate, for which an Availability Reserve has been established for the full extent of such Liens;
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(i) the goods giving rise to it have not been delivered to the Account Debtor, the services giving rise to it have not been accepted by the Account Debtor, or it otherwise does not represent a final sale;
(j) it is evidenced by Chattel Paper or an Instrument of any kind that has not been delivered to the Administrative Agent, or has been reduced to judgment;
(k) it arises from a sale to an Affiliate, from a sale on a cash-on-delivery, sale-or-return, sale-on-approval, consignment, or other repurchase or return basis, or from a sale for personal, family or household purposes;
(l) it arises from a sale on a bill-and-hold (unless supported by bill-and-hold letter reasonably acceptable to the Administrative Agent);
(m) is subject to offset by customer deposit;
(n) it includes a billing for interest, fees or late charges, but ineligibility shall be limited to the extent thereof;
(o) an invoice or other electronic transmission constituting a request for payment has not been sent on a timely basis to the applicable Account Debtor according to the normal invoicing and timing procedures of the Borrower; or
(p) it is acquired by a Loan Party after the Closing Date (other than from another Loan Party) in one transaction or a series of related transactions outside of the ordinary course of business and (i) unless otherwise agreed to by the Administrative Agent in its Permitted Discretion, such Account is not of a substantially similar type to the Accounts included in the Borrowing Base or (ii) together with all other Accounts described in this clause (p), Inventory described in clause (p) of the definition of Eligible Inventory and Equipment described in clause (k) of the definition of Eligible M&E, in the aggregate, would constitute more than 15% of the Borrowing Base (or, in the case of dissimilar assets permitted by clause (i) above, clause (p)(i) of the definition of Eligible Inventory and clause (k)(i) of the definition of Eligible M&E, 10%), unless and until such time as the Administrative Agent shall have conducted field examinations and appraisals with respect to such assets at the sole expense of the Company; provided, that the Company may request that the Administrative Agent use its reasonable efforts to conduct and complete such field examinations and appraisals prior to the consummation of such acquisition, and the Administrative Agent agrees in such case to use its reasonable efforts to do so provided that the Administrative Agent shall have been given for a reasonable period prior to such consummation all information and access to the properties, records, files and books of account related to the acquired Person or acquired assets as the Administrative Agent reasonably deems necessary to complete such due diligence as the Administrative Agent deems, in its Permitted Discretion, to be necessary under such circumstances.
In calculating delinquent portions of Accounts under clause (a), credit balances more than 120 days old will be excluded.
In calculating all amounts consisting of contra accounts in determining the amount of Eligible Accounts, the Borrower may at its option (a) include updated figures as of the date of the relevant monthly Borrowing Base Report, or (b) deduct a static percentage of contra accounts equal to the proportion of Accounts classified as ineligible contra accounts by the field examiners at the time of the most recent field examination; provided, that if the Borrower chooses at any time to calculate such contra accounts on a monthly basis per clause (a), such monthly calculations shall continue until the effectiveness of the next field examination completed pursuant to Section 7.04; and provided, further, during a Liquidity Period, the Administrative Agent may upon request, require the Borrower to make such calculations on a monthly basis pursuant to clause (a) above.
Eligible In-Transit Inventory means Inventory owned by a Loan Party that would meet all of the criteria of Eligible Inventory if it were not in transit from any location to a location of such Loan Party within the United States. In addition, no Inventory shall be Eligible In-Transit Inventory unless:
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(a) it is subject to a negotiable document of title, showing the Administrative Agent (or, with the consent of the Administrative Agent, the applicable Loan Party) as consignee and the Administrative Agent has control over such documents of title (including by delivery of customs broker/freight forwarder agreements in a form and substance reasonably acceptable to the Administrative Agent);
(b) such Inventory is insured in accordance with the provisions of this Agreement and the other Loan Documents, including, without limitation, marine cargo insurance;
(c) such Inventory has been identified to the applicable sales contract and title has passed to the applicable Loan Party;
(d) such Inventory is not sold by a vendor that has a right to reclaim, divert shipment of, repossess, stop delivery, claim any reservation of title or otherwise assert Lien rights against the Inventory;
(e) such Inventory is subject to customary purchase orders and other sale documentation consistent with such Loan Partys ordinary course of dealing; and
(f) is being handled by a customs broker, freight-forwarder or other handler that has delivered a Lien Waiver.
Eligible Inventory means Inventory owned by any Loan Party; provided that no Inventory shall be Eligible Inventory unless:
(a) it is finished goods or raw materials, and not work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing supplies, provided that work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts, and manufacturing supplies shall not be deemed ineligible under this clause (a) to the extent the most recent inventory appraisal delivered to the Administrative Agent ascribes a value to such work-in-process, packaging or shipping materials, labels, samples, display items, bags, replacement parts, and manufacturing supplies;
(b) it is not held on consignment, nor subject to any deposit or down payment;
(c) it is in new and saleable condition (as determined in accordance with the Borrowers and the other Loan Parties customary practices) and is not damaged, defective, shopworn or otherwise unfit for sale;
(d) it is not classified as slow-moving, perishable, obsolete or unmerchantable (in each case, as determined in accordance with the Borrowers and the other Loan Parties standards), and does not constitute returned or repossessed goods (other than goods that were returned and are in saleable and non-personalized condition and are reflected in the details of a current perpetual inventory report);
(e) it meets all standards imposed by any Governmental Authority in all material respects, and does not constitute Hazardous Materials;
(f) it conforms in all material respects with the covenants and representations applicable to Inventory herein;
(g) it is subject to the Administrative Agents duly perfected, first priority Lien, and no other Lien except for Permitted Liens that are subordinate to the Liens in favor of the Administrative Agent (or, if not subordinate, for which an Availability Reserve has been established to the full extent of such Lien);
(h) it is within the continental United States and is not consigned to any Person;
(i) it is not bill & hold inventory;
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(j) it is not subject to any warehouse receipt or negotiable Document unless the Administrative Agent has received a Lien Waiver and, in the case of a negotiable Document, such Document has been delivered to the Administrative Agent;
(k) it is not subject to any license or other property or property right or other arrangement that restricts the applicable Loan Partys or the Administrative Agents right to dispose of such Inventory, unless the Administrative Agent has received an appropriate Lien Waiver or is otherwise reasonably satisfied that it could sell such Inventory on commercially reasonable terms following an Event of Default;
(l) it is located on owned or leased premises where Inventory in an amount in excess of $100,000 is located; provided that (i) if located on leased premises or in the possession of a warehouseman, repairman or mechanic, (x) such lessor or Person shall have delivered a Lien Waiver or (y) an appropriate Rent Reserve shall have been established for such location and (ii) Inventory in the possession of a third-party processor shall not constitute Eligible Inventory;
(m) it is reflected in the details of a current perpetual inventory report;
(n) it is not represented on the general ledger as an accrual or a reserve;
(o) it is not of the type that would be reasonably classified as a sample, or experimental, or a product of research and development; and
(p) if it is acquired by a Loan Party after the Closing Date (other than from another Loan Party) in one transaction or a series of related transactions outside of the ordinary course of business and (i) unless otherwise agreed to by the Administrative Agent in its Permitted Discretion, such Inventory is not of a substantially similar type to the Inventory included in the Borrowing Base or (ii) together with all other Inventory described in this clause (p), Accounts described in clause (p) of the definition of Eligible Accounts and Equipment described in clause (k) of the definition of Eligible M&E, in the aggregate, would constitute more than 15% of the Borrowing Base (or, in the case of dissimilar assets permitted by clause (i) above, clause (p)(i) if the definition of Eligible Accounts and clause (k)(i) if the definition of Eligible M&E), 10%), until such time as the Administrative Agent shall have conducted field examinations and appraisals with respect to such assets at the sole expense of the Company; provided, that the Company may request that the Administrative Agent use its reasonable efforts to conduct and complete such field examinations and appraisals prior to the consummation of such acquisition, and the Administrative Agent agrees in such case to use its reasonable efforts to do so provided that the Administrative Agent shall have been given for a reasonable period prior to such consummation all information and access to the properties, records, files and books of account related to the acquired Person or acquired assets as the Administrative Agent reasonably deems necessary to complete such due diligence as the Administrative Agent deems, in its Permitted Discretion, to be necessary under such circumstances.
Eligible M&E means, with respect to the Loan Parties, Equipment owned by a Loan Party; provided that no Equipment shall be Eligible M&E if:
(a) it is not Equipment that, in the Administrative Agents reasonable opinion, is readily marketable in its current form;
(b) it is not in good and saleable condition;
(c) it is obsolete, defective or unmerchantable;
(d) it does not meet all material standards imposed by any Governmental Authority;
(e) it does not conform in all material respects to the warranties and representations set forth in this Agreement;
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(f) it is not at all times subject to the Administrative Agents duly perfected, first priority security interest and no other Lien except a Permitted Lien which is subordinate to the Administrative Agents Lien;
(g) it is not located in the United States of America;
(h) it is located on a leased premises or in the possession of a warehouseman, processor, repairman, mechanic, shipper, freight forwarder or other Person, unless the lessor or such Person has delivered a Lien Waiver, or an appropriate Rent Reserve has been established, or amounts owing in respect of such Equipment are backed by a letter of credit or such other arrangements reasonably acceptable to the Administrative Agent;
(i) it is located at an outside repair facility (unless payables in respect thereof are reserved);
(j) it is not covered by casualty insurance required by this Agreement; or
(k) it is acquired by a Loan Party after the Closing Date (other than from another Loan Party) in one transaction or a series of related transactions outside of the ordinary course of business and (i) unless otherwise agreed to by the Administrative Agent in its Permitted Discretion, such Equipment is not of a substantially similar type to the Equipment included in the Borrowing Base or (ii) together with all other Equipment described in this clause (k), Accounts described in clause (p) of the definition of Eligible Accounts and Inventory described in clause (p) of the definition of Eligible Inventory, in the aggregate, would constitute more than 15% of the Borrowing Base (or, in the case of dissimilar assets permitted by clause (i) above, clause (p)(i) if the definition of Eligible Inventory and clause (p)(i) if the definition of Eligible Accounts, 10%), unless and until such time as the Administrative Agent shall have conducted field examinations and appraisals with respect to such assets at the sole expense of the Company; provided, that the Company may request that the Administrative Agent use its reasonable efforts to conduct and complete such field examinations and appraisals prior to the consummation of such acquisition, and the Administrative Agent agrees in such case to use its reasonable efforts to do so provided that the Administrative Agent shall have been given for a reasonable period prior to such consummation all information and access to the properties, records, files and books of account related to the acquired Person or acquired assets as the Administrative Agent reasonably deems necessary to complete such due diligence as the Administrative Agent deems, in its Permitted Discretion, to be necessary under such circumstances.
Eligible Real Property means any Real Property owned in fee by a Loan Party located in the United States, from and after the Real Property Activation Date applicable to such Real Property; provided that withstanding anything in this Agreement to the contrary, such Real Property shall be subject to the Administrative Agents duly perfected, first priority Lien, and no other Lien except for Permitted Encumbrances.
Eligible Unbilled Accounts means Accounts owned by a Loan Party that would meet all of the criteria of Eligible Accounts other than clause (o) of the definition thereof. In addition, no Account shall be an Eligible Unbilled Account unless such Account:
(a) represents an amount due for a completed job;
(b) is traceable to a specific Account Debtor; and
(c) is less than 30 days old.
Employment Reserve means, as of the date of determination, a reserve in the amount of potential priority claims under Wisconsin wage lien laws.
EMU means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
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EMU Legislation means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.
Environmental Action means any administrative, regulatory or judicial action, suit, demand, demand letter, claim, notice of noncompliance or violation, notice of liability or potential liability, investigation, proceeding, consent order or consent agreement relating in any way to any Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to the environment, including (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any governmental or regulatory authority or any third party for damages, contribution, indemnification, cost recovery, compensation or injunctive relief.
Environmental Law means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation relating to the environment or Hazardous Materials.
Environmental Permit means any permit, approval, identification number, license or other authorization required under any Environmental Law.
Equipment has the meaning assigned thereto in Article 9 of the UCC.
Equity Interests means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting; provided that Equity Interests shall not include convertible Debt securities.
Equivalent in Dollars of any Alternative Currency on any date means the equivalent in Dollars of such Alternative Currency determined by using the quoted spot rate at which Bank of Americas principal office in London offers to exchange Dollars for such Alternative Currency in London prior to 4:00 P.M. (London time) on such date as is required pursuant to the terms of this Agreement, and the Equivalent in any Alternative Currency of Dollars means the equivalent in such Alternative Currency of Dollars determined using the quoted spot rate at which Bank of Americas principal office in London offers to exchange such foreign currency for Dollars in London prior to 4:00 P.M. (London time) on such date as is required pursuant to the terms of this Agreement.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
ERISA Affiliate means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code).
ERISA Event means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, or the treatment of a Pension Plan amendment as a termination, under Section 4041 or 4041A of ERISA, (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) receipt of notice from the PBGC of its intent to take action under Section 4042 of ERISA to terminate or appoint a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Section 430 or 432 of the Internal Revenue Code or Section 303 or 305 of ERISA or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.
EU Bail-In Legislation Schedule means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
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Euro means the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.
Eurocurrency Rate means:
(a) for any Interest Period with respect to a Eurocurrency Rate Loan (i) denominated in a LIBOR Quoted Currency, the rate per annum equal to the London Interbank Offered Rate (LIBOR) or comparable or successor rate, which is approved by the Administrative Agent as published 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) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period and (ii) denominated in Canadian Dollars, the rate per annum equal to the Canadian Dealer Offered Rate (CDOR), or a comparable or successor rate which rate is approved by the Administrative Agent, as published 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) (in such case, the CDOR Rate) at or about 10:00 a.m. (Toronto, Ontario time) two (2) Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent) with a term equivalent to such Interest Period; and
(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at approximately 11:00 a.m., London time, determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day; and
provided that (i) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further, that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; and (ii) if the Eurocurrency Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.
Eurocurrency Rate Loan means a Loan that bears interest at a rate based on clause (a) of definition of Eurocurrency Rate.
Events of Default has the meaning set forth in Section 9.01.
Excluded Deposit Account shall have the meaning assigned to it in the Security Agreement.
Excluded Property shall have the meaning assigned to it in the Security Agreement.
Excluded Securities Account shall have the meaning assigned to it in the Security Agreement.
Excluded Swap Obligation means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty 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 Guarantors failure for any reason to constitute an eligible contract participant as defined in the Commodity Exchange Act (determined after giving effect to Section 4.08 and any other keepwell, support or other agreement for the benefit of such Guarantor and any and all guarantees of such Guarantors Swap Obligations by other Loan Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
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Excluded Taxes means, with respect to the Administrative Agent, any Lender, any L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) Taxes imposed on or measured by such recipients net income (however denominated), franchise Taxes, and branch profits Taxes, in each case imposed by a jurisdiction as a result of (i) such recipient being organized under the laws of, having its principal office in or, in the case of any Lender, having its applicable Lending Office in such jurisdiction (or any political subdivision thereof) or (ii) any other present or former connection between such recipient and such jurisdiction (including such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than any connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or engaged in any other transaction pursuant to any Loan Documents (including, for the avoidance of doubt, any backup withholding in respect of any such Taxes), (b) any Taxes attributable to a Lenders failure to comply with Section 3.01(e), (c) in the case of a Lender, any U.S. federal withholding Tax that is imposed on amounts payable to such Lender with respect to an applicable interest in a Loan or Commitment pursuant to the laws in force at the time such Lender (i) acquires such interest in the Commitment (or, to the extent a Lender acquires an interest in a Loan without acquiring an interest in the corresponding Commitment, the Loan), provided that this clause (c)(i) shall not apply to a Lender that acquires its applicable interest pursuant to a request by the Company under Section 11.13, or (ii) designates a new Lending Office, except in each case to the extent that such Lender (or its assignor, if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to receive additional amounts from any Loan Party with respect to such withholding Tax pursuant to Section 3.01 and (d) any withholding Tax imposed pursuant to FATCA.
Existing Credit Agreement means that certain Credit Agreement, dated as of October 15, 2012, as amended and restated as of September 30, 2016, among the Borrower, certain subsidiaries of the Borrower as guarantors, Bank of America, N.A., as Administrative Agent, the Lenders (as defined therein) and the other parties thereto, as amended, supplemented, or otherwise modified prior to the Closing Date.
Existing Letters of Credit means the Letters of Credit on Schedule 2.03.
Extension Offer has the meaning set forth in Section 2.17(a).
FATCA means Sections 1471 through 1474 of the Internal Revenue Code as of the date hereof (and any amended or successor version thereof that is substantively comparable and not materially more onerous to comply with), any current or future Treasury regulations or other official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code as of the date of this Agreement (or any amended or successor version described above), and any intergovernmental agreement, treaty or convention among Governmental Authorities (and any related legislation, rules or practices) implementing any of the foregoing.
Federal Funds Rate means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to the Administrative Agent on such day on such transactions as determined by the Administrative Agent; provided that if Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purpose of this Agreement.
Fee Letter means that certain fee letter dated as of September 6, 2017 among Merrill Lynch, Pierce, Fenner & Smith Incorporated, Bank of America and the Company.
FILO Borrowing Base has the meaning set forth in Section 2.01(b).
FILO Commitments has the meaning set forth in Section 2.01(b).
FILO Facility has the meaning set forth in Section 2.01(b).
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FILO Loans has the meaning set forth in Section 2.01(b).
FILO Revolving Loans has the meaning set forth in Section 2.01(b).
FILO Term Loans has the meaning set forth in Section 2.01(b).
First Priority Debt means Consolidated Debt that is secured by a first-priority Lien on any Collateral.
First Priority Debt Leverage Ratio means, on a Pro Forma Basis (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of any date of determination, the ratio of (a) First Priority Debt as of such date, less Unrestricted Cash (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 7.02(a) or (b).
Fixed Asset Component means the lesser of (i) the sum of (A) from and after the Real Property Activation Date, the Real Property Percentage of 75% of the Value of Eligible Real Property plus (B) 85% of the NOLV Percentage of Eligible M&E of the Loan Parties (with the amount attributable to this clause (B), as of the date of any determination, to be no greater than the amount attributable to this clause (B) on the Closing Date) and (ii) $200,000,000.
Fixed Charge Coverage Ratio means, for each Test Period, the ratio of (x) Consolidated EBITDA less cash income taxes paid and Capital Expenditures (except those financed with Debt other than Loans), to (y) the sum of (i) Consolidated Interest Expense paid or payable in cash, plus (ii) scheduled principal payments made on debt (excluding principal payments at maturity or paid with the proceeds of Debt (other than Loans)), plus (iii) cash dividends and other distributions on account of Equity Interests, plus (iv) cash pension contributions to the extent not deducted in calculating Consolidated Net Income for such period.
Fixtures has the meaning assigned thereto in Article 9 of the UCC.
Flood Certificate means a life of loan Standard Flood Hazard Determination Form of the Federal Emergency Management Agency and any successor Governmental Authority performing a similar function.
Flood Program means, collectively, (i) the National Flood Insurance Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto, and (v) the Biggert-Waters Flood Insurance Reform Act of 2012, as now or hereinafter in effect or any successor statute thereto, including, in each case, any rules and regulations enacted thereunder.
Flood Zone means areas identified as a special flood hazard area as described in the Flood Program.
Foreign Lender means any Lender that is not a United States person as defined in Section 7701(a)(30) of the Internal Revenue Code.
Foreign Subsidiary means a Subsidiary that is not a Domestic Subsidiary.
Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect to an L/C Issuer, such Defaulting Lenders Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lenders Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lenders participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
GAAP means generally accepted accounting principles in the United States as set forth in the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) and other sources as described in FASB ASC 105, Generally Accepted Accounting Principles, that are applicable to the circumstances as of the date of determination, consistently applied.
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Governmental Authority means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank) and any group or body charged with setting regulatory capital rules or standards (including the Bank for International Settlements or the Basel Committee on Banking Supervision or any successor or similar authority to any of the foregoing).
Guarantee means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Debt or other obligation payable or performable by another Person (the primary obligor) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Debt or other obligation of the payment or performance of such Debt or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Debt or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Debt or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Debt or other obligation of any other Person, whether or not such Debt or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Debt to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term Guarantee as a verb has a corresponding meaning.
Guarantors means each Borrower (other than with respect to its own Secured Obligations), the Guarantors on the signature pages hereto and any other Domestic Subsidiary that becomes a Guarantor after the date hereof (whether required to by this Agreement or otherwise).
Guaranty means, collectively, the Guaranty made by the Guarantors in favor of the Secured Parties pursuant to Article IV or any Guaranty and Security Agreement Joinder.
Guaranty and Security Agreement Joinder means a joinder to the Guaranty and the Security Agreement substantially in the form of Exhibit 2 of the Security Agreement, or such other form as is reasonably satisfactory to the Administrative Agent.
Hazardous Materials means petroleum and petroleum products, byproducts or breakdown products, radioactive materials, asbestos-containing materials, radon gas and any other chemicals, materials or substances designated, classified or regulated as being hazardous or toxic, or words of similar import, under any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial interpretation.
Hedge Bank means any Person that, at the time it enters into an interest rate or foreign currency Swap Contract permitted hereunder, or in the case of such a Swap Contract existing on the Closing Date, on the Closing Date, is a Lender or the Administrative Agent or an Affiliate of a Lender or the Administrative Agent, in its capacity as a party to such Swap Contract.
HMT has the meaning specified in the definition of Sanction(s).
Honor Date has the meaning set forth in Section 2.03(d)(i).
Incremental Amendment has the meaning set forth in Section 2.01(b).
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Incremental Amount means the excess (if any) of (i) $200,000,000 over (ii) the aggregate amount of all Incremental Facilities established after the Closing Date and prior to the date of determination.
Incremental Facility has the meaning set forth in Section 2.01(b).
Indemnified Taxes means all Taxes imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document, other than Excluded Taxes.
Indemnitee has the meaning set forth in Section 11.04(b).
Indentures means (1) the Indenture, dated as of November 1, 1990, between the Borrower The Bank of New York Trust Company, N.A. as Trustee, as amended or supplemented, and (2) the Indenture, dated as of January 3, 2007, between the Borrower and Wells Fargo Bank, National Association, as successor in interest to LaSalle Bank National Association, as amended or supplemented.
Information has the meaning specified in Section 11.07.
Information Documents means the Companys Annual Report on Form 10-K for the year ended December 31, 2016 together with all schedules and exhibits thereto, including those incorporated therein by reference, as filed with the Commission pursuant to the Securities Exchange Act of 1934, as amended.
Inside Maturity Notes means each of, individually, the Companys (i) 11.25% senior notes due 2019, (ii) 7.625% senior notes due 2020, (iii) 7.875% senior notes due 2021, (iv) 8.875% debentures due 2021 and (v) 7.00% senior notes due 2022.
Instrument has the meaning assigned thereto in Article 9 of the UCC.
Insurance Policy Debt means Debt of the Company or any of its Restricted Subsidiaries under policies of life insurance now or hereafter owned by the Company or any of its Restricted Subsidiaries under which policies the sole recourse for such borrowing is against such policies.
Insured Accounts means any Account supported by a (i) letter of credit, (ii) bank guarantee or (iii) credit insurance, in each case, reasonably acceptable to the Administrative Agent, and in the case of clauses (i) and (ii), upon the request of the Administrative Agent during a Liquidity Period, the Borrower shall use commercially reasonable efforts to assign such letter of credit or bank guarantee to the Administrative Agent in a manner satisfactory to the Administrative Agent.
Intellectual Property means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, trade secrets, trade secret licenses, technology, know-how and processes, and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.
Intercreditor Agreement shall mean an intercreditor agreement on terms substantially consistent with the form attached as Exhibit C to Amendment No. 1 (or in such other form as reasonably satisfactory to the Administrative Agent), to be dated as of the Amendment No. 1 Effective Date, by and among the Administrative Agent and the Term Loan Agent and acknowledged by all Loan Parties, as may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms thereof.
Interest Payment Date means (a) as to any Eurocurrency Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan or Swing Line Loan, the first day of each January, April, July and October and the Maturity Date.
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Interest Period means, as to each Eurocurrency Rate Loan, (a) initially the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one week (with respect to Loans denominated in Dollars only) or one, two, three or six months thereafter, as selected by the Company in its Loan Notice (or such other period that is twelve months or less requested by the Company and consented to by the Lenders) and (b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurocurrency Rate Loan and ending one week with respect to Loans denominated in Dollars only, one month, two months, three months or six months (or, if agreed to by all Lenders under the applicable facility, twelve months or such other, shorter period) thereafter, as selected by the Borrower by irrevocable Loan Notice to the Administrative Agent not later than 12:00 noon, New York City time, on the date that is three Business Days prior to the last day of the then current Interest Period with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:
(1) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurocurrency Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(2) any Interest Period pertaining to a Eurocurrency Rate Loan of at least one months duration that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(3) no Interest Period shall extend beyond the Maturity Date.
Internal Revenue Code means the Internal Revenue Code of 1986, as amended.
Inventory has the meaning assigned thereto in Article 9 of the UCC.
Inventory Formula Amount means (i) the lesser of (x) 75% of the Value of Eligible Inventory and (y) 85% of the NOLV Percentage of the Value of Eligible Inventory plus (ii) the lesser of (x) the lesser of (1) 75% of the Value of Eligible In-Transit Inventory and (2) 85% of the NOLV Percentage of the Value of the Eligible In-Transit Inventory and (y) $10,000,000.
Investment means, as to any Person, any direct or indirect Acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, guarantee or assumption of debt of, or purchase or other acquisition of any other debt or interest in, another Person, or (c) an Acquisition, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of any Investment. The amount of any Investment shall be the amount actually invested without adjustment for subsequent increases or decreases in value.
Investment Grade Account means an Account owing by an Investment Grade Account Debtor.
Investment Grade Account Debtor means any Account Debtor that has an issuer rating (or has a direct or indirect parent entity that has an issuer rating) of BBB- or better from S&P or Baa3 or better from Moodys.
Involuntary Disposition means any loss of, damage to or destruction of, or any condemnation or other taking for public use of, any property of any Borrower or any Restricted Subsidiary.
ISP means, with respect to any Letter of Credit, the International Standby Practices 1998 published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
Issuer Documents means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by an L/C Issuer and the Company (or any Subsidiary) or in favor of the applicable L/C Issuer and relating to such Letter of Credit.
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Judgment Currency has the meaning specified in Section 11.20.
L/C Advance means, with respect to each Lender, such Lenders funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage. All L/C Advances shall be denominated in Dollars.
L/C Borrowing means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing of Revolving Loans.
L/C Credit Extension means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
L/C Issuer means, with respect to a particular Letter of Credit, (a) Bank of America, (b) Citibank, N.A., (c) JPMorgan Chase Bank, N.A., (d) Wells Fargo Bank, N.A., (e) U.S. Bank National Association and (f) PNC Bank, National Association, each in its capacity as an issuer of Letters of Credit hereunder, or (g) such other Lender selected by the Borrower (upon notice to the Administrative Agent) from time to time to issue such Letter of Credit (provided that no Lender shall be required to become an L/C Issuer pursuant to this clause (g) without such Lenders consent), or any successor issuer of Letters of Credit hereunder. It is understood and agreed that any L/C Issuer appointed under clause (g) may be appointed to issue only certain letters of credit or even one specific letter of credit.
L/C Obligations means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be outstanding in the amount so remaining available to be drawn.
LCT Election has the meaning specified in Section 1.11.
LCT Test Date has the meaning specified in Section 1.11.
Lenders means each of the Persons identified as a Lender on the signature pages hereto and each other Person that becomes a Lender in accordance with this Agreement and their successors and assigns and, as the context requires, includes the Swing Line Lender.
Lending Office means, as to any Lender, the office or offices of such Lender described as such in such Lenders Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the Administrative Agent which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office.
Letter of Credit means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.
Letter of Credit Application means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.
Letter of Credit Expiration Date means the day that is five Business Days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
Letter of Credit Fee has the meaning specified in Section 2.03(i).
Letter of Credit Sublimit means with respect to any L/C Issuer, the amount set forth opposite such L/C Issuers name on Schedule 2.01 under the heading Letter of Credit Sublimit; provided that the Borrower and any L/C Issuer may from time to time by written agreement delivered to the Administrative Agent vary the amount of any
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L/C Issuers Letter of Credit Sublimit. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. The aggregate Letter of Credit Sublimit as of the Closing Date is $150,000,000.
Leverage Ratio means, on a Pro Forma Basis, as of any date of determination, the ratio of (a) Consolidated Debt on such date to (b) Consolidated EBITDA for the each Test Period.
LIBOR has the meaning specified in the definition of Eurocurrency Rate.
LIBOR Quoted Currency means Dollars, Euro, Sterling, Swiss Francs and Yen, in each case as long as there is a published LIBOR rate with respect thereto.
LIBOR Successor Rate has the meaning assigned to such term in Section 3.03(b).
LIBOR Successor Rate Conforming Changes means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Eurocurrency Rate, or Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with the Borrower).
Lien means, with respect to any asset, any security interest, mortgage, pledge, lien, claim, charge or encumbrance of any kind in respect of such asset.
Lien Waiver means an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which (a) for any Collateral located on leased premises, the lessor waives or subordinates any Lien it may have on the Collateral, and agrees to permit the Administrative Agent to enter upon the premises and remove the Collateral or to use the premises to store or dispose of the Collateral; (b) for any Collateral held by a warehouseman, shipper, customs broker or freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any Documents in its possession relating to the Collateral as agent for the Administrative Agent, and agrees to deliver the Collateral to the Administrative Agent upon request and (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Administrative Agents Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the Administrative Agent upon request.
Limited Condition Transaction means each of (i) any Permitted Acquisition or other similar permitted Investment whose consummation is not conditioned on the availability of, or on obtaining, third-party financing (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment, (iii) any Disposition or (iv) declaration of a dividend or other Restricted Payment.
Line Cap means, at the time of determination, the lesser of (i) the Aggregate Revolving Commitments in effect at such time and (ii) the Borrowing Base at such time.
Liquidity Condition has the meaning specified in the definition of Liquidity Period.
Liquidity Period means (a) any period commencing on the date Availability shall have been less than the greater of (i) 10.0% of the Line Cap and (ii) $75,000,000, in either case for five consecutive Business Days, in each case ending on the date Availability shall have been at least equal to the greater of (i) 10.0% of the Line Cap and (ii) $75,000,000 for 30 consecutive calendar days (this clause (a), a Liquidity Condition) or (b) the period that any Specified Default have occurred and shall be continuing.
LLC Division means the statutory division of any limited liability company into two or more limited liability companies pursuant to Section 18-217 of the Delaware Limited Liability Company Act or any comparable transaction under any similar law.
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Loan means an extension of credit by a Lender to a Borrower under Article II in the form of a Revolving Loan, a Swing Line Loan, or, if applicable, an L/C Borrowing.
Loan
Documents means this Agreement, Amendment No. 1, each Note, the Guaranty, the Collateral Documents, each Issuer Document, each Designated Borrower Request and Assumption Agreement and, the
Fee Letter and the Intercreditor Agreement.
Loan Notice means a notice of (a) a Borrowing of Revolving Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans, in each case pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit 2.02 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Company.
Loan Parties means each of the Borrowers and each Guarantor.
London Banking Day means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
Margin Stock has the meaning specified in Regulation U issued by the Board of Governors of the Federal Reserve System.
Material Adverse Effect means a material adverse effect on (a) the business, financial condition, results of operations or properties of the Company and its Restricted Subsidiaries, taken as a whole, (b) the legality, validity or enforceability of this Agreement or the Notes or any Collateral Document, or (c) the ability of the Company to perform its material obligations under this Agreement or any Collateral Document.
Material Subsidiary means (a) any Designated Borrower and (b) any other Restricted Subsidiary of the Company which, at the time of determination, (i) shall own assets comprising in excess of 2% of all of the assets of the Company and its consolidated Restricted Subsidiaries on a consolidated basis or (ii) has net sales for the four fiscal quarters most recently ended in excess of 2% of the net sales of the Company and its consolidated Restricted Subsidiaries on a consolidated basis.
Maturity Date means September 29, 2022 unless such date is extended pursuant to Section 2.17; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
Maximum Rate has the meaning specified in Section 11.09.
Minimum Extension Condition has the meaning assigned to such term in Section 2.17(b).
Moodys means Moodys Investors Service, Inc. and any successor thereto.
Mortgage means mortgages, trust deeds, deeds of trust, trust deeds, deeds to secure debt and mortgages, in
each case, substantially in the form to be reasonably agreed upon by the Borrower anddeeds to secure debt, assignments of leases and rents, debentures, and other security documents securing the Obligations (including amendments to any of
the foregoing) executed and delivered by a Loan Party to the Administrative Agent with such changes as may be appropriate to comply with applicable state and local laws and such other changes as are reasonably agreed upon
byrespect to Mortgaged Properties (either as stand-alone documents or forming part of other Collateral Documents), each in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, in each case, as
amended, supplemented or otherwise modified from time to time, provided that no Mortgage shall be required prior to the Real Property Activation Date applicable to the underlying Real Property.
Mortgaged Property means Real Property encumbered by a Mortgage pursuant to Section 7.08.
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Multiemployer Plan means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
Multiple Employer Plan means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
NOLV Percentage means, with respect to Inventory or Equipment, as applicable, the net orderly liquidation value of Inventory and Equipment, expressed as a percentage, expected to be realized at an orderly, negotiated sale held within a reasonable period of time, net of all liquidation expenses, as determined from the most recent appraisal of any Loan Partys Inventory or Equipment pursuant to Section 7.04.
Non-Bank Certificate has the meaning specified in Section 3.01(e).
Non-Consenting Lender has the meaning specified in Section 11.13.
Non-Extension Notice Date has the meaning specified in Section 2.03(c)(iii).
Note has the meaning specified in Section 2.11(a).
Obligations means all advances to, and debts, liabilities, obligations, covenants and duties of, any Borrower, Guarantor or Specified Pledgor arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest, fees and other amounts that accrue after the commencement by or against any Borrower, any Guarantor, any Specified Pledgor or any Affiliate of any thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest, fees and other amounts are allowed claims in such proceeding.
OFAC means the U.S. Department of the Treasurys Office of Foreign Assets Control.
Other Taxes means all present or future stamp, documentary, intangible, recording, filing or similar Taxes arising from any payment made hereunder or under any other Loan Document or from the execution, delivery, registration or enforcement of, from the receipt or perfection of a security interest under or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are imposed with respect to an assignment (other than an assignment made pursuant to Section 11.13) as a result of any other present or former connection between such recipient and such jurisdiction (including such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction), other than any connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under or engaged in any other transaction pursuant to and/or enforced by any Loan Documents.
Outstanding Amount means (a) with respect to any Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.
Overadvance has the meaning specified in Section 2.01(c).
Overadvance Loan means a Base Rate Loan made when an Overadvance exists or is caused by the funding thereof.
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Overnight Rate means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in an Alternative Currency, the rate of interest per annum at which overnight deposits in the applicable Alternative Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.
Participant has the meaning specified in Section 11.06(d).
Participating Member State means each state so described in any EMU Legislation.
Payment Conditions means, with respect to any transaction undertaken in reliance on the Payment Conditions, the following conditions: (a) no Event of Default has occurred and is continuing or would immediately result from any applicable action and (b) either (1) Availability on a Pro Forma Basis immediately after giving effect to such transaction (and the Availability over the prior 30 day period on a Pro Forma Basis assuming such transaction occurred on the first day of such 30 day prior period) is at least the greater of (i) 12.5% of the Line Cap and (ii) $90,000,000 at such time and the Company is in compliance on a Pro Forma Basis with the Springing Fixed Charge Covenant recomputed as of the last day of the most recently ended fiscal quarter for which financial statements are available, whether or not compliance with such Springing Fixed Charge Covenant is otherwise required at such time or (2) Availability on a Pro Forma Basis immediately after giving effect to such transaction (and the Availability over the prior 30 day period on a Pro Forma Basis assuming such transaction occurred on the first day of such 30 day prior period) is at least the greater of (i) 17.5% of the Line Cap and (ii) $130,000,000.
PBGC means the Pension Benefit Guaranty Corporation and its successors and assigns.
Pension Act means the Pension Protection Act of 2006.
Pension Funding Rules means the rules of the Internal Revenue Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Internal Revenue Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Internal Revenue Code and Sections 302, 303, 304 and 305 of ERISA.
Pension Plan means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Company or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Internal Revenue Code.
Perfection Certificate means a certificate substantially in the form of Exhibit 5.01(a)(ix) hereto or any other form approved by the Administrative Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.
Perfection Certificate Supplement means a certificate supplement substantially in the form of Exhibit 7.02(g) hereto or any other form approved by the Administrative Agent.
Permitted Acquisition has the meaning specified in Section 8.02(e).
Permitted Discretion means reasonable credit judgment made in good faith and in accordance with customary business practices and the exercise of commercially reasonable business judgement for comparable asset-based lending transactions, and as it relates to the establishment of reserves shall require that (a) the contributing factors to the imposition of any reserves shall not duplicate (i) the exclusionary criteria set forth in the definitions of Eligible Accounts, Eligible Unbilled Accounts, Eligible Inventory, Eligible In-Transit Inventory, Eligible M&E or Eligible Real Property as applicable (and vice versa) or (ii) any reserves deducted in computing the value of the Collateral for purposes of the Borrowing Base, (b) the amount of any such reserve so established shall be a reasonable
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quantification (as reasonably determined by the Administrative Agent) of the incremental dilution of the Borrowing Base attributable to such contributing factors and be based on facts or events that have or could reasonably be expected to have an adverse effect on the value of the Collateral or could reasonably be expected to have an adverse effect on the enforceability or priority of the Administrative Agents liens on the Collateral, and (c) such reserve shall be based on facts or events first occurring after the Closing Date or not known to the Administrative Agent prior to the Closing Date.
Permitted Encumbrances means Permitted Liens pursuant to Section 8.06(a), (k), (l),
(m), (n), (p), (q), (t), or (u) or (w).
Permitted Liens has the meaning specified in Section 8.06.
Permitted Investments means: (a) direct obligations of the United States of America, or of any agency of either thereof, or obligations guaranteed as to principal and interest by the United States of America or by any agency of either thereof, in either case maturing not more than 270 days from the date of acquisition thereof; (b) certificates of deposit issued or bankers acceptances issued by any Lender or any other bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least U.S. $500,000,000 (or equivalent amount in other currencies); (c) commercial paper rated A-1 or better or P-1, R-1 low or A-1 or better by S&P, Moodys or Dominion Bond Rating Service Limited, respectively, or other recognized international rating agency approved by the Administrative Agent, maturing not more than 180 days from the date of acquisition thereof; (d) commercial paper rated A-2 or better (but less than A-1) or P-2 or better (but less than P-1) by S&P or Moodys respectively or a recognized international rating agency approved by the Administrative Agent, maturing not more than 30 days from the date of acquisition thereof; (e) money market funds which have a rating of R 1 (low) by Dominion Bond Rating Service Limited or AAA m or AAA mg by S&P or have otherwise been approved in writing by the Administrative Agent; (f) time deposits held at a bank or trust company organized under the laws of the United States of America or any state thereof and having capital, surplus and undivided profits of at least U.S. $500,000,000 (or equivalent amount in other currencies); (g) in the case of Investments by any Foreign Subsidiary made in a country outside the United States of America, other customarily utilized high-quality Investments in the country where such Foreign Subsidiary is located that are comparable to the Investments listed above; and (h) any other investments approved in writing by the Administrative Agent.
Permitted Refinancing means, with respect to any Debt, any refinancing thereof; provided, however, that: (a) no Default or Event of Default shall have occurred and be continuing or would arise therefrom; (b) any such refinancing Debt shall (i) not have a stated maturity or weighted average life that is shorter than that of the Debt being refinanced (provided that the stated maturity or weighted average life may be shorter if the stated maturity of any principal payment (including any amortization payments) is not earlier than the earlier of (1) the stated maturity in effect prior to such refinancing or (2) 91 days after the Maturity Date then in effect at the time of issuance), (ii) if the Debt being refinanced is subordinated by its terms or by the terms of any agreement or instrument relating to such Debt, be at least as subordinate to the Obligations as the Debt being refinanced (and unsecured if the refinanced Debt is unsecured) and (iii) be in a principal amount that does not exceed the principal amount so refinanced, plus accrued interest, plus any premium or other payment required to be paid in connection with such refinancing, plus, in either case, the amount of fees and reasonable expenses of the Company or any of its Restricted Subsidiaries incurred in connection with such refinancing; and (c) the sole obligor on such refinancing Debt shall be the Company or the original obligor on such Debt being refinanced; provided, however, that (i) any guarantor of the Debt being refinanced shall be permitted to guarantee the refinancing Debt and (ii) any Loan Party shall be permitted to guarantee any such refinancing Debt of any other Loan Party.
Person means an individual, partnership, corporation (including a company or business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
Plan means any employee benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Company or any ERISA Affiliate or any such plan to which the Company or any ERISA Affiliate is required to contribute on behalf of any of its employees.
Platform has the meaning set forth in Section 7.02.
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Pledge Agreement means a pledge agreement in substantially the form of Exhibit 5.01(a)(xi), as amended, modified, supplemented or restated, among the Administrative Agent and the Specified Pledgors.
Priority Debt means Consolidated Debt that is either (i) secured by a Lien on any assets of the Borrower or one or more Restricted Subsidiaries and/or (ii) issued or guaranteed by one or more Restricted Subsidiaries.
Priority Debt Leverage Ratio means, on a Pro Forma Basis (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of any date of determination, the ratio of (a) Priority Debt as of such date, less Unrestricted Cash (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 7.02(a) or (b).
Pro Forma Basis means, with respect to any transaction, that for purposes of calculating the financial covenant set forth in Section 8.05 or the Fixed Charge Coverage Ratio for purposes of Payment Conditions or Distribution Conditions for purposes of calculating the availability of baskets, commitment increases or incremental facilities, such transaction shall be deemed to have occurred as of the first day of the most recent four fiscal quarter period preceding the date of such transaction for which financial statements were required to be delivered pursuant to Section 7.02(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 6.01(e)). In connection with the foregoing, (a) with respect to any Disposition (i) income statement and cash flow statement items (whether positive or negative) attributable to the property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction (it being agreed that with respect to any Disposition, such pro forma calculations may include a reasonable estimate of corporate overhead costs and expenses attributable to the property, assets or Subsidiary Disposed of that will no longer be incurred following such Disposition) and (ii) Debt which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period, and (b) with respect to any Acquisition, (i) income statement and cash flow statement items attributable to the Person or property acquired shall be included to the extent relating to any period applicable in such calculations to the extent (A) such items are not otherwise included in such income statement and cash flow statement items for the Company and its Subsidiaries in accordance with GAAP and (B) such items are supported by financial statements or other information (it being agreed that with respect to any Acquisition, such pro forma calculations may include a reasonable estimate of savings resulting from such Acquisition that have been realized or for which the steps necessary for realization have been taken and are expected to be realized in an amount not to exceed 10% of Consolidated Unadjusted EBITDA before giving effect to such synergies for any measurement period) and (ii) any Debt incurred or assumed by the Company or any Subsidiary (including the Person or property acquired) in connection with such transaction and any Debt of the Person or property acquired which is not retired in connection with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable period and (B) if such Debt has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition determined by utilizing the rate which is or would be in effect with respect to such Debt as at the relevant date of determination.
Protective Advances has the meaning set forth in Section 2.01(d).
PTE means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
Public Lender has the meaning set forth in Section 7.02.
Qualified ECP Guarantor means, at any time, in respect of any Swap Obligation, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an eligible contract participant under the Commodity Exchange Act and can cause another person to qualify as an eligible contract participant at such time by entering into a keepwell under § 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Qualified Secured Cash Management Agreement means any Secured Cash Management Agreement of the kind described in clause (x) of the definition of Cash Management Agreement with respect to which the Company provides a certificate to the Administrative Agent at the time of commitment or incurrence designating such Secured Cash Management Agreement as a Qualified Secured Cash Management Agreement with such certificate stating the
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maximum amount under such Secured Cash Management Agreement; provided that all Secured Cash Management Agreements of the kind described in clause (x) of the definition of Cash Management Agreement where the counterparty is the Administrative Agent or an Affiliate thereof shall be a Qualified Secured Cash Management Agreement.
Qualified Secured Hedge Agreement means any Secured Hedge Agreement with respect to which the Company provides a certificate to the Administrative Agent at the time of commitment or incurrence designating such Secured Hedge Agreement as a Qualified Secured Hedge Agreement with such certificate stating the maximum amount under such Secured Hedge Agreement; provided that all Secured Hedge Agreements where the counterparty is the Administrative Agent or an Affiliate thereof shall be a Qualified Secured Hedge Agreement.
Real Property means, collectively, all right, title and interest (including any leasehold, mineral or
other estate) in and to any and all parcels of or interests in real property owned, in fee simple or leased or operated by any PersonLoan Party, whether by lease, license or
other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto and, all improvements located thereon and appurtenant fixtures and equipment incidental to the
ownership, lease or operation thereof.
Real Property Activation Date means, with respect to any Real Property, the first date (if any) on which the conditions in Section 5.04 have been satisfied or waived for such Real Property.
Real Property Percentage means, with respect to any such Eligible Real Property, (x) for the period commencing on the Real Property Activation Date of such Eligible Real Property and ending on the last day of the first full fiscal quarter thereafter, 100%, and (y) thereafter, an amount, expressed as a percentage, equal to 100% minus a fraction, the numerator of which is the number of full fiscal quarters elapsed from the first day of the first fiscal quarter commencing after the Real Property Activation Date of such Eligible Real Property and the denominator of which is 60.
Real Property Activation Date means, with respect to any Real Property,
the first date (if any) on which the conditions in Section 5.04 have been satisfied or waived for such Real Property.
Register has the meaning set forth in Section 11.06(c).
Related Parties means, with respect to any Person, such Persons Affiliates and the partners, directors, officers, employees, agents and advisers of such Person and of such Persons Affiliates.
Related Real Property Documents means with respect to any Real Property subject to a Mortgage, the following, in form and substance reasonably satisfactory to the Administrative Agent (a) a mortgagee title policy (or binder therefor) insuring the Administrative Agents interest under the Mortgage, by a nationally recognized title insurance company reasonably acceptable to the Administrative Agent, in an amount equal to the Value of the Real Property subject to the Mortgage, which must be fully paid on such effective date; (b) an as-built survey of the Real Property, containing a metes-and-bounds property description and certified by a licensed surveyor reasonably acceptable to the Administrative Agent that reflects the current improvements; (c) (i) a completed Flood Certificate, which Flood Certificate shall (x) be addressed to the Administrative Agent and (y) otherwise comply with the Flood Program; (ii) if the Flood Certificate states that such Real Property is located in a Flood Zone, the applicable Loan Partys written acknowledgment of receipt of written notification from the Administrative Agent (x) as to the existence of such Real Property and (y) as to whether the community in which each Real Property is located is participating in the Flood Program; and (iii) if such Real Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; (d) a current appraisal of the Real Property within 6 months of the relevant Real Property becoming Eligible Real Property, prepared by an appraiser reasonably acceptable to the Lenders, (e) environmental reports, including Phase I reports and (f) opinions of local counsel with respect to the due authorization, execution, delivery and enforceability of the Mortgage.
Released Guarantors has the meaning set forth in Section 10.10.
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Rent Reserve means a reserve not to exceed three months rent; provided that (i) no Rent Reserve shall be established against any Collateral located on a location which is subject to a Lien Waiver; (ii) no Rent Reserve shall be established against any Collateral prior to 90 days after the Closing Date and (iii) a Rent Reserve shall only be established against Eligible Inventory in a leased location that is located in a state in which a landlords claim for rent has priority by operation of law over the Lien of the Administrative Agent on any of the Collateral consisting of Eligible Inventory.
Reportable Event means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.
Required Lenders means, at any time, Lenders holding in the aggregate more than 50% of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and participations therein. The unfunded Commitments of, and the outstanding Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
Responsible Officer means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party, and solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary or any assistant secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
Restricted Payment has the meaning set forth in Section 8.03.
Restricted Subsidiary means each Subsidiary of the Company other than any Unrestricted Subsidiary. Each Subsidiary of the Company that is a Borrower or a Specified Pledgor shall constitute a Restricted Subsidiary at all times.
Revaluation Date means (a) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (b) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (c) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require.
Revolving Commitment means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lenders name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.01(b), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
Revolving Commitment Increase has the meaning specified in Section 2.01(b).
Revolving Commitment Increase Lender has the meaning specified in Section 2.01(b).
Revolving Loan has the meaning specified in Section 2.01(a).
S&P means S&P Global Ratings, a division of Standard & Poors
RatingsFinancial Services, a division of The McGraw-Hill Companies, Inc. LLC, and any successor thereto.
Same Day Funds means (a) with respect to disbursements and payments in Dollars, immediately available funds, and (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may
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be determined by the Administrative Agent or the applicable L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in the relevant Alternative Currency.
Sanction(s) means any sanction, law, rule or regulation administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majestys Treasury (HMT) or other relevant sanctions authority.
Secured Cash Management Agreement means any Cash Management Agreement that is entered into by and between the Company or any of its Subsidiaries and any Cash Management Bank.
Secured Cash Management Obligations means the due and punctual payment and performance of all obligations of the Company or any of its Subsidiaries (including overdrafts and related liabilities) under each Secured Cash Management Agreement.
Secured Cash Management Reserve means the aggregate amount of reserves established by the Administrative Agent from time to time in its Permitted Discretion in respect of, the outstanding Secured Cash Management Obligations under Qualified Secured Cash Management Agreements; provided that such reserve shall at all times equal to the maximum amount of all Qualified Secured Cash Management Agreements outstanding at such time, as may be updated from time to time by written notice to the Administrative Agent from the Company and the applicable Cash Management Bank (so long as the taking of a Secured Cash Management Reserve at such time in such updated amount would not cause an Overadvance); provided, further, that no such reserve shall be taken with respect to any Secured Cash Management Obligations other than Secured Cash Management Obligations owed under Qualified Secured Cash Management Agreements.
Secured Hedge Agreement means any interest rate or foreign currency Swap Contract permitted hereunder that is entered into by and between the Company or any of its Subsidiaries and any Hedge Bank.
Secured Hedge Obligations means the due and punctual payment and performance of all obligations of the Company or any of its Subsidiaries under each Secured Hedge Agreement; provided that the Secured Hedge Obligations shall exclude any Excluded Swap Obligations.
Secured Hedge Agreement Reserve means the aggregate amount of reserves established by the Administrative Agent from time to time in its Permitted Discretion in respect of, the outstanding the Secured Hedge Obligations under Qualified Secured Hedge Agreements; provided that such reserve shall at all times equal to the maximum amount of all Qualified Secured Hedge Agreements outstanding at such time, as may be updated from time to time by written notice to the Administrative Agent from the Company and the applicable Hedge Bank (so long as the taking of a Secured Hedge Agreement Reserve at such time in such updated amount would not cause an Overadvance); provided, further, that no such reserve shall be taken with respect to any Secured Hedge Obligations other than Secured Hedge Obligations owed under Qualified Secured Hedge Agreements.
Secured Obligations means (a) the Obligations, (b) the Secured Hedge Obligations, and (c) the Secured Cash Management Obligations.
Secured Parties means, collectively, the Administrative Agent, the Lenders, the Swingline Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 10.05, and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.
Security Agreement means, in each case, as may be amended, modified, supplemented and/or restated, and together with each other security agreement and joinder agreement to the security agreement delivered hereunder, the amended and restated security agreement in substantially the form of Exhibit 5.01(a)(x) hereto.
Solvent and Solvency mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent
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liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Persons ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Persons property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
Special Notice Currency means at any time an Alternative Currency, other than the currency of a country that is a member of the Organization for Economic Cooperation and Development at such time located in North America or Europe.
Specified Default means any Event of Default arising under Section 9.01(a), (b), (c) (but only to the extent due to the delivery of a materially incorrect Borrowing Base Report), (d) (but only to the extent due to failure to timely delivery a Borrowing Base Report, failure to comply with the Springing Fixed Charge Covenant or failure to comply with Sections 7.13(c), or 7.15) or (f).
Specified Loan Party means any Loan Party that is not an eligible contract participant under the Commodity Exchange Act (determined prior to giving effect to Section 4.08).
Specified Pledgor means any direct or indirect domestic subsidiary of the Company that is not a Loan Party that holds
Equity Interest of a first tier Foreign Subsidiary; provided that, for purposes of the definition of Specified Pledgor, (i) the Equity Interests of Courier Tecnologia em Serviços Gráficos and Consolidated
Graphics de Mexico S. de R.L. de C.V. shall not constitute Equity Interest of a first tier Foreign Subsidiary so long as Courier Tecnologia em Serviços Gráficos and Consolidated Graphics de Mexico S. de R.L. de C.V. have no material
assets and (ii) the Equity Interests of RRD SSC Europe BVBA shall not constitute Equity Interests of a first tier Foreign Subsidiary so long as RRD SSC Europe BVBA is
liquidated by December 31, 2017 or such later date as the Administrative Agent may agree. As of the Closing Date, the Specified Pledgor is RRD Netherlands, LLC.
Spot Rate for a currency means the rate determined by the Administrative Agent or the applicable L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 12:00 noon on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or such L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or such L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that such L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
Springing Fixed Charge Covenant means the covenant set forth in Section 8.05.
Sterling means the lawful currency of the United Kingdom.
Subsidiary means, with respect to any Person, any corporation, partnership, joint venture, limited liability company, association or other business entity (a) of which a majority of the shares of Voting Stock is at the time beneficially owned by such Person, (b) over which such Person has the ability to direct the management, or (c) whose financial results are consolidated into the financial statements of such Person. Unless otherwise specified, all references herein to a Subsidiary or to Subsidiaries shall refer to a Subsidiary or Subsidiaries of the Company.
Supermajority Lenders means, at any time, Lenders holding in the aggregate more than 66 2/3% of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations and participations therein or (b) if the Commitments have been terminated, the outstanding Loans, L/C Obligations and participations therein. The unfunded Commitments of, and the outstanding Loans, L/C Obligations and participations therein held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Supermajority Lenders.
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Swap Contract means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a Master Agreement), including any such obligations or liabilities under any Master Agreement.
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.
Swap Termination Value means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, the termination value thereof.
Swing Line Borrowing means a borrowing of a Swing Line Loan pursuant to Section 2.04.
Swing Line Lender means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
Swing Line Loan has the meaning specified in Section 2.04(a).
Swing Line Loan Notice means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit 2.04 or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
Swing Line Sublimit means an amount equal to the lesser of (a) $50,000,000 and (b) the Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Revolving Commitments.
TARGET Day means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
Taxes means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Term Loan Agent shall mean Bank of America, in its capacity as administrative agent and collateral agent under the Term Loan Documents, and any successor administrative agent or collateral agent under the Term Loan Credit Agreement.
Term Loan Documents shall mean the Term Loan Credit Agreement, any guarantees issued thereunder and the collateral and security documents (and intercreditor agreements) entered into in connection therewith.
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Term Loan Credit Agreement shall mean the term loan credit agreement entered into on the Amendment No. 1 Effective Date on substantially the same terms as described to the Administrative Agent prior to the Amendment No. 1 Execution Date (or on such other terms reasonably satisfactory to the Administrative Agent) and as the same may be amended, amended and restated, modified, supplemented, extended or renewed from time to time in accordance with the terms hereof (including by reference to the Intercreditor Agreement) and thereof, among the Company, the Guarantors party thereto, certain lenders party thereto and the Term Loan Agent.
Test Period means the most recent period of four fiscal quarters of the Company ended on or prior to such time in respect of which financial statements have been or were required to be delivered pursuant to Section 7.02(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 6.01(e)).
Total Leverage Ratio means, on a Pro Forma Basis (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of any date of determination, the ratio of (a) Consolidated Debt as of such date, less Unrestricted Cash (as defined in the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date) as of such date, if any, in an amount not to exceed $150,000,000, to (b) Consolidated EBITDA for the most recent four fiscal quarter period preceding such date for which financial statements have been or were required to be delivered pursuant to Section 7.02(a) or (b).
Total Revolving Outstandings means the aggregate Outstanding Amount of all Revolving Loans, Swing Line Loans and all L/C Obligations.
Type means, with respect to any Loan, its character as a Base Rate Loan or a Eurocurrency Rate Loan.
UCC means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, UCC means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
Undisclosed Administration means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
United States means the United States of America.
Unreimbursed Amount has the meaning specified in Section 2.03(d)(i).
Unrestricted Subsidiary means any Subsidiary of the Company designated by the board of directors of the Company as an Unrestricted Subsidiary pursuant to Section 7.17, except to the extent redesignated as a Restricted Subsidiary in accordance with such Section 7.17; provided that any Subsidiary of an Unrestricted Subsidiary shall automatically be deemed an Unrestricted Subsidiary.
Unused Line Fee has the meaning specified in Section 2.09(a).
USA PATRIOT Act means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).
Value means (a) for Inventory, its value determined on the basis of the lower of cost or market, calculated on a first-in, first-out basis, (b) for an Account, its face amount, net of any returns, rebates, discounts (calculated on the shortest terms), credits, unapplied cash payments, allowances or Taxes (including sales, excise or other taxes) that have been or could be claimed by the Account Debtor or any other Person and (c) for Real Property, its fair market value, (it being understood that, to the extent an appraisal has been done on such Real Property, the fair market value of such Real Property shall be determined as of the most recent appraisal with respect to such Real Property).
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Voting Stock means capital stock issued by a corporation, or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.
Wholly Owned Subsidiary means, as to any Person, (a) any corporation 100% of whose common stock (other than directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have 100% of the common equity interests (other than directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) at such time.
Write-Down and Conversion Powers means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
Yen means the lawful currency of Japan.
SECTION 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words include, includes and including shall be deemed to be followed by the phrase without limitation. The word will shall be construed to have the same meaning and effect as the word shall. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any organization document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, restated, amended and restated, extended or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Persons successors and assigns, (iii) the words hereto, herein, hereof and hereunder, and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words asset and property (except when used as accounting terms, in which case GAAP shall apply) 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.
(b) In the computation of periods of time from a specified date to a later specified date, the word from means from and including; the words to and until each mean to but excluding; and the word through means to and including.
(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.
SECTION 1.03 Accounting Terms.
(a) Generally. Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios
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and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the statements referenced in Section 6.01(e). Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of the Company and its Restricted Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded. Notwithstanding the foregoing or any other provision contained herein or in any other Loan Document, including Section 1.03(b) below, any obligations related to a lease (whether now or hereafter existing) that would be accounted for by such Person as an operating lease in accordance with GAAP as of the Closing Date (whether or not such lease exists as of the Closing Date or is thereafter entered into) shall be accounted for as an operating lease and not a capital lease for all purposes under this Agreement and the other Loan Documents.
(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Administrative Agent shall so request, the Administrative Agent and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP. Upon any agreement between the Company and the Administrative Agent as to any such amendment, the Administrative Agent shall provide the Lenders with prompt written notice of such amendment. Unless the Required Lenders shall have objected to such amendment within ten Business Days after the Lenders shall have been notified thereof by the Administrative Agent, such amendment shall become effective and shall be binding on all parties hereto; provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.
SECTION 1.04 Rounding. Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
SECTION 1.05 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Company hereunder or calculating the financial covenant hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loan, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Eurocurrency Rate Loan, such amount shall be the relevant Alternative Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent.
(c) The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition of Eurocurrency Rate or with respect to any comparable or successor rate thereto.
SECTION 1.06 Additional Alternative Currencies.
(a) The Company may from time to time request that Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency other than those specifically listed in the definition of Alternative Currency; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. In the case of any such request with respect to the making of Eurocurrency Rate Loans, such request shall be subject to the approval of the Administrative Agent and the Lenders that would be obligated to make Credit Extensions denominated in such requested currency.
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(b) Any such request shall be made to the Administrative Agent not later than 12:00 noon, ten Business Days prior to the date of the desired Credit Extension (or such other time or date as may be agreed by the Administrative Agent). In the case of any such request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly notify each Lender thereof. Each Lender shall notify the Administrative Agent, not later than 12:00 noon, two Business Days after receipt of such request whether it consents, in its reasonable discretion, to the making of Eurocurrency Rate Loans in such requested currency.
(c) Any failure by a Lender to respond to such request within the time period specified in the preceding sentence shall be deemed to be a refusal by such Lender to permit Eurocurrency Rate Loans to be made in such requested currency. If the Administrative Agent and all the Lenders that would be obligated to make Credit Extensions denominated in such requested currency consent to making Eurocurrency Rate Loans in such requested currency, the Administrative Agent shall so notify the Company and such currency shall thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of any Borrowings of Eurocurrency Rate Loans. If the Administrative Agent shall fail to obtain consent to any request for an additional currency under this Section 1.06, the Administrative Agent shall promptly so notify the Company.
SECTION 1.07 Change of Currency.
(a) Each obligation of the Borrowers to make a payment denominated in the national currency unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof shall be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation). If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency shall be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis shall be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Borrowing in the currency of such member state is outstanding immediately prior to such date, such replacement shall take effect, with respect to such Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect the adoption of the Euro by any member state of the European Union and any relevant market conventions or practices relating to the Euro.
(c) In connection with Alternative Currency, each provision of this Agreement also shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify to be appropriate to reflect a change in currency of any other country and any relevant market conventions or practices relating to the change in currency.
SECTION 1.08 Times of Day; Business Day.
(a) Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).
(b) If any report, certificate or other information required to be furnished by the Borrower or any other Loan Party is due on any day that is not a Business Day, it shall be deemed due on the next succeeding Business Day.
SECTION 1.09 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
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SECTION 1.10 [Reserved].
SECTION 1.11 Limited Conditionality. Notwithstanding anything in this Agreement or any Loan Document to the contrary (but subject to the last sentence of this Section 1.11), when (i) calculating any applicable ratio in connection with incurrence of Debt, the creation of Liens, the making of any Disposition, the making of an Investment, the making of any Restricted Payment or the repayment of Debt or (ii) determining compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom and/or that representations and warranties be true and correct, in the case of each of clauses (i) and (ii) in connection with a Limited Condition Transaction, the date of determination of such ratio, of whether any Default or Event of Default has occurred, is continuing or would result therefrom and whether the representations and warranties are true and correct shall, at the option of the Company (the Companys election to exercise such option in connection with any Limited Condition Transaction, an LCT Election), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the LCT Test Date). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Debt and the use of proceeds thereof) such ratios and other provisions are calculated as if such Limited Condition Transaction or other transactions had occurred as of the first day of the most recent four fiscal quarter period ending prior to such LCT Test Date for which financial statements were required to be delivered pursuant to Section 7.02(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 6.01(e)), the Company could have taken such action on the relevant LCT Test Date in compliance with the applicable ratios or other provisions, such provisions shall be deemed to have been complied with, unless an Event of Default pursuant to Sections 9.01(a), (b) or (f) shall be continuing on the date such Limited Condition Transaction is consummated. For the avoidance of doubt, (i) if any of such ratios or other provisions are exceeded or breached as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA) or other provisions at or prior to the consummation of the relevant Limited Condition Transaction, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Transaction is permitted hereunder and (ii) such ratios and compliance with such conditions shall not be tested at the time of consummation of such Limited Condition Transaction, unless on such date an Event of Default pursuant to Sections 9.01(a), (b) or (f) shall be continuing. If the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Limited Condition Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated, and be required to be satisfied, on a Pro Forma Basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Debt and the use of proceeds thereof) have been consummated. Notwithstanding anything in this Agreement or any Loan Document to the contrary, if the Company or its Restricted Subsidiaries (x) incurs Debt, creates Liens, makes Dispositions, makes Investments, makes Restricted Payments, or repays any Debt in connection with any Limited Condition Transaction under a ratio-based basket and (y) incurs Debt, creates Liens, makes Dispositions, makes Investments, makes Restricted Payments, or repays any Debt in connection with such Limited Condition Transaction under a non-ratio-based basket (which shall occur simultaneously with the events in clause (x) above), then the applicable ratio will be calculated with respect to any such action under the applicable ratio-based basket without regard to any such action under such non-ratio-based basket made in connection with such Limited Condition Transaction. Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 1.11 shall not apply when determining the amount of Availability under this Agreement or whether the Availability component of the definition of Payment Conditions or Distribution Conditions have been satisfied.
ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
SECTION 2.01 Revolving Loans; Overadvance Loans; and Protective Loans.
(a) Revolving Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a Revolving Loan) to the Company or if applicable a Designated Borrower in Dollars or in one or more Alternative Currencies from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lenders Revolving Commitment;
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provided, however, that after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Line Cap, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender (other than Swing Line Loans), plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations (other than Cash Collateralized L/C Obligations), plus such Lenders Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lenders Revolving Commitment, and (iii) the aggregate Outstanding Amount of all Revolving Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Within the limits of each Lenders Revolving Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein; provided, however, that all Borrowings made on the Closing Date shall be made as Base Rate Loans unless the Company has provided a funding indemnity letter to the Administrative Agent on a timely basis in form and substance acceptable to the Administrative Agent. Each Lender may, at its option, make any Loan available to any Borrower by causing any foreign or domestic branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of such Borrower to repay such Loan in accordance with the terms of this Agreement, and such Lender shall not be entitled to any amounts payable under Section 3.01 or Section 3.04 solely in respect of increased costs resulting from such exercise and existing at the time of such exercise.
(b) Increases of the Aggregate Commitments.
(i) The Company may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more increases in the amount of the Revolving Commitments (each such increase, a Revolving Commitment Increase) or (ii) one or more tranches of term loans (each such increase in the form of a term loan, a FILO Term Loan and, together with any Revolving Commitment Increase, each an Incremental Facility). Any Revolving Commitment Increase may be designated as FILO Facility (such Revolving Commitment Increase or Incremental Facility in the form of a FILO Term Loan, each a FILO Facility and loans and commitments thereunder FILO Revolving Loans, FILO Term Loans, FILO Loans or FILO Commitments as applicable); provided that there may be only one FILO Facility outstanding hereunder at any one time and the maximum amount of FILO Commitments or FILO Loans under such FILO Facility shall not exceed $100,000,000. Each Incremental Facility shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and, in each case in integral multiples of $1,000,000 in excess thereof. Notwithstanding anything to the contrary herein, the aggregate outstanding amount of the Incremental Facilities (for this purpose, treating any Revolving Commitment Increase as if the same were fully drawn and outstanding) shall not exceed, on the date of incurrence thereof, the Incremental Amount.
(ii) Each Revolving Commitment Increase (other than a Revolving Commitment Increase for FILO Revolving Loans) (A) shall rank pari passu in right of payment with the Revolving Loans, (B) shall benefit from the same Guaranties as, and be secured on a pari passu basis by the same Collateral securing, the Revolving Loans, (C) shall be subject to the same terms and conditions as the then outstanding Revolving Loans and (D) shall be deemed added to, and made a part of, the Revolving Commitments to which such Revolving Commitment Increase relates.
(iii) The FILO Facility (A) shall rank pari passu in right of payment with any other Loans hereunder, except that (i) for purposes of Section 9.03, amounts received on account of the Obligations to be applied to FILO Revolving Loans or FILO Term Loans shall be applied (1) after the payment in full of the principal amount of all other Loans, the cash collateralization of all L/C Obligations and, to the extent but only to the extent the same are required to be paid pro rata with principal on the Loans pursuant to Section 9.03(a), the payment of all Secured Hedge Obligations and Secured Cash Management Obligations and (2) prior to the payment of all other Secured Hedge Obligations and Secured Cash Management Obligations pursuant to Section 9.03(a), and (ii) all payments made in respect of the Loans (including without limitation those made pursuant to Section 2.05) to be applied to the FILO Revolving Loans or FILO Term Loans shall be applied after the payment in full of the principal amount of all other Loans and the cash collateralization of all L/C Obligations, (B) shall be Base Rate Loans or Eurocurrency Rate Loans and bear interest at the Base Rate or Eurocurrency Rate, as applicable, plus the Applicable Margin for Revolving Loans that are not FILO Loans plus 1.00% per annum (or such lower applicable margin as Lenders having FILO Commitments or making FILO Term Loans making may agree), (C) shall have the same or later Maturity Date as the latest Maturity Date in effect as of the effective date of the FILO Facility, (D) if a FILO Term Loan, shall be fully funded on the effective date
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of such FILO Facility, (E) if a Revolving Commitment Increase, shall be funded on the effective date of such Revolving Commitment Increase in an amount not less than the lesser of the full amount such FILO Commitments or the amount necessary to repay any then outstanding Loans in full and thereafter shall be drawn in full prior to any other Borrowings being made hereunder (other than additional Revolving Loans that are not FILO Revolving Loans), (F) shall provide for condition precedent to a Credit Extension under the FILO Facility to the effect that immediately after giving effect to such Credit Extension, the outstanding amount of Loans under the FILO Facility shall not exceed the lesser of (i) the FILO Commitments and (ii) the FILO Borrowing Base, (G) shall provide that such FILO Loans may not be prepaid, or the Commitments with respect thereto terminated, prior to the payment in full of all other Revolving Loans and (H) shall provide for a FILO Borrowing Base that includes eligible inventory, eligible accounts receivable, eligible Investment Grade Accounts and eligible Insured Accounts of the Loan Parties with advance rates not more than 10% greater for eligible inventory and eligible Accounts (other than Investment Grade Accounts and Insured Accounts) and not more than 5% greater for Investment Grade Accounts and Insured Accounts, than the advance rates set forth in the definition of Borrowing Base as in effect on the Closing Date (the FILO Borrowing Base). The Incremental Amendment (as defined below) establishing FILO Commitments or FILO Term Loans (x) shall provide that (I) amounts outstanding under the FILO Facility shall be disregarded in determining the amount available under the Borrowing Base for purposes of calculating Availability for purposes of satisfying the conditions precedent to a Revolving Loan (other than a FILO Loan under Section 5.02), (II) the FILO Borrowing Base shall be added to the Borrowing Base for purposes of calculating the Line Cap and Availability when calculating the Audit Trigger Event, the Covenant Trigger Period, the Debt Maturity Reserve Liquidity Test, the Distribution Conditions, the Liquidity Period and Payment Conditions, (III) the FILO Commitments and FILO Loans shall be included in calculating the Line Cap and (IV) that outstanding Loans under the FILO Facility shall be included in calculating Total Revolving Outstandings and (y) may also provide for such inter-lender provisions as are deemed necessary to implement the FILO Facility by the Company, the Administrative Agent and the Lenders having FILO Commitments, including, without limitation, amendments to Sections 9.03 and 11.01 and the definitions of Required Lenders and Supermajority Lenders.
(iv) As a condition precedent to the effectiveness of any Incremental Amendment and the incurrence of any Revolving Commitment Increase or FILO Term Loan, and in addition to the other requirements set forth in this Section 2.01(b), the following conditions precedent shall be satisfied:
(A) subject to Section 1.11, no Default shall have occurred and be continuing both immediately before and immediately after the effectiveness of any Incremental Amendment and at the time that any FILO Term Loan is made or any Revolving Commitment Increase is made available (and immediately after giving effect thereto);
(B) subject to Section 1.11, the representations and warranties of the Loan Parties set forth in Article VI and the other Loan Documents shall be true and correct in all material respects on and as of the date of the effectiveness of the applicable Incremental Amendment, except (x) 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 as of such earlier date and (y) for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects;
provided that the conditions set forth in clauses (A) and (B) above may be waived (or not required) by the Persons providing such Incremental Facilities for purposes of a Permitted Acquisition or other third-party Investment, other than, in the case of clause (B), with respect to customary specified representations and customary specified acquisition agreement representations as applied to the target of such Permitted Acquisition or third-party Investment (conformed as reasonably necessary for such Permitted Acquisition or third party Investment) and with respect to such customary specified acquisition agreement representations, only to the extent that the Company or any of its Subsidiaries (or their respective applicable affiliate) have the right to terminate their (or its) obligations under the applicable acquisition agreement or to decline to consummate such Permitted Acquisition or Investment as a result of a breach of such representations in such acquisition agreement; and
(C) the Administrative Agent shall have received a certificate from the Borrower as well as all other documents (including, if applicable, resolutions of the board of directors of the Borrower) it may reasonably request relating to the corporate or other necessary authority for the applicable Incremental Facility, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent.
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(v) Revolving Commitment Increases may be provided and FILO Term Loans may be made by any existing Lender or by any Additional Commitment Lender. Commitments in respect of Revolving Commitment Increases and FILO Term Loans shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lenders applicable Revolving Commitment) under this Agreement pursuant to an amendment (an Incremental Amendment) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each Guarantor, each Lender agreeing to provide such Commitment, if any, each Additional Commitment 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 Company, to effect the provisions of this Section 2.01(b), including, without limitation, in the case of FILO Loans, amendments to the Collateral Documents to establish and/or give effect to the order specified in Section 9.03 and any changes to establish that the FILO Loans and other Obligations shall be treated as separate classes of secured claims for purposes of any insolvency or liquidation proceeding. The effectiveness of (and, in the case of any Incremental Amendment for a FILO Term Loan or Revolving Commitment Increase, any Credit Extension under) any FILO Amendment may be subject to the satisfaction on the date thereof of such other conditions as the parties thereto shall agree. The Borrower shall use the proceeds of the Revolving Commitment Increases, and Letters of Credit issued pursuant to any Revolving Commitment Increases and FILO Term Loans, for working capital needs and other general corporate purposes and any other purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Revolving Commitment Increases or FILO Term Loans unless it so agrees.
(vi) Upon each Revolving Commitment Increase pursuant to this Section 2.01(b), (A) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a Revolving Commitment Increase Lender) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Lenders participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lenders Revolving Commitment and (B) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), such that, after giving effect thereto, the percentage of the aggregate outstanding Revolving Loans held by each Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lenders Revolving Commitment, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(vii) Any Incremental Amendment with respect to any Incremental Facility that satisfies each of the requirements of this Section 2.01(b) shall not be deemed to require the consent of other Lenders that are not otherwise required by the provisions of this Section 2.01(b), notwithstanding the provisions of Section 11.01 hereof to the contrary with respect thereto.
(c) Overadvances. If Total Revolving Outstandings exceeds the Line Cap (Overadvance) at any time, the excess amount shall be payable by the Borrowers on demand by the Administrative Agent, but all such Revolving Loans shall nevertheless constitute Obligations secured by the Collateral and entitled to all benefits of the Loan Documents. The Administrative Agent may require Lenders to honor requests for Overadvance Loans and to forbear from requiring the Borrowers to cure an Overadvance, (i) when no other Event of Default is known to the Administrative Agent, as long as (A) the Overadvance does not continue for more than 30 consecutive days (and no Overadvance may exist for at least five consecutive days thereafter before further Overadvance Loans are required),
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and (B) the Overadvance is not known by the Administrative Agent to exceed, when taken together with Protective Advances pursuant to Section 2.01(d), 10% of the Line Cap; and (ii) regardless of whether an Event of Default exists, if the Administrative Agent discovers an Overadvance not previously known by it to exist, as long as from the date of such discovery the Overadvance is not increased by more than 10% of the Line Cap and does not continue for more than 30 consecutive days. In no event shall Overadvance Loans be required that would cause Total Revolving Outstandings to exceed the aggregate Revolving Commitments. Any funding of an Overadvance Loan or sufferance of an Overadvance shall not constitute a waiver by the Administrative Agent or Lenders of the Event of Default caused thereby. In no event shall the Borrowers or any other Loan Party be deemed a beneficiary of this Section nor authorized to enforce any of its terms. The Required Lenders may at any time revoke the Administrative Agents authority to make further Overadvances by written notice to the Administrative Agent. Absent such revocation, the Administrative Agents determination that funding of an Overadvance is appropriate shall be conclusive.
(d) Protective Advances. The Administrative Agent shall be authorized, in its discretion, at any time, to make Base Rate Loans (Protective Advances) (i) up to an aggregate amount not to exceed, when taken together with Overadvance Loans pursuant to Section 2.01(c), 10% of the Line Cap outstanding at any time, if the Administrative Agent deems such Revolving Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectability or repayment of Obligations, as long as such Revolving Loans do not cause Total Revolving Outstandings to exceed the aggregate Revolving Commitments; or (ii) to pay any other amounts chargeable to the Loan Parties under any Loan Documents, including interest, costs, fees and expenses. Lenders shall participate on a pro rata basis in Protective Advances outstanding from time to time. The Required Lenders may at any time revoke the Administrative Agents authority to make further Protective Advances by written notice to the Administrative Agent. Absent such revocation, the Administrative Agents determination that funding of a Protective Advance is appropriate shall be conclusive.
SECTION 2.02 Borrowings, Conversions and Continuations of Loans.
(a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans shall be made upon the Companys irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Loan Notice; provided that any telephonic notice must be confirmed by delivery to the Administrative Agent of a Loan Notice. Each such notice must be received by the Administrative Agent not later than (i) 12:00 noon three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurocurrency Rate Loans denominated in Dollars or of any conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans, (ii) 12:00 noon four Business Days (or five Business Days in the case of a Special Notice Currency) prior to the requested date of any Borrowing or continuation of Eurocurrency Rate Loans denominated in Alternative Currencies, and (iii) 1:00 p.m. on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Company pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(d) and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Loan Notice shall specify (i) whether the Company is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the currency of the Loans to be borrowed, and (vii) if applicable, the Designated Borrower. If the Company fails to specify a currency in a Loan Notice requesting a Borrowing, then the Loans so requested shall be made in Dollars. If the Company fails to specify a Type of a Loan in a Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans; provided, however, that in the case of a failure to timely request a continuation of Loans denominated in an Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans in their original currency with an Interest Period of one month. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If the Company requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to a Eurocurrency Rate Loan.
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(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount (and currency) of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Company, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans or continuation of Loans denominated in a currency other than Dollars, in each case as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in Same Day Funds at the Administrative Agents Office for the applicable currency not later than 1:00 p.m., in the case of any Loan denominated in Dollars, and not later than the Applicable Time specified by the Administrative Agent in the case of any Loan in an Alternative Currency, in each case on the Business Day specified in the applicable Loan Notice; provided that a Base Rate Loan requested after noon on the same day funding is requested shall be available no later than 2:00 p.m. on that Business Day. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received available to the Company or the other applicable Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of such Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Company; provided, however, that if, on the date of a Borrowing of Revolving Loans there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings and second, shall be made available to such Borrower as provided above.
(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurocurrency Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans (whether in Dollars or any Alternative Currency) without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or redenominated into Dollars in the amount of the Dollar Equivalent thereof, on the last day of the then current Interest Period with respect thereto.
(d) The Administrative Agent shall promptly notify the Company and the Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate.
(e) After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten Interest Periods in effect.
SECTION 2.03 Letters of Credit.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Company or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Revolving Outstandings shall not exceed the Line Cap (x) the aggregate Outstanding Amount of the Revolving Loans of any Lender (other than Swing Line Loans), plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C Obligations and Swing Line Loans shall not exceed such Lenders Revolving Commitment, (y) the Outstanding Amount of the L/C Obligations shall not exceed the aggregate Letter of Credit Sublimit and (z) the aggregate face amount of Letters of Credit issued by any L/C Issuer shall not, unless otherwise agreed by such L/C Issuer, exceed its Letter of Credit Sublimit. Each request by the Company for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Company that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Companys ability to obtain Letters of Credit shall be fully
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revolving, and accordingly the Company may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.
(ii) An L/C Issuer shall not issue any Letter of Credit if:
(A) subject to Section 2.03(c)(iii), the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless approved by the applicable L/C Issuer.
(iii) An L/C Issuer shall not be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement for which such L/C Issuer is not otherwise compensated hereunder not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;
(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000;
(D) such Letter of Credit is to be denominated in a currency other than Dollars;
(E) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or
(F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, reasonably satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuers actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.
(iv) An L/C Issuer shall not amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.
(v) An L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.
(b) An L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and such L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term Administrative Agent as used in Article X included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.
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(c) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Company delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Company. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by such L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 1:00 p.m. at least two Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their reasonable discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to such L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such other matters as such L/C Issuer may require. Additionally, the Company shall furnish to the applicable L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Company and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from any Lender, the Administrative Agent or any Borrower, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article V shall not be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company or the applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuers usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lenders Applicable Percentage times the amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its reasonable discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an Auto-Extension Letter of Credit); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the Non-Extension Notice Date) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Company shall not be required to make a specific request to any L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized (but may not require) such L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is ten Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Lenders have elected not to permit such extension or (2) from the Administrative Agent, any Lender or the Company that one or more of the applicable conditions specified in Section 5.02 is not then satisfied, and in each case directing such L/C Issuer not to permit such extension.
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(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Company and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.
(d) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Company and the Administrative Agent thereof. Not later than 12:00 noon on the Business Day following any payment by such L/C Issuer under a Letter of Credit (each such date, an Honor Date), the Company shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing and in the applicable currency. In the event that (A) a drawing denominated in an Alternative Currency is to be reimbursed in Dollars pursuant to the second sentence in this Section 2.03(d)(i) and (B) the Dollar amount paid by the Company, whether on or after the Honor Date, shall not be adequate on the date of that payment to purchase in accordance with normal banking procedures a sum denominated in the Alternative Currency equal to the drawing, the Company agrees, as a separate and independent obligation, to indemnify the applicable L/C Issuer for the loss resulting from its inability on that date to purchase the Alternative Currency in the full amount of the drawing. If the Company fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the Unreimbursed Amount), and the amount of such Lenders Applicable Percentage thereof. In such event, the Company shall be deemed to have requested a Borrowing of Revolving Loans that are Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. Any notice given by the applicable L/C Issuer or the Administrative Agent pursuant to this Section 2.03(d)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section 2.03(d)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable L/C Issuer, in Dollars, at the Administrative Agents Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(d)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer in Dollars.
(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Revolving Loans that are Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the Company shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lenders payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(d)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.
(iv) Until each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(d) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lenders Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.
(v) Each Lenders obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(d), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Company or any other Person for any
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reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lenders obligation to make Revolving Loans pursuant to this Section 2.03(d) is subject to the conditions set forth in Section 5.02 (other than delivery by the Company of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Company to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(d) by the time specified in Section 2.03(d)(ii), then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lenders Revolving Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
(vii) If any L/C Issuer shall make any payment or disbursement pursuant to a drawing under a Letter of Credit, then, (x) the unpaid amount thereof shall bear interest, for each day from and including the date such payment or disbursement is made to but excluding the Honor Date, at the Applicable Margin for Revolving Loans that are Base Rate Loans, and (y) unless the Borrowers shall reimburse such payment or disbursement in full on the Honor Date, the unpaid amount thereof shall bear interest payable on demand, for each day from and including the Honor Date to but excluding the date that the Borrowers reimburse such payment or disbursement, at the rate per annum determined pursuant to Section 2.08(b). Interest accrued pursuant to this paragraph shall be for the account of the applicable L/C Issuer, except that interest accrued on and after the date of payment by any Lender pursuant to this Section 2.03(d) to reimburse the applicable L/C Issuer shall be for the account of such Lender to the extent of such payment.
(e) Repayment of Participations.
(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lenders L/C Advance in respect of such payment in accordance with Section 2.03(d), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of cash collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof in Dollars and in the same funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(d)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the applicable L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(f) Obligations Absolute. The obligation of the Company to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;
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(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
(iv) any payment by such L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; and
(v) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Companys instructions or other irregularity, the Company will immediately notify the applicable L/C Issuer. The Company shall be conclusively deemed to have waived any such claim against the applicable L/C Issuer and its correspondents unless such notice is given as aforesaid.
(g) Role of L/C Issuers. Each Lender and the Company agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Company hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Companys pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of the L/C Issuers shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(f); provided, however, that anything in such clauses to the contrary notwithstanding, the Company may have a claim against the applicable L/C Issuer, and such L/C Issuer may be liable to the Company, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Company which the Company proves were caused by such L/C Issuers willful misconduct or gross negligence or such L/C Issuers willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuers may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuers shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
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(h) Applicability of ISP. Unless otherwise expressly agreed by the applicable L/C Issuer and the Company when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit) the rules of the ISP shall apply to each standby Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the Administrative Agent for the account of each Lender in accordance, subject to adjustments as provided in Section 2.16, with its Applicable Percentage, in Dollars, a Letter of Credit fee (the Letter of Credit Fee) for each Letter of Credit equal to the Applicable Margin for Letter of Credit Fees times the daily amount available to be drawn under such Letter of Credit; provided, however, any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section 2.03 shall be payable to the maximum extent permitted by applicable law, to the other Lenders in accordance with the upward adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.16(a)(iv) with the balance of such fee, if any, payable to the applicable L/C Issuer for its own account. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. Letter of Credit Fees shall be (i) due and payable on the first day of each January, April, July and October, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Margin for Letter of Credit Fees during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by such Applicable Margin separately for each period during such quarter that such Applicable Margin was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default pursuant to Section 9.01(a) or 9.01(b) exists, all Letter of Credit Fees shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Company shall pay directly to the applicable L/C Issuer for its own account, in Dollars, a fronting fee with respect to each Letter of Credit, at the rate equal to 0.125% per annum, computed on the daily amount available to be drawn under such Letter of Credit and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the first day after the end of each January, April, July and October in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.09. In addition, the Company shall pay directly to the applicable L/C Issuer for its own account, in Dollars, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Company shall be obligated to reimburse the L/C Issuers hereunder for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Companys business derives substantial benefits from the businesses of such Subsidiaries.
SECTION 2.04 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, agrees to make loans (each such loan, a Swing Line Loan) to the Borrowers from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lenders Revolving Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Line Cap at such time, and (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lenders Applicable Percentage of the Outstanding Amount of all L/C
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Obligations, and Swing Line Loans shall not exceed such Lenders Revolving Commitment, (y) the Borrowers shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan and (z) the Swing Line Lender shall not be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lenders Applicable Percentage times the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrowers irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) by a Swing Line Loan Notice; provided that any telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Promptly after receipt by the Swing Line Lender of any Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 4.00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by crediting the account of the Borrower on the books of the Swing Line Lender in immediately available funds.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time (but no less frequently than weekly) in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount equal to such Lenders Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Commitments and the conditions set forth in Section 5.02. The Swing Line Lender shall furnish the Company with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agents Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Company or applicable Designated Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced by such Base Rate Loans in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lenders payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting
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through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lenders Revolving Loan included in the relevant Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
(iv) Each Lenders obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lenders obligation to make Revolving Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 5.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its Base Rate Loan or risk participation pursuant to this Section 2.04 to refinance such Lenders Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.
SECTION 2.05 Prepayments.
(a) Voluntary Prepayments of Loans.
(i) Each Borrower may, upon notice from the Company to the Administrative Agent in such form as may be reasonably approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be reasonably approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer, at any time or from time to time voluntarily prepay Revolving Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 12:00 noon (1) two Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (2) three Business Days (or five, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies and
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(3) on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); (C) any prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies shall be in a minimum principal amount of $5,000,000 (or its Alternative Currency Equivalent) or a whole multiple of $1,000,000 (or its Alternative Currency Equivalent) in excess thereof (or, if less, the entire principal amount thereof then outstanding) and (D) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lenders Applicable Percentage of such prepayment. If such notice is given by the Company, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that a notice of prepayment delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities or another transaction, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages.
(ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein; provided that a notice of prepayment delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities or another transaction, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(b) Mandatory Prepayments of Loans.
(i) Subject to Section 2.01(c), if an Overadvance exists at any time, the Borrower shall, on the sooner of the first Business Day after the Administrative Agents demand or the first Business Day after the Borrower has knowledge thereof, repay Revolving Loans and/or Cash Collateralize the L/C Obligations in an amount sufficient to reduce Total Revolving Outstandings to the Borrowing Base.
(ii) Alternative Currency Sublimit. If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(iii) Debt Maturity Reserve Liquidity Test. If at any time the Debt Maturity Reserve Liquidity Test is not satisfied when in effect, the Borrower shall, on the sooner of the first Business Day after the Administrative Agents demand or the first Business Day after the Borrower has knowledge thereof, repay Revolving Loans and/or Cash Collateralize the L/C Obligations in an amount sufficient so that the Debt Maturity Reserve Liquidity Test is satisfied.
(iv) Application of Mandatory Prepayments. All amounts required to be paid pursuant to this
Section 2.05(b) shall be applied, first, ratably to the L/C Borrowings and Swing Line Loans, second, to the outstanding Revolving Loans (other than Swing Line Loans), and, third, to
Cash Collateralize the Letters of Credit (in each case without a corresponding reduction in Aggregate Revolving Commitments) and fourth, as required by the Intercreditor Agreement or, in the absence of any such requirement,
returned to the Company or to such party as otherwise required by law.
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Within the parameters of the applications set forth above, prepayments shall be applied first to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
SECTION 2.06 Termination or Reduction of Aggregate Revolving Commitments. The Company may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an amount not less than the Total Revolving Outstandings; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon two Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Line Cap and (iv) if, after giving effect to any reduction of the Aggregate Revolving Commitments, the Alternative Currency Sublimit, the Swing Line Sublimit or the aggregate Letter of Credit Sublimit exceeds the amount of the Aggregate Revolving Commitments, such sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Revolving Commitments. The amount of any such Aggregate Revolving Commitment reduction shall not be applied to the Alternative Currency Sublimit, the Swing Line Sublimit or the aggregate Letter of Credit Sublimit unless otherwise specified by the Company. Any reduction of the Aggregate Revolving Commitments shall be applied to the Revolving Commitment of each Lender according to its Applicable Percentage. All fees accrued with respect thereto until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination.
SECTION 2.07 Repayment of Loans.
(a) Revolving Loans. Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Loans made to such Borrower outstanding on such date and all other Obligations then outstanding, including all accrued but unpaid interest and fees.
(b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.
SECTION 2.08 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurocurrency Rate for such Interest Period plus the Applicable Margin for Eurocurrency Rate Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the sum of the Base Rate plus the Applicable Margin for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Margin for Base Rate Loans.
(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.
(ii) If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.
(iii) Upon the request of the Required Lenders, while any Event of Default under Section 9.01(a) or 9.01(b) exists, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable laws.
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(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.
(d) For the purposes of the Interest Act (Canada), (i) whenever a rate of interest or fee rate hereunder is calculated on the basis of a year (the deemed year) that contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest or fee rate shall be expressed as a yearly rate by multiplying such rate of interest or fee rate by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year, (ii) the principle of deemed reinvestment of interest shall not apply to any interest calculation hereunder and (iii) the rates of interest stipulated herein are intended to be nominal rates and not effective rates or yields.
SECTION 2.09 Fees. In addition to certain fees described in subsections (i) and (j) of Section 2.03:
(a) Unused Line Fee. The Company shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, an unused line fee equal to the Applicable Fee Rate times the amount by which the Aggregate Revolving Commitments exceed the average daily Total Revolving Outstandings during any quarter (the Unused Line Fee). Such unused line fee shall be due and payable quarterly in arrears, on the first day of each January, April, July and October, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period (and, if applicable, thereafter on demand). For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Revolving Commitments.
(b) Fee Letter. The Company shall pay fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.
SECTION 2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year), or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.11 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the
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request of any Lender to a Borrower made through the Administrative Agent, such Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lenders Loans in addition to such accounts or records. Each such promissory note shall be in the form of Exhibit 2.11(a) (a Note). Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.
SECTION 2.12 Payments Generally; Administrative Agents Clawback.
(a) General. All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in an Alternative Currency, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agents Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agents Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lenders Lending Office. All payments received by the Administrative Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 1:00 p.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lenders share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lenders Loan included in such Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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(ii) Payments by Borrowers; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from a Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or applicable L/C Issuer hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or applicable L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders or applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in Same Day 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 Overnight Rate.
A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to such Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(f) Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (ii) second, toward payment of principal of Swing Line Loans and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties and (iii) third, toward payment of principal of Revolving Loans (other than Swing Line Loans, in each case, without a corresponding commitment reduction).
SECTION 2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations held by it resulting in such Lenders receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon 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 subparticipations in L/C Obligations and Swing Line Loans 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:
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(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section shall not be construed to apply to (A) any payment made by or on behalf of a Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (B) the application of Cash Collateral provided for in Section 2.15, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply).
Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
For purposes of subclause (b)(i) of the definition of Excluded Taxes, a Lender that acquires a participation or subparticipation pursuant to this Section 2.13 shall be treated as having acquired such participation on the date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s), L/C Obligation(s) and/or Loan(s) to which such participation relates.
SECTION 2.14 Designated Borrowers.
(a) The Company may at any time, upon not less than five Business Days notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion), designate any additional Domestic Subsidiary of the Company (an Applicant Borrower) as a Designated Borrower to receive Loans hereunder by delivering to the Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit 2.14(a) (a Designated Borrower Request and Assumption Agreement). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the Administrative Agent and the Lenders shall have received the information required by Section 5.03 and shall have consented to such designation. If the Administrative Agent and all the Lenders agree in writing that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all information required by Section 5.03, the Administrative Agent shall send a notice in substantially the form of Exhibit 2.14(b) (a Designated Borrower Notice) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that (i) no Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date two Business Days after such effective date, and (ii) no Lender shall be obligated to make Loans to any Designated Borrower that is a Foreign Subsidiary if such Lender is unauthorized to lend in such Foreign Subsidiarys jurisdiction. For the avoidance of doubt, any Guarantor may become a Designated Borrower, subject to the requirements of this Section 2.14.
(b) The Obligations of all Designated Borrowers shall be several in nature, subject to Article IV.
(c) Each Subsidiary of the Company that becomes a Designated Borrower pursuant to this Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders, to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.
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(d) The Company may from time to time, upon not less than three Business Days notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion), terminate a Designated Borrowers status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrowers status.
SECTION 2.15 Cash Collateral.
(a) Certain Credit Support Events. Upon the request of the Administrative Agent or the applicable L/C Issuer (i) if such L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent or the applicable L/C Issuer, the Company shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).
(b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Company, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Company or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.
(c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03, 2.05, 2.16 or 9.03 in respect of Letters of Credit or Swing Line Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.
(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi))) or (ii) the Administrative Agents good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of the Company shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.15 may be otherwise applied in accordance with Section 9.03), and (y) the Person providing Cash Collateral and the applicable L/C Issuer, as applicable, may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
SECTION 2.16 Defaulting Lenders.
(a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
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(i) Waivers and Amendments. That Defaulting Lenders right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 11.01.
(ii) Reallocation of Payments. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 11.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the L/C Issuers, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Letter of Credit; fourth, as the Company may request (so long as no Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Company, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lenders, the L/C Issuers or the Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; seventh, so long as no Event of Default exists, to the payment of any amounts owing to the Company as a result of any judgment of a court of competent jurisdiction obtained by the Company against that Defaulting Lender as a result of that Defaulting Lenders breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. 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 2.16(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.
(iii) Certain Fees. That Defaulting Lender (x) shall be entitled to receive any Unused Line Fee pursuant to Section 2.09(a) for any period during which that Lender is a Defaulting Lender only to extent allocable to the sum of (1) the Outstanding Amount of the Revolving Loans funded by it and (2) its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.03, 2.05, 2.15 or 2.16(a)(ii), as applicable (and the Company shall (A) be required to pay to each of the L/C Issuers the amount of such fee allocable to its Fronting Exposure arising from that Defaulting Lender to the extent that the Company has not posted Cash Collateral for such exposure and (B) not be required to pay the remaining amount of such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive Letter of Credit Fees as provided in Section 2.03(i).
(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans pursuant to Sections 2.03 and 2.04, the Applicable Percentage of each non-Defaulting Lender shall be computed without giving effect to the Revolving Commitment of that Defaulting Lender; provided, that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Loans of that Lender.
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(v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall within two Business Days following notice by the Administrative Agent, without prejudice to any right or remedy available to it hereunder or under applicable Law, (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lenders Fronting Exposure and (y) second, Cash Collateralize the L/C Issuers Fronting Exposure in accordance with the procedures set forth in Section 2.15 (after giving effect to any reallocation) for so long as any Letters of Credit are outstanding.
(b) Defaulting Lender Cure. The rights and remedies against a Defaulting Lender under this Agreement are in addition to other rights and remedies that a Borrower may have against such Defaulting Lender with respect to any funding default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any funding default. If the Company, the Administrative Agent, the Swing Line Lender and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be 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), then the Fronting Exposure shall be readjusted to reflect the inclusion of such Lenders Revolving Commitment (less the aggregate Outstanding Amount of the Revolving Loans of that Lender) and that Lender will, to the extent applicable, purchase 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 Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender and any applicable cash collateral shall be promptly returned to the Borrower and such Lenders Applicable Percentage of Fronting Exposure reallocated pursuant to the requirements above shall be reallocated back to such Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lenders having been a Defaulting Lender.
SECTION 2.17 Extension of Maturity Date.
(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an Extension Offer) made from time to time by the Company to all Lenders with Revolving Commitments with a like maturity date on a pro rata basis (based on the aggregate outstanding principal amount of Revolving Commitments with a like maturity date), on the same terms to each such Lender, the Company is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lenders Revolving Commitments and otherwise modify the terms of such Revolving Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Revolving Commitments or Loans in respect thereof and/or modifying the scheduled termination of such Revolving Commitments and the scheduled repayments of principal in respect of such Revolving Loans) (each, an Extension), so long as the following terms are satisfied:
(i) no Default or Event of Default shall have occurred and be continuing at the time the Extension Offer is consummated,
(ii) except as to interest rates, fees and final maturity date (which shall, subject to the immediately succeeding clauses (iii), (iv) and (v), be determined by the Company and set forth in the relevant Extension Offer), the applicable Revolving Commitments of any Lender that agrees to an Extension with respect to such Revolving Commitments (an Extended Lender) extended pursuant to any Extension (Extended Revolving Commitment) shall have terms applicable prior to the original Maturity Date related to the Extended Revolving Commitments that are no more favorable in any material respect, taken as a whole, to the Extended Lender than the terms of the Revolving Commitments subject to such Extension Offer,
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(iii) the final maturity date of any Extended Revolving Commitments shall be no earlier than the original Maturity Date and at no time shall the Revolving Commitments (including Extended Revolving Commitments) have more than two different maturity dates,
(iv) if the aggregate amount of Revolving Commitments (calculated on the face amount thereof), in respect of which applicable Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate amount of Revolving Commitments offered to be extended by the Company pursuant to such Extension Offer, then the Revolving Commitments of such applicable Lenders shall be extended ratably up to such maximum amount based on the respective Revolving Commitments (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer,
(v) all documentation in respect of such Extension shall be consistent with the foregoing, and
(vi) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.
(b) With respect to all Extensions consummated by the Borrower pursuant to this Section 2.17(b), (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of Section 2.05 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Company may at its election specify as a condition (a Minimum Extension Condition) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Companys sole discretion and may be waived by the Company) of applicable Revolving Commitments be tendered. The Administrative Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.17 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Section 11.01 and any provision in this Agreement or the other Loan Documents providing for payment on a pro rata basis) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.17.
(c) No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to any of its Revolving Commitments (including any Extended Revolving Commitments). All Extended Revolving Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower and the other Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of the Revolving Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17.
(d) In connection with any Extension, the Company shall provide the Administrative Agent at least five (5) Business Days (or such shorter period as may be agreed by the Administrative Agent in its sole discretion) prior written notice thereof, and shall agree to such procedures (to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.17.
SECTION 2.18 Liquidity Period. During any Liquidity Period, at the election of the Administrative Agent, the Administrative Agent may cause the ledger balance in any Deposit Account subject to a Deposit Account Control Agreement as of the end of a Business Day to be applied to the Secured Obligations at the beginning of the next Business Day. If a credit balance results from such application, it shall be made available to the Borrower upon its request.
SECTION 2.19 MIRE Event. Notwithstanding anything to the contrary herein, for Mortgaged Properties included in the Borrowing Base, the making, increasing, extension or renewal of any Loans pursuant to this Agreement (but, for the avoidance of doubt, excluding any Credit Extension where the conditions of Section 5.02 are met without regard to this Section 2.19) shall be subject to flood insurance due diligence and flood insurance compliance in accordance with Section 7.07(c) hereto and shall otherwise be reasonably satisfactory to the Administrative Agent and the Lenders.
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ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
SECTION 3.01 Taxes.
(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.
(i) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall, except to the extent required by applicable laws, be made free and clear of and without reduction or withholding for any Taxes.
(ii) If any Loan Party or any other applicable withholding agent shall be required by any applicable laws to withhold or deduct any Taxes from or in respect of any payment made by any Loan Party under any Loan Document (as determined by the applicable withholding agent), then (A) the applicable Loan Party or other applicable withholding agent shall withhold or make such deductions as are determined by such withholding agent to be required, (B) the applicable Loan Party or other applicable withholding agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable law, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01) the Lender (or, in the case of any amount received by the Administrative Agent for its own account, the Administrative Agent), receives an amount equal to the sum it would have received had no such withholding or deduction on account of Indemnified Taxes or Other Taxes been made.
(b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above, the applicable Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable laws.
(c) Tax Indemnification. Without limiting the provisions of subsection (a) or (b) above, each applicable Borrower shall indemnify the Administrative Agent and each Lender, and shall make payment in respect thereof within ten days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) paid or payable by the Administrative Agent or such Lender, as the case may be, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to a 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.
(d) Evidence of Payments. Upon request by any of the Loan Parties or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the applicable Loan Party shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the applicable Loan Party, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by laws to report such payment or other evidence of such payment reasonably satisfactory to such Loan Party or the Administrative Agent, as the case may be.
(e) Status of Lenders; Tax Documentation.
(i) Each Lender shall deliver to the Company and to the Administrative Agent, at the time or times reasonably requested by any Loan Party or the Administrative Agent, such properly completed and executed
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documentation prescribed by applicable laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Company or other applicable Loan Party or the Administrative Agent, as the case may be, to determine (A) whether or not payments made by the respective Loan Parties hereunder or under any other Loan Document are subject to withholding or deduction for any Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lenders entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by any Loan Party pursuant to this Agreement or any other Loan Document or otherwise to establish such Lenders status for withholding tax purposes in the applicable jurisdictions. Notwithstanding the preceding sentence, the completion, execution and submission of any documentation with respect to any Tax other than United States federal withholding tax shall not be required if in a Lenders reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing,
(A) any Lender that is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the Company and the 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 request of the Company or the Administrative Agent) duly completed, executed originals of Internal Revenue Service Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding tax or such other documentation or information prescribed by applicable laws or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and
(B) each Foreign Lender that is entitled under the Internal Revenue Code or any applicable treaty to an exemption from or reduction of withholding Tax with respect to any payments hereunder or under any other Loan Document shall deliver to the Company 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 request of the Company or the Administrative Agent, but only if such Foreign Lender is legally eligible to do so), duly completed, executed originals of whichever of the following is applicable:
(I) Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable (or any successor form) claiming eligibility for benefits of an income tax treaty to which the United States is a party,
(II) Internal Revenue Service Form W-8ECI (or any successor form),
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit 3.01(e) (a Non-Bank Certificate) to the effect that such Foreign Lender is not (A) a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (B) a 10 percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, or (C) a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Internal Revenue Code, and that no payments in connection with any Loan Document are effectively connected with such Foreign Lenders conduct of a United States trade or business and (y) Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable (or any successor form),
(IV) to the extent a Foreign Lender is not the beneficial owner, Internal Revenue Service Form W-8IMY (or any successor form), accompanied by Internal Revenue Service Form W-8ECI, Internal Revenue Service Form W-8BEN, Internal Revenue Service Form W-8BEN-E, a Non-Bank Certificate, Internal Revenue Service Form W-9, and/or other certification documents (or successor forms) from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, a Non-Bank Certificate may be provided by such Foreign Lender on behalf of each such direct and indirect partner, or
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(V) any other form prescribed by applicable laws as a basis for claiming exemption from or a reduction in United States federal withholding Tax, together with such supplementary documentation as may be prescribed by applicable laws to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made.
(C) If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Company or the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their FATCA obligations, to determine whether such Lender has or has not complied with such Lenders FATCA obligations and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for the purposes of this Clause (C), FATCA shall include any amendments made to FATCA after the date of this Agreement.
(D) From and after the Closing Date, solely for purposes of FATCA, the Loan Parties and the Administrative Agent shall treat, and the Lenders hereby authorize the Loan Parties and the Administrative Agent to treat, the Agreement and all Loans made thereunder (including any Loans already outstanding) as not qualifying as grandfathered obligations within the meaning of Treasury Regulation section 1.1471-2(b)(2)(i).
(iii) Each Lender agrees that if any documentation it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall promptly update such documentation or promptly notify the Company and the Administrative Agent in writing of its inability to do so.
(iv) Notwithstanding any other provisions of this Section 3.01(e), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.
(v) Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any document provided by such Lender to the Administrative Agent pursuant to this Section 3.01(e).
(f) Treatment of Certain Refunds. Unless required by applicable laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to the indemnifying Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by any Loan Party under this Section 3.01 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the indemnifying Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party pursuant to this paragraph (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This paragraph (f) shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other Person. Notwithstanding anything to the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to any Loan Party pursuant to this paragraph (f) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been if the Indemnified Taxes or Other Taxes giving rise to such refund had never been imposed.
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(g) For the avoidance of doubt, for purposes of this Section 3.01, the term Lender shall include any Swing Line Lender and any L/C Issuer.
SECTION 3.02 Illegality. If any Lender determines that any law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an Alternative Currency), or to determine or charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or any Alternative Currency in the applicable interbank market, then, on notice thereof by such Lender to the Company through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurocurrency Rate Loans in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurocurrency Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all of such Lenders Eurocurrency Rate Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary, to avoid such illegality, be determined by the Administrative Agent without reference to the Eurocurrency Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurocurrency Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurocurrency Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurocurrency Rate. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.
SECTION 3.03 Inability to Determine Rates(a) .
(a) If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars or an Alternative Currency) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (c) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan or in connection with a Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly notify the Company and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the affected currency or currencies shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Eurocurrency Rate component of the Base Rate, the utilization of the Eurocurrency Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the applicable Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.
(b) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Borrower or Required Lenders notify the Administrative Agent (with, in the case of the Required Lenders, a copy to Borrower) that the Borrower or Required Lenders (as applicable) have determined, that:
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(i) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the Eurocurrency Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or
(ii) the administrator of the Eurocurrency Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the Eurocurrency Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the Scheduled Unavailability Date), or
(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,
then, reasonably promptly after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmarks (any such proposed rate, a LIBOR Successor Rate), together with any proposed LIBOR Successor Rate Conforming Changes, and any such amendment shall become effective at 5:00 p.m. (New York time) on the fifth Business Day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders do not accept such amendment.
If no LIBOR Successor Rate has been determined and the circumstances under clause (b)(i) above exist or the Scheduled Unavailability Date has occurred (as applicable), the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurocurrency Rate Loans shall be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest Periods), and (y) the Eurocurrency Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurocurrency Rate Loans or Interest Periods) or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (y)) in the amount specified therein.
Notwithstanding anything else herein, any definition of LIBOR Successor Rate shall provide that in no event shall such LIBOR Successor Rate be less than zero for purposes of this Agreement.
SECTION 3.04 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (including any reserve for eurocurrency funding that may be established or reestablished under Regulation D of the Board of Governors of the Federal Reserve System) or any L/C Issuer;
(ii) subject any Lender or any L/C Issuer to any Taxes (other than any Indemnified Taxes, Other Taxes, and Excluded Taxes) on its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein;
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and the result of any of the foregoing shall be to increase the cost to such Lender of making, continuing, converting into or maintaining any Loan the interest on which is determined by reference to the Eurocurrency Rate (or, in the case of paragraph (ii), any Loan), or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lenders or such L/C Issuers holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lenders or such L/C Issuers capital or on the capital of such Lenders or such L/C Issuers holding company, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by, or participations in Letters of Credit or Swing Line Loans held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company could have achieved but for such Change in Law (taking into consideration such Lenders or the L/C Issuers policies and the policies of such Lenders or the L/C Issuers holding company with respect to capital adequacy or liquidity), then from time to time the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lenders or such L/C Issuers holding company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section shall be delivered to the Company and shall be conclusive absent manifest error. The Company will pay (or cause the applicable Designated Borrower to pay) such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lenders or such L/C Issuers right to demand such compensation, provided that no Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than six months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lenders or such L/C Issuers intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof).
SECTION 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Eurocurrency Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);
(b) any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Eurocurrency Rate Loan on the date or in the amount notified by the Company; or
(c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency; or
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(d) any assignment of a Eurocurrency Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 11.13; or
including any loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay (or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan made by it at the Eurocurrency Rate used in determining the Eurocurrency Rate for such Loan by a matching deposit or other borrowing in the offshore interbank eurodollar market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan was in fact so funded.
SECTION 3.06 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or any Borrower is required to pay any additional amount to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender or such L/C Issuer shall, as applicable, 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 or the L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the L/C Issuer, as the case may be. The Company hereby agrees to pay (or to cause the applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company may replace such Lender in accordance with Section 11.13.
SECTION 3.07 Survival. All of the Borrowers obligations under this Article III shall survive termination of the Aggregate Revolving Commitments and repayment of all other Obligations hereunder, and resignation of the Administrative Agent.
ARTICLE IV
GUARANTY
SECTION 4.01 The Guarantees. The Guarantors hereby absolutely and unconditionally and irrevocably guarantee, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of any and all of the Secured Obligations, whether for principal, interest, premiums, fees, indemnities, damages, costs, expenses or otherwise, and whether arising hereunder or under any other Loan Document, any Secured Cash Management Agreement or any Secured Hedge Agreement (including all renewals, extensions, amendments, refinancings and other modifications thereof and all reasonable and documented costs, attorneys fees and expenses of one outside counsel and one local counsel in each relevant jurisdiction and one regulatory counsel incurred by the Secured Parties in connection with the collection or enforcement thereof) to the Administrative Agent and the other Secured Parties. The Administrative Agents books and records showing the amount of the Secured Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Company, and conclusive (absent manifest error) for the purpose of establishing the amount of the Secured Obligations. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Secured Obligations or any instrument or agreement evidencing any Secured Obligations, or by the existence, validity, enforceability,
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perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the Secured Obligations which might otherwise constitute a defense to the obligations of the Guarantors under this Guaranty, and the Guarantors hereby irrevocably waive any defenses (other than the defense of payment and the benefit of any statute of limitations) they may now have or hereafter acquire in any way relating to any or all of the foregoing.
SECTION 4.02 Obligations Unconditional. The obligations of the Guarantors under Section 4.01 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Secured Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 4.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. The Guarantors agrees that they shall have no right of subrogation, indemnity, reimbursement or contribution against any Guarantor for amounts paid under this Article IV until such time as the Secured Obligations have been paid in full and the Commitments have expired or terminated.
Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder, which shall remain absolute and unconditional as described above:
(a) at any time or from time to time, without notice to a Guarantors, the time for any performance of or compliance with any of the Secured Obligations shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of any of the Loan Documents shall be done or omitted;
(c) the maturity of any of the Secured Obligations shall be accelerated, or any of the Secured Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents shall be waived or any other guarantee of any of the Secured Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;
(d) any Lien granted to, or in favor of, the Administrative Agent or any other holder of the Secured Obligations as security for any of the Secured Obligations shall fail to attach or be perfected; or
(e) any of the Secured Obligations shall be determined to be void or voidable (including for the benefit of any creditor of the Company) or shall be subordinated to the claims of any Person (including any creditor of the Company).
With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any other holder of the Secured Obligations exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents or against any other Person under any other guarantee of, or security for, any of the Secured Obligations. To the extent permitted by law, each Guarantor expressly waives any law or regulation of any jurisdiction or any other event which affects any term of such Guarantors obligations hereunder. Each Guarantor waives any rights and defenses that are or may become available to it by reason of §§ 2787 to 2855, inclusive, and §§ 2899 and 3433 of the California Civil Code. As provided below, this Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York. The foregoing waivers and the provisions hereinafter set forth in this Guaranty which pertain to California law are included solely out of an abundance of caution, and shall not be construed to mean that any of the above-referenced provisions of California law are in any way applicable to this Guaranty or the Secured Obligations.
SECTION 4.03 Reinstatement. The obligations of the Company and the Guarantors under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Secured Obligations is rescinded or must be otherwise restored by any holder of any of the Secured Obligations, whether as a result of any Debtor Relief Law or otherwise, and each Guarantor agrees that it will
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indemnify the Administrative Agent and each other holder of the Secured Obligations on demand for all reasonable costs and expenses (including the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such holder of the Secured Obligations in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any Debtor Relief Law.
SECTION 4.04 Certain Additional Waivers.
(a) Each Guarantor agrees that it shall have no right of recourse to security for the Secured Obligations, except through the exercise of rights of subrogation as limited by Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.07. Each Guarantor understands and acknowledges that if the Secured Parties foreclose judicially or nonjudicially against any real property security for the Secured Obligations, that foreclosure could impair or destroy any ability that it may have to seek reimbursement, contribution, or indemnification from the Borrower or others based on any right it may have of subrogation, reimbursement, contribution, or indemnification for any amounts paid by the Borrower under this Guaranty. Each Guarantor further understands and acknowledges that in the absence of this paragraph, such potential impairment or destruction of its rights, if any, may entitle it to assert a defense to this Guaranty based on Section 580d of the California Code of Civil Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App. 2d 40 (1968). By executing this Guaranty, each Guarantor freely, irrevocably, and unconditionally: (i) waives and relinquishes that defense and agrees that it will be fully liable under this Guaranty even though the Secured Parties may foreclose, either by judicial foreclosure or by exercise of power of sale, any deed of trust securing the Secured Obligations; (ii) agrees that it will not assert that defense in any action or proceeding which the Secured Parties may commence to enforce this Guaranty; (iii) acknowledges and agrees that the rights and defenses waived by each Guarantor in this Guaranty include any right or defense that it may have or be entitled to assert based upon or arising out of any one or more of §§ 580a, 580b, 580d, or 726 of the California Code of Civil Procedure or § 2848 of the California Civil Code; and (iv) acknowledges and agrees that the Secured Parties are relying on this waiver in creating the Secured Obligations, and that this waiver is a material part of the consideration which the Secured Parties are receiving for creating the Secured Obligations.
(b) Each Guarantor waives all rights and defenses that it may have because any of the Secured Obligations is secured by real property. This means, among other things: (i) the Secured Parties may collect from it without first foreclosing on any real or personal property collateral pledged by the other Loan Parties; and (ii) if the Secured Parties foreclose on any real property collateral pledged by the other Loan Parties: (A) the amount of the Secured Obligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (B) the Secured Parties may collect from it even if the Secured Parties, by foreclosing on the real property collateral, have destroyed any right it may have to collect from the Borrower. This is an unconditional and irrevocable waiver of any rights and defenses each Guarantor may have because any of the Secured Obligations is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon § 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.
Each Guarantor waives any right or defense it may have at law or equity, including California Code of Civil Procedure § 580a, to a fair market value hearing or action to determine a deficiency judgment after a foreclosure.
SECTION 4.05 Remedies. Each Guarantor agrees that, to the fullest extent permitted by law, as between the such Guarantor, on the one hand, and holders of the Secured Obligations, on the other hand, the Secured Obligations may be declared to be forthwith due and payable as provided in Section 9.02 (and shall be deemed to have become automatically due and payable in the circumstances specified in Section 9.02) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Secured Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Secured Obligations being deemed to have become automatically due and payable), the Secured Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Company for purposes of Section 4.01.
SECTION 4.06 Guarantee of Payment; Continuing Guarantee. The guarantee given by the Company and the Guarantors in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Secured Obligations whenever arising, and consents and agrees that any Lender or the Administrative Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
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SECTION 4.07 Limitation of Guarantors Obligations; Contribution. Notwithstanding any other provision herein or in any other Loan Document to the contrary, the amount of the obligations of any Guarantor under this Guaranty shall be limited to the highest amount (after giving effect to the right of contribution established in this Section 4.07) that is valid and enforceable and not subordinated to the claims of other creditors in accordance with applicable law. Each Guarantor hereby agrees to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder (including by way of set off rights being exercised against it), such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder who has not paid its proportionate share of such payment. Each Guarantors right of contribution shall be subject to the terms and conditions of Section 4.02 hereof.
SECTION 4.08 Keepwell. Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty or the grant of the security interest under the Loan Documents, in each case, by any Specified Loan Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantors obligations and undertakings under this Article IV voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a keepwell, support, or other agreement for the benefit of, each Specified Loan Party for purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
ARTICLE V
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
SECTION 5.01 Conditions Precedent to Effectiveness. This Agreement shall become effective upon satisfaction of the following conditions precedent (the Closing Date):
(a) The Administrative Agent shall have received the following, in form and substance reasonably satisfactory to the Administrative Agent:
(i) An executed counterpart of this Agreement signed on behalf of the Company, the Guarantors, the Administrative Agent and each Lender;
(ii) To the extent requested pursuant to Section 2.11(a), a duly executed Note of the Company, for the account of each requesting Lender;
(iii) Certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name certain identified Loan Parties as debtor and that are filed in those state and county jurisdictions in which such Loan Party is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens),
(iv) A certificate of the Secretary of the Company certifying (A) copies attached thereto of the resolutions of the Board of Directors of the Company authorizing and empowering certain officers of the Company to effect such borrowings as such officers may deem necessary or desirable for proper corporate purposes, subject to the limitations set forth in such resolutions, (B)
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copies attached thereto of the Certificate of Incorporation and by-laws of the Company and (C) the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and other documents to be executed and delivered by the Company hereunder;
(v) A certificate from the relevant Secretary of State dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by each Loan Party;
(vi) A certificate of a duly authorized officer of the Company, dated the Closing Date, certifying that as of such date, (A) the representations and warranties contained in Section 6.01 are correct in all material respects on and as of the Closing Date, (B) no Default or Event of Default as of the date thereof has occurred and is continuing and (C) from the Chief Financial Officer, the Solvency of the Company on a consolidated basis both before and after giving effect to the transactions occurring on such date;
(vii) An opinion of Skadden, Arps, Slate, Meagher & Flom LLP, in a form reasonably satisfactory to the Administrative Agent;
(viii) Opinions of the local counsel to the Borrower identified on Schedule 5.01(a)(viii), in each case, in a form reasonably satisfactory to the Administrative Agent;
(ix) A Perfection Certificate, duly executed by each of the Loan Parties;
(x) The Security Agreement, duly executed by each of the Loan Parties;
(xi) The Pledge Agreement, duly executed by each Specified Pledgor; and
(xii) Subject to Section 7.11(b), delivery of all documents, instruments and certificates and evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary or desirable in order to create and perfect Liens on the Collateral has been taken.
(b) The Company shall have paid all reasonable accrued fees and expenses of the Arrangers, the Administrative Agent and the Lenders which are due and payable on the Closing Date to the extent invoiced (including fees set forth in the Fee Letter and the reasonable and documented fees and disbursements of Cahill Gordon & Reindel LLP, counsel for the Arrangers and the Administrative Agent);
(c) There shall have occurred no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole, since December 31, 2016;
(d) There shall exist no action, suit or proceeding (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or to the knowledge of the Company, threatened, that could reasonably be expected to have a Material Adverse Effect;
(e) Receipt of such documentation as may be required by any Lender, any L/C Issuer or the Administrative Agent in order to comply with Section 326 of the USA PATRIOT Act or necessary for any Lender, any L/C Issuer or the Administrative Agent to verify the identity of any Borrower as required by Section 326 of the USA PATRIOT Act, as requested through the Administrative Agent at least 5 days in advance of the Closing Date; and
(f) The Administrative Agent shall have received a Borrowing Base Report as of August 31, 2017. Upon giving effect to the initial funding of Revolving Loans and issuance of Letters of Credit, and the payment by the Borrower of all fees and expenses incurred in connection herewith, Availability shall be at least $250,000,000.
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Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified above in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved and accepted, and to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date, as notified by the Administrative Agent to the Lenders, specifying its objection thereto. The Administrative Agent shall promptly notify the Lenders of the occurrence of the Closing Date.
SECTION 5.02 Conditions Precedent to Each Credit Extension. The obligation of each Lender to honor any request for Credit Extension and the obligation to issue, amend, extend or renew a Letter of Credit shall be subject to the further conditions precedent on the date of such request for Credit Extension or the date of issuance, amendment, extension or renewal of a Letter of Credit, that the following statements shall be true (and the giving of the applicable Loan Notice or Swing Line Loan Notice and the acceptance by the applicable Borrower of the proceeds of such Borrowing and/or the receipt of a Letter of Credit Application requesting the issuance of such Letter of Credit as required by Section 2.03 shall constitute a representation and warranty by the applicable Borrower that on the date of such request for Credit Extension such statements are true):
(a) The representations and warranties contained in Section 6.01 are correct in all material respects on and as of the date of such Credit Extension (other than those representations and warranties that expressly relate solely to a specific earlier date, which shall remain correct in all material respects as of such earlier date), before and after giving effect to such Credit Extension and to the application of the proceeds therefrom, as though made on and as of such date;
(b) No event has occurred and is continuing, or would result from such Credit Extension or from the application of the proceeds therefrom or from such amendment, extension or renewal of such Letter of Credit, which constitutes a Default or an Event of Default;
(c) The Administrative Agent shall have received a Loan Notice or Letter of Credit Application, as applicable;
(d) After giving effect to such Credit Extension, Availability shall be greater than $0; and
(e) In the case of Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent or the Required Lenders would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.
SECTION 5.03 Conditions Precedent to Initial Advance to Each Designated Borrower. The obligation of each Lender to make its initial advance hereunder to any Applicant Borrower and the obligation to issue, amend, extend or renew a Letter of Credit is subject to the conditions precedent that the Closing Date shall have occurred and the Administrative Agent shall have received on or before the day of the initial Borrowing by such Applicant Borrower or the date of issuance, amendment, extension or renewal of a Letter of Credit the following, each in form and substance reasonably satisfactory to the Administrative Agent:
(a) The Designated Borrower Request and Assumption Agreement executed and delivered by such Applicant Borrower (and containing the written consent of the Company), in accordance with Section 2.14 hereof;
(b) To the extent requested pursuant to Section 2.11(a), a Note executed by such Applicant Borrower, payable for the account of each requesting Lender;
(c) Copies of any and all governmental approvals, if any, required with respect to the Designated Borrower Request and Assumption Agreement;
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(d) A certificate of the Secretary of such Applicant Borrower certifying (A) copies attached thereto of the resolutions of the Board of Directors or similar body of such Applicant Borrower authorizing and empowering certain officers of such Applicant Borrower to enter into and perform the Designated Borrower Request and Assumption Agreement, (B) copies attached thereto of the organizational documents of such Applicant Borrower, and (C) the names and true signatures of the officers of such Applicant Borrower authorized to sign the Designated Borrower Request and Assumption Agreement and, to the extent requested pursuant to Section 2.11, any Notes;
(e) An opinion of counsel to such Applicant Borrower, in form and substance as the Administrative Agent shall reasonably request;
(f) A certificate from the jurisdiction of organization of such Applicant Borrower dated a date reasonably close to the date hereof as to the good standing of and organizational documents filed by such Applicant Borrower, in each case to the extent available;
(g) Such documentation as may be required by any Lender, any L/C Issuer or the Administrative Agent in order to comply with Section 326 of the USA PATRIOT Act or necessary for any Lender, any L/C Issuer or the Administrative Agent to verify the identity of such Applicant Borrower as required by Section 326 of the USA PATRIOT Act, as requested through the Administrative Agent; and
(h) Such other approvals, opinions and documents relating to the Designated Borrower Request and Assumption Agreement, this Agreement and the transactions contemplated hereby as the Administrative Agent may reasonably request.
SECTION 5.04 Conditions Precedent to Real Property Activation Date. With respect to any Real Property to be included in the Borrowing Base, the Real Property Activation Date for such Real Property shall occur upon the satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received the Mortgage and all of the Related Real Property Documents for such Real Property, which Mortgage shall constitute valid and enforceable Liens on the applicable Loan Partys right, title and interest in and to such Real Property, subject to no other Liens except Permitted Encumbrances; provided that all certificates, acknowledgments, evidence and other materials required under clause (c) of the definitions of Related Real Property Documents shall have been delivered to the Lenders at least (i) 10 days if such Real Property is not in a Flood Zone or (ii) 20 days prior to the Real Property Activation Date if such Real Property is in a Flood Zone;
(b) Confirmation from the Administrative Agent that all flood insurance due diligence and flood insurance compliance with respect to such Real Property has been completed; and
(c) The Administrative Agent shall have received an updated Borrowing Base Report including such Real Property.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 Representations and Warranties of the Company. The Company hereby represents and warrants to the Administrative Agent and each Lender and each L/C Issuer that:
(a) Each Loan Party is a corporation or limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of formation.
(b) (i) The execution, delivery and performance by each Loan Party of each of the Loan Documents to which it is a party are within the Loan Partys powers, have been duly authorized by all necessary organizational action, require no action by or in respect of, or filing with, any governmental body,
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agency or official, and do not contravene or constitute a default under, (A) the Loan Partys certificate or articles of incorporation or organization or by-laws, each as amended or (B) any provision of applicable law or regulation or any contractual restriction, judgment, order, injunction, decree or other instrument binding on or affecting the Loan Party.
(ii) The execution, delivery and performance by a Designated Borrower of a Designated Borrower Request and Assumption Agreement and any Notes are within such Designated Borrowers powers, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any governmental body, agency or official, and do not conflict with or contravene or constitute a default under, (A) such Designated Borrowers organizational documents or (B) any provision of applicable law or regulation or any contractual restriction, judgment, order, injunction, decree or other instrument binding on or affecting such Designated Borrower.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by any Loan Party of any Loan Document or a Designated Borrower of any Designated Borrower Request and Assumption Agreement.
(d) Each Loan Document has been, and each of the Notes when delivered hereunder will have been, duly executed and delivered by each Loan Party party thereto. Each Loan Document is, and each of the Notes when delivered hereunder will be, a legal, valid and binding obligation of each Loan Party enforceable against such Loan Party in accordance with their respective terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors rights generally and to general principles of equity.
(e) (i) The consolidated balance sheets of the Company and its Consolidated Subsidiaries as of December 31, 2016, and the related consolidated statements of income, cash flow and shareholders equity of the Company and its Consolidated Subsidiaries for the fiscal year then ended, copies of which have been furnished to each Lender, fairly present the financial condition of the Company and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Company and its Consolidated Subsidiaries for the period ended on such date, all in accordance with in accordance with GAAP consistently applied throughout the period covered thereby.
(ii) The consolidated balance sheets of the Company and its Consolidated Subsidiaries as of March 31, 2017 and June 30, 2017, and the related consolidated statements of income, cash flow and shareholders equity of the Company and its Consolidated Subsidiaries for the fiscal quarter then ended, copies of which have been furnished to each Lender, fairly present the financial condition of the Company and its Consolidated Subsidiaries as at such date and the consolidated results of the operations of the Company and its Consolidated Subsidiaries for the period ended on such date, all in accordance with in accordance with GAAP consistently applied throughout the period covered thereby.
(iii) The consolidated balance sheets of the Company and its Consolidated Subsidiaries most recently delivered pursuant to Sections 7.02 (a) and (b), and the related consolidated statements of income, cash flow and shareholders equity of the Company and its Consolidated Subsidiaries for the applicable fiscal period then ended fairly present the financial condition of the Company and its Consolidated Subsidiaries as at each such date and the consolidated results of the operations of the Company and its Consolidated Subsidiaries for the period ended on such date, all in accordance with in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein (subject, in the case of unaudited financial statements, to the absence of footnotes and to normal year-end audit adjustments).
(iv) Since December 31, 2016, there has been no material adverse change in the business, financial condition, results of operations or properties of the Company and its Subsidiaries, taken as a whole.
(f) There are no actions, suits or proceedings (investigative, judicial or otherwise) against the Company or any of its Subsidiaries pending before any court or arbitrator or any governmental body, agency or official, or, to the knowledge of any Responsible Officer of the Company, threatened, that could reasonably be expected (i) to have a Material Adverse Effect or (ii) to materially and adversely affect the legality, validity or enforceability of this Agreement or any Note.
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(g) Each Loan Party and each of its Restricted Subsidiaries has title in fee simple to each Mortgaged Property, and good title to, or a valid leasehold interest in, all its other material U.S. domestic real property, and no Mortgaged Property is subject to any Lien except as permitted by Section 8.06.
(h) Following application of the proceeds of each Loan to the Company, less than 25% of the value of the assets of the Company and its Consolidated Subsidiaries will consist of Margin Stock.
(i) The Company is not principally engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock.
(j) The Loans to each Borrower, and all related obligations of such Borrower under this Agreement, rank pari passu with all other indebtedness for money borrowed or raised by such Borrower that is not, by its terms, expressly subordinated to other such indebtedness of such Borrower.
(k) Neither the Company nor any Loan Party is required to register as an investment company or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940, as amended.
(l) (i) All necessary Environmental Permits have been obtained and are in effect for the operations and properties of the Company and its Restricted Subsidiaries, and the Company and its Restricted Subsidiaries are in compliance with all such Environmental Permits, except to the extent that the failure to so obtain or comply could not reasonably be expected to have a Material Adverse Effect; and (ii) no circumstances exist that could reasonably be expected to (A) form the basis of an Environmental Action against the Company or any of its Restricted Subsidiaries or any of their properties that could reasonably be expected to have a Material Adverse Effect or (B) cause any such property to be subject to any restrictions on ownership, occupancy, use or transferability under any Environmental Law that could reasonably be expected to have a Material Adverse Effect.
(m) None of the properties owned or leased by the Company or any of its Restricted Subsidiaries is the subject of any investigation or cleanup, whether voluntary or required pursuant to any Environmental Law or ordered by any governmental authority, that could reasonably be expected to have a Material Adverse Effect.
(n) Except to the extent that it could not reasonably be expected to have a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws and each Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Internal Revenue Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the Company, nothing has occurred that would prevent or cause the loss of such tax-qualified status, except to the extent that it could not reasonably be expected to have a Material Adverse Effect.
(o) There are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could be reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.
(p) Except to the extent that it could not reasonably be expected to have a Material Adverse Effect (i) no ERISA Event has occurred, and neither the Company nor any ERISA Affiliate is aware of any
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fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Company and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is 60% or higher and neither the Company nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation date; (iv) neither the Company nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.
(q) None of the Borrowers are or will be using plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Revolving Commitments.
(r) All of the Companys Restricted Subsidiaries that are corporations are duly incorporated, validly existing and in good standing under the laws of their respective jurisdictions of incorporation, and have all corporate powers and all material governmental licenses, authorizations, consents and approvals required to carry on their respective businesses as now conducted. All of the Companys Restricted Subsidiaries that are a limited partnership or limited liability company are duly organized, validly existing and in good standing under the laws of their respective jurisdictions of organization, and have all powers and all material governmental licenses, authorizations, consents and approvals required to carry on their respective businesses as now conducted.
(s) The information set forth in the Information Documents was true and accurate in all material respects on the date thereof and on the Closing Date, except that the Company makes no representation whatsoever (express or implied) with respect to any statements, information, estimates or projections with respect to the future trends or performance of the Company and its Subsidiaries. All written information regarding the Company and its Subsidiaries furnished by, or on behalf of, the Company at any meeting to which all the Lenders were invited and any written information regarding the Company and its Subsidiaries furnished by, or on behalf of, the Company to the Administrative Agent or any Lender pursuant to or in connection with this Agreement was true and accurate in all material respects on the date as of which such information was furnished, subject to the exception set forth in the preceding sentence for statements, information, estimates or projections with respect to the future trends or performance of the Company and its Subsidiaries.
(t) The Company and its Material Subsidiaries maintain, with financially sound and responsible insurance companies (which may include so-called captive insurance companies), such insurance against such risks as are customarily insured against by Persons engaged in similar businesses; provided, the Company and its Material Subsidiaries may self-insure to the same extent as such other Persons.
(u) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and each of its Material Subsidiaries have filed all Tax returns and reports required to be filed, and have paid all Taxes levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP and (ii) there is no proposed Tax assessment, deficiency or other claim against any the Company or any Subsidiary.
(v) The Company and each of its Subsidiaries is in compliance with the requirements of all laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith would not reasonably be expected to have a Material Adverse Effect.
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(w) (a) Schedule 6.01(v) sets forth, as of
the Closing Date, (i) the name and jurisdiction of organization of each Subsidiary that is a Loan Party and each of its direct Domestic Subsidiaries, (ii) the name and jurisdiction of organization of each Subsidiary that is a Specified
Pledgor and each of its direct Foreign Subsidiaries and (iii) as to each such Domestic Subsidiary and first tier Foreign Subsidiary, the number of each class of its Equity Interests authorized, and the number
outstanding, in each case, on the Closing Date, the number of shares covered by all outstanding options, warrants, rights of conversion or purchase and similar rights at the Closing Date and the percentage of each
class of Equity Interests owned by any Loan Party or Specified Pledgor on the Closing Date, (b) all Equity Interests of the Company and its Subsidiaries are duly and validly issued and are fully paid and, in the case of common stock of a
corporation that is a Domestic Subsidiary or a first tier Foreign Subsidiary, non-assessable, and, except as set forth in Schedule 6.01(v) onas of the
Closing Date, other than the Equity Interests of the Company and except as set forth in Schedule 6.01(v), are owned by the Company, directly or indirectly through Wholly Owned Subsidiaries, (c) each Loan Party is the record and
beneficial owner of, and has good and marketable title to, the Equity Interests pledged by it under the Security Agreement, free of any and all Liens, except the security interest created by the Security Agreement and Permitted Liens, (d) each
Specified Pledgor is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by it under the Pledge Agreement, free of any and all Liens, except the security interest created by the Pledge Agreement and
Permitted Liens and (e) as of the Closing Date, no party other than the Company or its Subsidiaries owns any outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments (other than directors and
directors qualifying shares or similar nominal shares to the extent required under applicable legal requirements) of any nature relating to any Equity Interest of any of the Domestic Subsidiaries and the first tier Foreign
Subsidiaries, except as created by the Loan Documents. No consent of any Person, including any other general or limited partner any other member of a limited liability company, any shareholder or any trust beneficiary, that has not
been received is necessary in connection with the creation, perfection or first priority status (subject to Permitted Liens) of the security interest of the Administrative Agent in any Equity Interests pledged to the Administrative Agent for
the benefit of the Secured Parties under the Security Agreement or the Pledge Agreement or the exercise by the Administrative Agent of the voting or other rights provided for in the Security Agreement or the Pledge Agreement or the exercise of
remedies in respect thereof.
(x) The provisions of the Collateral Documents are effective to create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid and enforceable first priority Lien (subject to Permitted Liens and the terms of the Intercreditor Agreement) on all right, title and interest of the respective Loan Parties and the Specified Pledgors in the Collateral described therein (limited with respect to the Equity Interests of first tier Foreign Subsidiaries solely to the extent set forth in the Collateral Documents and governed by the UCC). Except for filings completed prior to or on the Closing Date and as contemplated hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or protect such Liens to the extent perfection can be effected via filing (limited with respect to the Equity Interests of first tier Foreign Subsidiaries solely to the extent set forth in the Collateral Documents and governed by the UCC). Upon the taking of possession or control by the Administrative Agent of Collateral with respect to which a security interest may be perfected by possession or control, the Liens created by the Collateral Documents shall constitute first priority perfected Liens on, and security interests in, such Collateral (other than Equity Interests in first tier Foreign Subsidiaries) (subject to Permitted Liens).
(y) As of the Closing Date, both before and after giving effect to the Loans on the Closing Date, the Company and its Subsidiaries on a consolidated basis are Solvent.
(z) Neither the Company, nor any of its Subsidiaries, nor, to the knowledge of the Company and its Subsidiaries, any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by any Persons that are (i) the target of any Sanctions, (ii) included on OFACs List of Specially Designated nationals, HMTs Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.
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(aa) The Company and its Subsidiaries have conducted their businesses in compliance in all material respects with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
(bb) Borrower and each of its subsidiaries are in compliance with the applicable provisions of the USA PATRIOT Act in all material respects.
(cc) No Loan Party is an EEA Financial Institution.
(dd) No Released Guarantor is a Material Subsidiary.
(ee) The Administrative Agent may rely, in determining which Accounts are Eligible Accounts or Eligible Unbilled Accounts, on all statements and representations made by the Borrower with respect thereto. At the time of delivery of each Borrowing Base Report, assuming that any eligibility criterion that requires the approval or satisfaction of the Administrative Agent has been approved by or is satisfactory to the Administrative Agent, each Account reflected therein as eligible for inclusion in the Borrowing Base is an Eligible Account or Eligible Unbilled Account, the Inventory reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Inventory or Eligible In-Transit Inventory, the Real Property reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible Real Property and the Equipment reflected therein as eligible for inclusion in the Borrowing Base constitutes Eligible M&E.
(ff) All Equipment is in good operating condition and repair, and all necessary replacements and repairs have been made so that the value and operating efficiency of the Equipment is preserved at all times, reasonable wear and tear excepted.
(gg) As of the Amendment No. 1 Effective Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.
ARTICLE VII
AFFIRMATIVE COVENANTS
So long as any Loan or Obligation (other than contingent indemnification obligations for which no claim has been made) shall remain unpaid, or any Lender shall have any Commitment hereunder or any Letter of Credit is outstanding (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made), unless the Required Lenders shall otherwise consent in writing:
SECTION 7.01 Compliance with Laws, Etc. The Company shall comply, and cause each of its Restricted Subsidiaries to comply, in all material respects with all applicable laws, rules, regulations and orders, except for laws, rules, regulations and orders of any Governmental Authority applicable to it or its property except where the failure to do so, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.02 Reporting Requirements. The Company shall furnish to the Administrative Agent (for delivery to the Lenders):
(a) within 60 days after the end of each of the first three quarters of each fiscal year of the Company, but in no case earlier than when such report shall be required to be filed with the Commission, a copy of the Companys Quarterly Report on Form 10-Q filed with the Commission for such quarter, or any similar quarterly report required to be filed by the Company with the Commission; provided that if the Company shall no longer be required to so file with the Commission, the Company shall nonetheless thereafter continue to furnish to the Lenders such financial statements and related materials as would have comprised such filings, at such times as the Company would have otherwise delivered the same to the Commission;
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(b) within 120 days after the end of each fiscal year of the Company, but in no case earlier than when such report shall be required to be filed with the Commission, a copy of the Companys Annual Report on Form 10-K filed with the Commission for such year, or any similar annual report required to be filed by the Company with the Commission; provided that if the Company shall no longer be required to so file with the Commission, the Company will nonetheless thereafter continue to furnish to the Lenders such financial statements and related materials as would have comprised such filings, at such times as the Company would have otherwise delivered the same to the Commission;
(c) simultaneously with the delivery of the reports referred to in clauses (a) and (b) above, a certificate of a Responsible Officer of the Company substantially in the form of Exhibit 7.02(c) (i) setting forth in reasonable detail the calculations required to establish whether the Company was in compliance with the Springing Fixed Charge Covenant on the date of such financial statements and (ii) stating whether there exists on the date of such certificate any Default or Event of Default and setting forth the details thereof and the action which the Company is taking with respect thereto;
(d) promptly after the sending or filing thereof, copies of all reports which the Company sends to any of its security holders, and copies of all reports and registration statements (other than Form S-8 or any similar form) which any Borrower files with the Commission or any national securities exchange;
(e) promptly following any Responsible Officers knowledge thereof,
notice in writing of (i)(i) the occurrence of any Default or Event of Default or any default or event of default under the Term Loan Credit Agreement or any refinancing thereof and setting forth the details thereof and
the action which the Company is taking with respect thereto, (ii) the institution of, or any adverse final judgment in, any litigation, arbitration proceeding or governmental proceeding which, in the Companys judgment, would reasonably be
expected to have a Material Adverse Effect or (iii) the occurrence of any ERISA Event that would reasonably be expected to have a Material Adverse Effect;
(f) within 60 days after the Company completes its annual renewal of its insurance, a certificate of insurance of the Companys primary insurance company or insurance broker(s) summarizing the general liability and property insurance coverage (specifying type, amount and carrier) in effect for the Borrower and the Loan Parties, in form and detail reasonably satisfactory to the Administrative Agent;
(g) concurrently with the delivery of financial statements pursuant to Section 7.02(a), a Perfection Certificate Supplement (or a certificate confirming that there has been no change in information since the date of the Perfection Certificate or latest Perfection Certificate Supplement), signed by a Responsible Officer of the Company;
(h) not later than 30 days after such amendment, copies of each amendment to any organization document (i.e., charter, bylaw or the equivalent of either)of any Loan Party;
(i) at the request of the Administrative Agent, not later than 120 days following the first day of each fiscal year of the Company, a forecast in form reasonably satisfactory to the Administrative Agent (including projected monthly estimates of sales and EBITDA by business unit, quarterly income and cash flow statements and annual balance sheets for the Company and its Subsidiaries on a consolidated basis) with appropriate principal assumptions upon which such forecast is based;
(j) simultaneously with the delivery of the reports referred to in clauses (a) and (b) above, the related consolidating financial statements reflecting adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements (or other reconciliation reasonably acceptable to the Administrative Agent);
(k) promptly following any request therefor, provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable know your customer and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation;
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(l) such other information as any Lender through the Administrative Agent may reasonably request; and
(m) within three (3) Business Days of such a Disposition, an updated Borrowing Base Report upon the Disposition of Collateral in excess of $20,000,000 included in the Borrowing Base.
Documents required to be delivered pursuant to Section 7.02(a), (b) or (d) (to the extent any such documents are included in materials otherwise filed with the Commission) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Companys website on the Internet at the website address listed on Schedule 11.02; or (ii) on which such documents are posted on the Companys behalf on Venue (or such other Internet or intranet website, if any, to which each Lender and the Administrative Agent have access whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver (including by electronic mail) paper copies of such documents to the Administrative Agent or any Lender upon its request to the Company to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Company shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Company hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Company hereunder (collectively, Borrower Materials) by posting the Borrower Materials on Venue (the Platform) and (b) certain of the Lenders (each a Public Lender) may have personnel who do not wish to receive material non-public information with respect to the Company or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons securities. The Company hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof; (x) by marking Borrower Materials PUBLIC, the Company shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Company or its securities for purposes of United States federal securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.09); (y) all Borrower Materials marked PUBLIC are permitted to be made available through a portion of the Platform designated as Public Side Information; and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for posting on a portion of the Platform that is not marked as Public Side Information. Notwithstanding the foregoing, the Company shall be under no obligation to mark any Borrower Materials PUBLIC.
SECTION 7.03 Use of Proceeds. A Borrower shall use the proceeds of the Credit Extensions made under this Agreement for general corporate purposes of the Borrower and its Subsidiaries, including acquisitions; provided, that none of such proceeds will be used in violation of any applicable law or regulation. No proceeds of any Loan or any Letter of Credit will be used, directly or indirectly, or contributed or otherwise made available to any Subsidiary or other Person, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the target of Sanctions, or in any other manner that will result in a violation by a party to this Agreement or any of its Related Parties (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.
SECTION 7.04 Books and Records; Inspection. The Company shall, and shall cause each of its Restricted Subsidiaries to:
(a) Maintain complete and accurate books and records, in which full and correct entries shall be made of all financial transactions of the Company and each such Restricted Subsidiary in accordance with generally accepted accounting principles.
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(b) Permit the Administrative Agent up to one time per 12-month period, subject to reasonable notice and normal business hours, to visit and inspect the properties of the Borrower or any of its Restricted Subsidiaries, conduct field examinations and Inventory and Equipment appraisals, inspect, audit and make extracts from the Companys or any of its Restricted Subsidiaries books and records, and discuss with its officers, employees, agents, advisors and independent accountants the Companys or any of its Restricted Subsidiaries business, financial condition, assets, prospects and results of operations; provided that (x) there shall be no restriction on the number of inspections, appraisals or audits if an Event of Default has occurred and is continuing, (y) the Administrative Agent shall be entitled to conduct one additional field examination and one additional Inventory appraisal (but no additional appraisals of Equipment or Real Property) during any 12-month period in which an Audit Trigger Event occurs and (z) the Administrative Agent shall not discuss the affairs of the Company with the Companys independent public accountants except in the presence of a Responsible Officer of the Company. Neither the Administrative Agent nor any Lender shall have any duty to any Loan Party to make any inspection, nor to share any results of any inspection, appraisal or report with any Loan Party. Notwithstanding anything to the contrary in this Section 7.04(b), none of the Company nor any of its Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making of extracts, or discussion of, any documents, information or other matter that (i) in respect of which disclosure to the Administrative Agent is then prohibited by law, rule or regulation or any agreement binding on the Company any of its Restricted Subsidiaries, as long as such agreement was not entered into in contemplation of or in connection with such inspection or (ii) in any of the Company or any of its Restricted Subsidiaries reasonable judgment, would compromise, or likely cause the Company or any Restricted Subsidiary of the Company to lose the benefit of protection in respect of, any attorney-client privilege, privilege afforded to attorney work product or similar privilege.
(c) Reimburse the Administrative Agent for all charges, costs and expenses of the Administrative Agent in connection with (i) examinations of any Loan Partys books and records or any other financial or Collateral matters as the Administrative Agent deems appropriate, up to one time per 12-month period; and (ii) appraisals of Inventory and Equipment (but not appraisals of Real Property) up to one time each per 12-month period; provided, however, that (x) if an examination or appraisal is initiated during an Event of Default, all charges, costs and expenses relating thereto shall be reimbursed by the Borrower without regard to such limits, (y) the Administrative Agent shall be entitled to reimbursement of all charges, costs and expenses in connection with one additional field examination, one additional Inventory appraisal (but no additional appraisals of Equipment or Real Property) during any 12-month period in which an Audit Trigger Event occurs and (z) if an examination or appraisal is initiated after an Audit Trigger Event occurs, the Administrative Agent shall be permitted to complete such examination or appraisal regardless of whether such Audit Trigger Event has ended. The Company agrees to pay the Administrative Agents reasonable and documented charges, costs and expenses for examination activities, including charges for the Administrative Agents internal examination and appraisal groups, as well as the charges of any third party used for such purposes.
SECTION 7.05 Corporate Existence. Subject to the Companys rights under Sections 8.07 and 8.10, the Company shall, and shall cause each of its Material Subsidiaries to, at all times maintain its corporate existence and preserve and keep, or cause to be preserved and kept, in full force and effect its rights and franchises material to its businesses.
SECTION 7.06 Payment of Taxes. Except as would not, individually or in the aggregate, have a Material Adverse Effect, the Company shall pay and discharge, and cause each of its Material Subsidiaries to pay and discharge, before the same shall become delinquent, all Taxes (whether or not shown on a Tax return) imposed upon it or its property; provided, however, that neither the Company nor any of its Material Subsidiaries shall be required to pay or discharge any such Tax that is being contested in good faith and by proper proceedings and as to which appropriate reserves are being maintained in accordance with GAAP, as long as no action has been commenced to enforce any Lien securing any such Tax.
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SECTION 7.07 Maintenance of Property; Insurance.
(a) The Company shall, and shall cause its Restricted Subsidiaries to, keep all property useful and necessary in their respective businesses in good working order and condition, ordinary wear and tear excepted, except where the failure to do so would not have a Material Adverse Effect.
(b) The Company and its Material Subsidiaries shall maintain, with financially sound and responsible insurance companies (which may include so-called captive insurance companies), such insurance against such risks as are customarily insured against by companies engaged in similar businesses; provided, the Company and its Material Subsidiaries may self-insure to the same extent as such other Persons. The general and umbrella liability and property insurance (including business interruption) of the Company and the Loan Parties shall name the Administrative Agent as additional insured or loss payee, as applicable.
(c) The Company shall provide the Administrative Agent with written notice of its desire to have any Real Property become Mortgaged Property pursuant to Section 7.08 and to have such Mortgaged Property included in the Borrowing Base in accordance with the terms of Section 5.04. Prior to such date on which such Real Property becomes Mortgaged Property (or such other date as may be reasonably agreed in writing between the Company and the Administrative Agent), the Company shall, and shall cause each other Loan Party to deliver to the Administrative Agent all applicable certificates, acknowledgments, evidence and other materials required under clause (c) of the definition of Related Real Property Documents.
SECTION 7.08 Additional Collateral; Additional Guarantors.
(a) WithSubject to the terms of the Intercreditor Agreement, with respect to any property
acquired after the Closing Date by any Loan Party (including, without limitation, any acquisition pursuant to an LLC Division) that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject,
promptly (and in any event within 90 days after the acquisition thereof, or such longer period as may be agreed to the Administrative Agent in its sole discretion) (i) execute and deliver to the Administrative Agent such amendments or
supplements to the relevant Collateral Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on
such property subject to no Liens other than Permitted Liens and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Collateral Document in accordance with all applicable requirements of law,
including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent. The Company shall otherwise take such actions and execute and/or deliver to the Administrative Agent such documents as the
Administrative Agent shall require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after-acquired properties.
(b) With respect to any Person that is or becomes a Domestic Subsidiary (including, without limitation, pursuant to
an LLC Division) (other than (1) a Domestic Subsidiary of a Foreign Subsidiary that is a CFC or, (2) a Domestic Subsidiary that owns (directly or through one or more entities that are disregarded for U.S.
federal income tax purposes) no material assets other than Equity Interests in one or more Foreign Subsidiaries that are CFCs, (3) an Unrestricted Subsidiary or (4) any Domestic Subsidiary that is prohibited
(but only for so long as such Domestic Subsidiary would be prohibited) by applicable law or by contractual obligations existing at the time of acquisition (but not entered into in contemplation thereof) from guaranteeing the Obligations or if
guaranteeing the Obligations would require governmental (including regulatory) consent, approval, license or authorization) that is a Material Subsidiary after the Closing Date (i) cause such new Domestic Subsidiary, promptly (and in any
event within 90 days after such Person becomes a Material Subsidiary, or such longer period as may be agreed to by the Administrative Agent in its sole discretion) (A) to execute a Guaranty and Security Agreement Joinder and (B) to take
all actions necessary or advisable in the opinion of the Administrative Agent to cause the Lien created by the Security Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable requirements of law,
including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent and (ii) deliver to the Administrative Agent the certificates, if any, representing all of the Equity
Interests of such Subsidiary (and those held by such Subsidiary in other Subsidiaries to the extent required by the Security Agreement), together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank
by a duly authorized officer of the holder(s) of such Equity Interests, and, to the extent required by the Security Agreement, all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed
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and delivered in blank by a duly authorized officer of such Loan Party; provided that prior to the Discharge of Fixed Asset Obligations (as defined in the Intercreditor Agreement), to the extent any of the foregoing constitutes Fixed Asset Collateral as defined in the Intercreditor Agreement, the obligation to deliver such certificates, stock powers and other instruments of transfer and notes shall be deemed satisfied by delivery to the Term Loan Agent, as bailee for the Administrative Agent pursuant to the terms of the Intercreditor Agreement.
(c) With respect to any Person that becomes a Specified Pledgor or any Specified Pledgor that acquires Equity Interest of a first tier Foreign Subsidiary, within 90 days (x) if such Specified Pledgor is not party to the Pledge Agreement, cause such Specified Pledgor to execute a joinder agreement to the Pledge Agreement in substantially the form annexed thereto and (y) cause such Specified Pledgor to take all actions necessary or advisable to cause the Liens created by the Pledge Agreement to be duly perfected to the extent required by the Pledge Agreement.
(d) For the avoidance of doubt and notwithstanding anything to the contrary in any of the Loan Documents, in no event shall any (i)(x) non-Wholly Owned Subsidiary or (y) newly-formed Subsidiary that is intended to be and becomes a non-Wholly Owned Subsidiary within 90 days of its formation, be required to become a Guarantor or party to the Security Agreement; and (ii) action in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect such security interests (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction).
(e) No Real Property shall be included in the Borrowing Base as of the Closing Date. Following the Closing Date, the
Company will grant and cause each of the other Borrowers and the Guarantors to grant to the Administrative Agent security interests in, and Mortgages on, any Real Property of such Loan Parties that the Company designates to be included in the
Borrowing Base pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the Company, which security interest and Mortgage shall constitute valid and enforceable Liens subject to no other Liens except
Permitted LiensEncumbrances and record, register or file, and cause each such Restricted Subsidiary to record, register or file, the Mortgage or instruments related thereto in such manner and in such places as is
required by law to establish, perfect, preserve and protect the Liens in favor of the Administrative Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Restricted
Subsidiary to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording, registration or filing provided, however, that in no event shall a Mortgage be deemed executed and delivered to
Administrative Agent until the Administrative Agent has received all applicable certificates, acknowledgments, evidence and other materials required under clause (c) of the definition of Related Real Property Documents. Unless
otherwise waived by the Administrative Agent or the applicable Lender (solely with respect to clause (i)(B) below), with respect to each such Mortgage, the Borrowers shall cause the following requirements to be satisfied with respect to such Real
Property:
(i) the Administrative Agent shall have received:
(A) (i) counterparts of each Mortgage to be entered into with respect to each such Real Property duly
executed and delivered by the record owner of such Real Property and suitable for recording, registering or filing (together with any other forms or undertakings that are required or customary to effect such recording, registration or filing) in all
filing, registration or recording offices that the Administrative Agent may reasonably deem necessary or desirable in order to create a valid and enforceable Lien subject to no other Liens except Permitted LiensEncumbrances,
at the time of filing, registration or recordation thereof and (ii) such counterparts of each Mortgage shall have been deemed released and delivered to the Administrative Agent pursuant to the terms of this Agreement; and
(B) all of the Related Real Property Documents for such Real Property; and
(ii) confirmation from the Administrative Agent that all flood insurance due diligence and flood insurance compliance with respect to such Real Property has been completed.
SECTION 7.09 Information Regarding Collateral and Loan Documents. The Company shall not and shall not permit any other Loan Party or Specified Pledgor to effect any change in (i) such Loan Partys or Specified
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Pledgors legal name, (ii) in the location of such Loan Partys or Specified Pledgors chief executive office, (iii) in such Loan
Partys or Specified Pledgors identity or organizational structure, (iv) in such Loan Partys or Specified Pledgors Federal Taxpayer Identification Number or organizational identification
number, if any, or (v) in such Loan Partys or Specified Pledgors jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving,
liquidating, reorganizing or organizing in any other jurisdiction), until (A) it shall have given the Administrative Agent not less than 10 days prior written notice (in a form bearing the signature of a Responsible Officer), or such
lesser notice period agreed to by the Administrative Agent, of its intention so to do, clearly describing such change and providing such other information in connection therewith as the Administrative Agent may reasonably request and (B) it
shall have taken all action reasonably satisfactory to the Administrative Agent to maintain the perfection and priority of the security interest of the Administrative Agent for the benefit of the Secured Parties in the Collateral, if applicable.
Each Loan Party agrees to promptly provide the Administrative Agent with certified organization documents reflecting any of the changes described in the preceding sentence.
SECTION 7.10 Further Assurances. Promptly, upon the reasonable request of the Administrative Agent, at the Borrowers expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Collateral Documents or otherwise deemed by the Administrative Agent reasonably necessary or desirable for the continued validity, perfection and priority (subject to the terms of the Intercreditor Agreement) of the Liens on the Collateral covered thereby subject to no other Liens except Permitted Liens, or obtain any consents or waivers as may be necessary or appropriate in connection therewith. Upon the exercise by the Administrative Agent of any power, right, privilege or remedy pursuant to any Loan Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, execute and deliver all applications, certifications, instruments and other documents and papers that the Administrative Agent may reasonably require. The Administrative Agent shall, at the Borrowers expense and upon receipt of any certifications reasonably requested by the Administrative Agent in connection therewith, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release a Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents. If requested by the Administrative Agent or any Lender, the Company will, and will cause each of its Restricted Subsidiaries to cooperate with and provide any information necessary for the Administrative Agent or such Lender, as the case may be, to conduct its flood due diligence and flood insurance compliance.
SECTION 7.11 Post-Closing Requirements.
(a) Within 90 days following the Closing Date (or such longer period as the Administrative Agent may reasonably agree), the Company shall, or shall cause the applicable Loan Party, comply with the requirements of Section 7.15.
(b) Within 30 days following the Closing Date, the Company shall use commercially reasonable efforts, or shall use commercially reasonable efforts to cause Banta Global Turnkey LLC, to (i) amend the agreement constituting Section III of that certain Credit Application dated June 26, 2017, by Banta Global Turnkey LLC with Cardinal Health, Inc., an Ohio corporation (collectively with its subsidiaries and Affiliates) (the Cardinal Health Agreement), in a manner reasonably acceptable to the Administrative Agent and (ii) (x) file an amendment to the UCC-1 financing statements filed with the Texas Secretary of State with filing number 17-0026814655 to amend the collateral description in a manner reasonably acceptable to the Administrative Agent or (y) terminate such financing statement; provided that if the actions set forth in clauses (i) and (ii) have not been completed within 30 days of the Closing Date, the Administrative Agent may establish reserves in its Permitted Discretion in an amount equal to at any time the outstanding amount of the obligations of the Company and its Subsidiaries under the Cardinal Health Agreement.
SECTION 7.12 Borrowing Base Reports.
(a) By the 20th day of each calendar month, the Company shall deliver to the Administrative Agent (and the Administrative Agent shall promptly deliver same to Lenders) a Borrowing Base Report as of the close of business on the last day of the previous calendar month; provided that, notwithstanding the foregoing, during any
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Liquidity Period, the Company shall deliver such Borrowing Base Reports prepared as of the close of business each previous Friday, not later than the third Business Day of the following week; provided, further, that such more frequent Borrowing Base Reports provided for in the previous proviso shall be limited to the amount of the gross Accounts, less the amount of ineligible Accounts reported for the most recently ended calendar month.
(b) The Company may elect, in its sole discretion, to deliver to the Administrative Agent a Borrowing Base Report more frequently than required in Section 7.12(a), provided that, upon such an election, the Company shall continue to deliver Borrowing Base Reports to the Administrative Agent at such a frequency for at least two (2) calendar months.
SECTION 7.13 Accounts.
(a) Records and Schedules of Accounts. Each Loan Party shall keep accurate and complete records of its Accounts in all material respects, including all payments and collections thereon, and shall submit to the Administrative Agent reports reflecting such, in a form reasonably satisfactory to the Administrative Agent on a periodic basis (but not more frequently than at the time of delivery of each of the financial statements required pursuant to Sections 7.02(a) and (b)), including upon the Administrative Agents reasonable request, sales, collection and reconciliation reports. Each Loan Party shall also provide to the Administrative Agent, on or before the 20th day of each calendar month, a detailed aged trial balance of all Accounts as of the end of the preceding fiscal month, as the Administrative Agent may reasonably request. If Accounts of Loan Parties owing from any single Account Debtor in an aggregate face amount of $10,000,000 or more cease to be Eligible Accounts (other than through ordinary course collections), the Borrower shall notify the Administrative Agent of such occurrence promptly (and in any event within five Business Days) after any Responsible Officer of the Borrower has actual knowledge thereof.
(b) Account Verification. To the extent that a Specified Default has occurred and is continuing, the Administrative Agent shall have the right at any time, in accordance with the Administrative Agents customary practice in administering asset-based financing similar to the financing hereunder, in the name of the Administrative Agent, any designee of the Administrative Agent or any Loan Party, to verify the validity, amount or any other matter relating to any Accounts of the Loan Parties by mail, telephone or otherwise. The Loan Parties shall cooperate fully with the Administrative Agent in an effort to facilitate and promptly conclude any such verification process.
(c) Proceeds of Collateral. The Loan Parties shall request in writing and otherwise take all commercially reasonable steps to instruct Account Debtors to make all payments on Accounts or Receivables (as defined in the Security Agreement), direct proceeds of Inventory, Equipment or Mortgaged Property are made directly to a Deposit Account that is subject to a Deposit Account Control Agreement. If the Company or any Loan Party receives cash with respect to any Collateral included in the Borrowing Base, it shall hold same in trust for the Administrative Agent and promptly (not later than the five (5) Business Days following receipt) deposit same into a Deposit Account that is subject to a Deposit Account Control Agreement.
SECTION 7.14 Inventory.
(a) Records and Reports of Inventory. Each Loan Party shall keep accurate and complete records of its Inventory in all material respects, and, prior to the 20th day after the end of each fiscal month, shall submit or otherwise make available to the Administrative Agent inventory and reconciliation reports for such month in form reasonably satisfactory to the Administrative Agent.
(b) Returns of Inventory. No Loan Party shall return any Inventory to a supplier, vendor or other Person, whether for cash, credit or otherwise, unless (i) such return is in the ordinary course of business; or (ii) if such return is return is outside the ordinary course of business and the aggregate Value of all Inventory returned in any month exceeds $10,000,000, (x) the Administrative Agent is promptly notified and (y) an updated Borrowing Base Report reflecting such return is delivered to the Administrative Agent.
SECTION 7.15 Deposit Accounts. In order to facilitate the administration of the credit facilities contemplated hereby and the Administrative Agents security interest in the Loan Parties assets, the Loan Parties agree to maintain Bank of America or one or more Lenders as the Loan Parties principal depository bank, including
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for the maintenance of operating and Deposit Accounts, lockbox administration, funds transfer, information reporting services and other treasury management services. Schedule 7.15 sets
forth all Deposit Accounts (other than Excluded Deposit Accounts) maintained by the Loan Parties. Each Loan Party shall take all actions necessary to establish, in the case of Deposit Accounts maintained on the Closing Date within 90 days of the
Closing Date (or such later date as agreed by the Administrative Agent in its reasonable discretion) and with respect to any Deposit Account acquired or established after the Closing Date, within 6090 days of the date so
acquired or established (or such later date as agreed by the Administrative Agent in its reasonable discretion), the Administrative Agents control of each such Deposit Account (other than Excluded Deposit Accounts). Each Deposit Account (other
than an Excluded Deposit Account) shall be subject to a Deposit Account Control Agreement which shall perfect the Administrative Agents security interest by control at all times after (x) with respect to Deposit Accounts maintained on the
Closing Date, 90 days after the Closing Date (or such later date as agreed by the Administrative Agent in its reasonable discretion) and (y) with respect to Deposit Accounts acquired or established after the Closing Date,
6090 days after the date so acquired or established (or such later date as agreed by the Administrative Agent in its reasonable discretion). Each Loan Party shall be the sole account holder of each Deposit Account (other than
Excluded Deposit Accounts) and shall not allow any other Person (other than the Administrative Agent and, subject to the Intercreditor Agreement, the Fixed Asset Collateral Agent (as defined in the Intercreditor Agreement)) to have control
over a Deposit Account (other than Excluded Deposit Accounts) or any Collateral or proceeds of Collateral deposited therein. Each Loan Party shall promptly notify the Administrative Agent of any opening or closing of a Deposit Account (other than
Excluded Deposit Accounts) and will amend Schedule 7.15 to reflect same. Notwithstanding any other provisions contained herein, the Borrower and the other Loan Parties shall not open or close any account during the occurrence of an Event of
Default without the Administrative Agents advance written consent. Each Loan Party hereby authorizes and directs each bank or other depository to deliver to the Administrative Agent, upon request, all balances in any Deposit Account (other
than Excluded Deposit Accounts) maintained for such Loan Party without inquiry into the authority or right of the Administrative Agent to make such request. The Administrative Agent and Lenders assume no responsibility to the Loan Parties for any
lockbox arrangement or Deposit Account; provided that, at the reasonable request of the Borrower, the Administrative Agent agrees to send notices to each Deposit Account bank following the termination of all Liquidity Periods requesting the
termination of exercise of exclusive control over such Deposit Account. The Administrative Agent shall not give instructions with respect to any Deposit Account other than during a Liquidity Period or when an Event or Default has occurred and is
continuing.
SECTION 7.16 General Provisions Regarding Collateral. All Inventory and Equipment, other than Inventory and Equipment in transit and Inventory and Equipment in the possession of a third party for the purpose of repair, maintenance, remanufacture or sale in the ordinary course of business, shall at all times be kept by the Loan Parties at the business locations set forth in Schedule 7.16, except the Loan Parties (i) may make sales or other dispositions of Collateral in accordance with Section 8.07; and (ii) move Inventory and Equipment to owned or leased locations within the United States.
SECTION 7.17 Designation of Subsidiaries. The Company may at any time and from time to time after the Amendment No. 1 Effective Date designate any Restricted Subsidiary of the Company as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary by written notice to the Administrative Agent; provided that (i) immediately before and after such designation, no Event of Default shall have occurred and be continuing, (ii) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, such designation shall constitute an Investment in such Unrestricted Subsidiary and at the time of such designation, the Payment Conditions shall have been satisfied, (iii) no Subsidiary may be designated as an Unrestricted Subsidiary if it or any of its Subsidiaries is a Restricted Subsidiary for the purpose of the Term Loan Credit Agreement (including any Debt incurred in lieu of Debt under the Term Loan Credit Agreement in the form of incremental equivalent debt permitted to be incurred under the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date), (iv) following the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, the Company shall comply with the provisions of Section 7.08 with respect to such designated Restricted Subsidiary, (v) no Restricted Subsidiary may be a Subsidiary of an Unrestricted Subsidiary, (vi) no Borrower, Specified Pledgor or first tier Foreign Subsidiary may be designated an Unrestricted Subsidiary and (vii) in the case of the designation of any Subsidiary as an Unrestricted Subsidiary, each of (x) the Subsidiary to be so designated and (y) its Subsidiaries has not, at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Debt pursuant to which the lender has recourse to any of the assets of the Company or any Restricted Subsidiary (other than Equity Interests in an Unrestricted Subsidiary). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (x) the incurrence at the time of designation of any Investment, Debt or
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Liens of such Subsidiary and its Subsidiaries existing at such time and (y) a return on any Investment by the Company in Unrestricted Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of the Companys Investment in such Subsidiary.
ARTICLE VIII
NEGATIVE COVENANTS
So long as any Loan or Obligation (other than contingent indemnification obligations for which no claim has been made) shall remain unpaid or any Lender shall have any Commitment hereunder or any Letter of Credit is outstanding (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made), unless the Required Lenders shall otherwise consent in writing:
SECTION 8.01 Debt. The Company shall not, and shall not permit any of its Restricted Subsidiaries to create or suffer to exist any Debt other than:
(a) (i) Debt under the Loan Documents and (ii) Debt incurred pursuant to the Term Loan Credit Agreement and the related credit documents in an aggregate principal amount not to exceed the sum of (x) $550,000,000 plus (y) any amounts so long as, in the case of this clause (y), after giving effect to the incurrence thereof, (A) in the case of Debt constituting First Priority Debt, the First Priority Debt Leverage Ratio is equal to or less than 2.00 to 1.00, (B) in the case of Debt constituting Priority Debt (other than First Priority Debt), the Priority Debt Leverage Ratio is equal to or less than 3.00 to 1.00 and (C) in the case of Debt that is unsecured and is not guaranteed by any Subsidiary of the Borrower, the Total Leverage Ratio is equal to or less than 5.00 to 1.00, in each case, including any Debt incurred in lieu of Debt under the Term Loan Credit Agreement in the form of incremental equivalent debt permitted to be incurred under the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date, and, in the case of this clause (ii) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof that meets the definition of Permitted Refinancing (it being understood that if the amount of any Debt is increased in connection with any extension, renewal or replacement, the amount permitted as a Permitted Refinancing shall be permitted under this clause (a)(ii) and the amount above the amount permitted as a Permitted Refinancing shall be permitted if permitted under another clause of this Section 8.01);
(b) Debt issued and outstanding or available under existing lines of credit or other facilities on the Closing Date so long as such Debt is listed on Schedule 8.01(b) hereto, and any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part thereof that meets the definition of Permitted Refinancing (it being understood that if the amount of any Debt is increased in connection with any extension, renewal or replacement, the amount permitted as a Permitted Refinancing shall be permitted under this clause (b) and the amount above the amount permitted as a Permitted Refinancing shall be permitted if permitted under another clause of this Section 8.01);
(c) Debt (i) among Loan Parties, (ii) from a Restricted Subsidiary that is not a Loan Party owing to a Loan Party to the extent permitted by Section 8.02, or (iii) among Restricted Subsidiaries that are not Loan Parties;
(d) cash management obligations and Debt incurred in respect of netting services, overdraft protection and similar arrangements;
(e) Debt of a Person that existed at the time such Person is acquired and becomes a Restricted Subsidiary of the Company or Debt of a Person that existed at the time such Person is merged or consolidated with a Restricted Subsidiary or Debt acquired by a Restricted Subsidiary in connection with an Acquisition, in each case, to the extent such Debt was not created in contemplation of such acquisition, merger or consolidation and is not secured by any assets other than those acquired so long as all such Debt outstanding pursuant to this clause (e) shall not exceed $100,000,000 in the aggregate at any time;
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(f) any earn-out obligation that comprises a portion of the consideration for an acquisition or Debt consisting of obligations under deferred compensation or other similar arrangements incurred in connection with an acquisition;
(g) capital lease obligations and purchase money obligations for the purchase of goods on ordinary trade terms, fixed assets or capital assets so long as all such Debt outstanding pursuant to this clause (g) shall not exceed $50,000,000 in the aggregate at any time;
(h) Guarantees with respect to Debt of Loan Parties permitted under this Section 8.01;
(i) (x) Debt under Secured Hedge Agreements or Secured Cash Management Agreements or (y) Debt (secured or unsecured) at Restricted Subsidiaries that are not Guarantors, so long as all Debt outstanding pursuant to this clause (y) of this clause (i) shall not exceed $300,000,000 in the aggregate;
(j) Debt under Section 2.01(b) and other Debt (which may be
secured to the extent permitted under Section 8.06) in the aggregate not to exceed $200,000,000; and
(k) unsecured Debt of a Loan Party so long as after giving effect to such transaction the Leverage Ratio is 6.00 to 1.00 or less;
(l) Debt in respect of bid, performance, surety bonds or completion bonds issued for the account of the Borrower or any Restricted Subsidiary in the ordinary course of business, including guarantees or obligations of the Borrower or any Restricted Subsidiary with respect to letters of credit supporting such bid, performance, surety or completion obligations;
(m) Debt of a Restricted Subsidiary that is a joint venture so long as all Debt outstanding pursuant to this clause (m) shall not exceed $75,000,000 in the aggregate; and
(n) obligations under Swap Contracts entered into for non-speculative purposes.
SECTION 8.02 Investments. The Company shall not, and shall not permit any of its Restricted Subsidiaries to make or hold any Investments, except:
(a) Permitted Investments;
(b) (i) Investments by the Company and its Restricted Subsidiaries outstanding on the Closing Date and listed on Schedule 8.02 hereto and any modification or replacement thereof not involving an increase in the aggregate amount of such Investments as of the Closing Date (it being understood that if the amount of any Investment is increased in connection with any modification or replacement, the amount outstanding on the Closing Date shall be permitted under this clause (b)(i) and the increased amount shall be permitted if permitted under another clause or sub-clause of this Section 8.02) and (ii) Investments by Restricted Subsidiaries that are not Loan Parties;
(c) Investments in current assets, including extensions of credit in the nature of accounts receivable or notes receivable and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors in the ordinary course of business;
(d) Guarantees permitted by Section 8.01;
(e) the purchase or other acquisition of all of the Equity Interests in any Person or a business unit or all or a substantial part of the business of any Person if upon the consummation thereof such Person or assets will be a Wholly Owned Subsidiary; provided that, with respect to each purchase or other acquisition made pursuant to this Section 8.02(e) (each, a Permitted Acquisition):
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(i) any such newly-created or acquired Restricted Subsidiary shall comply with the applicable requirements of Section 7.08;
(ii) the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be (A) the businesses engaged in by the Company and its Restricted Subsidiaries on the date hereof, (B) the businesses of media, business services or business outsourcing and (C) any business or activities substantially similar or related thereto (which shall include other businesses related to the handling and/or distribution of data used or processed in the businesses engaged in by the Company and its Restricted Subsidiaries on the date hereof);
(iii) (A) subject to Section 1.11, immediately before and immediately after giving pro forma effect to any such purchase or other acquisition, no Default or Event of Default shall have occurred and be continuing, and (B) immediately after giving effect to such purchase or other acquisition, the Payment Conditions shall be satisfied;
(iv) the Company shall have delivered to the Administrative Agent, no later than the Business Day prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (e) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; provided that such certificate shall not be required for any purchase or other acquisition involving cash consideration of less than $50,000,000; and
(v) the Company shall have delivered to the Administrative Agent, within 60 days following the date on which any such purchase or other acquisition is consummated, annual projections for the business acquired in the Permitted Acquisition for the period through the Maturity Date; provided that such annual projections shall only be required for any purchase or other acquisition involving cash consideration of more than $350,000,000.
(f) Investments (i) by the Company in any Guarantor, (ii) by any Guarantor in the Company,
(iii) by a Guarantor in another Guarantor, (iv) by a Restricted Subsidiary that is not a Loan Party in another Restricted Subsidiary (including a Loan Party) to the extent any Debt of a Loan Party is
subordinated to the Secured Obligations pursuant to a global intercompany note), and (v) not exceeding $200,000,000 in the aggregate at any time consisting of intercompany loans from the Company or a Guarantor to a Restricted
Subsidiary that is not a Guarantor;
(g) other Investments so long as the Payment Conditions
shall have been satisfied at the time of such Investment, (it being understood that after an Investment is made in compliance with this clause (g), such Investment may be held without regard to whether the Payment Conditions are still satisfied);
and
(h) other Investments not to exceed $150,000,000 in the aggregate at any time outstanding;
(i) loans and advances to directors, employees and officers of the Borrower or any Restricted Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate principal amount for the Borrower and its Restricted Subsidiaries not to exceed $10,000,000 at any one time outstanding;
(j) Investments to the extent that payment for such Investments is made with common stock of the Borrower; and
(k) Investments arising out of the receipt by the Borrower or a Restricted Subsidiary of non-cash consideration for the sale of assets not prohibited by the terms of this Agreement.
SECTION 8.03 Restricted Payments. The Company shall not (a) declare, or permit any Restricted Subsidiary to declare, dividend or distribution in respect of its Equity Interests or instruments convertible into or
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exchangeable for Equity Interests (whether in cash, securities or other property) or incur any obligation (contingent or otherwise) to do so or (b) make, or permit a Restricted Subsidiary to make, any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests or instruments convertible into or exchangeable for Equity Interests (other than convertible Debt instruments or securities) or on account of any return of capital to the Company or a Restricted Subsidiarys stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing (in each case, a Restricted Payment), other than, in each case:
(i) a Restricted Subsidiary may make a dividend or distribution (A) to the Company or
another SubsidiaryRestricted Subsidiary (and, in the case of a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to each owner of Equity Interests of such Restricted Subsidiary such that the Borrower or
Restricted Subsidiary receives at least its pro rata share of such dividend or distribution) or (B) to the extent required by applicable law, regulation or order, any other Person;
(ii) the Company or a Restricted Subsidiary may declare and pay dividends and other payments solely in common shares of the Company or redeem any of its Equity Interests in exchange for, or out of the proceeds of the substantially concurrent issuance and sale of, common stock of the Company or through accretion or accumulation of such dividends on such Equity Interests;
(iii) the Company may declare and pay dividends of $60,000,000 annually in the aggregate, subject to no Event of Default immediately before and immediately after giving pro forma effect thereto;
(iv) the Company or any Restricted Subsidiary may, in the ordinary course of business, (x) repurchase its equity interests owned by retiring directors, officers or employees of the Company and (y) make payments to directors, officers or employees of the Company or any of its Restricted Subsidiaries upon termination of employment in connection with the exercise of stock options, stock appreciation rights or similar equity or equity-based incentives pursuant to management or other incentive plans or in connection with the death or disability of such employees;
(v) the Company or any Restricted Subsidiary may, in the ordinary course of business, repurchase
restricted equity interests of the Company issued as compensation to officers, directors and employees upon the vesting of such restricted equity interests if the fair market value of such repurchased equity interests represent an amount equal to
the tax withholding obligations of such officers, directors and employees that result from the vesting of such restricted equity interests; and
(vi) the Company or any Restricted Subsidiary may make other Restricted Payments so long as on a Pro Forma Basis after giving effect to such Restricted Payment, the Distribution Conditions are satisfied, subject to no Event of Default immediately before and immediately after giving pro forma effect thereto;
(vii) the payment by the Borrower or any Restricted Subsidiary of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or giving the notice of the redemption, if on the date of declaration or notice the payment would have complied with this Section 8.03 (assuming, in the case of redemption, the giving of the notice would have been deemed to be a Restricted Payment at such time and such deemed Restricted Payment would have been permitted at such time); provided that any Restricted Payment pursuant to this clause (vii) shall be deemed to have utilized capacity under the exception that such Restricted Payment would have been permitted to have been made in reliance of at the time of declaration or notice of redemption, as applicable; and
(viii) payments or distributions to dissenting stockholders of a Person acquired by the Borrower or a Restricted Subsidiary pursuant to a Permitted Acquisition.
SECTION 8.04 Burdensome Agreements. The Company shall not, nor shall it permit its Material Subsidiaries to, enter into, or permit to exist, any consensual Contractual Obligation that (a) encumbers or restricts the ability of such Material Subsidiary to (i) make dividends or distributions to the Company, (ii) pay any Debt or other
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obligation owed to the Company, (iii) make loans or advances to the Company, (iv) transfer any of its property to the Company or (b) encumbers or restricts the ability of the
Company or such Material Subsidiary to pledge its property pursuant to the Loan Documents or any renewals, refinancings, exchanges, refundings or extension thereof (other than pursuant to the Intercreditor Agreement), except, in each case,
those (1) existing under (x) the Loan Documents and any other agreement in effect on the Closing Date and (y) the Term Loan Credit Agreement and the other Loan Documents (as defined in the Term Loan
Credit Agreement), and in each case any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances and restrictions in any such amendments,
modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings are not materially more restrictive, taken as a whole, than those contained in such existing agreement, (2) existing under, by reason of,
or with respect to, applicable law, rule, regulation or order, (3) with respect to any Person or the property or assets of a Person acquired by the Company or any Material Subsidiary existing at the time of such acquisition and not incurred in
connection with or in contemplation of such acquisition and any amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements or refinancings thereof, provided that the encumbrances or restrictions in
any such amendments, modifications, restatements, renewals, extensions, supplements, refundings, replacements, or refinancings are not materially more restrictive, taken as a whole, than those in effect at the time of the acquisition, (4) that
restrict in a customary manner the subletting, assignment or transfer of any property or asset that is subject to a lease, license, conveyance or contract or similar property or assetare customary provisions restricting
the subletting or assignment thereof, (5) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Company or any Material Subsidiary not otherwise prohibited
by the Loan Documents, (6) arising or agreed to in the ordinary course of business, not relating to any Debt, and that do not, individually or in the aggregate, materially detract from the value of any property or assets of the Company or any
Material Subsidiary, (7) existing under, by reason of or with respect to any agreement for the sale or other disposition of all or substantially all of the capital stock of, or property and assets of, a Material Subsidiary that restrict
distributions by that Material Subsidiary pending such sale or other disposition, (8) existing under, by reason of, or with respect to, customary supermajority voting provisions and customary provisions with respect to the disposition or
distribution of assets or property, in each case contained in joint venture, partnership or limited liability company agreements, and (9) restrictions on cash or other deposits or net worth imposed by customers or lessors or
required by insurance, surety or bonding companies, in each case, under contracts, leases or other agreements entered into in the ordinary course of business, and (10) those with respect to any Lien that is permitted to be
incurred pursuant to Section 8.06.8.06; and (11) encumbrances or restrictions contained in the documents governing any Debt or other instrument or agreement entered into
after the Closing Date that, as determined by the Borrower, will not materially adversely affect the Borrowers ability to make payments on the Loans.
SECTION 8.05 Springing Fixed Charge Covenant. The Company shall maintain a Fixed Charge Coverage Ratio for each four fiscal-quarter period of at least 1.0 to 1.0 while a Covenant Trigger Period is in effect, tested as of the end of the most recent four fiscal-quarter period for which financial statements were required to be delivered pursuant to Section 7.02(a) or (b) (or, prior to the delivery of any such financials statements, the latest financial statements referred to in Section 6.01(e)), and each four fiscal-quarter period ending thereafter until the Covenant Trigger Period is no longer in effect. Notwithstanding anything herein to the contrary, the parties hereto acknowledge and agree that all calculations of, or compliance with, the financial covenant set forth above shall be made on a Pro Forma Basis.
SECTION 8.06 Limitation on Liens, Etc. The Company shall not create, incur, assume or suffer to exist, or permit any of its Restricted Subsidiaries to create, incur, assume or suffer to exist, any Lien, upon or with respect to any of the Collateral, whether now owned or hereafter acquired, in each case to secure any Debt of any Person or entity, other than the following (Permitted Liens):
(a) Liens existing on the Closing Date and listed on Schedule 8.06 hereto;
(b) Liens arising in connection with the obligations of the Company or any Restricted Subsidiary under industrial revenue bonds;
(c) Liens on assets of a Restricted Subsidiary of a Loan Party to secure Debt of such Restricted Subsidiary to any Loan Party;
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(d) Purchasepurchase money
Liens claimed by sellers of goods on ordinary trade terms provided that no financing statement has been filed to perfect such Liens, and provided that no such Lien shall extend to assets of any character other than the goods being
acquired;
(e) Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by such Person in the ordinary course of business not prohibited by this Agreement;
(f) Liens securing Debt on property of a corporation or firm (or division
thereof)Person that becomes a Restricted Subsidiary of the Company or of any of its Restricted Subsidiaries after the date hereof in accordance with Section 8.02 and existing at the time such
corporation is merged or consolidated with the Company or any Restricted Subsidiary, at the time such corporation or firm (or division thereof) becomes a Restricted Subsidiary of the Company or any of its Restricted
Subsidiaries, or at the time of a sale, lease or other disposition of the properties of a corporation or a firm (or division thereof) as an entirety or substantially as an entirety to the Company or a Restricted Subsidiary,
provided that such Liens were not created in contemplation of such merger, consolidation, acquisition, sale, lease or disposition and do not extend to assets other than those of the Person merged into or consolidated with the Company or such
Restricted Subsidiary or acquired by the Company or such Restricted Subsidiary and such Debt was permitted by Section 8.01(e); provided that in the case of such Liens on ABL Collateral, such
Liens are expressly made junior to the Liens in favor of the Administrative Agent;
(g) Liens on life insurance policies owned by the Company or any Restricted Subsidiary, securing Insurance Policy Debt;
(h) (i) pledges or deposits by such Person under workers compensation laws, unemployment insurance laws or other social security legislation, and deposits securing liability to insurance carriers under related insurance or self-insurance arrangements, (ii) Liens incurred in the ordinary course of business securing insurance premiums or reimbursement obligations under insurance policies related to the items specified in the foregoing clause (i), or (iii) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of the items set forth in clauses (i) and (ii) of this clause (h);
(i) (i) deposits to secure the performance of bids, tenders, contracts (other than for borrowed money) or leases to which such Person is a party, (ii) deposits to secure public or statutory obligations of such Person, surety and appeal bonds, performance bonds and other obligations of a like nature, (iii) deposits as security for contested taxes, import duties or the payment of rent, and (iv) obligations in respect of letters of credit or bank guarantees that have been posted by such Person to support the payment of items set forth in clauses (i) and (ii) of this clause (i);
(j) Liens consisting of pledges or deposits of cash or securities made by such Person as a condition to obtaining or maintaining any licenses issued to it by, or to satisfy other similar requirements of, any applicable Governmental Authority;
(k) Liens imposed by law, such as (i) carriers, warehousemens and mechanics materialmens, landlords, or repairmens Liens, or (ii) other like Liens arising in the ordinary course of business securing obligations which are not overdue by more than 60 days or which if more than 60 days overdue, the period of grace, if any, related thereto has not expired or which are being contested in good faith by appropriate proceedings;
(l) Liens arising out of judgments or awards not constituting an Event of Default;
(m) Liens for property taxes not yet due and payable or which are being contested in good faith and by appropriate proceedings and as to which appropriate reserves are being maintained to the extent required in accordance with GAAP;
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(n) survey exceptions, encumbrances, easements or reservations of, or rights of others for rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or other restrictions or encumbrances as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially impair their use in the ordinary operation of the business of such Person;
(o) Liens arising in the ordinary course of business by virtue of any contractual, statutory or common law provision relating to bankers Liens, rights of set-off or similar rights and remedies covering deposit or securities accounts (including funds or other assets credited thereto and pooling and netting arrangements) or other funds maintained with a depository institution or securities intermediary;
(p) any zoning, building or similar laws or rights reserved to or vested in any Governmental Authority;
(q) Liens arising from precautionary UCC financing statement filings (or similar filings under applicable law) regarding leases entered into by such Person;
(r) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(s) Purchasepurchase money
Liens on fixed and capital assets financed with Debt permitted under Section 8.01(g), including Liens constituting the interest of a lessor under a lease that would be capitalized on the lessees balance sheet in
accordance with GAAP as in effect on the Closing Date, or under a sale-leaseback transaction, in each case relating to equipment, provided that after giving effect thereto the
related Debt was permitted under Section 8.01(g);
(t) Anyany extension,
renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any Liens referred to in the foregoing clause (a); provided that the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement, plus accrued interest, plus any premium or other payment required to be paid in connection with such refinancing, plus, in either case, the amount
of fees and reasonable expenses of the Company or any of its Restricted Subsidiaries incurred in connection with such refinancing, and that such extension, renewal or replacement Lien shall
be limited to all or a part of the property which is subject to the Lien so extended, renewed or replaced (plus improvements on such property);
(u) Liens securing the Secured Obligations and Liens securing Debt at Restricted Subsidiaries that are not Guarantors that is incurred pursuant to Section 8.01(i) if such Liens are solely on non-Guarantor assets;
(v) subject to the terms of the Intercreditor Agreement, Liens on Collateral (and, to the extent not Collateral, Liens on Real Property) securing obligations in respect of Debt permitted by Section 8.01(a)(ii); provided that the Term Loan Agent (or other applicable representative of any Debt that is (i) incremental equivalent debt permitted to be incurred under the Term Loan Credit Agreement as in effect on the Amendment No. 1 Effective Date or (ii) a Permitted Refinancing of the Term Loan Credit Agreement) shall have entered into the Intercreditor Agreement with the Administrative Agent; and
(w) additional Liens so long as the aggregate principal outstanding amount of the obligations secured thereby does not exceed $10,000,000 at any time; provided that in the case of such Liens on ABL Collateral that secure Debt for borrowed money, such Liens are expressly made junior to the Liens in favor of the Administrative Agent;
(x) Liens securing obligations in respect of trade-related letters of credit and covering the goods (or the documents of title in respect of such goods) financed or the purchase of which is supported by such letters of credit and the proceeds and products thereof;
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(y) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition and any Permitted Refinancing in respect thereof; provided that in the case of such Liens on ABL Collateral, such Liens are expressly made junior to the Liens in favor of the Administrative Agent, other than any such Lien on Equipment unless such Equipment is included in the Borrowing Base;
(z) licenses, sublicenses, covenants not to sue, releases or other rights under Intellectual Property granted to others in the ordinary course of business or in the reasonable business judgment of the Borrower or any Restricted Subsidiary; and
(aa) Liens on the Equity Interests of any Unrestricted Subsidiary.
Notwithstanding the foregoing, no Liens securing Debt pursuant to clause (i) of the definition thereof may be incurred on Equity
Interests that are Collateral, Real Property that is Collateral, Equipment that is Collateral or Fixtures that are Collateral in each case owned by the Company or its Domestic Subsidiaries, other than Liens (x) pursuant to
clauseclauses (u) and (v) above and (y) pursuant to clauses (a), (b), (d), (f), (s), and (t) above on Equipment or Fixtures.
SECTION 8.07 Merger; Sale of Assets. The Company shall not, and shall not permit its Restricted Subsidiaries to, merge or consolidate with or into any other Person, or sell, transfer, lease or otherwise dispose of all or substantially all of its assets (including, in each case, pursuant to an LLC Division) (whether now owned or hereafter required), except:
(a) the Company or a Restricted Subsidiary may merge or consolidate with or into any other Person; provided that, if the Company or a Designated Borrower is a party to such merger or consolidation, the Company or such Designated Borrower is the surviving entity and if a Guarantor is a party to such merger or consolidation a Guarantor is the surviving entity;
(b) any Restricted Subsidiary that is a Designated Borrower may sell or otherwise dispose of any or all of its assets to, the Company or a Guarantor, and any Restricted Subsidiary that is not a Designated Borrower may sell or otherwise dispose of any or all of its assets to any other Person;
provided that (i) after giving effect to such merger, consolidation, sale or other disposition, no Default or Event of Default shall exist, and (ii) in the case of a transaction involving a Restricted Subsidiary, the assets to be sold or conveyed do not constitute all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole; and
(c) the Company or a Restricted Subsidiary may consummate Permitted Acquisitions not involving a merger of the Company.
For the avoidance of doubt, nothing contained in this Section 8.07 shall prohibit the ability of the Company and its Restricted Subsidiaries to make Investments not prohibited by Section 8.02, to make Restricted Payment not prohibited by Section 8.03 or to consummate Dispositions not prohibited by Section 8.10.
SECTION 8.08 Conduct of Business. The Company shall not, and shall not permit its Restricted Subsidiaries to, engage in any line of business other than (A) the businesses engaged in by the Company and its Restricted Subsidiaries on the date hereof, (B) the businesses of media, business services or business outsourcing and (C) any business or activities substantially similar or related thereto (which shall include other businesses related to the handling and/or distribution of data used or processed in the businesses engaged in by the Company and its Restricted Subsidiaries on the date hereof).
SECTION 8.09 Transactions with Affiliates. The Company shall not, and shall not permit its Restricted Subsidiaries to, enter into any transaction of any kind with any Affiliate of the Company that is not a Restricted
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Subsidiary of the Company, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Restricted
Subsidiary as would be obtainable by the Company or such Restricted Subsidiary at the time in a comparable arms length transaction with a Person other than an Affiliate; provided that the foregoing restriction shall not apply
to (a) transactions for fair market value of less than $25,000,000, (b) transactions between or among the Company and its Restricted Subsidiaries, (c) entering into employment and severance arrangements with directors, officers and
employees, (d) Restricted Payments not prohibited under Section 8.03, (e) investments permitted under Section 8.02 that would be subject to this Section 8.09 because
the Company or a Restricted Subsidiary owns Equity Interests in or otherwise Controls such Person and (f, (f) any transaction with an Affiliate where the only consideration paid by the Borrower or any
Restricted Subsidiary is common stock of the Company and (g) any other transaction approved by a majority of the disinterested members of the Borrower as being fair to the Borrower and its Restricted Subsidiaries.
For purposes of this Section 8.09, any transaction with any Affiliate shall be deemed to have satisfied the standard set forth in the language preceding the proviso in this Section 8.09 if such transaction has been approved by the board of directors of the Company or Restricted Subsidiary of the Company, as applicable.
SECTION 8.10 Dispositions. The Company shall not, and shall not permit its Restricted Subsidiaries to, make any Disposition or enter into any agreement to makeconsummate any Disposition, except:
(a) Dispositions by the Borrowers and their Restricted Subsidiaries not otherwise permitted under this Section 8.10; provided that (i) subject to Section 1.11, at the time of such Disposition, no Specified Default has occurred and is continuing or would result from such Disposition, and (ii) at least 75% of the purchase price for such asset shall be paid to the Borrower or its Restricted Subsidiary in cash or Permitted Investments, provided, that (1) any Designated Non-Cash Consideration received in respect of such disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) from the Closing Date until the Maturity Date, not in excess of $250,000,000, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed cash and (2) any liabilities or obligations that are assumed by the transferee in connection with such Disposition shall be deemed cash and any securities, notes or other obligations received by the Borrower or any of its Restricted Subsidiaries from the transferee or Affiliates in connection with such Disposition shall be deemed cash if the Borrower or the applicable Restricted Subsidiary intends at the time of receipt to convert such securities, notes or other obligations to cash within fifteen months of receipt thereof (with the proceeds thereof being cash proceeds upon any such conversion); provided, further, that any such Disposition shall be for fair market value;
(b) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired;
(c) Dispositions of current assets in the ordinary course of business and Dispositions of Permitted Investments;
(d) Dispositions of property by a Borrower or any Restricted Subsidiary to a Borrower or to a Wholly Owned Subsidiary; provided that if the transferor of such property is a Borrower or a Guarantor, the transferee thereof must either be a Borrower or a Guarantor;
(e) Dispositions of property that is no longer to be used in Borrowers or their Restricted Subsidiaries business;
(f) Restricted Payments permitted under Section 8.03;
(g) Dispositions of Intellectual Property or other intangible assets, including through licensing or cross-licensing of Intellectual Property or the abandonment, cancellation or disposition of Intellectual Property;
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(h) the sale or issuance of any Restricted Subsidiarys Equity Interest to the Borrowers or any Guarantor;
(i) the leasing, occupancy agreements or sub-leasing of property that would not materially interfere with the required use of such property by the Borrowers or their Restricted Subsidiaries;
(j) the sale or discount of accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof (and not as part of any financing of receivables);
(k) Involuntary Dispositions;
(l) Dispositions of Investments to the extent required by, or made pursuant to, customary buy/sell arrangements between the holders of Equity Interests pursuant to shareholders or joint venture agreements or similar arrangements; and
(m) Dispositions over the life of this Agreement constituting no more than 5% of Consolidated Total Assets as of the prior fiscal year at the time of any such Disposition may be disposed of through an exchange or swap for similar property (including assumption of liabilities or obligations in connection therewith) useful in the business of the Borrower and its Restricted Subsidiaries of comparable fair market value.
SECTION 8.11 [Reserved].
SECTION 8.12 Prepayments of Debt. The Loan parties shall not and shall not permit any Restricted Subsidiary to make (or give any notice with respect thereto) any voluntary or optional (i) prepayment or (ii) redemption or acquisition for value of any Debt (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), unless before and after giving effect to such payment, the Distribution Conditions are satisfied; provided that nothing in this subsection (b)Section 8.12 shall prohibit (x) any prepayment or redemption of Debt incurred pursuant to Section 8.01(a)(ii), (y) any non-cash payment or redemption (excluding any such non-cash payment or redemption comprised of an offset with respect to assets included in the Borrowing Base) not in excess of $10,000,000 or (yz) any renewal, refinancing, replacement or extension of any Debt with any Debt permitted hereunder.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9.01 Events of Default. If one or more of the following events (Events of Default) shall have occurred and be continuing:
(a) A Borrower or other Loan Party shall fail to pay when due any installment of principal of any Loan or any L/C Obligation or deposit any funds as cash collateral in respect of L/C Obligations required to be made in accordance with the provisions of this Agreement; or
(b) A Borrower or other Loan Party shall fail to pay any fee under this Agreement, or any installment of interest on any Loan, within five (5) days after the due date thereof; or
(c) Any written representation or warranty, certification or statement made or deemed made by a Borrower or other Loan Party herein, in any other Loan Document, or in any certificate delivered in connection herewith or therewith shall prove to have been incorrect in any material respect when made or deemed made; or
(d) The Company or other Loan Party shall fail to perform or observe (i) any term, covenant or agreement contained in Section 7.02(a), (b) or (e), 7.03, 7.04, 7.05, 7.06, 7.15 or Article VIII, (ii) any term,
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covenant or agreement in Section 7.12 and such failure continues for five (5) days (or at any time that weekly Borrowing Base Reports are required to be delivered pursuant to this Agreement, two (2) Business Days or (iii) any other term, covenant or agreement contained in this Agreement, other than as otherwise provided in this Section 9.01, on its part to be performed or observed if such failure in the case of this clause (iii) shall remain unremedied for 30 days after written notice thereof shall have been given to the Company by the Administrative Agent or any Lender; or
(e) The Company or any Material Subsidiary shall fail to pay any principal of or premium or interest on any Debt, any obligations in respect of acceptances, letters of credit or other similar instruments, of the Company or such Material Subsidiary which is outstanding in a principal amount of at least $75,000,000 in the aggregate (but excluding Debt arising under this Agreement), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt or other obligation; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt or other obligation and shall continue after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or condition is to accelerate, or permit the acceleration of, the maturity of such Debt or other obligation; or any Debt or other such obligation in which the outstanding principal exceeds $75,000,000 shall be otherwise declared to be due and payable (by acceleration or otherwise) or required to be prepaid, redeemed, defeased or otherwise repurchased by the Company or any Material Subsidiary (other than by a regularly-scheduled required prepayment), or any offer to prepay, redeem, defease or purchase such Debt shall be required to be made, prior to the stated maturity thereof; or there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from any event of default under such Swap Contract as to which Company or any Material Subsidiary is the Defaulting Party (as defined in such Swap Contract) and, the Swap Termination Value owed by the Company or such Material Subsidiary as a result thereof is greater than $75,000,000; or
(f) (i) The Company or any Material Subsidiary (A) shall generally not pay its debts as such debts become due, or (B) shall admit in writing its inability to pay its debts generally, or (C) shall make a general assignment for the benefit of creditors; or (ii) any proceeding shall be instituted by or against the Company or any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, or other similar official for it or for any substantial part of its property, and in the event of any such proceeding instituted against the Company or any Material Subsidiary (but not instituted by it), such proceeding shall remain undismissed or unstayed for a period of 60 days or shall result in the entry of an order for relief, the appointment of a trustee or receiver, or other action in such proceeding or result adverse to the Company or such Material Subsidiary, as applicable; (iii) the Company or any Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this subsection (f)(i)(B), (i)(C) or (ii); or
(g) Any Person, or a group of Persons acting in concert, shall at any time acquire beneficial ownership (within the meaning of Rule 13d-3 of the Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting Stock of the Company representing 35% or more of the combined voting power of all Voting Stock of the Company; or
(h) (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC that would reasonably be expected to have a Material Adverse Effect, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any payment or payments with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan which has resulted or could reasonably be expected to result in liability of any Borrower in an aggregate amount in excess of $75,000,000; or
(i) One or more final judgments or orders for the payment of money, in an aggregate amount exceeding $75,000,000 at any one time outstanding (exclusive of judgment amounts fully covered by
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insurance, to the extent the insurer has admitted liability in respect thereof), shall be rendered against the Company or any Material Subsidiary and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order, or (ii) such judgments or orders shall not be discharged (or provision shall not have been made for such discharge), a stay of execution thereof shall not be obtained, or such judgments or orders shall not be paid or bonded, within 60 days from the date of entry thereof, and the Company or such Material Subsidiary, as the case may be, shall not, within such 60-day period, appeal therefrom and cause the execution thereof to be stayed pending such appeal; or
(j) Any Loan Document (other than the Intercreditor Agreement), at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or the Company or any Loan Party contests the validity or enforceability of any material provision of any Loan Document; or the Company or any Loan Party denies that it has any or further liability or obligation under any material provision of any Loan Document, or purports to revoke, terminate or rescind any material provision of any Loan Document;
(k) Any Collateral Document after delivery thereof including pursuant to Section 7.11 shall for any reason (other than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (in the case of Mortgaged Property, subject to Permitted Encumbrances and in the case of all other Collateral, subject to Permitted Liens) on the Collateral purported to be covered thereby; provided that it shall not be an Event of Default under this clause (k) if the Administrative Agent shall not have, or shall cease to have, a valid and perfected first priority Lien on Collateral purported to be covered thereby that has a fair market value, individually or in the aggregate, of less than $20,000,000.
SECTION 9.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation of any L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company;
(c) require that the Company cash collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable law or equity;
provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Company or any Material Subsidiary under the Bankruptcy Code of the United States, the obligation of each Lender to make advances and any obligation of the L/C Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
SECTION 9.03 Application of Funds. After the exercise of remedies provided for in Section 9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 9.02),
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(a) any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;
Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and L/C Borrowings (and similar amounts with respect to Secured Cash Management Agreements under clause (x) of the definition of Cash Management Agreement), ratably among the applicable Secured Parties in proportion to the respective amounts described in this clause Third held by them;
Fourth, to (a) payment of that portion of the Secured Obligations constituting unpaid principal of the Loans, L/C Borrowings and Secured Obligations then owing under Qualified Secured Hedge Agreements and Qualified Secured Cash Management Agreements (in the case of such Qualified Secured Hedge Agreements and Qualified Secured Cash Management Agreements, up to the amount of Reserves taken specifically therefor); (b) Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit (and similar amounts with respect to Qualified Secured Cash Management Agreements under clause (x) of the definition of Cash Management Agreement), ratably among the Secured Parties in proportion to the respective amounts held by them;
Fifth, to all obligations then owing under Secured Hedge Agreements that are not Qualified Secured Hedge Agreements (or that are Qualified Secured Hedge Agreements, the portion of which is not covered by clause Fourth above) and Secured Cash Management Agreements that are not Qualified Secured Cash Management Agreements (or that are Qualified Secured Cash Management Agreements, the portion of which is not covered by clause Fourth above); and
Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, as required by the Intercreditor Agreement or, in the absence of any such requirement, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(d), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Secured Obligations, if any, in the order set forth above.
Notwithstanding the foregoing, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article X hereof for itself and its Affiliates as if a Lender party hereto.
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Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the allocation to Secured Obligations otherwise set forth above in this Section.
Notwithstanding the foregoing provisions, this Section 9.03 is subject to the provisions of the Intercreditor Agreement.
ARTICLE X
ADMINISTRATIVE AGENT
SECTION 10.01 Appointment and Authority. Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America 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 Administrative Agent shall also act as the collateral agent under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto (including, for the avoidance of doubt, exercising any discretion under Section 7.11 or otherwise). In this connection, the Administrative Agent, as collateral agent and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent shall be entitled to the benefits of all provisions of this Article X and Article XI (including Section 11.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the collateral agent under the Loan Documents) as if set forth in full herein with respect thereto.
Each of the Lenders (including in its capacity as a potential Cash Management Bank or Hedge Bank) hereby authorizes the Administrative Agent to enter into the Intercreditor Agreement and any other intercreditor agreement or arrangement permitted under this Agreement without any further consent by any Lender and any such intercreditor agreement shall be being binding upon the Lenders.
SECTION 10.02 Rights as a Lender. 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 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, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Company 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 10.03 Exculpatory Provisions. 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:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other 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
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other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required 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 9.02 and 11.01) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice describing such Default is given to the Administrative Agent by the Company, a Lender or an L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (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 the sufficiency of any Collateral or (vi) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. Without limiting the generality of the foregoing, the use of the term contractual representative or agent (or similar term) in this Agreement or any other Loan Document with reference to Bank of America, N.A., as Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.
SECTION 10.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or incurrence of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such 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 Company), 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.
SECTION 10.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other 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 Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. 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 non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct with respect to the actions of such sub-agents or their selection.
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SECTION 10.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender; provided, further, that if the Administrative Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (a) if the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Company and such Person, remove such Person as Administrative Agent and in consultation with the Borrower, appoint a successor, (b) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (c) 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 each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successors appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) or removed Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring or removed Administrative Agents resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuers 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 Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(d). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the acceptance of a successors appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (ii) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) 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 reasonably satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
SECTION 10.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and each 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 each 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 Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
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SECTION 10.08 No Other Duties; Etc. Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or L/C Issuer hereunder.
SECTION 10.09 Administrative Agent May File Proofs of Claim; Credit Bidding. 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 any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Secured Obligations arising under the Loan Documents that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 11.04.
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 any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Secured Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.
The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Secured Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles; provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 11.01 and Section 11.03 of this Agreement, and (iii) to the extent that Obligations that are
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assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.
SECTION 10.10 Collateral and Guaranty Matters.
(I) Without limiting the provisions of
Section 10.09,10.09:
(a) any Lien on any property granted to or held
by the Administrative Agent under any Loan Document shall, subject to the provisions of the Intercreditor Agreement, automatically be released, and each of the Lenders (including in its capacities as a potential Cash Management Bank and a
potential Hedge Bank) and each of the L/C Issuers irrevocably authorizeauthorizes the Administrative Agent, at its option and in its discretion,(a)
to take any action to release any such Lien on or to file any UCC-3 amendment
related to any property granted to or held by the Administrative Agent under any Loan Document: (i) upon termination of the Aggregate Revolving Commitments and payment in full of all
Secured Obligations (other than (A) contingent indemnification obligations and (B) obligations and liabilities not yet due and payable under Secured Cash Management Agreements and Secured Hedge Agreements) and the expiration or termination
of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Administrative Agent and the applicable L/C Issuer shall have been made), (ii) that is
sold, transferred or to be soldconveyed to a Person that is not a Loan Party (and in the case of Equity
Interests of first tier Foreign Subsidiaries, to a Person that is not a Loan Party or a Specified Pledgor) as part of or in connection with any sale, transfer or conveyance permitted
hereunder or under any other Loan Document, (iii) that is or becomes Excluded Property or is not and is not required to be collateral orto secure the Obligations,
(iv) if approved, authorized or ratified in writing in accordance with Section 11.0111.01, (v) that is owned by a Guarantor upon (or substantially
simultaneously with) release of such Guarantor from its obligations under the Guaranty pursuant to clause (b) below or
(vi) as expressly provided for in the Intercreditor Agreement;
(b) to release anyany Guarantor
shall, subject to the provisions of the Intercreditor Agreement, automatically be released from its obligations under the Guaranty, and each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank)
and each of the L/C Issuers irrevocably authorizes the Administrative Agent to take any action to release any such Guarantor from its obligations under the Guaranty and the Security
Agreement, if such Person ceases to be a Restricted Subsidiary as a result of a transaction permitted hereunder; or
(c) each of the Lenders (including in its
capacities as a potential Cash Management Bank and a potential Hedge Bank) and each of the L/C Issuers irrevocably authorizes the Administrative Agent, upon request of the Borrower or any Guarantor, to subordinate (or release, in the case of
Liens permitted under Section 8.06(d) or Section 8.06(s)) any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted (i) to exist or to be incurred pursuant to Section 8.06(d) or Section 8.06(s) or (ii) to be superior to the Lien of the applicable Collateral Documents by
Section 8.06;8.06.
(II) On the Closing Date, each of the Subsidiaries listed on Schedule 10.10 that was a Guarantor immediately prior to the Closing Date (the Released Guarantors) shall be and hereby is automatically released from its obligations under the Guaranty and the other Loan Documents, and the Liens on the Collateral of the Released Guarantors granted to the Administrative Agent under the Loan Documents shall be automatically released. Each of the Lenders (including in its capacity as a potential Cash Management Bank and a potential Hedge Bank) and each of the L/C Issuers irrevocably authorize the Administrative Agent to execute and deliver such documents and instruments (including UCC-3 financing statements) as may be reasonably requested by the Borrowers to evidence the release of the Liens on the Collateral of the Released Guarantors granted to the Administrative Agent under the Loan Documents.
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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agents authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10. In each case as specified in this Section 10.10, the Administrative Agent will (and is hereby irrevocable authorized to), at the Borrowers expense and upon receipt of any certifications reasonably requested by the Administrative Agent in connection therewith, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 10.10.
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 Agents 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 for any failure to monitor or maintain any portion of the Collateral.
Notwithstanding anything herein to the contrary, each of the Lenders (including in its capacity as a potential Cash Management Bank or Hedge Bank) hereby authorizes the Administrative Agent to enter into such amendments or supplements to the relevant Collateral Documents or such other security documents as the Administrative Agent shall deem necessary or advisable to effect the changes contemplated by Amendment No. 1, in each case, in form reasonably acceptable to the Administrative Agent on the Amendment No. 1 Effective Date.
SECTION 10.11 Secured Cash Management Agreements and Secured Hedge Agreements. No Cash Management Bank or Hedge Bank that obtains the benefits of Section 9.03, the Guaranty or any Collateral by virtue of the provisions hereof or of the Guaranty or any Collateral Document 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) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article X to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Secured Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Secured Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.
SECTION 10.12 Withholding Tax. To the extent required by any applicable laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. Without limiting or expanding the provisions of Section 3.01, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 10.12. The agreements in this Section 10.12 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, for purposes of this Section 10.12, the term Lender shall include any Swing Line Lender and any L/C Issuer.
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SECTION 10.13 ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using plan assets (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Revolving Commitments,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lenders entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement,
(iii) (A) such Lender is an investment fund managed by a Qualified Professional Asset Manager (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving 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 Lenders entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
(b) In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in 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, the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that:
(i) none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (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),
(ii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),
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(iii) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),
(iv) the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Revolving Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and
(v) no fee or other compensation is being paid directly to the Administrative Agent, the Arrangers or any of their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Revolving Commitments or this Agreement.
(c) The Administrative Agent and the Arrangers hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Revolving Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Revolving Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, bankers acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that
(a) no such amendment, waiver or consent shall:
(i) extend or increase the Commitment of a Lender (or reinstate any Commitment terminated pursuant to Section 9.02) without the written consent of such Lender whose Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Section 5.02 or of any Default or a mandatory reduction in Commitments is not considered an extension or increase in Commitments of any Lender);
(ii) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) or any scheduled reduction of the Commitments hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment or whose Commitments are to be reduced;
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(iii) reduce the principal of, or the rate of interest specified herein (subject to Section 3.03(b)) on, any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso to this Section 11.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such amount; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of Default Rate or waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate;
(iv) change Section 9.03 (other than to establish and/or give effect to any FILO Loans) without the written consent of each Lender directly affected thereby;
(v) change any provision of this Section 11.01(a) or the definition of Required Lenders or Supermajority Lenders without the written consent of each Lender directly affected thereby;
(vi) amend Section 1.06, Section 1.07 or the definition of Alternative Currency without the written consent of each Lender directly affected thereby;
(vii) release the Company from its Obligations hereunder, including those Obligations under Article IV, without the written consent of each Lender directly affected thereby;
(viii) release all or substantially all of the Collateral in any transaction or series of related transactions (it being understood that a transaction or series of related transactions that is not prohibited by Section 8.10 shall not constitute the release of all or substantially all of the Collateral) without the written consent of each Lender directly affected thereby;
(ix) release all or substantially all of the value of the Guaranty, without the written consent of each Lender directly affected thereby, except to the extent the release of any Restricted Subsidiary from the Guaranty is permitted pursuant to Section 10.10 (in which case such release may be made by the Administrative Agent acting alone);
(x) subordinate the Obligations or, except as expressly permitted hereunder, the Liens securing them without the written consent of each Lender directly affected thereby;
(xi) amend the definition of Borrowing Base (or any defined term used in such definitions) if the effect of such amendment is to increase Availability without the prior written consent of the Supermajority Lenders; or
(xii) amend Section 2.01(b)(iii) if the effect of such amendment is to change the last out nature of Incremental Facilities in the form of FILO Facilities without the prior written consent of each Lender directly affected thereby.
(b) unless also signed by the applicable L/C Issuer, no amendment, waiver or consent shall affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it;
(c) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall affect the rights or duties of the Swing Line Lender under this Agreement;
(d) unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
provided, however, that notwithstanding anything to the contrary herein, (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code of the United States supersedes the unanimous consent provisions set forth herein, (iii) the Required Lenders shall determine whether or not to allow a Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the
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Lenders, (iv) this Agreement may be amended in accordance with the provisions of Section 2.01(b) and Section 2.17. In addition, in the event term loans are added to this Agreement a majority in interest of the revolving Lenders shall be required to consent to any waiver or change affecting borrowing conditions for Revolving Loans or affecting the revolving Lenders adversely with respect to payments in a manner differently than that affecting term loan lenders.
Notwithstanding anything to the contrary herein, 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.
Notwithstanding anything to the contrary, any Loan Document may be waived, amended, supplemented or modified pursuant to an agreement or agreements in writing entered into by the Company and the Administrative Agent (without the consent of any Lender) (A) solely to cure a defect or error, or to grant a new Lien for the benefit of the Secured Parties or extend an existing Lien over additional property and (B) to implement a LIBOR Successor Rate and any LIBOR Successor Rate Conforming Changes in accordance with Section 3.03(b).
SECTION 11.02 Notices; Effectiveness; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
(i) if to the Company or any other Borrower, the Administrative Agent, the Swing Line Lender or an L/C Issuer, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule 11.02; and
(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Company).
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail, FpML messaging 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 any L/C Issuer pursuant to Article II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Company 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 senders receipt of an acknowledgement from the intended recipient (such as by the return receipt requested function, as available, return e-mail or other written acknowledgement), provided
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that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor, provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) The Platform. THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the Agent Parties) have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrowers or the Administrative Agents transmission of Borrower Materials or notices through the platform, any other electronic platform or electronic message services or through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).
(d) Change of Address, Etc. Each of the Borrowers, the Administrative Agent, the Swing Line Lender and the L/C Issuers may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Company, the Administrative Agent, the Swing Line Lender and the L/C Issuers. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the Private Side Information or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lenders compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Borrower Materials that are not made available through the Public Side Information portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
(e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify the Administrative Agent, the L/C Issuers, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
SECTION 11.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer, the Swing Line Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof;
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nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under any other Loan Document (including the imposition of the Default Rate) preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrowers or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 9.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the applicable L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 11.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
SECTION 11.04 Expenses; Indemnity; and Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all reasonable, documented, out-of-pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, restatements, modifications or waivers (or any proposed amendments, restatements, modifications or waivers) of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable, documented, out-of-pocket expenses incurred by the L/C Issuers in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable, 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 counsel for 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 reasonable, documented, out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) Indemnification by the Company. The Company 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 reasonable, documented, out-of-pocket related expenses (including the reasonable, documented fees, charges and disbursements of (A) one primary counsel for all Indemnitees in any one action and (B) one local counsel in each applicable jurisdiction unless, in each case, in the reasonable opinion of such counsel representation of all Indemnitees would be inappropriate due to the existence of an actual or potential conflict of interest owed to any unaffiliated third party) that may be incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the applicable L/C Issuer to
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honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by a Borrower or any of its Subsidiaries, or any Environmental Action related in any way to a Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party or by any such persons directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any Borrower against an Indemnitee for breach in bad faith or a material breach of such Indemnitees obligations hereunder or under any other Loan Document, if such Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Company for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by them to the Administrative Agent (or any sub-agent thereof), an L/C Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer, the Swing Line Lender or such Related Party, as the case may be, such Lenders Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Swing Line Lender or such L/C Issuer 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), the Swing Line Lender or an L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, no Borrower shall assert, and each Borrower 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; provided that the foregoing shall not in any way limit the indemnification obligations of the Borrower pursuant to subsection (b) above. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the resignation of the Administrative Agent, the Swing Line Lender and any L/C Issuer, the replacement of any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all the other Obligations.
SECTION 11.05 Payments Set Aside. To the extent that any payment by or on behalf of any Borrower 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
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(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 Federal Funds Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuers under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.
SECTION 11.06 Successors and Assigns.
(a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that no Borrower may assign or otherwise transfer any of its rights or obligations hereunder or thereunder 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 subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) 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 subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the assigning Lenders Commitment and the related Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in subsection (b)(i)(A) of this Section 11.06, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if Trade Date is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $10,000,000 (and in increments of not less than $1,000,000 in excess thereof) unless each of the Administrative Agent and, so long as no Event of Default under Section 9.01(a), (b) or (f) has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lenders Loans and Commitments, and rights and obligations with respect thereto, assigned, except that this clause (ii) shall not (A) apply to the Swing Line Lenders rights and obligations in respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and obligations in respect of its Revolving Commitment (and the related Revolving Loans thereunder) on a non-pro rata basis;
(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section 11.06 and, in addition:
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(A) the consent of the Company (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default under Section 9.01(a), (b) or (f) has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments if such assignment is to a Person that is not a Lender with a Commitment in respect of the Commitment subject to such assignment, an Affiliate of such Lender or an Approved Fund with respect to such Lender;
(C) the consent of the L/C Issuers (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and
(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment.
(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Company. No such assignment shall be made to (A) the Company or any of the Companys Affiliates or Subsidiaries, (B) 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) or (C) a natural person.
(vi) 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 Company 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 or any 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 Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this 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 Lenders rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
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(c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrowers (and such agency being solely for tax purposes), shall maintain at the Administrative Agents Office a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and related interest amounts) of the Loans, L/C Obligations, and FILO Term Loans (to the extent applicable) owing to, each Lender and L/C Issuer pursuant to the terms hereof from time to time (the Register). The entries in the Register shall be conclusive (absent manifest error), and the Loan Parties, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender or L/C Issuer, as applicable, hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrowers and any Lender at any reasonable time (with respect to its own interests) and from time to time upon reasonable prior notice.
(d) Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Company or any of the Companys Affiliates or Subsidiaries) (each, a Participant) in all or a portion of such Lenders rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lenders participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lenders obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Administrative Agent, the other Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (i) through (vii) of Section 11.01(a) that affects such Participant. Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (subject to the requirements and limitations of such Sections and Section 3.06). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.
Each Lender that sells participations, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register for the recordation of the names and addresses of all of such Lenders Participants and the principal amounts (and related interest amounts) of each Participants interest in the Loans or other obligations under the Loan Documents. 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 pursuant to the terms hereof as the owner of the applicable participation for all purposes of this Agreement, notwithstanding notice to the contrary; provided that no Lender shall have the obligation to disclose all or a portion of the participant register (including the identity of any Participant or any information relating to a Participants interest in any Loans or other obligations under any Loan Document) to any Person expect to the extent that such disclosure is necessary in connection with a Tax audit or other proceeding to establish that any loans are in registered form for U.S. federal income tax purposes.
(e) Limitation on Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent that the Participants right to a greater payment results from a Change in Law after the Participant became a Participant.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment (or any foreclosure with respect thereto) shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(g) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its Revolving Commitment and Revolving
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Loans pursuant to subsection (b) above, Bank of America may, (i) upon thirty days notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon thirty days notice to the Company, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of an 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 Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(d)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2) 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 reasonably satisfactory to Bank of America to effectively assume the obligations of Bank of America with respect to such Letters of Credit.
SECTION 11.07 Treatment of Certain Information; 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 and its Affiliates respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to become a Lender pursuant to Section 2.01(b) or 2.17(d) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its obligations, (g) with the consent of the Company, (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company, (i) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers of other market identifiers with respect to the credit facilities provided hereunder, or (j) subject to an agreement containing provisions substantially the same as those of this Section, to any Person to whom or for whose benefit that such Lender pledges or assigns a security interest pursuant to Section 11.06(f).
For purposes of this Section, Information means all information received from a Borrower or any Subsidiary relating to the Borrowers or any Subsidiary 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 such Borrower or any Subsidiary, provided that, in the case of information received from a Borrower or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable law, including Federal and state securities laws.
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SECTION 11.08 Set-off; License.
(a) 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, after obtaining the prior written consent of the Administrative Agent, 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 any Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party (including, for the avoidance of doubt, the obligations of the Company in its capacity as Guarantor) now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such Debt; provided, that in the event that any Defaulting Lender shall exercise any such right of set-off, (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 2.16 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 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, the L/C Issuers and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuers or their respective Affiliates may have. Each Lender and the L/C Issuers agree to notify the Company 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.
(b) Solely during the continuance of an Event of Default, the Administrative Agent is hereby granted an irrevocable (until the cure of the Event of Default), non-exclusive license or other right to use, license or, to the extent permitted under licenses granting such Loan Party rights in Intellectual Property, sub-license (without payment of royalty or other compensation to any Person) any or all Intellectual Property of the Loan Parties, computer hardware and software, trade secrets, brochures, customer lists, promotional and advertising materials, labels, packaging materials and other similar property, in advertising for sale, marketing, selling, collecting, completing manufacture of, or otherwise exercising any rights or remedies with respect to, any Collateral; provided that (i) such license shall be subject to the rights of any licensee under any license granted prior to such Event of Default, to the extent such license is a Permitted Lien; (ii) the quality of any services or products in connection with which any trademarks included in such Intellectual Property are used will not be materially inferior to the quality of such services and products sold by such Loan Party under such trademarks immediately prior to such Event of Default and such Loan Party shall have the right to inspect any such services and products to monitor compliance with such standard; and (iii) to the extent the foregoing license is a sublicense of such Loan Partys rights as licensee under any third party license, the license to Administrative Agent shall be in accordance with any limitations in such third party license including prohibitions on further sublicensing.
SECTION 11.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the Maximum Rate). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.
SECTION 11.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous
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agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.01, 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 telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 11.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
SECTION 11.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, the L/C Issuers or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.
SECTION 11.13 Replacement of Lenders. If (i) any Lender requests compensation under Section 3.04, (ii) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (iii) a Lender (a Non-Consenting Lender) does not accept an Extension Offer pursuant to Section 2.17 or does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as provided in Section 11.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable), (iv) a Lender does not consent to a proposed Designated Borrower pursuant to Section 2.14, (v) a Lender does not approve another Alternative Currency requested by the Company or (vi) any Lender is a Defaulting Lender, then the Company 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 11.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
(a) the Company shall have paid to the Administrative Agent the assignment fee specified in Section 11.06(b);
(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) 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);
(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;
(d) such assignment does not conflict with applicable laws; and
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(e) in the case of any such assignment resulting from a Non-Consenting Lenders failure to consent to a proposed change, waiver, discharge or termination with respect to any Loan Document under subclause (iii) above, the applicable replacement bank, financial institution or fund consents to the proposed change, waiver, discharge or termination;
provided, further, that the failure by such Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Lender and the mandatory assignment of such Non-Consenting Lenders Commitments and outstanding Loans and participations in L/C Obligations pursuant to this Section 11.13 shall nevertheless be effective without the execution by such Lender of an Assignment and Assumption.
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 Company to require such assignment and delegation cease to apply.
SECTION 11.14 Governing Law; Jurisdiction; Etc.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (OTHER THAN AS PROVIDED IN ANY MORTGAGE WITH RESPECT TO ITSELF), OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTWITHSTANDING THE FOREGOING WITH RESPECT TO COLLATERAL DOCUMENTS (INCLUDING FINANCING STATEMENTS) GOVERNED BY LAWS OTHER THAN THOSE OF THE STATE OF NEW YORK THE ADMINISTRATIVE AGENT MAY FILE ACTIONS OR PROCEEDINGS RELATED TO SUCH COLLATERAL DOCUMENTS IN ANY COURT IN THE STATE WHOSE LAWS GOVERN SUCH COLLATERAL DOCUMENT AND ALL PARTIES HERETO CONSENT TO EACH SUCH COURTS JURISDICTION.
(c) WAIVER OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 11.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
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INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.16 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 of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent, the Lenders and the Arrangers, are arms-length commercial transactions between the Loan Parties and their respective Affiliates, on the one hand, and the Administrative Agent, the Lenders and the Arrangers, on the other hand, (B) each of the Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) each of the Loan Parties is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Administrative Agent, the Lenders and the Arrangers each is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for any Loan Party or any of their respective Affiliates, or any other Person and (B) neither the Administrative Agent nor any Arranger or Lender has any obligation to any Loan Party or any of their respective 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 Lenders and the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Loan Parties and their respective Affiliates, and neither the Administrative Agent nor any Arranger or Lender has any obligation to disclose any of such interests to the Loan Parties and their respective Affiliates. Each of the Loan Parties hereby agrees that it will not claim that any of the Administrative Agent, the Lender, the Arrangers or their respective Affiliates has rendered advisory services of any nature or respect or owes fiduciary duty in connection with any respect of any transaction contemplated hereby.
SECTION 11.17 Electronic Execution of Assignments and Certain Other Documents. The words execution, execute, signed, signature, and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other Loan Notices, Swing line Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.
SECTION 11.18 USA PATRIOT Act Notice. Each Lender that is subject to the USA PATRIOT Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Loan Party in accordance with the USA PATRIOT Act. Each Loan Party shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable know your customer and anti-money laundering rules and regulations, including the USA PATRIOT Act.
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SECTION 11.19 California Judicial Reference. If any action or proceeding is filed in a court of the State of California by or against any party hereto in connection with any of the transactions contemplated by this Agreement or any other Loan Document, (a) the court shall, and is hereby directed to, make a general reference pursuant to California Code of Civil Procedure Section 638 to a referee (who shall be a single active or retired judge) to hear and determine all of the issues in such action or proceeding (whether of fact or of law) and to report a statement of decision, provided that at the option of any party to such proceeding, any such issues pertaining to a provisional remedy as defined in California Code of Civil Procedure Section 1281.8 shall be heard and determined by the court, and (b) without limiting the generality of Section 11.04, the Borrower shall be solely responsible to pay all fees and expenses of any referee appointed in such action or proceeding.
SECTION 11.20 Judgment Currency. If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the Judgment Currency) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the Agreement Currency), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such obligation was owing against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the Administrative Agent in such currency, the Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable law).
SECTION 11.21 Appointment of the Company. Each of the Loan Parties hereby appoints the Company to act as its agent for all purposes of this Agreement, the other Loan Documents and all other documents and electronic platforms entered into in connection herewith and agrees that (a) the Company may execute such documents and provide such authorizations on behalf of such Loan Parties as the Company deems appropriate in its sole discretion and each Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf, (b) any notice or communication delivered by the Administrative Agent, an L/C Issuer or a Lender to the Company shall be deemed delivered to each Loan Party and (c) the Administrative Agent, the L/C Issuers or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Company on behalf of each of the Loan Parties.
SECTION 11.22 Amendment and Restatement of Existing Credit Agreement.
(a) This Agreement does not extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the obligations under the Existing Credit Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Existing Credit Agreement or instruments securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith. Except as provided in Section 10.10(II), nothing expressed or implied in this Agreement shall be construed as a release or other discharge of any Loan Parties under the Existing Credit Agreement from any of its obligations and liabilities thereunder, as modified hereby. Each Loan Party hereby confirms and agrees that, except as modified or amended and restated hereby or by a Loan Document or other instruments executed concurrently herewith, each Loan Document (as defined in the Existing Credit Agreement) to which it is a party is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects except that on and after the Closing Date all references in any such Loan Document to the Agreement, thereto, thereof, thereunder or words of like import referring to the Existing Credit Agreement shall mean this Agreement.
(b) Each Loan Party (a) consents to the amendment and restatement of the Existing Credit Agreement by this Agreement; (b) acknowledges and agrees that its obligations under each of the Loan Documents (as defined in the Existing Credit Agreement) owing to each lender thereunder that is also a Lender hereunder shall be in respect
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of the obligations of the Company under this Agreement and the other Loan Documents; (c) reaffirms all of its obligations under each Loan Document (as defined in the Existing Credit Agreement) and each other Loan Document and all other Secured Obligation, reaffirms its grants of Liens on the Collateral to secure the Secured Obligations and with respect to each of the Guarantors, its guarantee of the Secured Obligations; and (d) agrees that, except as expressly amended, restated or modified hereby or by any Loan Document or other instrument executed concurrently herewith, each of the Loan Documents (as defined in the Existing Credit Agreement) to which it is a party is and shall remain in full force and effect. Each Loan Party hereby expressly acknowledges that the amendment and restatement of the Existing Credit Agreement by this Agreement does not (i) impair the validity, effectiveness or priority of the Liens granted pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure repayment of all Secured Obligations, whether heretofore or hereafter incurred; or (ii) require that any new filings be made or other action taken to perfect or to maintain the perfection of such Liens, except as set forth in Sections 7.08 and 7.11. Each Loan Party hereby confirms and agrees that all outstanding principal, interest and fees and other obligations under the Existing Credit Agreement immediately prior to the date hereof shall, to the extent not paid on the date hereof, from and after the date hereof, be, without duplication, Obligations and Secured Obligations owing and payable pursuant to this Agreement and the other Loan Documents as in effect from time to time, shall accrue interest thereon as specified in this Agreement, and shall be secured by this Agreement and the other Loan Documents.
(c) On the Closing Date, each Lender party to the Credit Agreement immediately prior to the Closing Date (each, an Existing Lender) will automatically and without further act be deemed to have assigned to each Lender party to the Credit Agreement as of the Closing Date (each, a Closing Date Lender), and each such Closing Date Lender will automatically and without further act be deemed to have assumed, a portion of such Existing Lenders Revolving Loans outstanding immediately prior to the Closing Date (Existing Revolving Loans) and participations under the Credit Agreement in outstanding Letters of Credit (if any are outstanding on the Closing Date) and Swing Line Loans (if any are outstanding on the Closing Date) such that, after giving effect to each such deemed assignment and assumption of Existing Revolving Loans and participations, the percentage of the aggregate outstanding (i) Revolving Loans, (ii) participations under the Credit Agreement in Letters of Credit and (iii) participations under the Credit Agreement in Swing Line Loans held by each Lender (including each such Closing Date Lender) will equal the percentage of the aggregate Revolving Commitments of all Lenders represented by such Lenders Commitment as of the Closing Date.
SECTION 11.23 Acknowledgment and Consent to Bail-In of EEA Financial Institutions. Solely to the extent any Lender or L/C Issuer that is an EEA Financial Institution is a party to this Agreement and notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or L/C Issuer that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or L/C Issuer that is an EEA Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
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SECTION 11.24 Intercreditor Agreement.
(a) EACH LENDER PARTY HERETO UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT IT (AND EACH OF ITS SUCCESSORS AND ASSIGNS) AND EACH OTHER LENDER (AND EACH OF THEIR SUCCESSORS AND ASSIGNS) (INCLUDING, IN EACH CASE, IN ITS CAPACITY AS A POTENTIAL CASH MANAGEMENT BANK OR HEDGE BANK) SHALL BE BOUND BY THE INTERCREDITOR AGREEMENT, WHICH IN CERTAIN CIRCUMSTANCES MAY REQUIRE (AS MORE FULLY PROVIDED THEREIN) THE TAKING OF CERTAIN ACTIONS BY THE LENDERS.
(b) THE PROVISIONS OF THIS SECTION 11.24 ARE NOT INTENDED TO SUMMARIZE OR FULLY DESCRIBE THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NO AGENT OR ANY OF AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT. A COPY OF THE INTERCREDITOR AGREEMENT MAY BE OBTAINED FROM THE ADMINISTRATIVE AGENT.
[SIGNATURE PAGES FOLLOWINTENTIONALLY OMITTED]
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Exhibit 99.1
R. R. Donnelley & Sons Company
Announces Exercise of Early Settlement Option in Connection With Its Tender Offers
October 15, 2018
CHICAGO(BUSINESS WIRE)R. R. Donnelley & Sons Company (NYSE: RRD) (RRD) announced today that it elected to exercise the Early Settlement Option described in the Offer to Purchase, dated September 18, 2018 (as amended or supplemented from time to time, the Offer to Purchase), relating to its previously announced cash tender offers (the Tender Offers) for its outstanding 7.625% Senior Notes due 2020 (the 2020 Notes), 7.875% Senior Notes due 2021 (the 2021 Notes), 8.875% Debentures due 2021 (the 2021 Debentures) and 7.000% Senior Notes due 2022 (the 2022 Notes and, collectively with the 2020 Notes, the 2021 Notes and the 2021 Debentures, the Securities). Terms not defined otherwise in this press release have the meanings given to them in the Offer to Purchase.
RRD accepted and purchased today (the Early Settlement Date) $430 million in aggregate principal amount of Securities, consisting of approximately $172.6 million in aggregate principal amount of 2020 Notes and approximately $257.4 million in aggregate principal amount of 2021 Notes that were validly tendered and not withdrawn. Holders of purchased Securities received the applicable Total Consideration set forth in the Offer to Purchase and accrued and unpaid interest (if any) on such Securities from the last interest payment date with respect to those Securities to, but not including, the Early Settlement Date.
The previously announced date and time for the expiration of withdrawal rights for the Tender Offers has passed and has not been extended. Securities tendered pursuant to a Tender Offer may no longer be withdrawn, except as required by applicable law.
The Tender Offers will expire at 11:59 p.m., New York City time, at the end of October 18, 2018. Because RRD purchased the Aggregate Maximum Tender Amount of Securities on the Early Settlement Date, RRD will not make any further purchases of Securities in connection with the Tender Offers.
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. No offer, solicitation, purchase or sale will be made in any jurisdiction in which such offer, solicitation, or sale would be unlawful. The offer is being made solely pursuant to terms and conditions set forth in the Offer to Purchase. Nothing contained herein shall constitute an offer to sell, or the solicitation of an offer to buy, any securities of RRD.
The lead dealer manager for the Tender Offers is BofA Merrill Lynch and co-managers for the Tender Offers are Citigroup, J.P. Morgan and Wells Fargo Securities. Any questions regarding the terms of the Tender Offers should be directed to BofA Merrill Lynch at (toll-free) 888-292-0070 or (collect) 980-388-3646. Any questions regarding procedures for tendering Securities, or requests for copies of the Offer to Purchase, should be directed to Global Bondholder Services, the information agent and depositary for the Tender Offers, toll-free at (866) 794-2200 (banks and brokers call (212) 430-3774) or 65 Broadway, Suite 404, New York, NY 10006.
About RRD
RRD is a leading global provider of multichannel solutions for marketing and business communications. With more than 50,000 clients and 43,000 employees across 34 countries, RRD offers a comprehensive portfolio of capabilities, experience and scale that enables organizations around the world to effectively create, manage and execute their multichannel communications strategies.
Use of Forward-Looking Statements
This press release may contain forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and the U.S. Private Securities Litigation Reform Act of 1995. Readers are cautioned not to place undue reliance on these forward-looking statements and any such forward-looking statements are qualified in their entirety by reference to the following cautionary statements. All forward-looking statements speak only as of the date of this press release and are based on current expectations and involve a number of assumptions, risks and uncertainties that could cause the actual results to differ materially from such forward-looking statements. Readers are strongly encouraged to read the full cautionary statements contained in RRDs filings with the Securities and Exchange Commission at www.sec.gov. RRD disclaims any obligation to update or revise any forward-looking statements.
RRD Investor Contact:
Brian Feeney, Senior Vice President, Investor Relations
Telephone: 630-322-6908
E-mail: brian.feeney@rrd.com