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) |
|
|
|
|
(Exact name of registrant as specified in its charter)
|
|
|
|
|
|
(State or Other Jurisdiction of Incorporation)
|
(Commission File Number)
|
(I.R.S. Employer Identification Number)
|
|
|
|
|
(Address of Principal Executive Offices)
|
Zip Code
|
|
Registrant's telephone number, including area code
|
|
|
(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 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. ☐
Securities registered pursuant to Section 12(b) of the Act:
|
Title of each class
|
Trading symbol
|
Name of exchange on which registered
|
|
|
|
|
Item 1.01 – Entry into a Material Definitive Agreement
On May 8, 2023, Vishay Intertechnology, Inc. (“Vishay” or the “Company”) entered into an Amendment and Restatement Agreement with a consortium of
banks led by JPMorgan Chase Bank, N.A., as administrative agent, and the lenders (the "Amended and Restated Credit Facility"), which provides an aggregate commitment of $750 million of revolving loans available until May 8, 2028. The
Amended and Restated Credit Facility replaces the Company’s credit agreement that was scheduled to mature on June 5, 2024 (the “Existing Credit Facility”). The maturity date of the Amended and Restated Credit Facility will accelerate if
within ninety-one days prior to the maturity of the Company’s Convertible Senior Notes, due 2025, the outstanding principal amount of such notes exceeds a defined liquidity measure as set forth in the Amended and Restated Credit Facility.
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility also provides for the ability of Vishay to request up to $300
million of incremental facilities, subject to the satisfaction of certain conditions, which could take the form of additional revolving commitments, incremental “term loan A” or “term loan B” facilities, or incremental equivalent debt.
U.S. Dollar borrowings under the Amended and Restated Credit Facility bear interest at the Secured Overnight Financing Rate (“SOFR”) plus an
interest margin. The Amended and Restated Credit Facility also allows for borrowings in euro, British sterling, and Japanese yen, subject to a $250 million limit. Borrowings in foreign currency bear interest at a local reference rate plus
an interest margin. The applicable interest margin is based on Vishay's total leverage ratio. Based on Vishay's current total leverage ratio, borrowings bear interest at SOFR plus 1.60%, including the applicable credit spread. Vishay
also pays a total commitment fee, also based on its total leverage ratio, on undrawn amounts. The undrawn commitment fee, based on Vishay's current total leverage ratio, is 0.25% per annum.
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility requires the maintenance of financial covenant ratios. For
compliance purposes, pursuant to the Amended and Restated Credit Facility, the leverage ratio is computed on a net basis, reducing the measure of outstanding debt by up to $250 million of unrestricted cash. The Company must maintain a net
leverage ratio of at least 3.25 to 1.00. Permitted investments and restricted payments are also subject to a pro forma net leverage ratio (2.75 to 1.00 and 2.50 to 1.00, respectively).
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility continues to allow an unlimited amount of defined
“Investments,” which include certain intercompany transactions and acquisitions, provided the Company's pro forma net leverage ratio is equal to or less than 2.75 to 1.00. If the Company's pro forma net leverage ratio is greater than 2.75
to 1.00, such Investments are subject to certain limitations.
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility continues to also allow an unlimited amount of defined
"Restricted Payments," which include cash dividends and share repurchases, provided the Company's pro forma net leverage ratio is equal to or less than 2.50 to 1.00. If the Company's pro forma net leverage ratio is greater than 2.50 to
1.00, the Amended and Restated Credit Facility allows such payments up to $100 million per annum (subject to a cap of $300 million for the term of the facility, with up to $25 million of any unused amount of the $100 million per annum base
available for use in the next succeeding calendar year).
Similar to the Existing Credit Facility, the borrowings under the Amended and Restated Credit Facility continue to be secured by a lien on
substantially all assets, including accounts receivable, inventory, machinery and equipment, and general intangibles (but excluding real estate, intellectual property registered or licensed solely for use in, or arising solely under
the laws of, any country other than the United States, assets located solely outside of the United States and deposit and securities accounts), of Vishay and certain significant subsidiaries located in the United States, and pledges of
stock in certain subsidiaries; and are guaranteed by certain significant subsidiaries.
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility continues to limit or restrict the Company and its
subsidiaries, from, among other things, incurring indebtedness, incurring liens on its respective assets, making investments and acquisitions (assuming the Company’s pro forma net leverage ratio is greater than 2.75 to 1.00), making
asset sales, and paying cash dividends and making other restricted payments (assuming the Company's pro forma net leverage ratio is greater than 2.50 to 1.00), and requires the Company to comply with other covenants, including the
maintenance of specific financial ratios.
Similar to the Existing Credit Facility, the Amended and Restated Credit Facility also contains customary events of default, including, but
not limited to, failure to pay principal or interest, failure to pay or default under other material debt, material misrepresentation or breach of warranty, violation of certain covenants, a change of control, the commencement of
bankruptcy proceedings, the insolvency of Vishay or certain of its significant subsidiaries, and the rendering of a judgment in excess of $50 million against Vishay or its subsidiaries. Upon the occurrence of an event of default under
the Amended and Restated Credit Facility, Vishay’s obligations under the credit facility may be accelerated and the lending commitments under the credit facility may be terminated.
The description of the Amended and Restated Credit Facility set forth in this Item 1.01 is qualified in its entirety by
reference to the text of the Amended and Restated Credit Facility, which is filed as Exhibit 10.1 to this report and incorporated by reference herein.
Item 2.03 – Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement of a Registrant
On May 8, 2023, Vishay entered into the Amended and Restated Credit Facility more specifically described in Item 1.01 of
this Current Report on Form 8-K, which description is incorporated by reference into this Item 2.03.
Item 8.01 – Other Events
On May 8, 2023 Vishay issued a press release regarding the matter described in Item 1.01 above.
A copy of the press release is attached hereto as Exhibit 99.1 to this Form 8-K and is incorporated herein by reference.
Item 9.01 – Financial Statements and Exhibits
(d) Exhibits
|
Exhibit No.
|
|
Description
|
|
|
|
|
|
|
|
|
|
||
| 99.1 |
Press Release dated May 8, 2023. |
||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
||
Signature
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: May 8, 2023
|
|
VISHAY INTERTECHNOLOGY, INC.
|
|
|
By:
|
/s/ Lori Lipcaman
|
|
|
|
Name:
|
Lori Lipcaman
|
|
|
|
Title:
|
Executive Vice President and
|
|
|
|
|
Chief Financial Officer
|
|
Exhibit 10.1
AMENDMENT AND RESTATEMENT AGREEMENT dated as of May 8, 2023 (this “Agreement”), to the Credit Agreement dated as of June 5, 2019 (the “Existing Credit Agreement”),
among VISHAY INTERTECHNOLOGY, INC., (the “Borrower”), the LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”).
Capitalized terms used but not otherwise defined herein (including in the preamble and recitals hereto) have the
meanings assigned to them in the Existing Credit Agreement or the Amended and Restated Credit Agreement (as defined below), as the context requires.
WHEREAS, the Lenders and the Issuing Banks party to the Existing Credit Agreement (the “Existing Lenders” and the “Existing Issuing Banks”, respectively) have agreed to extend
credit to the Borrower under the Existing Credit Agreement in the form of (i) Revolving Commitments and Revolving Loans (such Revolving Commitments and Revolving Loans, to the extent outstanding immediately prior to the Restatement Effective Date (as
defined below), being referred to as the “Existing Revolving Commitments” and “Existing
Revolving Loans”, respectively) and (ii) LC Commitments and Letters of Credit (such LC Commitments and Letters of Credit, to the extent outstanding immediately prior to the Restatement Effective Date, being referred to as the “Existing LC Commitments” and “Existing Letters of Credit”,
respectively), in each case, on the terms and subject to the conditions set forth therein.
WHEREAS, the Borrower has requested that certain modifications be made to the Existing Credit Agreement to, among
other things, (i) establish a new $750,000,000 senior secured revolving credit facility (the “New Facility”; the Revolving Commitments in respect of the New
Facility under the Amended and Restated Credit Agreement, the “New Revolving Commitments”) that will mature on the fifth anniversary of the Restatement
Effective Date and that will replace the existing $750,000,000 senior secured revolving credit facility made available under the Existing Credit Agreement (the “Existing
Facility”), (ii) reflect the termination of the Existing Revolving Commitments and the Existing LC Commitments under the Existing Facility and (iii) make certain other modifications to the terms, provisions and covenants set forth
therein, in each case, as set forth on Exhibit A hereto (collectively, the “Amendments”).
WHEREAS, the Administrative Agent and each of the Lenders and Issuing Banks party hereto, which Lenders and Issuing
Banks constitute the Required Lenders under the Existing Credit Agreement and all of the Lenders and Issuing Banks under the Amended and Restated Credit Agreement, are willing to agree to the Amendments, in each case, on the terms and subject to the
conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
| SECTION 1 |
Amendment and Restatement of the
Existing Credit Agreement. Effective as of the Restatement Effective Date:
|
|
(a) the Existing Credit Agreement is hereby amended and restated in the form attached as Exhibit A hereto (as so amended and restated, the “Amended and Restated Credit Agreement”);
|
|
|
(b) the Schedules to the Existing Credit Agreement are hereby amended and restated in their entirety in the form of the correspondingly
numbered Schedules hereto; and
|
|
|
(c) the Exhibits to the Existing Credit Agreement are hereby amended and restated in their entirety in the form of the correspondingly lettered
Exhibits hereto.
|
| SECTION 2 |
Restatement Effective Date Transactions.
|
|
(a) Establishment of New Revolving Commitments and LC
Commitments. Each Person that has executed and delivered a signature page to this Agreement as a “Revolving Lender” (collectively, the “New Revolving Lenders”) hereby agrees to (i) provide a New Revolving Commitment in the amount set forth opposite such Person’s name on Schedule 2.01 to the Amended and Restated Credit Agreement under the heading “Revolving Commitment” on the terms and subject to the conditions set forth herein and in the Amended and Restated
Credit Agreement and (ii) the terms of the Amended and Restated Credit Agreement. Each New Revolving Lender with an amount set forth opposite such Person’s name on Schedule
2.01 to the Amended and Restated Credit Agreement under the heading “LC Commitment” hereby agrees to provide an LC Commitment under the Amended and Restated Credit Agreement in such amount on the terms and subject to the
conditions set forth herein and in the Amended and Restated Credit Agreement.
|
|
|
(b) Termination of
Existing Facility. Effective as of the Restatement Effective Date, all Revolving Commitments and LC Commitments in effect under the Existing Credit Agreement immediately prior to the Restatement
Effective Date will be terminated. The Borrower shall, on the Restatement Effective Date, pay to the Administrative Agent, for the accounts of the Existing Lenders, all interest and fees accrued to the Restatement Effective Date with
respect to such Revolving Commitments and any outstanding Revolving Loans and Existing Letters of Credit. Each Existing Lender that does not have a New Revolving Commitment set forth on Schedule 2.01 hereto immediately following the effectiveness of this Agreement is herein referred to as an “Exiting Revolving
Lender” and will no longer be a Revolving Lender under the Amended and Restated Credit Agreement. Upon the effectiveness of this Agreement, each of the Exiting Revolving Lenders, solely in their capacities as Revolving
Lenders under the Existing Credit Agreement with respect to Revolving Commitments and Revolving Loans thereunder, shall cease to be a party to the Existing Credit Agreement and shall be released from all further obligations thereunder in
respect of the Revolving Commitments thereunder; provided, however, that
such Exiting Revolving Lenders shall continue to be entitled to the benefits (in accordance with the Existing Credit Agreement) of Sections 2.14, 2.15, 2.16 and 9.03 of the Existing Credit Agreement as in effect immediately prior to the
Restatement Effective Date in respect of their Revolving Commitments and Revolving Loans under the Existing Credit Agreement. The Administrative Agent and each of the Existing Lenders party hereto hereby waive (i) the requirement that the
Borrower provide advance notice of the termination of the Revolving Commitments in effect under the Existing Credit Agreement pursuant to Section 2.07 of the Existing Credit Agreement and (ii) the requirement that the Borrower provide
advance notice of the prepayment of any existing Revolving Loans pursuant to Section 2.10 of the Existing Credit Agreement.
|
|
(c) Prepayment of Outstanding Revolving Loans. The
Revolving Loans outstanding immediately prior to the effectiveness of the New Revolving Commitments under the Amended and Restated Credit Agreement shall remain outstanding under the Amended and Restated Credit Agreement subject to the
following procedures. On the Restatement Effective Date, (i) each New Revolving Lender party hereto shall make available to the Administrative
Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other New Revolving Lenders and the Exiting Revolving Lenders, as being required in order to cause, after giving effect
to this Agreement and the application of such amounts to make payments to such other Lenders, the Revolving Loans to be held ratably by all New Revolving Lenders as of the Restatement Effective Date in accordance with their respective
Applicable Percentages (calculated after giving effect to the effectiveness of the New Revolving Commitments under the Amended and Restated Credit Agreement), (ii) the aggregate outstanding principal amount of the Revolving Loans made to
the Borrower (the “Existing Borrowings”) immediately prior to the effectiveness of this Agreement shall be deemed to be prepaid and reborrowed as of the
Restatement Effective Date in an aggregate principal amount equal to the aggregate principal amount of the Borrower’s Existing Borrowings and of the Types and for the Interest Periods as set forth in the Borrowing Request to be delivered
in accordance with Section 4(m) hereof and (iii) the Borrower shall pay to the Exiting Lenders the amounts, if any, payable under Section 2.15 of the Existing Credit Agreement as a result of such prepayment. Each New Revolving Lender
party hereto hereby waives any payment of any amounts pursuant to Section 2.15 of the Existing Credit Agreement as a result of the transactions contemplated hereby.
|
|
|
(d) Existing Letters of Credit. On the Restatement
Effective Date, each Issuing Bank that has issued an Existing Letter of Credit shall be deemed, without further action by any party hereto, to have granted to each New Revolving Lender and each New Revolving Lender shall be deemed to have
purchased from such Issuing Bank a participation in such Existing Letter of Credit in accordance with Section 2.04(d) of the Amended and Restated Credit Agreement. Concurrently with such grant, the participations in the Existing Letters of
Credit granted to the Existing Lenders shall be automatically canceled without further action by any of the parties to the Existing Credit Agreement. On and after the Restatement Effective Date, each Existing Letter of Credit shall
constitute a Letter of Credit issued under the Amended and Restated Credit Agreement for all purposes thereof.
|
|
| SECTION 3 |
Representations and Warranties. The Borrower represents and warrants to the Administrative Agent and to each of the Lenders, as of the Restatement Effective Date, that:
|
|
(a) this Agreement and the Transactions to be entered into by each Loan Party are within such Loan Party’s corporate or other organizational
powers and have been duly authorized by all necessary corporate or other organizational and, if required, stockholder or other equityholder action of each Loan Party. This Agreement has been duly executed and delivered by the Borrower and
each of the other Loan Parties and constitutes a legal, valid and binding obligation of the Borrower and each Loan Party enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
|
|
(f) The Administrative
Agent shall have received all fees and other amounts due and payable on or prior to the Restatement Effective Date, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including reasonable fees, charges
and disbursements of counsel) required to be paid or reimbursed by any Loan Party under the Engagement Letter or any Loan Document (including, for the avoidance of doubt, any principal, interest, fees and expenses payable under this
Agreement).
|
|
|
(g) The Administrative Agent
shall have received a completed Perfection Certificate, dated the Restatement Effective Date and signed by an executive officer or a Financial Officer of the Borrower, together with all attachments contemplated thereby, including the
results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted under Section 6.02 of the Amended and Restated Credit
Agreement or have been, or will be, discharged on or prior to the Restatement Effective Date.
|
|
|
(h) The Lenders shall have
received the financial statements and opinions referred to in Section 3.04 of the Amended and Restated Credit Agreement.
|
|
|
(i) Immediately after giving
effect to the Transactions (as defined in the Amended and Restated Credit Agreement), neither the Borrower nor any Subsidiary shall have outstanding any shares of preferred stock or other preferred Equity Interests or any Indebtedness,
other than (i) Indebtedness incurred under the Loan Documents, (ii) Indebtedness set forth on Schedule 6.01 to the Disclosure Letter and (iii) preferred Equity Interests in Foreign Subsidiaries issued in compliance with Section 6.01(b) of
the Existing Credit Agreement to other Foreign Subsidiaries.
|
|
|
(j) The Administrative Agent
shall have received a certificate, dated the Restatement Effective Date and signed by a Financial Officer of the Borrower, as to the solvency of the Loan Parties as of the Restatement Effective Date on a consolidated basis after giving
effect to the transactions contemplated hereby, in form and substance reasonably satisfactory to the Administrative Agent.
|
|
|
(k) The Lenders shall have
received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that shall have been requested in
writing (which may be e-mail) at least 10 days prior to the Restatement Effective Date, and a Beneficial Ownership Certification from the Borrower and each other Loan Party, if any, that is a “legal entity customer” under the Beneficial
Ownership Regulation.
|
|
|
(l) The Administrative Agent
shall have received evidence that the insurance required by Section 5.08 of the Amended and Restated Credit Agreement is in effect and following the implementation of the transactions contemplated hereby, will remain in effect, together
with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.08 of the Amended and Restated Credit Agreement.
|
|
(m) To the extent the Borrower
wishes to make one or more Revolving Borrowings on the Restatement Effective Date, the Administrative Agent shall have received a fully executed Borrowing Request in respect of such Revolving Borrowings in accordance with the terms of this
Agreement and the Amended and Restated Credit Agreement; provided that, notwithstanding the foregoing and solely for the purpose of Revolving Borrowings made on the Restatement Effective Date, the Borrower shall be entitled to deliver such
fully executed Borrowing Request not later than 5:00 p.m., New York City time, one U.S. Government Securities Business Day before the Restatement Effective Date.
|
|
|
The Administrative Agent shall notify the Borrower and the Lenders of the Restatement Effective Date, and such notice shall be
conclusive and binding. For the avoidance of doubt, the obligations of the New Revolving Lenders to make Revolving Loans and of the Issuing Banks to issue Letters of Credit on the Restatement Effective Date shall not become effective or
otherwise occur unless and until each of the foregoing conditions shall have been satisfied.
|
|
| SECTION 5 |
Effect of Amendment and Restatement; No Novation.
|
|
(a) Except as expressly set
forth herein and in the Amended and Restated Credit Agreement, this Agreement and the Amended and Restated Credit Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Administrative Agent or the Existing Lenders under the Existing Credit Agreement, the Security Documents or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Existing Credit Agreement, the Security Documents or any other Loan Document, all of which shall continue in full force and effect in accordance with the provisions thereof. Nothing
herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, the
Amended and Restated Credit Agreement, the Security Documents or any other Loan Document in similar or different circumstances.
|
|
|
(b) On and after the
Restatement Effective Date, each reference in the Amended and Restated Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, as used in the Amended and Restated Credit Agreement, shall refer to the
Existing Credit Agreement as amended in the form of the Amended and Restated Credit Agreement, and the term “Credit Agreement”, as used in any Loan Document, shall mean the Amended and Restated Credit Agreement. This Agreement shall
constitute a “Loan Document” for all purposes of the Amended and Restated Credit Agreement and the other Loan Documents.
|
|
|
(c) Neither this Agreement nor
the effectiveness of the Amended and Restated Credit Agreement shall extinguish the obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release any Guarantee thereof. Nothing herein contained
shall be construed as a substitution or novation of the Secured Obligations (as defined in the Collateral Agreement) outstanding under the Existing Credit Agreement or the Security Documents, which shall remain in full force and effect.
Nothing expressed or implied in this Agreement, the Amended and Restated Credit Agreement or any other document contemplated hereby or thereby shall be construed as a release or other discharge of the Borrower under the Existing Credit
Agreement or any Loan Party under any Loan Document (as defined in the Existing Credit Agreement) from any of its obligations and liabilities thereunder.
|
| SECTION 6 |
Reaffirmation. Each of the Borrower and the entities party hereto as “Subsidiary Loan Parties” (the “Subsidiary Loan Parties” together with the Borrower, the “Reaffirming Loan Parties”) hereby acknowledges that it expects to receive substantial direct and indirect benefits as a result of this Agreement and
the transactions contemplated hereby. Each Reaffirming Loan Party hereby further (i) acknowledges that the Secured Obligations (as defined in the Collateral Agreement) shall include the due and punctual payment of all of the monetary
obligations of each Loan Party under or pursuant to the Amended and Restated Credit Agreement, including all such obligations in respect of the New Revolving Commitments, the LC Commitments under the Amended and Restated Credit Agreement
and all Revolving Loans incurred, and Letters of Credit issued, thereunder (including all such obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed
or allowable in such proceeding), (ii) confirms its guarantees, pledges and grants of security interests, as applicable, under each of the Loan Documents to which it is party and (iii) agrees that, notwithstanding the effectiveness of
this Agreement and the transactions contemplated hereby, its guarantees, pledges and grants of security interests, as applicable, under each of the Loan Documents to which it is party shall continue to be in full force and effect and
shall accrue to the benefit of the Secured Parties (and shall be determined after giving effect to this Agreement).
|
| SECTION 7 |
Further Assurances. The Borrower and the Subsidiary Loan Parties each agree to take any further action that is reasonably requested by the Administrative Agent to effect the
purposes of this Agreement and the transactions contemplated hereby.
|
| SECTION 8 |
Governing Law; Jurisdiction;
Consent to Service of Process; Jury Trial Waiver. THE PROVISIONS CONCERNING (A) GOVERNING LAW, JURISDICTION AND CONSENT TO SERVICE OF PROCESS SET FORTH IN SECTION 9.09 OF THE AMENDED AND RESTATED CREDIT AGREEMENT AND (B)
JURY TRIAL WAIVER SET FORTH IN SECTION 9.10 OF THE AMENDED AND RESTATED CREDIT AGREEMENT SHALL APPLY TO THIS AGREEMENT AND ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
|
| SECTION 9 |
Counterparts. 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. The words
“execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement and/or any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include
Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or
the use of a paper-based recordkeeping system, as the case may be. “Electronic Signatures” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign,
authenticate or accept such contract or record.
|
| SECTION 10 |
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 11 |
Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
|
[Signature pages to follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
|
|
BORROWER: |
VISHAY INTERTECHNOLOGY, INC.
|
|||
|
|
|
|
|
||
|
|
|
By:
|
/s/ David L. Tomlinson
|
||
|
|
|
Name:
|
David L. Tomlinson
|
||
|
|
|
Title:
|
Senior Vice President & Corporate Controller
|
||
|
|
|
|
|
||
|
|
|
SUBSIDIARY |
|
||
|
|
|
LOAN PARTIES: |
VISHAY GSI, INC.
|
||
|
|
|
SILICONIX INCORPORATED
|
|||
|
|
|
VISHAY BCCOMPONENTS HOLDINGS LTD.
|
|||
|
|
|
VISHAY SPRAGUE, INC.
|
|||
|
|
|
VISHAY AMERICAS, INC.
|
|||
| VISHAY HIREL SYSTEMS LLC |
|||||
| VISHAY SILICONIX, LLC |
|||||
| SILICONIX SEMICONDUCTOR, LLC |
|||||
| By: | /s/ David L. Tomlinson |
||||
| Name: | David L. Tomlinson |
||||
| Title: | Senior Vice President, Finance & Assistant Secretary |
||||
| MAXPOWER SEMICONDUCTOR, INC. |
|||||
| By: | /s/ David L. Tomlinson |
||||
| Name: | David L. Tomlinson |
||||
| Title: | Treasurer |
||||
| VISHAY DALE ELECTRONICS, LLC |
|||||
| By: | /s/ David L. Tomlinson |
||||
| Name: | David L. Tomlinson |
||||
| Title: | Senior Vice President & Corporate Controller |
||||
[ Signature Page to Amendment and Restatement Agreement]
| JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent and Issuing Bank, |
|||||
| By: | /s/ Christine Lathrop |
||||
| Name: | Christine Lathrop |
||||
| Title: | Executive Director |
||||
[ Signature Page to Amendment and Restatement Agreement]
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| Comerica Bank |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| HSBC Bank USA, National Association |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| UNICREDIT BANK AG, NEW YORK BRANCH |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| TD Bank, N.A. |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| SANTANDER BANK, N.A. |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| Bank of America, N.A. |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| MUFG Bank, Ltd. |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| KBC Bank N.V., New York Branch |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| For Lenders requiring a second signature line |
|||||
| By: | /s/ | ||||
| Name: | |||||
| Title: | |||||
| LENDER SIGNATURE PAGE TO THE AMENDMENT AND RESTATEMENT AGREEMENT |
|||||
| Bank Leumi Le Israel Ltd. |
|||||
| By: | /s/ |
||||
| Name: | |||||
| Title: | |||||
| By: | /s/ | ||||
| Name: | |||||
| Title: | |||||
Exhibit A
Amended and Restated Credit Agreement
EXHIBIT A
|
J.P.Morgan AMENDED AND RESTATED CREDIT AGREEMENT
dated as of May 8, 2023
among
VISHAY INTERTECHNOLOGY, INC.,
as Borrower
The LENDERS Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
___________________________
JPMORGAN CHASE BANK, N.A.,
as Joint Lead Arranger and Joint Bookrunner
___________________________
COMERICA BANK,
HSBC BANK USA, NATIONAL ASSOCIATION,
UNICREDIT BANK AG, AND
TD BANK, N.A.,
as Joint Lead Arrangers and Joint Bookrunners
___________________________
COMERICA BANK,
HSBC BANK USA, NATIONAL ASSOCIATION,
UNICREDIT BANK AG, AND
TD BANK, N.A.,
as Co-Syndication Agents
___________________________
SANTANDER BANK, NATIONAL ASSOCIATION, AND
BANK OF AMERICA, N.A.,
as Co-Documentation Agents
|
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
ARTICLE II
The Credits
ARTICLE III
Representations and Warranties
ARTICLE V
Affirmative Covenants
ARTICLE VI
Negative Covenants
ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SCHEDULES:
| Schedule 2.01 |
—
|
Commitments |
| Schedule 2.04 |
—
|
Existing Letters of Credit |
EXHIBITS:
| Exhibit A |
—
|
Form of Assignment and Assumption |
| Exhibit B |
—
|
Form of Borrowing Request |
| Exhibit C |
— | [Reserved] |
| Exhibit D |
— | [Reserved] |
| Exhibit E |
— | Form of Compliance Certificate |
| Exhibit F |
— | Form of Interest Election Request |
| Exhibit G-1 | — | Form of Perfection Certificate |
| Exhibit G-2 |
— | Form of Supplemental Perfection Certificate |
| Exhibit H |
— | Form of Solvency Certificate |
| Exhibit I-1 |
— | Form of U.S. Tax Certificate for Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes |
| Exhibit I-2 |
— | Form of U.S. Tax Certificate for Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes |
| Exhibit I-3 |
— | Form of U.S. Tax Certificate for Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes |
| Exhibit I-4 |
— | Form of U.S. Tax Certificate for Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes |
AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 8, 2023 (this “Agreement”), among VISHAY INTERTECHNOLOGY, INC., as Borrower, the LENDERS from time to time party hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower (as defined below), the Administrative Agent (as defined below) and certain of the
Lenders (as defined below) are party to the Original Credit Agreement (as defined below);
WHEREAS, the Borrower has requested that the Original Credit Agreement be amended and restated as provided in
the Restatement Agreement (as defined below) and set forth herein; and
WHEREAS, the Administrative Agent and the Lenders are willing to amend and restate in its entirety the Original
Credit Agreement upon and subject to the terms and conditions set forth in the Restatement Agreement and herein.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
Definitions
| SECTION 1.01. | Defined Terms. As used in this Agreement, the following terms have the meanings specified below: |
| “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, shall bear interest at a rate determined by reference to the Alternate Base Rate. All ABR Loans shall be denominated in Dollars. | |
| “Adjusted Daily Simple RFR” means, with respect to any RFR Borrowing denominated in Sterling, an interest rate per annum equal to the Daily Simple RFR for Sterling; provided that if the Adjusted Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. | |
| “Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. | |
| “Adjusted EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement. |
1
|
“Adjusted Term SOFR Rate”
means, with respect to any Term Benchmark Borrowing denominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed equal to the Floor for the purposes of this
Agreement.
|
|
|
“Adjusted TIBOR Rate”
means, with respect to any Term Benchmark Borrowing denominated in Yen for any Interest Period, an interest rate per annum equal to (a) the TIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted TIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for
the purposes of this Agreement.
|
|
|
“Administrative Agent”
means JPMorgan Chase Bank, N.A. (or any of its designated branch offices or affiliates), in its capacity as administrative agent hereunder and under the other Loan Documents, and its successors in such capacity as provided in
Article VIII.
|
|
|
“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.
|
|
|
“Affected Financial
Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
|
|
|
“Affiliate”
means, with respect to a specified Person, another Person that directly or indirectly Controls or is Controlled by or is under common Control with the Person specified.
|
|
|
“Agent-Related Person”
has the meaning assigned to it in Section 9.03(d).
|
|
|
“Agreed Currencies”
means Dollars and each Designated Foreign Currency.
|
|
|
“Aggregate Revolving
Commitment” means the sum of the Revolving Commitments of all the Revolving Lenders.
|
|
|
“Aggregate Revolving
Exposure” means the sum of the Revolving Exposures of all the Revolving Lenders.
|
|
|
“Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as
published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at
approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the
Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective
date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.13 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.13(b)), then the Alternate Base Rate shall be the
greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.00%, such rate
shall be deemed to be 1.00% for purposes of this Agreement.
|
2
|
“Ancillary Document”
has the meaning assigned to it in Section 9.06(b).
|
|
|
“Anti-Corruption Laws”
means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
|
|
|
“Applicable Parties”
has the meaning assigned to it in Section 9.01(d).
|
|
|
“Applicable Percentage”
means, at any time, with respect to any Revolving Lender, the percentage of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at such time; provided that, in the case of Section 2.19, when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the Aggregate Revolving Commitments (disregarding any
Defaulting Lender’s Revolving Commitment) represented by such Lender’s Revolving Commitment. If the Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments and to any Revolving Lender’s status as a Defaulting Lender at the time of determination.
|
|
|
“Applicable Rate”
means, for any day, with respect to any Revolving Loan that is an ABR Loan, a Term Benchmark Loan or an RFR Loan, or the commitment fees payable in respect of the Revolving Commitments hereunder, the applicable rate per annum set
forth below under the caption “ABR Spread”, “Term Benchmark Spread”, “RFR Spread” or “Commitment Fee Rate”, respectively, based upon the Total Leverage Ratio as of the end of the fiscal quarter of the Borrower for which consolidated
financial statements have theretofore been most recently delivered pursuant to Section 5.01(a) or 5.01(b); provided that the Applicable Rate
shall be the applicable rate per annum set forth below in Category III at all times on and prior to the date on which consolidated financial statements required to be delivered pursuant to Section 5.01(a) or 5.01(b) as of and for
the fiscal quarter of the Borrower ending July 1, 2023 and the Compliance Certificate required to be delivered in connection therewith are delivered:
|
3
|
Level
|
Total Leverage Ratio
|
ABR Spread
|
Term Benchmark Spread
|
RFR Spread
|
Commitment Fee Rate
|
|
I
|
Greater than or equal to 2.50 to 1.00
|
1.00%
|
2.00%
|
2.00%
|
0.35%
|
|
II
|
Greater than or equal to 1.50 to 1.00, but less than 2.50 to 1.00
|
0.75%
|
1.75%
|
1.75%
|
0.30%
|
|
III
|
Less than 1.50 to 1.00
|
0.50%
|
1.50%
|
1.50%
|
0.25%
|
|
For purposes of the foregoing, subject to the proviso in the foregoing paragraph, each change in the
Applicable Rate resulting from a change in the Total Leverage Ratio shall be effective during the period commencing on and including the third Business Day following the date of delivery to the Administrative Agent pursuant to
Section 5.01(a) or 5.01(b) of the consolidated financial statements indicating such change and ending on the date immediately preceding the effective date of the next such change. Notwithstanding the foregoing, the Applicable
Rate shall be based on the rates per annum set forth in Category I at the option of the Administrative Agent or at the request of the Required Lenders if the Borrower fails to deliver the consolidated financial statements required
to be delivered pursuant to Section 5.01(a) or 5.01(b) or any Compliance Certificate required to be delivered pursuant hereto, in each case within the time periods specified herein for such delivery, during the period commencing
on and including the day of the occurrence of a Default resulting from such failure and until the delivery thereof.
|
|
|
“Approved Electronic
Platform” has the meaning assigned to it in Section 9.01(d).
|
|
|
“Approved Fund”
means any Person (other than a natural person and any holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) that is engaged in making, purchasing, holding or
investing in commercial loans and similar extensions of credit in the ordinary course and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers
or manages a Lender.
|
|
|
“Arrangers”
means JPMorgan Chase Bank, N.A., Comerica Bank, HSBC Bank USA, National Association, UniCredit Bank AG and TD Bank, N.A. in their capacities as joint lead arrangers and joint bookrunners for the credit facilities provided for
herein.
|
|
|
“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee, with the consent of any Person whose consent is required by Section 9.04, and accepted by the Administrative Agent,
in the form of Exhibit A or any other form (including electronic records generated by the use of an electronic platform) reasonably approved by the Administrative Agent.
|
|
|
“Available Tenor”
means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with
reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of
interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is
then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.13.
|
4
|
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
|
|
|
“Bail-In Legislation”
means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such
EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other
law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration
or other insolvency proceedings).
|
|
|
“Bankruptcy Event”
means, with respect to any Person, that such Person has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or
similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in, any such proceeding or appointment; provided that a Bankruptcy Event shall not result solely by virtue of
any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United
States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any agreements made by such Person.
|
|
|
“Benchmark”
means, initially, with respect to any (i) RFR Loan in any Agreed Currency, the applicable Relevant Rate for such Agreed Currency, or (ii) Term Benchmark Loan, the Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the
then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.13.
|
5
|
“Benchmark Replacement”
means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in a Designated Foreign Currency, “Benchmark Replacement” shall mean the alternative set forth in (2) below:
|
|
|
(1) in the case of any Loan
denominated in Dollars, Adjusted Daily Simple SOFR;
|
|
|
(2) the sum of: (a) the
alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or
recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a
replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment;
|
|
|
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the
Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
|
|
|
“Benchmark Replacement
Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted
Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero), that has been selected by the Administrative Agent and the Borrower
for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark
with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment,
or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed
Currency at such time.
|
|
|
“Benchmark Replacement
Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in Dollars, any technical, administrative or operational changes (including changes to the definition
of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of
interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the
Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market
practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of
such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
|
6
|
“Benchmark Replacement
Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
|
|
|
(1) in the case of clause
(1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the
published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
|
|
|
(2) in the case of clause
(3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the
administrator of such Benchmark (or such component thereof) to be no longer representative; provided that, such non-representativeness
will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
|
|
|
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the
same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark
Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available
Tenors of such Benchmark (or the published component used in the calculation thereof).
|
|
|
“Benchmark Transition
Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
|
|
|
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or
the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available
Tenor of such Benchmark (or such component thereof);
|
7
|
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency
official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar
insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all
Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or
publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
|
|
|
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such
Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be,
representative.
|
|
|
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to
any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
|
|
|
“Benchmark Unavailability
Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13 and
(y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in
accordance with Section 2.13.
|
|
|
“Beneficial Ownership
Certification” means a certification regarding beneficial ownership or control as 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”.
|
|
|
“BHC Act Affiliate”
of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
|
|
|
“Board of Governors”
means the Board of Governors of the Federal Reserve System of the United States of America.
|
|
|
“Borrower” means
Vishay Intertechnology, Inc., a Delaware corporation.
|
8
|
“Borrowing” means
Loans of the same Class and Type made, converted or continued on the same date and, in the case of Term Benchmark Loans, as to which a single Interest Period is in effect.
|
|
|
“Borrowing Minimum”
means (a) in the case of a Term Benchmark Borrowing denominated in Dollars, $5,000,000, (b) in the case of a Term Benchmark Borrowing or an RFR Borrowing denominated in any Designated Foreign Currency, the smallest amount of such
Designated Foreign Currency that is an integral multiple of 100,000 units of such currency and that has a Dollar Equivalent in excess of $5,000,000 and (c) in the case of an ABR Borrowing, $1,000,000.
|
|
|
“Borrowing Multiple”
means (a) in the case of a Term Benchmark Borrowing denominated in Dollars, $1,000,000, (b) in the case of a Term Benchmark Borrowing or an RFR Borrowing denominated in any Designated Foreign Currency, the smallest amount of such
Designated Foreign Currency that is an integral multiple of 100,000 units of such currency and that has a Dollar Equivalent in excess of $1,000,000 and (c) in the case of an ABR Borrowing, $1,000,000.
|
|
|
“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03, which shall be, in the case of a written Borrowing Request, in the form of Exhibit B or any other form approved by the Administrative Agent and otherwise
consistent with the requirements of Section 2.03.
|
|
|
“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, in addition to the foregoing, a Business Day shall be (a) in relation to Loans denominated in Yen and in relation to the calculation or computation of TIBOR or the Japanese Prime Rate, any day (other than a Saturday or a Sunday)
on which banks are open for business in Japan, (b) in relation to Loans denominated in Euros and in relation to the calculation or computation of EURIBOR, any day which is a TARGET Day, (c) in relation to RFR Loans and any interest rate
settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings in the applicable Agreed Currency of such RFR Loan, any such day that is only a RFR Business Day and (d) in relation to Loans
referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the
Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business Day.
|
|
|
“Calculation Date”
means (a) the first Business Day of each calendar month, (b) each date (with such date to be reasonably determined by the Administrative Agent) that is on or about the date of (i) a Borrowing Request or an Interest Election Request with
respect to any Loan, (ii) the conversion into or continuation of any Loan pursuant to the terms of this Agreement or (iii) the issuance, amendment or extension of a Letter of Credit, (c) if an Event of Default has occurred and is
continuing, any Business Day as determined by the Administrative Agent in its sole discretion and (d) any other date requested by the Administrative Agent in its reasonable discretion.
|
9
|
“Capital Expenditures”
means, for any period, (a) the additions to property, plant and equipment and other capital expenditures of the Borrower and its consolidated Subsidiaries that are (or should be) set forth in a consolidated statement of cash flows of
the Borrower and its consolidated Subsidiaries for such period prepared in accordance with GAAP, excluding (i) any such expenditures made to restore, replace or rebuild assets to substantially the same condition as that of such assets
immediately prior to any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, such assets to the extent such expenditures are made with insurance proceeds,
condemnation awards or damage recovery proceeds relating to any such casualty, damage, taking, condemnation or similar proceeding, (ii) any such expenditures to the extent made with the proceeds of any grant received during such
period by the Borrower or any Subsidiary from any Governmental Authority, (iii) expenditures that constitute Permitted Acquisitions and (iv) the purchase price of property, plant or equipment purchased during such period to the extent
the consideration therefor consists of any combination of (A) used or surplus property, plant or equipment traded in at the time of such purchase and (B) the proceeds of a concurrent sale of used or surplus property, plant or
equipment and (b) such portion of principal payments on Finance Lease Obligations made by the Borrower or any Subsidiary during such period as is attributable to additions to property, plant and equipment that have not otherwise been
reflected on the consolidated statement of cash flows as additions to property, plant and equipment.
|
|
|
“Cash Equivalents”
means:
|
|
|
(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the
United States of America or the European Union (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America or the European Union, as applicable), in each case maturing
up to one year from the date of acquisition thereof;
|
|
|
(b) investments in commercial paper maturing up to 12 months from the date of acquisition thereof and having, at such date
of acquisition, a credit rating of at least (i) A-2 by S&P or (ii) P-2 by Moody’s;
|
|
|
(c) investments in certificates of deposit, banker’s acceptances and demand or time deposits, in each case maturing up to
one year from the date of acquisition thereof, issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any commercial bank (whether domestic or foreign) that has a combined capital and surplus and
undivided profits of not less than an amount the Dollar Equivalent of which is $500,000,000;
|
|
|
(d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the criteria described in clause (c) above;
|
|
|
(e) “money market funds” that (i) comply with the criteria set forth in Rule 2a‑7 of the Investment Company Act, (ii) are
rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $1,000,000,000;
|
10
|
(f) investment funds investing at least 95% of their assets in securities of the types described in clauses (a)
through (e) above; and
|
|
|
(g) in the case of any Foreign Subsidiary, other short-term investments that are analogous to the foregoing, are of
comparable credit quality and are customarily used by companies in the jurisdiction of such Foreign Subsidiary for cash management purposes.
|
|
|
“Cash Management Services”
means any treasury management services (including controlled disbursements, zero balance arrangements, cash sweeps, corporate credit and purchase card and other card services, automated clearinghouse transactions, return items,
overdrafts, temporary advances, interest and fees and interstate depository network services) provided to the Borrower or any Subsidiary.
|
|
|
“CBR Loan” means
a Loan that bears interest at a rate determined by reference to the Central Bank Rate or the Japanese Prime Rate.
|
|
|
“CBR Spread”
means the Applicable Rate applicable to a Loan that is replaced by a CBR Loan.
|
|
|
“Central Bank Rate”
means, the greater of (I)(A) for any Loan denominated in (a) Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time, (b) Euro, one of
the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate
is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the
rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the
central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time, (c) any other Designated Foreign Currency determined after the Restatement Effective
Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion; plus (B) the applicable Central Bank Rate
Adjustment and (II) the Floor.
|
|
|
“Central Bank Rate
Adjustment” means, for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted EURIBOR Rate for the five
most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period, (b) Sterling, a rate equal to the
difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple RFR for Sterling Borrowings for the five most recent RFR Business Days preceding such day for which Adjusted Daily Simple RFR
for Sterling Borrowings was available (excluding, from such averaging, the highest and the lowest such Adjusted Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) the Central Bank Rate in respect of Sterling in effect on the last RFR Business Day in such period, and (c) any other Designated Foreign Currency determined after the
Restatement Effective Date, a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding
clause (B) of the definition of such term and (y) the EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate, on such day at approximately the time referred to in the definition of such term for deposits in the applicable
Agreed Currency for a maturity of one month.
|
11
|
“CFC” means
(a) each Subsidiary that is a “controlled foreign corporation” for purposes of the Code, (b) each subsidiary of any such controlled foreign corporation and (c) any CFC Holdco formed or acquired after the Original Effective Date.
|
|
|
“CFC Holdco”
means a Domestic Subsidiary (including, for the avoidance of doubt, an entity that is disregarded for United States federal income tax purposes) that for United States federal income tax purposes has no material assets other than
Equity Interests in one or more CFCs (including for this purpose, any debt or other instrument treated as equity for U.S. Federal income tax purposes).
|
|
|
“Change in Control”
means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC thereunder as in effect on the date hereof), other
than the Permitted Holders, of Equity Interests in the Borrower representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding Equity Interests in the Borrower; (b) persons who were (i)
directors of the Borrower on the date hereof, (ii) nominated or approved by the board of directors of the Borrower or (iii) appointed by directors who were directors of the Borrower on the date hereof or were nominated or approved
as provided in clause (ii) above, ceasing to occupy a majority of the seats (excluding vacant seats) on the board of directors of the Borrower; or (c) the occurrence of any “change in control” (or similar event, however denominated)
with respect to the Borrower under and as defined in any indenture or other agreement or instrument evidencing, governing the rights of the holders of or otherwise relating to any Material Indebtedness of the Borrower or any
Subsidiary.
|
|
|
“Change in Law”
means the occurrence, after the Restatement Effective Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
|
12
|
“Charges”
has the meaning set forth in Section 9.13.
|
|
|
“Charitable Organization”
has the meaning assigned to such term in the definition of the term “Permitted Transferee”.
|
|
|
“Class”, when
used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Term Loans of any Series or Revolving Loans, (b) any Commitment, refers to whether such Commitment is a Term
Commitment of any Series or a Revolving Commitment and (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class.
|
|
|
“Class B Common Stock”
means the Class B Common Stock, $0.10 par value per share, of the Borrower.
|
|
|
“CME Term SOFR
Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
|
|
|
“Code” means
the Internal Revenue Code of 1986.
|
|
|
“Collateral”
means any and all assets, whether real or personal, tangible or intangible, on which Liens are purported to be granted pursuant to the Security Documents as security for the Obligations.
|
|
|
“Collateral Account”
has the meaning set forth in Section 2.04(i).
|
|
|
“Collateral Agreement”
means the Guarantee and Collateral Agreement dated as of the Original Effective Date, among the Borrower, the other Loan Parties, and the Administrative Agent, together with all supplements thereto.
|
|
|
“Collateral and Guarantee
Requirement” means, at any time, the requirement that:
|
|
|
(a) the Administrative Agent shall have received from the Borrower and each Material Domestic Subsidiary either (i) a
counterpart of the Collateral Agreement duly executed and delivered on behalf of such Person or (ii) in the case of any Person that becomes a Material Domestic Subsidiary after the Restatement Effective Date (including by ceasing to
be an Excluded Subsidiary), a supplement to the Collateral Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, together with documents and opinions of the type referred to in paragraphs
(b) and (c) of Section 4.01 of the Original Credit Agreement with respect to such Material Domestic Subsidiary;
|
13
|
(b) all Equity Interests in any wholly-owned Subsidiary owned directly by or on behalf of any Loan Party shall
have been pledged pursuant to the Collateral Agreement (provided that the Loan Parties shall not be required to pledge Equity Interests
in any Foreign Subsidiary that is not a Material Foreign Subsidiary and shall not be required to pledge more than 65% of the voting power of the outstanding voting Equity Interests of any Material Foreign Subsidiary), and the
Administrative Agent shall, to the extent required by the Collateral Agreement, have received certificates or other instruments representing all such Equity Interests, together with undated stock powers or other instruments of
transfer with respect thereto endorsed in blank;
|
|
|
(c) (i) all Indebtedness of the Borrower and each Subsidiary, and (ii) all other Indebtedness (other than Cash
Equivalents) of any Person in a principal amount of $1,000,000 or more, in each case that is owing to any Loan Party shall be evidenced by a promissory note and shall have been pledged pursuant to the Collateral Agreement, and the
Administrative Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
|
|
|
(d) all documents and instruments, including Uniform Commercial Code financing statements, required by Requirements of
Law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, with the priority
required by, and subject to the exceptions and limitations set forth in, the Security Documents and the other provisions of the term “Collateral and Guarantee Requirement”, shall have been filed, registered or recorded or delivered
to the Administrative Agent for filing, registration or recording; and
|
|
|
(e) each Loan Party shall have obtained all consents and approvals required to be obtained by it in connection with
the execution and delivery of all Security Documents to which it is a party, the performance of its obligations thereunder and the granting by it of the Liens thereunder.
|
|
|
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other
Loan Document to the contrary, (i) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of legal opinions or other deliverables with
respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary, if, and for so long as the Administrative Agent and the Borrower reasonably agree that the cost of creating or perfecting such
pledges or security interests in such assets, or obtaining such legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any adverse tax consequences to the Borrower and the
Subsidiaries, including any potential Section 956 Impact), shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (ii) Liens required to be granted from time to time pursuant to the term “Collateral
and Guarantee Requirement” shall be subject to exceptions and limitations set forth therein and in the Security Documents, (iii) in no event shall (A) the Collateral include any Excluded Assets or (B) control agreements or control
or similar arrangements be required (including with respect to cash deposit or securities accounts), other than in respect of pledges of certificated equity interests and debt instruments as set forth above in clauses (b) and (c),
and (iv) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required in order to create any security interest in any Collateral or to perfect any security interest in such
Collateral, including any intellectual property registered in, licensed solely for use in, or arising solely under the laws of, any non-U.S. jurisdiction. The Administrative Agent may grant extensions of time for the creation and
perfection of security interests in, or the obtaining of, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Restatement
Effective Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Restatement Effective Date) where it determines that such action cannot be accomplished without undue effort or expense by the
time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents or otherwise in its sole discretion.
|
14
|
“Commitment”
means a Revolving Commitment, a Term Commitment of any Series or any combination thereof (as the context requires).
|
|
|
“Commodity Exchange Act”
means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
|
|
|
“Common Stock”
means the common stock of the Borrower, excluding, for the avoidance of doubt, the Class B Common Stock.
|
|
|
“Communications”
means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or the transactions contemplated
herein or therein that is distributed to the Administrative Agent, any Lender or any Issuing Bank by means of electronic communications pursuant to Section 9.01, including through the Approved Electronic Platform.
|
|
|
“Compliance Certificate”
means a Compliance Certificate in the form of Exhibit E or any other form reasonably approved by the Administrative Agent.
|
|
|
“Confidential
Information Memorandum” means the Lender Presentation dated April 2023, relating to the credit facility provided for herein.
|
|
|
“Consolidated Cash
Interest Expense” means, for any period, the excess of (a) the sum, without duplication, of (i) the interest expense (including imputed interest expense in respect of Finance Lease Obligations) of the Borrower and
its consolidated Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, (ii) any interest or other financing costs becoming payable during such period in respect of Indebtedness of the Borrower
or its consolidated Subsidiaries to the extent such interest or other financing costs shall have been capitalized rather than included in consolidated interest expense for such period in accordance with GAAP and (iii) any cash
payments made during such period in respect of obligations referred to in clause (b)(ii) below that were amortized or accrued in a previous period, minus
(b) the sum of (i) to the extent included in such consolidated interest expense for such period, noncash amounts attributable to amortization or write-off of capitalized interest or other financing costs (including debt issuance
costs) paid in a previous period and (ii) to the extent included in such consolidated interest expense for such period, noncash amounts attributable to amortization of debt discounts or accrued interest payable in kind for such
period.
|
15
|
“Consolidated
EBITDA” means, for any period (including any period which, or any portion of which, occurs prior to the Restatement Effective Date), Consolidated Net Income for such period, plus
|
|
|
(a) without duplication and to the extent deducted in determining such Consolidated Net Income, the sum for the
Borrower and the Subsidiaries of:
|
|
|
(i) |
consolidated interest expense for such period (including imputed interest expense in respect of Finance Lease Obligations), determined on a
consolidated basis in accordance with GAAP;
|
|
|
|
|
|
|
(ii) |
consolidated income tax expense for such period;
|
|
|
|
|
|
|
(iii) |
all amounts attributable to depreciation and amortization for such period (excluding amortization expense attributable to a prepaid cash item
that was paid in a prior period);
|
|
|
|
|
|
|
(iv) |
any Non-Cash Charges for such period (excluding any additions to bad debt reserves or bad debt expense);
|
|
|
|
|
|
|
(v) |
any losses attributable to early extinguishment of Indebtedness or obligations under any Hedging Agreement;
|
|
|
|
|
|
|
(vi) |
losses recognized related to any Person (excluding the Borrower) that is not a consolidated Subsidiary and accounted for by equity method;
|
|
|
|
|
|
|
(vii) |
restructuring charges and reserves in an aggregate amount not to exceed $35,000,000 for any period of four consecutive fiscal quarters ending
immediately prior to or any time after the Restatement Effective Date (provided that 50% of any unused amount under this clause (vii) during each
fiscal year may be carried forward to, and applied to restructuring charges and reserves taken, at any time during, the next succeeding fiscal year; provided further that all restructuring charges and reserves taken in any fiscal year shall be deemed to first utilize the $35,000,000 basket for such year prior
to utilizing any such carry-forward amount); and
|
|
|
|
|
|
|
(viii) |
restructuring charges and reserves in connection with any Material Acquisition (i) that are taken substantially simultaneously with the
consummation of such Material Acquisition and (ii) substantially all the cash expenditures in connection with which are anticipated to occur during the eighteen-month period following the date of such consummation, in a cumulative
aggregate amount not exceeding $100,000,000 in respect of all fiscal periods ending on or after April 1, 2023
|
|
|
|
|
| and minus |
16
|
(b) without duplication and to the extent included in determining such Consolidated Net Income, the sum for the
Borrower and the Subsidiaries of:
|
|
|
(i) |
any gains attributable to the early extinguishment of Indebtedness or obligations under any Hedging Agreement;
|
|
|
|
|
|
|
(ii) |
income recognized related to any Person (excluding the Borrower) that is not a consolidated Subsidiary and accounted for by equity method
except to the extent of the amount of cash dividends or similar cash distributions actually paid by such Person to the Borrower or any other consolidated Subsidiary;
|
|
|
|
|
|
|
(iii) |
the income of any Person that is not a consolidated Subsidiary during such period to the extent that, on the date of determination, the
declaration or payment of cash dividends or similar cash distributions by such Subsidiary is not permitted without any prior approval of any Governmental Authority that has not been obtained or is not permitted by the operation of
the terms of the organizational documents of such Subsidiary, any agreement or other instrument binding upon the Borrower or any Subsidiary or any law applicable to the Borrower or any Subsidiary, unless such restrictions with
respect to the payment of cash dividends and other similar cash distributions has been legally and effectively waived, except to the extent of any cash dividends or similar cash distributions actually paid by such Person to the
Borrower or a Subsidiary Loan Party; and
|
|
|
|
|
|
|
(iv) |
any non-cash credits for such period (excluding any deductions to bad debt reserves or bad debt expense);
|
|
provided that any
cash expenditure or receipt made with respect to any noncash items added back or deducted in computing Consolidated EBITDA for any prior period pursuant to clause (a)(iv) or (b)(iv) above (or that would have been added back or
deducted had this Agreement been in effect during such prior period) shall be subtracted or added back, as applicable, in computing Consolidated EBITDA for the period in which such cash expenditure or receipt is made; provided further that Consolidated EBITDA shall
be calculated so as to exclude the effect of any gain or loss that represents after-tax gains or losses attributable to any sale, transfer or other disposition, or any exclusive license, of assets by the Borrower or any of its
consolidated Subsidiaries, other than dispositions of inventory and other dispositions and licenses in the ordinary course of business.
|
|
|
“Consolidated Net Income”
means, for any period, the net income or loss of the Borrower and its consolidated Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.
|
|
|
“Consolidated Tangible Net
Worth” means on any date the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all liabilities, and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense, capitalized software, customer relationships, non-competition agreements and other intangible assets, all as set forth on the most recent quarterly or annual consolidated balance sheet
of the Borrower and its consolidated Subsidiaries and computed in accordance with GAAP.
|
17
|
“Control” means
the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies, or the dismissal or appointment of the management of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
|
|
|
“Convertible Senior Debt”
means, collectively, the Relevant Convertible Senior Debt or any other convertible debt issued by the Borrower.
|
|
|
“Corresponding Tenor”
with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
|
|
|
“Covered Entity”
means any of the following:
|
|
|
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
|
|
|
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
|
|
|
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
|
|
|
“Covered Party”
has the meaning assigned to it in Section 9.21.
|
|
|
“Credit Facility”
has the meaning assigned to it in Section 9.02(b).
|
|
|
“Credit Party”
means the Administrative Agent, each Issuing Bank and each other Lender.
|
|
|
“Daily Simple RFR”
means, for any day (an “RFR Interest Day”), an interest rate per annum equal to, for any RFR Loan denominated in Sterling, SONIA for the day
that is 5 RFR Business Days prior to (A) if such RFR Interest Day is an RFR Business Day, such RFR Interest Day or (B) if such RFR Interest Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest
Day.
|
|
|
“Daily Simple SOFR”
means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five RFR Business Days prior to (i) if such SOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not an RFR
Business Day, the RFR Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in
SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
|
18
|
“Default”
means any event or condition that constitutes, or upon notice, lapse of time or both would, unless cured or waived, constitute an Event of Default.
|
|
|
“Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
|
|
|
“Defaulting Lender”
means any Revolving Lender that (a) has failed, within two Business Days of the date required to be funded or paid, (i) to fund any portion of its Loans, (ii) to fund any portion of its participations in Letters of Credit or
(iii) to pay to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified in such writing, including, if applicable, by reference to a specific Default) has not been satisfied, (b) has notified the
Borrower or any Credit Party in writing, or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement
indicates that such position is based on such Lender’s good-faith determination that a condition precedent (specifically identified in such writing, including, if applicable, by reference to a specific Default) to funding a Loan
cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by a Credit Party made in good faith to provide a certification in writing
from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans and participations in then outstanding Letters of Credit, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Credit Party’s receipt of such
certification in form and substance satisfactory to it and the Administrative Agent or (d) has (i) become the subject of a Bankruptcy Event or a Bail-In Action, or (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; 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 shall be conclusive and
binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Revolving Lender.
|
19
|
“Designated
Foreign Currency” means (a) Euro, (b) Sterling, (c) Yen and (d) any other currency specified by the Borrower in a notice to the Administrative Agent and agreed to by the Administrative Agent and each Lender that is
freely transferable and convertible into Dollars in the London market.
|
|
|
“Designated Foreign
Currency Sublimit” means an amount equal to the lesser of the Aggregate Revolving Commitment and $250,000,000. The Designated Foreign Currency Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitment.
|
|
|
“Designated
Non-Cash Consideration” means the fair market value of non-cash consideration received by the Borrower or a Subsidiary in connection with a disposition pursuant to Section 6.05 that is designated as Designated
Non-Cash Consideration pursuant to a certificate of a Financial Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the fair market value of the portion of the non-cash consideration
converted to cash within 180 days following the consummation of such disposition).
|
|
|
“Disclosed Matters”
means the actions, suits, proceedings and the environmental, Intellectual Property and other matters disclosed in Schedule 3.06 to the Disclosure Letter.
|
|
|
“Disclosure Letter”
means that certain Disclosure Letter, dated the Restatement Effective Date, from the Borrower to the Administrative Agent.
|
|
|
“Disposition”
has the meaning set forth in Section 6.05.
|
|
|
“Disqualified Equity
Interest” means, with respect to any Person, any Equity Interest in such Person that requires the payment of any dividend (other than dividends payable solely in Qualified Equity Interests) or that by its terms (or
by the terms of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder thereof), or upon the happening of any event or condition:
|
|
|
(a) matures or is mandatorily redeemable (other than solely for Equity Interests in such Person that do not constitute
Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;
|
|
|
(b) is convertible or exchangeable, either mandatorily or at the option of the holder thereof, for Indebtedness or
Equity Interests (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests); or
|
|
|
(c) is redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity
Interests and cash in lieu of fractional shares of such Equity Interests) or is required to be repurchased by the Borrower or any Subsidiary, in whole or in part, at the option of the holder thereof;
|
20
|
in each case, on or prior to the date that is 91 days after the Latest Maturity Date (determined as of the date of
issuance thereof or, in the case of any such Equity Interests outstanding on the date hereof, the date hereof); provided, however, that (i) an Equity Interest in any Person that would not constitute a Disqualified Equity Interest but for terms thereof giving holders
thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale” or a “change of control” (or similar event, however denominated) shall not constitute a Disqualified Equity
Interest if any such requirement becomes operative only after repayment in full of all the Loans and all other Loan Document Obligations that are accrued and payable, the cancellation or expiration of all Letters of Credit and the
termination or expiration of the Commitments and (ii) an Equity Interest in any Person that is issued to any employee or to any plan for the benefit of employees or by any such plan to such employees shall not constitute a
Disqualified Equity Interest solely because it may be required to be repurchased by such Person or any of its subsidiaries in order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s
termination, death or disability.
|
|
|
“Documentation Agent”
means Santander Bank, National Association, and Bank of America, N.A., each in its capacity as a documentation agent for the credit facilities provided for herein.
|
|
|
“Dollar Equivalent”
means, on any date of determination, (a) with respect to any amount in Dollars, such amount, and (b) with respect to any amount in any Designated Foreign Currency, the equivalent in Dollars of such amount, determined by the
Administrative Agent pursuant to Section 1.06 using the Exchange Rate with respect to such Designated Foreign Currency at the time in effect for such amount under the provisions of such Section.
|
|
|
“dollars”, “Dollars” or “$” refers to lawful money of the United
States of America.
|
|
|
“Domestic Subsidiary”
means any Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia, excluding, however, any such Subsidiary that is owned, directly or indirectly, by a
Subsidiary that is not incorporated or organized under the laws of the United States of America, any state thereof or the District of Columbia, and further excluding any CFC Holdco formed or acquired after the Original Effective
Date.
|
|
|
“EBITDA”
means, with respect to any Subsidiary for any period, the portion of Consolidated EBITDA attributable to such Subsidiary and its consolidated subsidiaries during such period.
|
|
|
“EEA Financial
Institution” means (a) any credit institution or investment firm established in any EEA Member Country that is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member
Country that is a parent of an institution described in clause (a) of this definition or (c) any financial institution established in an EEA Member Country that is a subsidiary of an institution described in clause (a) or (b) of
this definition and is subject to consolidated supervision with its parent.
|
|
|
“EEA Member Country”
means (a) any member state of the European Union, (b) Iceland, (c) Liechtenstein and (d) Norway.
|
21
|
“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.
|
|
|
“Electronic Signature”
means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
|
|
|
“Eligible Assignee”
means (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person, other than, in each case, a natural person (and any holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of, a natural person), a Defaulting Lender, the Borrower, any Subsidiary or any other Affiliate of the Borrower.
|
|
|
“EMU Legislation”
means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states.
|
|
|
“Engagement Letter”
means the Engagement Letter dated April 17, 2023, between the Borrower and JPMorgan Chase Bank, N.A.
|
|
|
“Environmental Laws”
means all rules, regulations, codes, ordinances, judgments, orders, decrees and other laws, and all injunctions, notices or binding agreements, issued, promulgated or entered into by or with any Governmental Authority and relating
to (a) the protection of the environment, (b) the preservation or reclamation of natural resources, (c) the generation, management, Release or threatened Release of any Hazardous Material or (d) with respect to Hazardous
Materials, the protection of human health and safety.
|
|
|
“Environmental Liability”
means any liability, obligation, loss, claim, action, order or cost, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties and indemnities), directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
Release or threatened Release of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
|
|
|
“Equity Interests”
means shares of capital stock, partnership interests, membership interests, beneficial interests or other ownership interests, whether voting or nonvoting, in, or interests in the income or profits of, a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any of the foregoing (other than, (a) prior to the date of such conversion, Indebtedness that is convertible into or exchangeable for Equity Interests or
(b) any Permitted Call Spread Transactions)).
|
|
|
“ERISA” means
the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
|
|
|
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or 414(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414(m) or 414(o) of the Code.
|
22
|
“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30‑day notice period is waived), (b) any failure by any Plan to
satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan, in each case whether or not waived, (c) the filing pursuant to Section 412(c) of the Code or
Section 302(c) of ERISA, of an application for a waiver of the minimum funding standard with respect to any Plan, (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 430(i)(4) of
the Code or Section 303(i)(4) of ERISA), (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan, (f) the receipt by the Borrower or
any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, (h) the receipt by the Borrower or any of its ERISA Affiliates of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any of its ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent, within the
meaning of Title IV of ERISA or in endangered or critical status, within the meaning of Section 305 of ERISA or (i) the occurrence of a “prohibited transaction” with respect to which the Borrower or any Subsidiary is a
“disqualified person” (within the meaning of Section 4975 of the Code) or a “party in interest” (within the meaning of Section 406 of ERISA) with respect to which the Borrower or any such Subsidiary could otherwise be liable.
|
|
|
“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
|
|
|
“Euro” or “€” means the single currency of the European Union as constituted by the Treaty on European Union and as referred to in the EMU Legislation.
|
|
|
“EURIBOR Rate”
means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period.
|
|
|
“EURIBOR Screen Rate”
means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction,
recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service
which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to
be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
|
23
|
“Event of Default”
has the meaning set forth in Article VII.
|
|
|
“Exchange Act”
means the United States Securities Exchange Act of 1934.
|
|
|
“Exchange Rate”
means on any day, for purposes of determining the Dollar Equivalent of any other currency, the rate at which such other currency may be exchanged into Dollars determined by using the rate of exchange for the purchase of Dollars
with such other currency last provided (either by publication or otherwise provided to the Administrative Agent) by the applicable Thomson Reuters Corp., Refinitiv, or any successor thereto (“Reuters”) source on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to
provide a rate of exchange for the purchase of Dollars with such other currency, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the
Administrative Agent in its sole discretion (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method
of determination it deems appropriate in its sole discretion). Notwithstanding the foregoing provisions of this definition or the definition of the term “Dollar Equivalent”, (x) the Borrower may determine the Exchange Rate in
accordance with the foregoing terms from any publicly available service for purposes of Article VI as provided in Sections 1.06(c) and (d) and (y) each Issuing Bank may, solely for purposes of computing the fronting fees owed to
it under Section 2.11(b), compute the Exchange Rate for purposes of determining the LC Exposure attributable to any Letter of Credit issued by it that is denominated in a Designated Foreign Currency by reference to exchange rates
determined using any reasonable method customarily employed by it for such purpose.
|
|
|
“Excluded Assets”
has the meaning set forth in the Collateral Agreement.
|
|
|
“Excluded Subsidiary”
means (a) any Subsidiary that is not a wholly-owned subsidiary of the Borrower, (b) any Subsidiary that is a CFC, including any CFC Holdco formed or acquired after the Original Effective Date, (c) any Subsidiary that is prohibited
by applicable law from guaranteeing the Loan Document Obligations, (d) any Subsidiary that (i) is prohibited by any contractual obligation existing on the Restatement Effective Date or on the date such Subsidiary is acquired or
otherwise becomes a Subsidiary (but not entered into in contemplation of such acquisition) from guaranteeing the Loan Document Obligations, (ii) would require governmental (including regulatory) consent, approval, license or
authorization to provide such Guarantee, unless such consent, approval, license or authorization has been received, or (iii) the provision of a Guarantee by such Subsidiary would result in a material adverse tax consequence (as
reasonably determined in good faith by the Borrower), (e) any captive insurance subsidiary, not for profit subsidiary or special purpose entity (including any Securitization Vehicle) and (f) any other Subsidiary excused from
becoming a Loan Party pursuant to the last paragraph of the definition of the term “Collateral and Guarantee Requirement”.
|
24
|
“Excluded Swap Guarantor”
means any Subsidiary Loan Party all or a portion of whose Guarantee of, or grant of a security interest to secure, any Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or
any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof).
|
|
|
“Excluded Swap
Obligations” means, with respect to any Subsidiary Loan Party, any Specified Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Subsidiary Loan Party of, or the grant by such
Subsidiary Loan Party of a security interest to secure, such Specified Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures
Trading Commission (or the application or official interpretation of any thereof). If a Specified Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of
such Specified Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.
|
|
|
“Excluded Taxes”
means, with respect to any payment made by any Loan Party under this Agreement or any other Loan Document, any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment
to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having
its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a
Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender
acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.18(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant
to Section 2.16(a), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c)
Taxes attributable to such Recipient’s failure to comply with Section 2.16(f), and (d) any U.S. federal withholding Taxes imposed under FATCA.
|
|
|
“Existing Letter of
Credit” means each letter of credit previously issued pursuant to the Original Credit Agreement by a Person that shall be an Issuing Bank for the account of the Borrower or any Subsidiary that (a) is outstanding on
the Restatement Effective Date and (b) is listed on Schedule 2.04.
|
|
|
“Extending Lenders”
has the meaning assigned to such term in Section 2.21(a).
|
|
|
“Extension Offer”
has the meaning assigned to such term in Section 2.21(a).
|
25
|
“Extension Permitted
Amendment” means an amendment to this Agreement and the other Loan Documents, effected in connection with an Extension Offer pursuant to Section 2.21, providing for an extension of the Maturity Date applicable to
the Extending Lenders’ Loans and/or Commitments of the applicable Extension Request Class (such Loans or Commitments being referred to as the “Extended
Loans” or “Extended Commitments”, as applicable) and, in connection therewith, (a) an increase or decrease in the rate of
interest accruing on such Extended Loans, (b) in the case of Extended Loans that are Term Loans of any Class, a modification of the scheduled amortization applicable thereto; provided that the weighted average life to maturity of such Extended Loans shall be no shorter than the remaining weighted average life to maturity (determined at the time of such Extension
Offer) of the Term Loans of such Class, (c) a modification of voluntary or mandatory prepayments applicable thereto (including prepayment premiums and other restrictions thereon); provided that in the case of Extended Loans that are Term Loans, such requirements may provide that such Extended Loans may participate in any mandatory prepayments on a pro rata basis
(or on a basis that is less than a pro rata basis) with the Loans of the applicable Extension Request Class, but may not provide for prepayment requirements that are more favorable than those applicable to the Loans of the
applicable Extension Request Class, (d) an increase in the fees payable to, or the inclusion of new fees to be payable to, the Extending Lenders in respect of such Extension Offer or their Extended Loans or Extended Commitments
and/or (e) an addition of any covenants or provisions applicable to the Borrower and the Subsidiaries (i) applicable only to periods after the Latest Maturity Date in effect at the time of such Extension Permitted Amendment or
(ii) that are also for the benefit of all other Lenders in respect of Loans and Commitments outstanding at the time of such Extension Permitted Amendment.
|
|
|
“Extension Request Class”
has the meaning assigned to such term in Section 2.21(a).
|
|
|
“FATCA” means
Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or
official interpretations thereof, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or
convention among Governmental Authorities and implementing such Sections of the Code.
|
|
|
“Federal Funds Effective
Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depository institutions (as determined in such manner as the NYFRB shall set forth on its public website
from time to time) and published on the next succeeding Business Day by the NYFRB as the federal funds effective rate; provided that if
such rate shall be less than zero, such rate shall be deemed to be zero for all purposes of this Agreement.
|
|
|
“Federal Reserve Board”
means the Board of Governors of the Federal Reserve System of the United States of America.
|
|
|
“Finance Lease”
means any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on a balance sheet of
such Person under Financial Accounting Standards Board Accounting Standards Update No. 2016-02, Leases (Topic 842).
|
26
|
“Finance Lease
Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any Finance Lease; the amount of such obligations shall be the capitalized amount thereof determined in accordance
with GAAP and the final maturity of such obligations shall be the date of the last payment of such or any other amounts due under such lease (or other arrangement) prior to the first date on which such lease (or other arrangement)
may be terminated by the lessee without payment of a premium or penalty. For purposes of Section 6.02, a Finance Lease Obligation shall be deemed to be secured by a Lien on the property being leased and such property shall be
deemed to be owned by the lessee.
|
|
|
“Financial Officer”
means, with respect to any Person, the chief financial officer, principal accounting officer, treasurer or controller of such Person. Unless otherwise specified, “Financial Officer” means a Financial Officer of the Borrower.
|
|
|
“Floor” means
the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of the Restatement Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term
SOFR Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, each Adjusted Daily Simple RFR, the Japanese Prime Rate or the Central Bank Rate, as applicable. For the avoidance of doubt the initial Floor for each of Adjusted Term SOFR
Rate, Adjusted EURIBOR Rate, Adjusted TIBOR Rate, each Adjusted Daily Simple RFR, the Japanese Prime Rate and the Central Bank Rate shall be 0.00%.
|
|
|
“Foreign Jurisdiction
Deposit” means a deposit or Guarantee incurred in the ordinary course of business and required by any Governmental Authority in a foreign jurisdiction as a condition of doing business in such jurisdiction.
|
|
|
“Foreign Lender”
means any Lender that is not a U.S. Person.
|
|
|
“Foreign Subsidiary”
means any Subsidiary that is not a Domestic Subsidiary.
|
|
|
“GAAP” means
generally accepted accounting principles in the United States of America.
|
|
|
“Global Intercompany Note”
means the intercompany note dated the Original Effective Date, or as otherwise replaced or amended in form and substance reasonably satisfactory to the Administrative Agent.
|
|
|
“Governmental Approvals”
means all authorizations, consents, approvals, permits, licenses and exemptions of, registrations and filings with, and reports to, Governmental Authorities.
|
|
|
“Governmental Authority”
means the government of the United States of America, any other nation or 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 body exercising such powers or functions, such as the European
Union or the European Central Bank).
|
27
|
“Guarantee” of
or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or other obligation; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The amount, as of any date of determination, of any
Guarantee shall be the principal amount outstanding on such date of Indebtedness or other obligation guaranteed thereby (or, in the case of (i) any Guarantee the terms of which limit the monetary exposure of the guarantor or (ii)
any Guarantee of an obligation that does not have a principal amount, the maximum monetary exposure as of such date of the guarantor under such Guarantee (as determined, in the case of clause (i), pursuant to such terms or, in the
case of clause (ii), in good faith by a Financial Officer of the Borrower)).
|
|
|
“Hazardous Materials”
means all explosive, radioactive, hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
|
|
|
“Hedging Agreement”
means any agreement with respect to any swap, forward, future or derivative transaction, foreign exchange transaction, or any option or similar agreement, involving, or settled by reference to, one or more rates, currencies,
commodities, prices of equity or debt securities or instruments, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value, or any similar transaction or combination of the foregoing
transactions; provided that (a) no phantom stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any Subsidiary or (b) any Permitted Call Spread Transaction shall be a Hedging Agreement.
|
|
|
“Incremental Commitment”
means an Incremental Revolving Commitment or an Incremental Term Commitment.
|
28
|
“Incremental Equivalent
Debt” means any Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes, notes or term loans secured on a junior lien basis or unsecured notes or terms loans; provided that (a) if such Indebtedness is secured, such Indebtedness shall be secured by the Collateral on a pari passu or junior basis with the Loan Document Obligations and shall
not be secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (b) the stated final maturity of such Indebtedness shall not be earlier than the Latest Maturity Date at the time of the
incurrence of such Indebtedness (except for any such Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term Indebtedness, which such Indebtedness, upon the
maturity thereof, automatically converts into Indebtedness that satisfies the requirements set forth in this definition), (c) the terms and conditions of such Indebtedness (excluding, for the avoidance of doubt, pricing,
maturity, prepayment or redemption terms) are not materially more favorable (when taken as a whole), as determined by the Borrower in good faith, to the lenders or holders providing such Indebtedness than those applicable to the
existing Commitments and the Loans at the time of incurrence of such Indebtedness (except for covenants (including financial maintenance covenants) or other provisions (i) applicable only to periods after the Latest Maturity
Date in effect at the time such Incremental Equivalent Debt is issued or (ii) that are also for the benefit of all other Lenders in respect of Loans and Commitments outstanding at the time such Incremental Equivalent Debt is
incurred), as determined in good faith by the Borrower (it being understood that such Indebtedness may include one or more financial maintenance covenants with which the Borrower shall be required to comply; provided that any such financial maintenance covenant shall also be for the benefit of all other Lenders in respect of all Loans and
Commitments outstanding at the time that such Incremental Equivalent Debt is incurred), (d) if such Indebtedness is secured, the security agreements relating to such Indebtedness shall not be materially more favorable (when
taken as a whole) to the holders providing such Indebtedness than the existing Security Documents are to the Lenders (as determined in good faith by the Borrower) (with such differences as are appropriate to reflect the nature
of such Incremental Equivalent Debt and are otherwise reasonably satisfactory to the Administrative Agent), (e) if such Indebtedness is secured, a trustee or note agent acting on behalf of the holders of such Indebtedness shall
have become party to customary intercreditor arrangements mutually agreed with the Administrative Agent and (f) such Indebtedness shall not be guaranteed by any Subsidiaries other than the Loan Parties.
|
|
|
“Incremental Extensions
of Credit” has the meaning set forth in Section 2.20.
|
|
|
“Incremental Facility”
means an Incremental Revolving Facility or an Incremental Term Facility.
|
|
|
“Incremental Facility
Amendment” means an Incremental Facility Amendment, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Incremental Lenders,
establishing Incremental Term Commitments of any Series or Incremental Revolving Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.20.
|
|
|
“Incremental Fixed Amount”
means $300,000,000.
|
|
|
“Incremental Lender”
means an Incremental Revolving Lender or an Incremental Term Lender.
|
29
|
“Incremental Revolving
Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant to an Incremental Facility Amendment and Section 2.20, to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate permitted amount of such Lender’s Revolving Exposure under such Incremental Facility Amendment.
|
|
|
“Incremental Revolving
Facility” means an incremental portion of the Revolving Commitments established hereunder pursuant to an Incremental Facility Amendment providing for Incremental Revolving Commitments.
|
|
|
“Incremental Revolving
Lender” means a Lender with an Incremental Revolving Commitment.
|
|
|
“Incremental Revolving
Loan” means a Loan made by an Incremental Revolving Lender to the Borrower pursuant to Section 2.20.
|
|
|
“Incremental Term
Commitment” means, with respect to any Lender, the commitment, if any, of such Lender, established pursuant an Incremental Facility Amendment and Section 2.20, to make Incremental Term Loans of any Series hereunder,
expressed as an amount representing the maximum principal amount of the Incremental Term Loans of such Series to be made by such Lender.
|
|
|
“Incremental Term
Facility” means an incremental term loan facility established hereunder pursuant to an Incremental Facility Amendment providing for Incremental Term Commitments.
|
|
|
“Incremental Term Lender”
means a Lender with an Incremental Term Commitment or an outstanding Incremental Term Loan.
|
|
|
“Incremental Term Loan”
means a Loan made by an Incremental Term Lender to the Borrower pursuant to Section 2.20.
|
|
|
“Incremental Term
Maturity Date” means, with respect to Incremental Term Loans of any Series, the scheduled date on which such Incremental Term Loans shall become due and payable in full hereunder, as specified in the applicable
Incremental Facility Amendment.
|
|
|
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person (i) for borrowed money or (ii) with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person (excluding trade accounts payable incurred in the ordinary course
of business), (d) all obligations of such Person in respect of the deferred purchase price of property or services (including payments in respect of non-competition agreements or other arrangements representing acquisition
consideration, in each case entered into in connection with an acquisition, but excluding (i) current accounts payable incurred in the ordinary course of business, (ii) deferred compensation payable to directors, officers or
employees of the Borrower or any Subsidiary and (iii) any purchase price adjustment, earnout or deferred payment of a similar nature incurred in connection with an acquisition), (e) all Finance Lease Obligations of such Person,
(f) the maximum aggregate amount of all letters of credit and letters of guaranty in respect of which such Person is an account party, (g) all obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances, (h) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed by such Person, and (i) all Guarantees by such Person of Indebtedness of others. The Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such other Person, except to the
extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, obligations in respect of (1) any lease that is not a Finance Lease or (2) any Permitted Call Spread Transaction
are not included in the definition of Indebtedness.
|
30
|
“Indemnified Institution”
has the meaning set forth in Section 9.03(b).
|
|
|
“Indemnified Taxes”
means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by any Loan Party under this Agreement or any other Loan Document and (b) Other Taxes.
|
|
|
“Indemnitee”
has the meaning set forth in Section 9.03(b).
|
|
|
“Information”
has the meaning assigned to such term in Section 9.12.
|
|
|
“Intellectual Property”
means all intellectual property of every kind and nature now owned or hereafter acquired by the Borrower or any Subsidiary, including inventions, designs, patents, copyrights, trademarks, trade secrets, domain names, confidential
or proprietary technical and business information, know-how, show-how or other similar data or information, software and databases and related documentation, all additions, improvements and accessions to any of the foregoing and
all registrations for any of the foregoing.
|
|
|
“Interest Coverage Ratio”
means, for any Test Period, the ratio of (i) Consolidated EBITDA less Capital Expenditures for such Test Period to (ii) Consolidated Cash Interest Expense for such Test Period.
|
|
|
“Interest Election
Request” means a written request by the Borrower to convert or continue a Borrowing in accordance with Section 2.06, which shall be in the form of Exhibit F or any other form approved by the Administrative Agent.
|
|
|
“Interest Payment Date”
means (a) with respect to any ABR Loan, the last day of each March, June, September and December and the Maturity Date, (b) with respect to any Term Benchmark 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 Term Benchmark Borrowing with an Interest Period of more than three months’ duration, such day or days prior to the last day of such Interest Period as shall occur at intervals of
three months’ duration after the first day of such Interest Period, and the Maturity Date and (c) with respect to any RFR Loan, (1) each date that is on the numerically corresponding day in each calendar month that is one month
after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Maturity Date.
|
31
|
“Interest Period”
means, with respect to any Term Benchmark Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each
case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment for any Agreed Currency), as the Borrower may elect; provided
that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (c) no tenor that has been removed from this definition pursuant to
Section 2.13(e) shall be available for specification in any Borrowing Request or Interest Election Request. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing.
|
|
|
“Investment”
means, with respect to a specified Person, (i) any Equity Interests, evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, or any capital contribution or
loans or advances (other than advances made in the ordinary course of business that would be recorded as accounts receivable on the balance sheet of the specified Person prepared in accordance with GAAP) to, Guarantees of any
Indebtedness of, or any other investment in, any other Person that are held or made by the specified Person and (ii) the purchase or acquisition (in one transaction or a series of related transactions) of all or substantially
all the property and assets or business of any other Person or assets constituting a business unit, line of business, division or product line of any other Person. The amount, as of any date of determination, of (a) any
Investment in the form of a loan or an advance shall be the principal amount thereof outstanding on such date, without any adjustment for write-downs or write-offs (including as a result of forgiveness of any portion thereof)
with respect to such loan or advance after the date thereof, (b) any Investment in the form of a Guarantee shall be determined in accordance with the definition of the term “Guarantee”, (c) any Investment in the form of a
transfer of Equity Interests or other non-cash property by the investor to the investee, including any such transfer in the form of a capital contribution, shall be the fair value (as determined reasonably and in good faith by a
Financial Officer of the Borrower) of such Equity Interests or other property as of the time of the transfer, without any adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect
to, such Investment after the date of such transfer, (d) any Investment (other than any Investment referred to in clause (a), (b) or (c) above) by the specified Person in the form of a purchase or other acquisition for value of
any Equity Interests, evidences of Indebtedness, other securities or assets of any other Person shall be the original cost of such Investment (including any Indebtedness assumed in connection therewith), plus the cost of all
additions, as of such date, thereto, and minus the amount, as of such date, of any portion of such Investment repaid to the investor in cash as a repayment of principal or a return of capital, as the case may be, but without any
other adjustment for increases or decreases in value of, or write-ups, write-downs or write-offs with respect to, such Investment after the date of such Investment, and (e) any Investment (other than any Investment referred to
in clause (a), (b), (c) or (d) above) by the specified Person in any other Person resulting from the issuance by such other Person of its Equity Interests to the specified Person shall be the fair value (as determined reasonably
and in good faith by a Financial Officer of the Borrower) of such Equity Interests at the time of the issuance thereof. For purposes of Section 6.04, if an Investment involves the acquisition of more than one Person, the amount
of such Investment shall be allocated among the acquired Persons in accordance with GAAP; provided that pending the final determination
of the amounts to be so allocated in accordance with GAAP, such allocation shall be as reasonably determined by a Financial Officer.
|
32
|
“IP Security Agreements”
has the meaning set forth in the Collateral Agreement.
|
|
|
“IRS” means
the United States Internal Revenue Service.
|
|
|
“ISP” means,
with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of
issuance).
|
|
|
“Issuing Bank”
means (a) JPMorgan Chase Bank, N.A., Comerica Bank, HSBC Bank USA, National Association, UniCredit Bank AG and TD Bank, N.A. (or their respective lending affiliates or branch offices), (b) solely with respect to each Existing
Letter of Credit, the Lender that issued such Existing Letter of Credit and (c) each Revolving Lender that shall have become an Issuing Bank hereunder as provided in Section 2.04(j) (other than any Person that shall have ceased
to be an Issuing Bank as provided in Section 2.04(k)), each in its capacity as an issuer of Letters of Credit hereunder. Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate (it being agreed that such Issuing Bank shall, or shall cause
such Affiliate to, comply with the requirements of Section 2.04 with respect to such Letters of Credit).
|
|
|
“Japanese Prime Rate”
means for any Loan denominated in Yen the greater of (a) (i) the Japanese local bank prime rate plus (ii) the Japanese Prime Rate Adjustment and (b) the Floor.
|
|
|
“Japanese Prime Rate
Adjustment” means, for any day, for any Loan denominated in Yen, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted TIBOR Rate for the five most
recent Business Days preceding such day for which the TIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted TIBOR Rate applicable during such period of five Business Days) minus (ii) the Japanese Prime Rate in effect on the last Business Day in such period. For purposes of this definition, the TIBOR Rate on any
day shall be based on the TIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in Yen for a maturity of one month.
|
33
|
“Judgment Currency”
has the meaning assigned to such term in Section 9.15(b).
|
|
|
“Junior Indebtedness”
means any Indebtedness that is subordinated in right of payment to the Loan Document Obligations; provided that a Permitted Call Spread
Transaction shall not constitute Junior Indebtedness.
|
|
|
“Latest Maturity Date”
means, at any time, the latest of the Maturity Dates in respect of the Classes of Loans and Commitments that are outstanding at such time.
|
|
|
“LC Commitment”
means, with respect to an Issuing Bank, the aggregate maximum amount of Letters of Credit at any time outstanding that it will be required to issue hereunder. The LC Commitment of each Issuing Bank existing on the Restatement
Effective Date is set forth with respect to such Issuing Bank on Schedule 2.01 hereto, and the LC Commitment of each Lender designated as an Issuing Bank after the Restatement Effective Date will be specified in the agreement
with respect to such designation contemplated by Section 2.04(j). The LC Commitment of any Issuing Bank may be increased or reduced by written agreement between such Issuing Bank and the Borrower, provided that a copy of such written agreement shall have been delivered to the Administrative Agent.
|
|
|
“LC Disbursement”
means a payment made by an Issuing Bank pursuant to a Letter of Credit. The amount of any LC Disbursement made by an Issuing Bank in a Designated Foreign Currency and not reimbursed by the Borrower shall be determined as set
forth in Section 2.04(f) or 2.04(n), as applicable.
|
|
|
“LC Exposure”
means, at any time, the sum of (a) the aggregate amount of the Dollar Equivalents of all Letters of Credit that remain available for drawing at such time and (b) the aggregate amount of the Dollar Equivalents of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time,
adjusted to give effect to any reallocation under Section 2.19 of the LC Exposure of Defaulting Lenders in effect at such time.
|
|
|
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 Article 29(a) of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce Publication No. 600 (or such later
version thereof as may be in effect at the applicable time) or Rule 3.13 or Rule 3.14 of the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in
effect at the applicable time) or similar terms in the governing rules or laws or of the Letter of Credit itself, or if compliant documents have been presented but not yet honored, such Letter of Credit shall be deemed to be
“outstanding” and “undrawn” in the amount so remaining available to be paid, and the obligations of the Borrower and each Lender shall remain in full force and effect until the Issuing Bank and the Lenders shall have no further
obligations to make any payments or disbursements under any circumstances with respect to any Letter of Credit.
|
34
|
“LC Fee” has
the meaning set forth in Section 2.11(b).
|
|
|
“LC Participation
Calculation Date” means, with respect to any LC Disbursement made by any Issuing Bank or any refund of a reimbursement payment made by any Issuing Bank to the Borrower, in each case in a Designated Foreign Currency,
(a) the date on which such Issuing Bank shall advise the Administrative Agent that it purchased with Dollars the Designated Foreign Currency used to make such LC Disbursement or refund or (b) if such Issuing Bank shall not advise
the Administrative Agent that it made such a purchase, the date on which such LC Disbursement or refund is made.
|
|
|
“Lender-Related Person”
has the meaning assigned to it in Section 9.03(b).
|
|
|
“Lenders”
means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, an Incremental Facility Amendment or a Refinancing Facility Agreement, other than any
such Person that shall have ceased to be a party hereto pursuant to an Assignment and Assumption.
|
|
|
“Letter of Credit”
means any letter of credit issued pursuant to this Agreement and any Existing Letter of Credit, other than any such letter of credit that shall have ceased to be a “Letter of Credit” outstanding hereunder pursuant to Section 9.05.
|
|
|
“Liabilities”
means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.
|
|
|
“Lien” means,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, charge, security interest or other encumbrance on, in or of such asset, including any arrangement entered into for the purpose of making
particular assets available to satisfy any Indebtedness or other obligation, (b) the interest of a vendor or a lessor under any conditional sale agreement, finance lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
|
|
|
“Liquidity”
means, on any date of determination, an amount equal to (a) Unrestricted Cash as of such date, plus (b) the unused amount of the Revolving
Commitments as of such date; provided that the Borrower and the other Loan Parties would, if required, satisfy each of the conditions in
Section 4.02 (as applicable) on such date, and provided further
that the amount of Liquidity contributed pursuant to clause (b) of this definition shall not exceed the amount contributed pursuant to clause (a) of this definition.
|
|
|
“Loan Document
Obligations” means (a) the due and punctual payment by the Borrower of (i) the principal of and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (ii) each payment required to
be made by the Borrower under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral and
(iii) all other monetary obligations of the Borrower under this Agreement and each of the other Loan Documents, including obligations to pay fees, expense reimbursement obligations (including with respect to attorneys’ fees) and
indemnification obligations, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), (b) the due and punctual performance of all other obligations of the Borrower under or pursuant to this Agreement and each of the other Loan Documents and (c) the due
and punctual payment and performance of all the obligations of each other Loan Party under or pursuant to each of the Loan Documents (including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), in each case of clauses (a), (b) and (c), whether now or hereafter owing.
|
35
|
“Loan Documents”
means this Agreement, the Original Credit Agreement, the Restatement Agreement, the Incremental Facility Amendments, the Refinancing Facility Agreements, the Collateral Agreement, the other Security Documents, any agreement
designating an additional Issuing Bank as contemplated by Section 2.04(j) and, except for purposes of Section 9.02, any promissory notes delivered pursuant to Section 2.08(c) (and, in each case, any amendment, restatement, waiver,
supplement or other modification to any of the foregoing).
|
|
|
“Loan Parties”
means the Borrower and each Subsidiary Loan Party.
|
|
|
“Loans” means
the loans made by the Lenders to the Borrower pursuant to this Agreement, including pursuant to any Incremental Facility Amendment or any Refinancing Facility Agreement.
|
|
|
“Local Time”
means (a) with respect to a Loan or Borrowing denominated in Dollars, New York City time, and (b) with respect to a Loan or Borrowing denominated in any Designated Foreign Currency, the local time in the place of settlement for
such Designated Foreign Currency as may be determined by the Administrative Agent or the Issuing Bank, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in
the place of payment.
|
|
|
“Majority in Interest”,
when used in reference to Lenders of any Class, means, at any time, (a) in the case of the Revolving Lenders, Lenders having Revolving Exposures and unused Revolving Commitments representing more than 50% of the sum of the
Aggregate Revolving Exposures and the unused Aggregate Revolving Commitment at such time and (b) in the case of the Term Lenders of any Class, Lenders holding outstanding Term Loans of such Class representing more than 50% of all
Term Loans of such Class outstanding at such time.
|
36
|
“Material Acquisition”
means any acquisition (including by way of a merger), or a series of related acquisitions, of (a) Equity Interests in any Person (other than an existing Subsidiary of the Borrower) if, after giving effect thereto, such Person
will become a Subsidiary or (b) assets comprising all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person (other
than an existing Subsidiary of the Borrower); provided that the aggregate consideration therefor (including Indebtedness assumed in
connection therewith, all obligations in respect of deferred purchase price (including obligations under any purchase price adjustment but excluding earnout or similar payments) and all other consideration payable in
connection therewith (including payment obligations in respect of noncompetition agreements or other arrangements representing acquisition consideration)) exceeds $150,000,000.
|
|
|
“Material Adverse
Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of the Borrower and the other Loan
Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders under the Loan Documents.
|
|
|
“Material Disposition”
means any Disposition, or a series of related Dispositions, of (a) all or substantially all the issued and outstanding Equity Interests in any Person that are owned by the Borrower or any Subsidiary or (b) assets comprising
all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person; provided that the aggregate consideration therefor (including Indebtedness assumed by the transferee in connection therewith, all obligations in respect of deferred purchase price
(including obligations under any purchase price adjustment but excluding earnout or similar payments) and all other consideration payable in connection therewith (including payment obligations in respect of noncompetition
agreements or other arrangements representing acquisition consideration)) exceeds $150,000,000.
|
|
|
“Material Domestic
Subsidiary” means each wholly-owned Domestic Subsidiary that is not an Excluded Subsidiary (a) the consolidated total assets of which exceed $35,000,000 or (b) the consolidated EBITDA of which exceeds
$15,000,000, in each case as of the end of or for the most recent period of four consecutive fiscal quarters of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or,
prior to the delivery of any such financial statements, as of and for the most recent such period contained in the financial statements referred to in Section 3.04); provided that if the consolidated total assets or combined consolidated EBITDA of all Domestic Subsidiaries that would not constitute Material Domestic Subsidiaries in accordance with the
foregoing shall have exceeded 20% of the combined consolidated total assets of the Borrower and the Domestic Subsidiaries or 20% of the combined consolidated EBITDA of the Borrower and the Domestic Subsidiaries, then one or
more of such Domestic Subsidiaries that would not otherwise be Material Domestic Subsidiaries and are not Excluded Subsidiaries shall for all purposes of this Agreement be and automatically become Material Domestic
Subsidiaries in descending order based on the amounts of their consolidated total assets or consolidated EBITDA, as the case may be, until such excess shall have been eliminated.
|
37
|
“Material Foreign
Subsidiary” means each Foreign Subsidiary (a) the consolidated total assets of which exceed $150,000,000 or (b) the consolidated EBITDA of which exceeds $30,000,000, in each case as of the end of or for the most
recent period of four consecutive fiscal quarters of the Borrower for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b)(or, prior to the delivery of any such financial statements, as of
and for the most recent such period contained in the financial statements referred to in Section 3.04).
|
|
|
“Material Indebtedness”
means Indebtedness (other than the Loans, Letters of Credit and Guarantees under the Loan Documents), or obligations in respect of one or more Hedging Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount of (i) $50,000,000 or more. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated at such time; provided that a Permitted Call Spread Transaction shall not constitute Material Indebtedness.
|
|
|
“Material Intellectual
Property” means any Intellectual Property owned by any Loan Party that is material to the business and/or operations of the Borrower and its Subsidiaries, taken as a whole.
|
|
|
“Material Subsidiary”
means each Material Domestic Subsidiary and each Material Foreign Subsidiary.
|
|
|
“Maturity Date”
means a Term Maturity Date or the Revolving Maturity Date, as the context requires.
|
|
|
“Maximum Rate”
has the meaning set forth in Section 9.13.
|
|
|
“MNPI” means
material information concerning the Borrower and the Subsidiaries and their securities that has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD under the
Securities Act and the Exchange Act.
|
|
|
“Moody’s”
means Moody’s Investors Service, Inc., and any successor to its rating agency business.
|
|
|
“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
|
|
|
“Net Leverage Ratio”
means, on any date, the ratio of (a)(i) Total Indebtedness as of such date minus (ii) Unrestricted Cash as of such date in an amount not
to exceed $250,000,000 to (b) Consolidated EBITDA for the Test Period most recently ended on or before such date.
|
38
|
“Net Proceeds”
means, with respect to any event, (a) the cash (which term, for purposes of this definition, shall include Cash Equivalents) proceeds (including, in the case of any casualty, condemnation or similar proceeding, insurance,
condemnation or similar proceeds) received in respect of such event, including any cash received in respect of any noncash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a note
or installment receivable or purchase price adjustment or earnout, but excluding any reasonable interest payments), but only as and when received, net of (b) the sum, without duplication, of (i) all fees and out-of-pocket expenses
paid in connection with such event by the Borrower and the Subsidiaries, (ii) in the case of a Disposition (including pursuant to a casualty or a condemnation or similar proceeding) of an asset, (A) the amount of all payments
required to be made by the Borrower and the Subsidiaries as a result of such event to repay Indebtedness (other than Loans) secured by such asset and (B) the pro rata portion of net cash proceeds thereof (calculated without regard
to this clause (B)) attributable to non-controlling interests and not available for distribution to or for the account of the Borrower and the Subsidiaries as a result thereof and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Borrower and the Subsidiaries and the amount of any reserves established by the Borrower and the Subsidiaries in accordance with GAAP to fund purchase price adjustment, indemnification and similar
contingent liabilities (other than any earnout obligations) reasonably estimated to be payable and that are directly attributable to the occurrence of such event (as determined reasonably and in good faith by a Financial
Officer). For purposes of this definition, in the event any contingent liability reserve established with respect to any event as described in clause (b)(iii) above shall be reduced, the amount of such reduction shall, except to
the extent such reduction is made as a result of a payment having been made in respect of the contingent liabilities with respect to which such reserve has been established, be deemed to be receipt, on the date of such reduction,
of cash proceeds in respect of such event.
|
|
|
“Non-Cash
Charges” means any non-cash charges, including (a) any write-off for impairment of long lived assets including goodwill, intangible assets and fixed assets such as property, plant and equipment, and investments in
debt and equity securities pursuant to GAAP, (b) non-cash expenses resulting from the grant of stock options, restricted stock awards or other equity-based incentives to any director, officer or employee of the Borrower or any
Subsidiary (excluding, for the avoidance of doubt, any cash payments of income taxes made for the benefit of any such Person in consideration of the surrender of any portion of such options, stock or other incentives upon the
exercise or vesting thereof) and (c) any non-cash charges resulting from the application of purchase accounting.
|
|
|
“Non-Compliant Assets”
has the meaning assigned to such term in the definition of the term “Permitted Acquisition”.
|
|
|
“Non-Compliant
Subsidiary” has the meaning assigned to such term in the definition of the term “Permitted Acquisition”.
|
|
|
“Non-Defaulting Lender”
means, at any time, any Revolving Lender that is not a Defaulting Lender at such time.
|
|
|
“NYFRB”
means the Federal Reserve Bank of New York.
|
39
|
“NYFRB Rate”
means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately
preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate”
shall mean the rate for a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a Federal funds broker of recognized standing selected by it; provided further that if any of the aforesaid
rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
|
|
|
“NYFRB’s Website”
means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
|
|
|
“Obligations”
means, collectively, (a) the Loan Document Obligations, (b) the Secured Cash Management Obligations and (c) the Secured Hedging Obligations.
|
|
|
“Original Credit
Agreement” means this Agreement as in effect immediately prior to the Restatement Effective Date.
|
|
|
“Original Effective
Date” means June 5, 2019.
|
|
|
“Other Connection Taxes”
means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising 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, or enforced by, this
Agreement, or sold or assigned an interest in this Agreement).
|
|
|
“Other Taxes”
means any present or future stamp, court, documentary, intangible, recording, filing or similar excise or property Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or
registration of, or from the registration, 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 Other Connection Taxes
imposed with respect to an assignment (other than an assignment under Section 2.18(b)).
|
|
|
“Overnight Bank Funding
Rate” means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such
composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as
the NYFRB shall commence to publish such composite rate).
|
|
|
“Overnight Rate”
means, for any day, (a) with respect to any amount denominated in Dollars, the NYFRB Rate and (b) with respect to any amount denominated in a Designated Foreign Currency, an overnight rate determined by the Administrative Agent
or the Issuing Banks, as the case may be, in accordance with banking industry rules on interbank compensation.
|
40
|
“Participant Register”
has the meaning set forth in Section 9.04(c).
|
|
|
“Participants”
has the meaning set forth in Section 9.04(c)(i).
|
|
|
“Payment”
has the meaning assigned to it in Article VIII.
|
|
|
“Payment Notice”
has the meaning assigned to it in Article VIII.
|
|
|
“PBGC” means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
|
|
|
“Perfection Certificate”
means a certificate in the form of Exhibit G-1 or any other form approved by the Administrative Agent in its reasonable discretion.
|
|
|
“Permitted Acquired
Debt” means (a) Indebtedness of any Person that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into a Subsidiary in a transaction permitted hereunder)
after the date hereof, or Indebtedness of any Person that is assumed by any Subsidiary in connection with an acquisition of assets by such Subsidiary in a Permitted Acquisition; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary (or is so merged or consolidated) or such assets are acquired and is not created in contemplation
of or in connection with such Person becoming a Subsidiary (or such merger or consolidation) or such assets being acquired and (ii) neither the Borrower nor any Subsidiary (other than such Person or the Subsidiary with which
such Person is merged or consolidated or the Person that so assumes such Person’s Indebtedness) shall Guarantee or otherwise become liable for the payment of such Indebtedness, and Refinancing Indebtedness in respect of any of
the foregoing and (b) Refinancing Indebtedness in respect of Indebtedness described in clause (a) above.
|
|
|
“Permitted Acquisition”
means any transaction or series of related transactions for the purpose of or resulting in the purchase or other acquisition, by merger or otherwise, by the Borrower or any Subsidiary of substantially all the Equity Interests
in, or all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of), any Person if (a) in the case of any purchase or other
acquisition of Equity Interests in a Person, such Person and each subsidiary of such Person is (except to the extent otherwise permitted in this definition in the case of foreign and other Subsidiaries that will not become Loan
Parties) organized under the laws of the United States of America, any State thereof or the District of Columbia and, upon the consummation of such acquisition, will be a wholly-owned Subsidiary that is a Domestic Subsidiary
(including as a result of a merger or consolidation between any Subsidiary and such Person) and will be (unless such Person is not a Material Subsidiary or is an Excluded Subsidiary) a Subsidiary Loan Party or (b) in the case of
any purchase or other acquisition of other assets, such assets will be (except to the extent otherwise permitted in this definition) owned by the Borrower or a Subsidiary Loan Party; provided that:
|
|
|
(i) all transactions related thereto are consummated in accordance with applicable law, except to the extent
the failure to do so would not reasonably be expected to result in a Material Adverse Effect,
|
41
|
(ii) the business of such Person, or such assets, as the case may be, constitute the same general type
of business activities as the Borrower and the Subsidiaries or activities complementary, ancillary or reasonably related thereto or a reasonable extension or expansion thereof,
|
|
|
(iii) at the time of and immediately after giving effect to any such purchase or other acquisition, no
Default shall have occurred and be continuing or would result therefrom,
|
|
|
(iv) the Total Consideration for any purchase or other acquisition of Non-Compliant Subsidiaries or
Non-Compliant Assets, when taken together with the Total Consideration for all Non-Compliant Subsidiaries or Non-Compliant Assets acquired after the Restatement Effective Date, does not exceed $150,000,000 and
|
|
|
(v) if the Total Consideration for such purchase or other acquisition exceeds $50,000,000, the
Borrower shall be in Pro Forma Compliance with the covenants set forth in Sections 6.12 and 6.13 and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer, certifying that all the
requirements set forth in this definition have been satisfied with respect to such purchase or other acquisition, together with reasonably detailed calculations demonstrating satisfaction of the Pro Forma Compliance covenant
compliance requirement set forth in this clause.
|
|
|
In addition to and notwithstanding the foregoing, a Permitted Acquisition of a Person that will become a Loan
Party may include the indirect acquisition of Non-Compliant Subsidiaries or Non-Compliant Assets if the consideration allocable to the acquisition of such Non-Compliant Subsidiaries or such Non-Compliant Assets, as applicable
(determined in accordance with GAAP and as reasonably estimated by a Financial Officer of the Borrower at the time such Permitted Acquisition is consummated) consists (x) of the issuance of Qualified Equity Interests of the
Borrower or (y) other consideration that utilizes and is in an amount not in excess of the amount then available for Investments under Section 6.04(a) or 6.04(b)(xxiii). For purposes of this definition, “Non-Compliant Subsidiary” means any Subsidiary of a Person acquired pursuant to a Permitted Acquisition that will not become a Subsidiary Loan Party in
accordance with the requirements of clause (a) of this definition (other than a Domestic Subsidiary that is not a Material Subsidiary or is an Excluded Subsidiary), and “Non-Compliant Assets” means any assets acquired pursuant to a Permitted Acquisition to be held by a Subsidiary that is not a Subsidiary Loan Party (other than a Domestic Subsidiary that after
giving Pro Forma Effect to such Permitted Acquisition is not a Material Subsidiary or is an Excluded Subsidiary).
|
|
|
“Permitted Call Spread
Transaction” means (a) any call or capped call option (or substantively equivalent derivative transaction) relating to the Common Stock (or other securities or property following a merger event, reclassification
or other change of such common stock) purchased by the Borrower in connection with the issuance of any Convertible Senior Debt and settled in Common Stock (or such other securities or property), cash or a combination thereof
(such amount of cash determined by reference to the price of the Common Stock or such other securities or property), and cash in lieu of fractional shares of Common Stock, or (b) any call option, warrant or right to purchase (or
substantively equivalent derivative transaction) relating to the Common Stock (or other securities or property following a merger event, reclassification or other change of the Common Stock) sold by the Borrower substantially
concurrently with any purchase by the Borrower of a Permitted Call Spread Transaction described in clause (a) and settled in Common Stock (or such other securities or property), cash or a combination thereof (such amount of cash
determined by reference to the price of such common stock or such other securities or property), and cash in lieu of fractional shares of Common Stock; provided that the terms, conditions and covenants of each such transaction described in clause (a) or clause (b) shall be such as are customary for transactions of such type (as determined by the
Borrower in good faith).
|
42
|
“Permitted
Encumbrances” means:
|
|
|
(a) Liens imposed by law for Taxes that are not yet due and payable or are being contested in compliance with
Section 5.06;
|
|
|
(b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law (other
than any Lien imposed pursuant to Section 430(k) of the Code or Section 303(k) of ERISA or a violation of Section 436 of the Code), arising in the ordinary course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.06;
|
|
|
(c) pledges and deposits made (i) in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws and (ii) in respect of letters of credit, surety bonds, bank guarantees or similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course
of business supporting obligations of the type set forth in clause (i) above;
|
|
|
(d) pledges and deposits made (i) to secure the performance of bids, trade contracts, leases, statutory obligations
(including to customs authorities), surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business and (ii) in respect of letters of credit, surety bonds, bank
guarantees or similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course of business supporting obligations of the type set forth in clause (i) above;
|
|
|
(e) easements, covenants, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by
law or arising in the ordinary course of business, and other minor title imperfections with respect to real property, that do not secure any monetary obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;
|
|
|
(f) Liens arising from Cash Equivalents described in clause (d) of the definition of the term “Cash Equivalents";
|
|
|
(g) banker’s liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained
with depository institutions and securities accounts and other financial assets maintained with a securities intermediary, provided that
such deposit accounts or funds and securities accounts or other financial assets are not established or deposited for the purpose of providing collateral for any Indebtedness and are not subject to restrictions on access by the
Borrower or any Subsidiary in excess of those required by applicable banking regulations, and Liens encumbering reasonable and customary initial deposits and margin deposits and similar Liens attaching to commodity trading
accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
|
43
|
(h) Liens arising by virtue of Uniform Commercial Code financing statement filings (or similar filings under
applicable law) regarding operating leases or consignments entered into by the Borrower and the Subsidiaries in the ordinary course of business;
|
|
|
(i) Liens securing or otherwise arising from judgments not constituting an Event of Default under clause (l) of
Article VII;
|
|
|
(j) Liens of a collecting bank arising in the ordinary course of business under Section 4-210 (or the applicable
corresponding section) of the Uniform Commercial Code in effect in the relevant jurisdiction covering only the items being collected upon;
|
|
|
(k) Liens representing any interest or title of a licensor, lessor or sublicensor or sublessor, or a licensee, lessee
or sublicensee or sublessee, in the property (including any Intellectual Property) subject to any lease, license, sublicense or concession agreement permitted by this Agreement;
|
|
|
(l) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties
in connection with the importation of goods;
|
|
|
(m) ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its
Subsidiaries are located and other Liens affecting the interest of any landlord (and any underlying landlord) of any real property leased by the Borrower or any Subsidiary, so long as such ground lease does not interfere with the
ordinary conduct of business of the Borrower or any Subsidiary;
|
|
|
(n) Liens securing insurance premium financing arrangements; provided that such Liens are limited to the applicable unearned insurance premiums;
|
|
|
(o) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations
in respect of bankers’ acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;
|
|
|
(p) Liens that are contractual rights of set-off; and
|
|
|
(q) Liens arising in the ordinary course of business to secure accounts payable or similar trade obligations not
constituting Indebtedness (other than any Indebtedness relating to deposits or advances set forth in clause (a)(ii) of the definition of Indebtedness, to the extent Liens with respect thereto are limited to the funds advanced or
deposited).
|
44
|
provided that the term
“Permitted Encumbrances” shall not include any Lien securing Indebtedness other than (i) any Indebtedness relating to deposits or advances
set forth in clause (a)(ii) of the definition of Indebtedness secured by a Lien on the funds advanced or deposited and (ii) Liens referred to in clauses (c) and (d) above securing obligations under letters of credit or bank
guarantees or similar instruments.
|
|
|
“Permitted Holder”
means (a) the late Dr. Felix Zandman, his estate, heirs, executor, administrator or other personal representative, or any of his family members or any trust, fund or other entity that is controlled by him, his estate, heirs or
any of his family members and (b) any Permitted Transferee from the foregoing or any other Permitted Transferee.
|
|
|
“Permitted IP Transfer”
means one or more sales after the Restatement Effective Date of intellectual property owned by a Domestic Subsidiary to a Foreign Subsidiary; provided
that (a) any such sale is made solely for cash consideration paid by the acquiring Foreign Subsidiary to such Domestic Subsidiary at the time of transfer in an amount not less than the fair market value of the intellectual
property transferred, (b) no Liens (other than Permitted Encumbrances and Liens under the Security Documents) shall exist on any such transferred intellectual property at the time of its transfer and (c) the aggregate,
cumulative fair market value of all such transferred intellectual property shall not exceed $125,000,000.
|
|
|
“Permitted Junior Lien
Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes or loans; provided that (a) such Indebtedness is secured by the Collateral on a junior lien, subordinated basis to the Obligations and is not secured by any property or assets of the Borrower or any Subsidiary
other than the Collateral, (b) such Indebtedness constitutes Refinancing Term Loan Indebtedness, (c) the security agreements relating to such Indebtedness are not materially more favorable (when taken as a whole) to the lenders
or holders providing such Indebtedness than the existing Security Documents are to the Lenders (as determined in good faith by the Borrower) (with such differences as are appropriate to reflect the nature of such Indebtedness
and are otherwise reasonably satisfactory to the Administrative Agent), (d) such Indebtedness is not guaranteed by any Subsidiaries other than the Loan Parties and (e) such Indebtedness is subject to customary intercreditor
arrangements reasonably satisfactory to the Administrative Agent.
|
|
|
“Permitted Pari Passu
Refinancing Debt” means any secured Indebtedness incurred by the Borrower in the form of one or more series of senior secured notes; provided
that (a) such Indebtedness is secured by the Collateral on a pari passu basis to the Obligations and is not secured by any property or assets of the Borrower or any Subsidiary other than the Collateral, (b) such Indebtedness constitutes Refinancing Term Loan
Indebtedness, (c) the security agreements relating to such Indebtedness are not materially more favorable (when taken as a whole) to the holders providing such Indebtedness than the existing Security Documents are to the Lenders
(as determined in good faith by the Borrower) (with such differences as are appropriate to reflect the nature of such Indebtedness and are otherwise reasonably satisfactory to the Administrative Agent), (d) such Indebtedness is
not guaranteed by any Subsidiaries other than the Loan Parties and (e) such Indebtedness is subject to customary intercreditor arrangements reasonably satisfactory to the Administrative Agent.
|
45
|
“Permitted Refinancing
Debt” means (a) Permitted Pari Passu Refinancing Debt, (b) Permitted Junior Lien Refinancing Debt and (c) Permitted Unsecured Refinancing Debt, in each case in the form of one or more series of notes or term loan
facilities other than Term Loans under this Agreement.
|
|
|
“Permitted Senior
Unsecured Indebtedness” means senior Indebtedness of the Borrower incurred in the form of one or more series of notes or loans that (a) is unsecured, (b) is not Guaranteed by any Subsidiary other than by
Subsidiary Loan Parties on an unsecured basis, (c) does not have a stated final maturity prior to the date that is 91 days after the Latest Maturity Date at the time of incurrence of such Indebtedness (except for any such
Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term Indebtedness, which such Indebtedness, upon the maturity thereof, automatically converts into
Indebtedness that satisfies the requirements set forth in this definition), and (d) is not required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more
events or at the option of any holder thereof (except, in each case, (x) upon the occurrence of an event of default, asset sale, change in control or other fundamental change or as and to the extent such repayment, prepayment,
redemption, repurchase or defeasance would have been required pursuant to the terms of such Original Indebtedness and (y) in the case of any such Indebtedness in the form of a bridge or other interim credit facility intended to
be refinanced or replaced with long-term Indebtedness, upon the incurrence of such refinancing or replacement Indebtedness so long as such refinancing or replacement Indebtedness constitutes Permitted Senior Unsecured
Indebtedness) prior to the date that is 91 days after the Latest Maturity Date at the time of incurrence of such Indebtedness.
|
|
|
“Permitted Subordinated
Indebtedness” means Indebtedness of the Borrower incurred in the form of one or more series of notes or loans the payment of which is subordinated to the Borrower’s obligations in respect of the Loan Documents
Obligations on market terms reasonably acceptable to, and approved in writing by, the Administrative Agent, and which Indebtedness (a) is unsecured, (b) is not Guaranteed by any Subsidiary other than by Subsidiary Loan Parties
on an unsecured and subordinated basis on market terms reasonably acceptable to, and approved in writing by, the Administrative Agent, and (c) does not mature or require any amortization payment to be made prior to the date that
is 91 days after the Latest Maturity Date.
|
|
|
“Permitted Transferee”
means, with respect to each Permitted Holder,
|
|
|
(a) in the case of a Permitted Holder that is a natural person, (i) the spouse of a Permitted Holder, any lineal
descendant of a great grandparent of either a Permitted Holder or the spouse of such Permitted Holder, including adopted children; (ii) the trustee of a trust (whether testamentary, inter vivos or a voting trust) principally for
the benefit of such Permitted Holder and/or one or more of such Permitted Holder’s Permitted Transferees described in each subclause of this clause (a); (iii) any organization to which contributions are deductible for federal
income, estate or gift tax purposes or any split-interest trust described in Section 4947 of the Code (a “Charitable Organization”); (iv) a
corporation, of which outstanding capital stock entitled to a majority of the votes in the election of directors is owned beneficially solely by, or a partnership, of which a majority of the partnership interests entitled to
participate in the management of the partnership is owned beneficially solely by, such Permitted Holder and/or one or more of a Permitted Holder’s Permitted Transferees determined under this clause (a); and (v) the estate of a
Permitted Holder;
|
46
|
(b) in the case of a Permitted Holder holding the shares of Class B Common Stock in question as trustee pursuant to
a trust (other than pursuant to a trust described in clause (f) below), (i) any person transferring Class B Common Stock to such trust and (ii) any Permitted Transferee of any such transferor determined pursuant to clause (a)
above;
|
|
|
(c) in the case of a Permitted Holder that is a Charitable Organization holding record and beneficial ownership of
the shares of Class B Common Stock in question, any Permitted Holder;
|
|
|
(d) in the case of a Permitted Holder that is a corporation or partnership (other than a Charitable Organization)
acquiring record and beneficial ownership of the shares of Class B Common Stock in question upon its initial issuance by the Borrower, (i) a partner of such partnership or shareholder of such corporation at the time of issuance,
and (ii) any Permitted Transferee (determined pursuant to clause (a) above) of any such partner or shareholder referred to in subclause (i) of this clause (d);
|
|
|
(e) in the case of a Permitted Holder that is a corporation or partnership (other than a Charitable Organization or
a corporation or partnership described in clause (d) above) holding record and beneficial ownership of the shares of Class B Common Stock in question, (i) any person transferring such shares of Class B Common Stock to such
corporation or partnership and (ii) any Permitted Transferee of any such transferor determined under clause (a) above;
|
|
|
(f) in the case of a Permitted Holder holding the shares of Class B Common Stock in question as trustee pursuant to
a trust that was irrevocable at the time of issuance of the Class B Common Stock, (i) any person to whom or for whose benefit principal may be distributed either during or at the end of the term of such trust whether by power of
appointment or otherwise and (ii) any Permitted Transferee of any such person determined pursuant to clause (a) above; and
|
|
|
(g) in the case of a Permitted Holder that is the estate of a deceased Permitted Holder or that is the estate of a
bankrupt or insolvent Permitted Holder, that holds record and beneficial ownership of the shares of Class B Common Stock in question, a Permitted Transferee of such deceased, bankrupt or insolvent Permitted Holder as determined
pursuant to clause (a), (b), (c), (d), (e) or (f) above, as the case may be.
|
47
|
“Permitted Unsecured
Refinancing Debt” means unsecured Indebtedness incurred by the Borrower in the form of one or more series of senior or subordinated unsecured notes or loans; provided that (a) such Indebtedness constitutes Refinancing Term Loan Indebtedness, (b) such Indebtedness is not guaranteed by any Subsidiaries other than the Loan Parties, (c) such
Indebtedness is not secured by any Lien or any property or assets of the Borrower or any Subsidiary and (d) if such Indebtedness is contractually subordinated to the Loan Document Obligations, such subordination terms shall be
market terms at the time of incurrence of such Indebtedness.
|
|
|
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
|
|
|
“Plan” means
any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
|
|
|
“Prime Rate”
means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as
being effective.
|
|
|
“Private Side Lender
Representatives” means, with respect to any Lender, representatives of such Lender that are not Public Side Lender Representatives.
|
|
|
“Pro Forma Basis”,
“Pro Forma Compliance” and “Pro Forma Effect”
means, with respect to compliance with any test or covenant hereunder required by the terms of this Agreement to be made on a Pro Forma Basis, that all Specified Transactions and the following transactions in connection
therewith shall be deemed to have occurred as of (or commencing with) the first day of the applicable period of measurement in such test or covenant: (i) income statement items (whether positive or negative) attributable to the
property or Person subject to such Specified Transaction (A) in the case of a Material Disposition of all or substantially all Equity Interests in any Subsidiary of the Borrower or any division, product line, or facility used
for operations of the Borrower or any of the Subsidiaries, shall be excluded, and (B) in the case of a Permitted Acquisition or Investment described in the definition of “Specified Transaction”, shall be included, (ii) any
repayment, retirement, redemption, satisfaction and discharge or defeasance of Indebtedness or Disqualified Equity Interests, (iii) any Indebtedness incurred or assumed by the Borrower or any of the Subsidiaries in connection
therewith and (iv) if any such Indebtedness has a floating or formula rate, such Indebtedness shall be deemed to have accrued an implied rate of interest for the applicable period for purposes of this definition determined by
utilizing the rate that is or would be in effect with respect to such Indebtedness as at the relevant date of determination; provided
that except as specified in the applicable provision requiring Pro Forma Compliance or the satisfaction of a condition on a Pro Forma Basis, any determination of Pro Forma Compliance or the satisfaction of such condition on a
Pro Forma Basis required shall be made assuming that compliance with the financial covenants set forth in Sections 6.12 and 6.13 or the satisfaction of such condition is required with respect to the most recent Test Period prior
to such time for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent Test Period contained in the financial
statements referred to in Section 3.04).
|
48
|
“Proceeding”
means any claim, litigation, investigation, action, suit, arbitration or administrative, judicial or regulatory action or proceeding in any jurisdiction.
|
|
|
“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 Side Lender
Representatives” means, with respect to any Lender, representatives of such Lender that do not wish to receive MNPI.
|
|
|
“QFC” has
the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
|
|
|
“QFC Credit Support”
has the meaning assigned to it in Section 9.21.
|
|
|
“Qualified
Acquisition” means any acquisition (including by way of a merger and whether consummated in a single transaction or a series of related transactions) for aggregate consideration (including cash and non-cash
consideration, assumed debt and the Borrower’s good faith estimate of the maximum amount of deferred purchase price) in excess of $200,000,000 that, on a Pro Forma Basis, would result in an increase in the Net Leverage Ratio
for the most recent Test Period by 0.50 to 1.00 or more.
|
|
|
“Qualified Equity
Interests” means Equity Interests of the Borrower other than Disqualified Equity Interests.
|
|
|
“Qualifying
Round-Trip Investment” means Investments made in connection with reorganizations or restructurings of the ownership of Foreign Subsidiaries consisting of (i) Investments by the Borrower and Subsidiary Loan
Parties made solely with assets (including Equity Interests in Foreign Subsidiaries dividended or distributed, not more than 90 days prior to the date of such Investment, to the Borrower or a Subsidiary Loan Party), which
shall not make payment of any consideration therefor, and (ii) temporary Investments by the Borrower or Subsidiary Loan Parties in Subsidiaries other than Loan Parties of assets (including Equity Interests in Foreign
Subsidiaries held by the Borrower or Subsidiary Loan Parties), all of which assets are returned to the Borrower or Subsidiary Loan Parties, without the payment of any consideration therefor, not later than the 60th day after
the date such Investment was initially made; provided that (i) no such Investment shall be made pursuant to the transfer (including by
way of dividend, distribution or contribution) of any Intellectual Property (other than Intellectual Property transferred pursuant to a transfer of the Equity Interests of the Subsidiary that owns such Intellectual Property),
or of any Collateral or result in the loss or suspension of, or the loss or suspension of the perfection of, any Lien on or security interest in any Collateral, and (ii) no such transaction or Investment in connection
therewith would reasonably be expected to result in, and no such transaction or Investment in connection therewith shall have, a significant adverse impact on the Borrower or any other Loan Party.
|
49
|
“Recipient”
has the meaning set forth in Section 2.16(a).
|
|
|
“Reference Time”
with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such
setting, (2) if such Benchmark is the EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if such Benchmark is the TIBOR Rate, 11:00 a.m. Japan time two Business Days preceding the
date of such setting, (4) if the RFR for such Benchmark is SONIA, then four RFR Business Days prior to such setting or (5) if such Benchmark is none of the Term SOFR Rate, the EURIBOR Rate, the TIBOR Rate or SONIA, the time
determined by the Administrative Agent in its reasonable discretion.
|
|
|
“Refinanced
Commitments” has the meaning set forth in the definition of “Refinancing Revolving Commitments”.
|
|
|
“Refinanced Debt”
has the meaning set forth in the definition of “Refinancing Term Loan Indebtedness”.
|
|
|
“Refinancing
Closing Date” has the meaning assigned to such term in Section 2.22(a).
|
|
|
“Refinancing
Commitment” means a Refinancing Revolving Commitment or a Commitment in respect of a Class of Refinancing Term Loans.
|
|
|
“Refinancing
Facility Agreement” means a Refinancing Facility Agreement, in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and one or more Refinancing
Lenders establishing Refinancing Commitments and effecting such other amendments hereto and to the other Loan Documents as are contemplated by Section 2.22.
|
|
|
“Refinancing
Indebtedness” means, in respect of any Indebtedness (the “Original Indebtedness”), any Indebtedness that extends,
renews or refinances such Original Indebtedness (or any Refinancing Indebtedness in respect thereof); provided that (a) the
principal amount (or accreted value, in the case of zero coupon Indebtedness) of such Refinancing Indebtedness shall not exceed the principal amount (or accreted value, in the case of zero coupon Indebtedness) of such
Original Indebtedness except by an amount no greater than accrued and unpaid interest with respect to such Original Indebtedness and any fees, premium and expenses relating to such extension, renewal or refinancing; (b) the
stated final maturity of such Refinancing Indebtedness shall not be earlier than the earlier of (i) the stated final maturity of such Original Indebtedness and (ii) the date that is 91 days after the Latest Maturity Date in
effect on the date of such extension, renewal or refinancing (except for any such Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term Indebtedness, which
such Indebtedness, upon the maturity thereof, automatically converts into Indebtedness that satisfies the requirements set forth in this definition), (c) such Refinancing Indebtedness shall not be required to be repaid,
prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, (x) upon the occurrence of an event of
default, asset sale, change in control or other fundamental change or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Original
Indebtedness and (y) in the case of any such Refinancing Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term Indebtedness, upon the incurrence of such
refinancing or replacement Indebtedness so long as such refinancing or replacement Indebtedness would have constituted Refinancing Indebtedness if originally incurred to refinance such Original Indebtedness) prior to the
earlier of (i) the maturity of such Original Indebtedness and (ii) the date 91 days after the Latest Maturity Date in effect on the date of such extension, renewal or refinancing, provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such Refinancing Indebtedness shall be permitted so long as the
weighted average life to maturity of such Refinancing Indebtedness shall be longer than the shorter of (x) the weighted average life to maturity of such Original Indebtedness remaining as of the date of such extension,
renewal or refinancing and (y) the weighted average life to maturity of each Class of the Term Loans remaining as of the date of such extension, renewal or refinancing; (d) such Refinancing Indebtedness shall not constitute
an obligation (including pursuant to a Guarantee) of the Borrower or any Subsidiary, in each case that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become pursuant to
the terms of the Original Indebtedness) an obligor in respect of such Original Indebtedness, and, in each case, shall constitute an obligation of the Borrower or such Subsidiary only to the extent of their obligations in
respect of such Original Indebtedness; (e) if such Original Indebtedness shall have been subordinated to the Loan Document Obligations, such Refinancing Indebtedness shall also be subordinated to the Loan Document
Obligations on terms not less favorable in any material respect to the Lenders; and (f) such Refinancing Indebtedness shall not be secured by any Lien on any asset other than the assets that secured such Original
Indebtedness (or would have been required to secure such Original Indebtedness pursuant to the terms thereof) and, in the event Liens securing such Original Indebtedness shall have been contractually subordinated to any Lien
securing the Loan Document Obligations, by any Lien that shall not have been contractually subordinated on terms not less favorable in any material respect to the Lenders.
|
50
|
“Refinancing
Lenders” means, collectively, the Refinancing Revolving Lenders and the Refinancing Term Lenders.
|
|
|
“Refinancing
Revolving Commitments” means one or more Classes of revolving credit commitments obtained pursuant to a Refinancing Facility Agreement, in each case obtained in exchange for, or to extend, renew, refinance or
replace, in whole or in part, existing Revolving Commitments hereunder (including any successive Refinancing Revolving Commitments) (such existing Revolving Commitments and successive Refinancing Revolving Commitments, the “Refinanced Commitments”); provided that
(a) the amount of such Refinancing Revolving Commitments shall not exceed the amount of the Refinanced Commitments except by an amount no greater than accrued and unpaid interest with respect to such Refinanced Commitment
and any reasonable fees, premium and expenses relating to such Refinancing Revolving Commitments; (b) the stated final maturity of such Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same
Class) shall not be earlier than, and such Refinancing Revolving Commitments shall not be subject to any scheduled reduction prior to, the Latest Maturity Date of such Refinanced Commitments; (c) such Refinancing Revolving
Commitments (and the Refinancing Revolving Loans of the same Class) shall not constitute an obligation (including pursuant to a Guarantee) of the Borrower or any Subsidiary, in each case that shall not have been (or, in the
case of after-acquired Subsidiaries, shall not have been required to become pursuant to the terms of the Refinanced Commitments) an obligor in respect of such Refinanced Commitments (and the Revolving Loans of the same
Class), and, in each case, shall constitute an obligation of the Borrower or such Subsidiary to the extent of its obligations in respect of such Refinanced Debt; and (d) such Refinancing Revolving Commitments (and the
Refinancing Revolving Loans of the same Class) shall contain terms and conditions that are not materially more favorable (when taken as a whole), as determined by the Borrower in good faith, to the Lenders providing such
Refinancing Revolving Commitments than those applicable to the existing Revolving Commitments and Revolving Loans being refinanced (other than (A) with respect to pricing, optional prepayments and redemption, (B) covenants
or other provisions (i) applicable only to periods after the Latest Maturity Date or (ii) made applicable to the existing Revolving Commitments and Revolving Loans and (C) any financial maintenance covenants described in
subclause (I) of Section 2.22(a)), as determined in good faith by the Borrower, on the date such Refinancing Revolving Commitments are incurred.
|
51
|
“Refinancing
Revolving Lender” means any Person that provides a Refinancing Revolving Commitment.
|
|
|
“Refinancing
Revolving Loans” means revolving loans incurred by the Borrower under this Agreement in respect of Refinancing Revolving Commitments.
|
|
|
“Refinancing Term
Commitments” means one or more Classes of term commitments hereunder that are established to fund Refinancing Term Loans pursuant to a Refinancing Facility Agreement in accordance with Section 2.22.
|
|
|
“Refinancing Term
Lender” means any Person that provides a Refinancing Term Loan.
|
|
|
“Refinancing Term
Loan Indebtedness” means (a) Permitted Refinancing Debt or (b) Refinancing Term Loans obtained pursuant to a Refinancing Facility Agreement, in each case, issued, incurred or otherwise obtained (including by
means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, refinance or replace, in whole or part, existing Term Loans hereunder, including portions of Classes of Term Loans (including
any successive Refinancing Term Loan Indebtedness) (such existing Term Loans and successive Refinancing Term Loan Indebtedness, the “Refinanced
Debt”); provided that (i) the principal amount (or accreted value, in the case of zero coupon Indebtedness) of such
Refinancing Term Loan Indebtedness shall not exceed the principal amount (or accreted value, in the case of zero coupon Indebtedness) of such Refinanced Debt except by an amount equal to the sum of accrued and unpaid
interest, accrued fees and premiums (if any) with respect to such Refinanced Debt and fees and expenses associated with the refinancing of such Refinanced Debt with such Refinancing Term Loan Indebtedness; provided, however, that, as part of the same
incurrence or issuance of Indebtedness as such Refinancing Term Loan Indebtedness, the Borrower may incur or issue an additional amount of Indebtedness under Section 6.01 without violating this clause (i) (and, for purposes
of clarity, (x) such additional amount of Indebtedness shall not constitute Refinancing Term Loan Indebtedness and (y) such additional amount of Indebtedness shall reduce the applicable basket under Section 6.01, if any, on
a dollar-for-dollar basis); (ii) the stated final maturity of such Refinancing Term Loan Indebtedness shall not be earlier than the earlier of (x) the stated final maturity of the Refinanced Debt or (y) 91 days after the
Latest Maturity Date of in effect on the date of such refinancing (except for any such Indebtedness in the form of a bridge or other interim credit facility intended to be refinanced or replaced with long-term Indebtedness,
which such Indebtedness, upon the maturity thereof, automatically converts into Indebtedness that satisfies the requirements set forth in this definition); (iii) such Refinancing Term Loan Indebtedness shall not be required
to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, (x) on the stated final
maturity date as permitted pursuant to the preceding clause (ii), (y) upon the occurrence of an event of default, asset sale or a change in control or other fundamental change or as and to the extent such repayment,
prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of such Refinanced Debt and (z) in the case of any such Refinancing Term Loan Indebtedness in the form of a bridge or other
interim credit facility intended to be refinanced or replaced with long-term Indebtedness, upon the incurrence of such refinancing or replacement Indebtedness so long as such refinancing or replacement Indebtedness would
have constituted Refinancing Term Loan Indebtedness if originally incurred to refinance such Refinanced Debt) prior to the date that is 91 days after the Latest Maturity Date in effect on the date of such extension, renewal
or refinancing; provided that, notwithstanding the foregoing, scheduled amortization payments (however denominated) of such
Refinancing Term Loan Indebtedness shall be permitted so long as the weighted average life to maturity of such Refinancing Term Loan Indebtedness shall be no shorter than 91 days after the weighted average life to maturity
of such Refinanced Debt remaining as of the date of such extension, replacement or refinancing; (iv) such Refinancing Term Loan Indebtedness shall not constitute an obligation (including pursuant to a Guarantee) of the
Borrower or any Subsidiary, in each case that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become pursuant to the terms of the Refinanced Debt) an obligor in respect of
such Refinanced Debt, and, in each case, shall constitute an obligation of the Borrower or such Subsidiary to the extent of its obligations in respect of such Refinanced Debt; and (v) such Refinancing Term Loan Indebtedness
shall contain terms and conditions that are not materially more favorable (when taken as a whole), as determined by the Borrower in good faith, to the investors providing such Refinancing Term Loan Indebtedness than those
applicable to the existing Term Loans of the applicable Class being refinanced (other than (A) with respect to pricing, optional prepayments and redemption, (B) covenants or other provisions (i) applicable only to periods
after the Latest Maturity Date or (ii) made applicable to the existing Term Loans and (C) any financial maintenance covenants described in subclause (I) of Section 2.22(a)), on the date such Refinancing Term Loans are
incurred and, in any event, any Refinancing Term Loan will not contain mandatory prepayment provisions that are more favorable to the lenders in respect thereof than the mandatory prepayment provisions applicable to the
Incremental Term Lenders hereunder.
|
52
|
“Refinancing Term
Loans” shall mean one or more Classes of Term Loans incurred by the Borrower under this Agreement pursuant to a Refinancing Facility Agreement; provided that such Indebtedness constitutes Refinancing Term Loan Indebtedness in respect of Term Loans (including portions of Classes of Incremental Term Loans).
|
|
|
“Refinancing Term
Maturity Date” means, with respect to Refinancing Term Loans of any Class, the scheduled date on which such Refinancing Term Loans shall become due and payable in full hereunder, as specified in the applicable
Refinancing Facility Agreement.
|
|
|
“Register”
has the meaning set forth in Section 9.04(b)(iv).
|
|
|
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the directors, officers, partners, trustees, employees, agents, managers, representatives, controlling persons and advisors of such Person and of such
Person’s Affiliates.
|
|
|
“Release”
means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within or upon any building, structure, facility or
fixture.
|
|
|
“Relevant
Convertible Senior Debt” means the 2.25% Convertible Senior Notes due 2025 issued by the Borrower under the Indenture dated as of June 12, 2018, between the Borrower and HSBC Bank USA N.A., as trustee.
|
|
|
“Relevant
Convertible Senior Debt Maturity Date” means June 15, 2025.
|
|
|
“Relevant
Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by
the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially
endorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee
officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, (iv) with respect to a Benchmark Replacement in respect of Loans denominated in Yen, the Bank of Japan, or a committee
officially endorsed or convened by the Bank of Japan or, in each case, any successor thereto, and (v) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for
the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark
Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is
responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any
part thereof.
|
53
|
“Relevant Rate”
means (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Adjusted Term SOFR Rate, (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the Adjusted EURIBOR Rate, (iii) with
respect to any Term Benchmark Borrowing denominated in Yen, the Adjusted TIBOR Rate, as applicable or (iv) with respect to any Borrowing denominated in Sterling, the applicable Adjusted Daily Simple RFR.
|
|
|
“Relevant Screen
Rate” means (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Term SOFR Reference Rate, (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen
Rate or (iii) with respect to any Term Benchmark Borrowing denominated in Yen, the TIBOR Screen Rate, as applicable.
|
|
|
“Required Lenders”
means, at any time, Lenders having Revolving Exposures, Term Loans and unused Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure, outstanding Term Loans and unused Commitments at such time.
|
|
|
“Required Revolving
Lenders” means, subject to Section 2.19, (a) at any time prior to the earlier of the Loans becoming due and payable pursuant to Article VII or the Commitments terminating or expiring, Lenders having Revolving
Exposures and unused Revolving Commitments representing more than 50% of the sum of the Aggregate Revolving Exposure and unused Revolving Commitments at such time; provided that, solely for purposes of declaring the Loans to be due and payable pursuant to Article VII, the unused Revolving Commitment of each Lender shall be deemed to be zero and
(b) for all purposes after the Loans become due and payable pursuant to Article VII or the Commitments expire or terminate, Lenders having Revolving Exposures representing more than 50% of the sum of the Aggregate Revolving
Exposure.
|
|
|
“Requirements of
Law” means, with respect to any Person, any statutes, laws, treaties, rules, regulations, orders, decrees, writs, injunctions or determinations of any arbitrator or 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.
|
|
|
“Resolution
Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
|
54
|
“Restatement
Agreement” means the Amendment and Restatement Agreement dated as of May 8, 2023, among the Borrower, the other Loan Parties party thereto, the Lenders and Issuing Banks party thereto and the Administrative
Agent.
|
|
|
“Restatement
Effective Date” has the meaning set forth in the Restatement Agreement.
|
|
|
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or 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, or any other return of capital with respect to, any Equity Interests in the
Borrower or any Subsidiary (other than any dividend or other distribution payable solely in Equity Interests of the Borrower (other than Disqualified Equity Interests) or options to purchase Equity Interests of the Borrower
(other than Disqualified Equity Interests)), excluding, however, (a) payments in respect of the Convertible Senior Debt or other debt instruments convertible into Equity Interests of the Borrower made prior to or in
connection with the conversion thereof into such Equity Interests or (b) any payments of cash or deliveries of Equity Interests (or other securities or property following a merger event, reclassification or other change of
the Equity Interests) (and cash in lieu of fractional shares) in connection with any Permitted Call Spread Transaction) including in connection with the exercise and/or early unwind or settlement thereof).
|
|
|
“Reuters”
has the meaning set forth in the definition of “Exchange Rate”.
|
|
|
“Revolving
Availability Period” means the period from and including the Restatement Effective Date to but excluding the earlier of the Revolving Maturity Date and the date of termination of the Revolving Commitments.
|
|
|
“Revolving
Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing
the maximum aggregate permitted amount of such Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.07, (b) increased or established from time to time pursuant
to Section 2.20 and (c) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving Commitment is set forth on Schedule 2.01,
or in the Assignment and Assumption or the Incremental Facility Amendment pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable. The initial aggregate amount of the Lenders’ Revolving
Commitments is $750,000,000.
|
|
|
“Revolving Exposure”
means, with respect to any Lender at any time, the sum of (a) the Dollar Equivalent of the outstanding principal amount of such Lender’s Revolving Loans and (b) such Lender’s LC Exposure, in each case at such time.
|
|
|
“Revolving Lender”
means a Lender with a Revolving Commitment or Revolving Exposure.
|
55
|
“Revolving Lender
Parent” means, with respect to any Revolving Lender, any Person in respect of which such Lender is a subsidiary.
|
|
|
“Revolving Loan”
means a Loan made pursuant to Section 2.01.
|
|
|
“Revolving Maturity
Date” means the fifth anniversary of the Restatement Effective Date; provided that if, on any date that is 91 days or
less prior to the Relevant Convertible Senior Debt Maturity Date, Relevant Convertible Senior Debt is outstanding in an aggregate principal amount that exceeds the Company’s Liquidity, the Revolving Maturity Date shall
automatically be modified to be such date.
|
|
|
“RFR”
means, for any RFR Loan denominated in Sterling, SONIA.
|
|
|
“RFR Administrator”
means, in the case of SONIA, the SONIA Administrator.
|
|
|
“RFR Borrowing”
means, as to any Borrowing, the RFR Loans comprising such Borrowing.
|
|
|
“RFR Business Day”
means, for any Loan denominated in Sterling, any day except for (a) a Saturday, (b) a Sunday or (c) a day on which banks are closed for general business in London.
|
|
|
“RFR Interest Day”
has the meaning specified in the definition of “Daily Simple RFR”.
|
|
|
“S&P”
means S&P Global Ratings, a business unit of Standard & Poor’s Financial Services, LLC, and any successor to its rating agency business.
|
|
|
“Sanctioned Country”
means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the Restatement Effective Date, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic,
the Crimea, Zaporizhzhia and Kherson Regions of Ukraine, Cuba, Iran, North Korea and Syria).
|
|
|
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State or by the
United Nations Security Council, the European Union, any European Union member state or His Majesty’s Treasury of the United Kingdom, (b) any Person organized or resident in a Sanctioned Country or (c) any Person owned or
controlled by any such Person or Persons described in the foregoing clauses (a) or (b) or (d) any Person otherwise the subject of any Sanctions.
|
|
|
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury or the U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state or His Majesty’s Treasury of the United Kingdom or other relevant
sanctions authority.
|
56
|
“SEC”
means the United States Securities and Exchange Commission.
|
|
|
“Section 956 Impact”
means any incremental tax liability resulting or anticipated to result from the application of Section 956 of the Code taking into account repatriation of funds, foreign tax credits and other relevant factors.
|
|
|
“Secured Cash
Management Obligations” means the due and punctual payment and performance of any and all obligations of the Borrower and each Subsidiary (whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) arising in respect of Cash Management Services that (a) are owed on the Restatement Effective Date to
a Person that is a Lender or an Affiliate of a Lender as of the Restatement Effective Date or (b) are owed to a Person that is a Lender or an Affiliate of a Lender at the time such obligations are incurred; provided that the Borrower has elected by giving notice to the Administrative Agent in accordance with the provisions of the Collateral
Agreement to treat such obligations as “Secured Cash Management Obligations”.
|
|
|
“Secured Hedging
Obligations” means the due and punctual payment and performance of any and all obligations of the Borrower and each Subsidiary arising under each Hedging Agreement that (a) is in effect on the Restatement
Effective Date with a counterparty that is a Lender or an Affiliate of a Lender as of the Restatement Effective Date or (b) is entered into after the Restatement Effective Date with a counterparty that is a Lender or an
Affiliate of a Lender at the time such Hedging Agreement is entered into. Notwithstanding the foregoing, in the case of any Excluded Swap Guarantor, “Secured Hedging Obligations” shall not include Excluded Swap Obligations
of such Excluded Swap Guarantor.
|
|
|
“Secured Parties”
means, collectively, (a) each Lender, (b) the Administrative Agent, (c) each Issuing Bank, (d) each provider of Cash Management Services the obligations under which constitute Secured Cash Management Obligations, (e) each
counterparty to any Hedging Agreement the obligations under which constitute Secured Hedging Obligations, and (f) the beneficiaries of each indemnification obligation undertaken by any Loan Party under this Agreement or any
other Loan Document and (g) the successors and assigns of each of the foregoing.
|
|
|
“Securities Act”
means the United States Securities Act of 1933.
|
|
|
“Securitization”
means any transaction or series of transactions entered into by Foreign Subsidiaries pursuant to which such Foreign Subsidiaries sell, convey or otherwise transfer to a Securitization Vehicle Securitization Assets of such
Foreign Subsidiaries (or grants a security interest in such Securitization Assets transferred or purported to be transferred to such Securitization Vehicle), and which Securitization Vehicle finances the acquisition of such
Securitization Assets (i) with proceeds from the issuance of Third Party Interests, (ii) with Sellers’ Retained Interests or (iii) with proceeds from the sale or collection of Securitization Assets previously purchased by
such Securitization Vehicle.
|
57
|
“Securitization
Assets” means any accounts receivable owed to a Foreign Subsidiary (whether now existing or arising or acquired in the future) arising in the ordinary course of business from the sale of goods or services,
all collateral securing such accounts receivable, all contracts and contract rights and all guarantees or other obligations in respect of such accounts receivable, all proceeds of such accounts receivable and other assets
(including contract rights) that are of the type customarily transferred in connection with securitizations of accounts receivable and that are sold, transferred or otherwise conveyed by such Foreign Subsidiary to a
Securitization Vehicle in connection with a Securitization permitted by Section 6.05.
|
|
|
“Securitization
Vehicle” means a Person that is a direct wholly owned Subsidiary of a Foreign Subsidiary formed for the purpose of effecting one or more Securitizations to which such Foreign Subsidiary transfers
Securitization Assets and that, in connection therewith, issues Third Party Interests; provided that such Securitization Vehicle
shall engage in no business other than the purchase of Securitization Assets pursuant to Securitizations permitted by Section 6.05, the issuance of Third Party Interests or other funding of such Securitizations and any
activities reasonably related thereto.
|
|
|
“Security
Documents” means the Collateral Agreement, the IP Security Agreements and each other security agreement or other instrument or document executed and delivered pursuant to Section 5.03 or 5.13 to secure the
Obligations.
|
|
|
“Sellers’
Retained Interests” means the debt or equity interests held by a Foreign Subsidiary in a Securitization Vehicle to which Securitization Assets have been transferred in a Securitization permitted by
Section 6.05, including any such debt or equity received in consideration for the Securitization Assets transferred.
|
|
|
“Series”
means, with respect to any Class of Commitments or Loans, hereunder, or any notes or other debt securities, Commitments or Loans or notes or other debt securities having substantially identical terms and conditions.
|
|
|
“SOFR”
means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
|
|
|
“SOFR
Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
|
|
|
“SOFR
Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from
time to time.
|
|
|
“SOFR
Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”.
|
|
|
“SOFR Rate Day”
has the meaning specified in the definition of “Daily Simple SOFR”.
|
58
|
“SONIA”
means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately
succeeding Business Day.
|
|
|
“SONIA
Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
|
|
|
“SONIA
Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA
Administrator from time to time.
|
|
|
“Specified Swap
Obligation” means, with respect to any Subsidiary Loan Party, an obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of §1a(47) of the
Commodity Exchange Act.
|
|
|
“Specified
Transaction” means, with respect to any period, any Investment, Disposition, incurrence or repayment of Indebtedness or making of any Restricted Payment that, in any case, by the terms of this Agreement
requires “Pro Forma Compliance” with a test or covenant hereunder or requires such test or covenant to be calculated on a “Pro Forma Basis”.
|
|
|
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to
which the Administrative Agent is subject with respect to the Adjusted EURIBOR Rate or Adjusted TIBOR Rate, as applicable, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D) or
any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall
include those imposed pursuant to Regulation D. Term Benchmark Loans for which the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per the related definition of such Benchmark) shall be deemed
to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
|
|
|
“Sterling”
or “£” means the lawful currency of the United Kingdom of Great Britain and Northern Ireland.
|
|
|
“Subordinated
Indebtedness” of any Person means any Indebtedness of such Person that is subordinated in right of payment to any other Indebtedness of such Person.
|
|
|
“Subsequent
Maturity Date” has the meaning set forth in Section 2.04(c).
|
59
|
“subsidiary”
means, with respect to any Person (the “parent”) at any date, (a) any Person the accounts of which would be consolidated with
those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date and (b) any other Person (i) of which Equity Interests
representing more than 50% of the equity value or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled
or held, or (ii) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
|
|
|
“Subsidiary” means any subsidiary of the Borrower.
|
|
|
“Subsidiary
Loan Party” means each Subsidiary that is a party to the Collateral Agreement.
|
|
|
“Supplemental
Perfection Certificate” means a certificate in the form of Exhibit G-2 or any other form approved by the Administrative Agent in its reasonable discretion.
|
|
|
“Supported
QFC” has the meaning assigned to it in Section 9.18.
|
|
|
“TARGET2”
means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
|
|
|
“TARGET
Day” means any day on which TARGET2 (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 any present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
|
|
|
“Term
Benchmark” 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 Adjusted
Term SOFR Rate, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate.
|
|
|
“Term SOFR
Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
|
|
|
“Term SOFR
Rate” means, with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m.,
Chicago time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
|
60
|
“Term SOFR
Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the
applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time)
on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate
has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in
respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government
Securities Business Day is not more than five U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
|
|
|
“TIBOR Rate”
means, with respect to any Term Benchmark Borrowing denominated in Yen and for any Interest Period, the TIBOR Screen Rate two Business Days prior to the commencement of such Interest Period.
|
|
|
“TIBOR Screen
Rate” means the Tokyo interbank offered rate administered by the Ippan Shadan Hojin JBA TIBOR Administration (or any other person which takes over the administration of that rate) for the relevant
currency and period displayed on page DTIBOR01 of the Reuters screen (or, in the event such rate does not appear on such Reuters page or screen, on any successor or substitute page on such screen that displays such
rate, or on the appropriate page of such other information service that publishes such rate as selected by the Administrative Agent from time to time in its reasonable discretion) as published at approximately 1:00
p.m. Japan time two Business Days prior to the commencement of such Interest Period.
|
|
|
“Term
Commitment” means an Incremental Term Commitment or a Refinancing Term Commitment.
|
|
|
“Term Lender”
means a Lender with an Incremental Term Commitment, a Refinancing Term Commitment or an outstanding Term Loan.
|
|
|
“Term Loan”
means an Incremental Term Loan or a Refinancing Term Loan.
|
|
|
“Test Period”
means, in respect of any date, the period of four consecutive fiscal quarters of the Borrower most recently ended on or before such date.
|
|
|
“Third Party
Interests” means, with respect to any Securitization, notes, bonds or other debt instruments, beneficial interests in a trust, undivided ownership interests in receivables or other securities issued for
cash consideration by the relevant Securitization Vehicle to banks, financing conduits, investors or other financing sources (other than the Borrower and the Subsidiaries) the proceeds of which are used to finance, in
whole or in part, the purchase by such Securitization Vehicle of Securitization Assets in a Securitization. The amount of any Third Party Interests at any time shall be deemed to equal the aggregate principal, stated
or invested amount of such Third Party Interests that are outstanding at such time.
|
61
|
“Total
Consideration” means, with respect to any acquisition, the total amount (but without duplication) of (a) cash paid in connection with such acquisition, plus (b) Indebtedness payable to the seller or any Affiliate thereof in connection with such acquisition, plus (c) the amount of Indebtedness assumed in connection with such acquisition.
|
|
|
“Total
Indebtedness” means, as of any date, the sum of the aggregate principal amount of Indebtedness of the Borrower and the Subsidiaries outstanding as of such date, in the amount that would be reflected on a
balance sheet prepared as of such date on a consolidated basis in accordance with GAAP (but without giving effect to any election to value any Indebtedness at “fair value”, as described in Section 1.04(a), or any other
accounting principle that results in the amount of any such Indebtedness (other than zero coupon Indebtedness) as reflected on such balance sheet to be below the stated principal amount of such Indebtedness).
|
|
|
“Total
Leverage Ratio” means, on any date, the ratio of (a) Total Indebtedness as of such date to (b) Consolidated EBITDA for the Test Period most recently ended on or before such date.
|
|
|
“Transactions”
means, collectively, the execution, delivery and performance by each Loan Party of the Loan Documents (including the Restatement Agreement) to which it is to be a party, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit under this Agreement.
|
|
|
“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted Term SOFR Rate, the Adjusted
EURIBOR Rate, the Adjusted TIBOR Rate, the Alternate Base Rate or the relevant Adjusted Daily Simple RFR.
|
|
|
“UK Financial
Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person
falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain
affiliates of such credit institutions or investment firms.
|
|
|
“UK
Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
|
|
|
“Unadjusted
Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
|
62
63
64
65
66
ARTICLE II
The Credits
67
68
|
|
(i) |
whether the requested Borrowing is to be a Revolving Borrowing or a Term Borrowing of a particular Series;
|
|
|
|
|
|
|
(ii) |
the currency and the aggregate amount of such Borrowing;
|
|
|
|
|
|
|
(iii) |
the requested date of such Borrowing, which shall be a Business Day;
|
|
|
|
|
|
|
(iv) |
whether such Borrowing is to be an ABR Borrowing, a Term Benchmark Borrowing or an RFR Borrowing;
|
| (v) |
in the case of a Term Benchmark Borrowing, the initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and
|
|
| (vi) |
the location and number of the account of the Borrower to which funds are to be disbursed or, in the case of any ABR
Revolving Borrowing requested to finance the reimbursement of an LC Disbursement as provided in Section 2.04(f), the identity of the Issuing Bank that made such LC Disbursement.
|
69
|
(b) Notice of
Issuance, Amendment, Extension; Certain Conditions. To request the issuance of a Letter of Credit or the amendment or extension of an outstanding Letter of Credit (other than any automatic extension
permitted pursuant to paragraph (c) of this Section), the Borrower shall hand deliver or fax (or transmit by electronic communication, if arrangements for doing so have been approved by the recipient) to the applicable
Issuing Bank and the Administrative Agent at least three Business Days in advance of the requested date of issuance, amendment or extension, a notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the requested date of issuance, amendment or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply
with paragraph (c) of this Section), the amount of such Letter of Credit, the currency in which such Letter of Credit is to be denominated, the name and address of the beneficiary thereof and such other information as
shall be necessary to enable the applicable Issuing Bank to prepare, amend, renew or extend such Letter of Credit. If requested by the applicable Issuing Bank, the Borrower also shall submit a letter of credit application
on such Issuing Bank’s standard form in connection with any such request. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon each issuance, amendment or extension of any Letter of Credit
the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension, (i) the LC Exposure will not exceed $30,000,000, (ii) the Aggregate Revolving Exposure will not
exceed the Aggregate Revolving Commitment, (iii) the LC Exposure attributable to Letters of Credit issued by any Issuing Bank will not exceed the LC Commitment of such Issuing Bank, (iv) the Aggregate Revolving Exposure
denominated in Designated Foreign Currencies will not exceed the Designated Foreign Currency Sublimit and (v) the aggregate number of Letters of Credit in issue shall not exceed 20 (unless otherwise agreed by the
Administrative Agent in its sole discretion). No Issuing Bank shall be obligated to issue commercial or trade Letters of Credit if such issuance would not be in accordance with its internal policies or procedures. Each
Issuing Bank agrees that it shall not permit any issuance, amendment or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (l) of
this Section.
|
|
|
(c) Expiration
Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any
extension thereof, one year after such extension) unless otherwise consented to by the Issuing Bank and (ii) the date that is five Business Days prior to the Revolving Maturity Date; provided that any Letter of Credit may contain customary automatic extension provisions agreed upon by the Borrower and the applicable Issuing Bank pursuant to
which the expiration date of such Letter of Credit shall automatically be extended for a period of up to 12 months (but not to a date later than the date set forth in clause (ii) above), subject to any right on the part of
such Issuing Bank to prevent any such extension from occurring that may be contained in such Letter of Credit; and provided further that if there exist any Incremental Revolving Commitments having a maturity date later than the Revolving Maturity Date (the “Subsequent Maturity Date”), then, so long as the aggregate LC Exposure in respect of Letters of Credit expiring after the Revolving
Maturity Date will not exceed the lesser of $10,000,000 and the aggregate amount of such Incremental Revolving Commitments, the Borrower may request the issuance of a Letter of Credit that shall expire at or prior to the
close of business on the earlier of (A) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any extension thereof, one year after such extension) and (B) the date that is five
Business Days prior to the Subsequent Maturity Date. Notwithstanding the foregoing, any Letter of Credit issued hereunder may, in the sole discretion of the applicable Issuing Bank, expire after the fifth Business Day
prior to the Revolving Maturity Date (or the Subsequent Maturity Date) but on or before the date that is 90 days after the Revolving Maturity Date (or the Subsequent Maturity Date), provided that the Borrower hereby agrees that it shall provide cash collateral in an amount equal to 102% of the LC Exposure in respect of any such outstanding
Letter of Credit to the applicable Issuing Bank at least five Business Days prior to the Revolving Maturity Date (or Subsequent Maturity Date, if applicable), which such amount shall be (A) deposited by the Borrower in an
account with and in the name of such Issuing Bank and (B) held by such Issuing Bank for the satisfaction of the Borrower’s reimbursement obligations in respect of such Letter of Credit until the expiration of such Letter
of Credit. Any Letter of Credit issued with an expiration date beyond the fifth Business Day prior to the Revolving Maturity Date (or the Subsequent Maturity Date, as applicable) shall, to the extent of any undrawn amount
remaining thereunder on the Revolving Maturity Date (or the Subsequent Maturity Date, if applicable), cease to be a “Letter of Credit” outstanding under this Agreement for purposes of the Revolving Lenders’ obligations to
participate in Letters of Credit pursuant to clause (d) below.
|
70
|
(d) Participations.
By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or any Revolving Lender, the Issuing Bank
that is the issuer thereof hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable
Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of such Issuing Bank, such Revolving Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank under such Letter of Credit and not reimbursed by the Borrower on
the date due as provided in paragraph (f) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason, including after the Revolving Maturity Date (or the Subsequent Maturity Date
as applicable). Such payment by the Revolving Lenders shall be made (i) if the currency of the applicable LC Disbursement or reimbursement payment shall be in Dollars, then in Dollars and (ii) subject to paragraph (n) of
this Section, if the currency of the applicable LC Disbursement or reimbursement payment shall be a Designated Foreign Currency, then in Dollars in an amount equal to the Dollar Equivalent of such LC Disbursement or
reimbursement payment, calculated by the Administrative Agent using the Exchange Rate on the applicable LC Participation Calculation Date. Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment or extension of any Letter of Credit,
any fluctuation in currency values, the occurrence and continuance of a Default or any reduction or termination of the Revolving Commitments or any force majeure or other event that under any rule of law or uniform practices
to which any Letter of Credit is subject (including Section 3.14 of the ISP) permits a drawing to be made under such Letter of Credit after the expiration thereof or of the Revolving Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction whatsoever. Each Revolving Lender further acknowledges and agrees that, in issuing, amending, renewing or extending any Letter of Credit, the applicable
Issuing Bank shall be entitled to rely, and shall not incur any liability for relying, upon the representation and warranty of the Borrower deemed made pursuant to Section 4.02.
|
71
|
(e) Disbursements.
The Issuing Bank for any Letter of Credit shall, within the time allowed by applicable law or the specific terms of the Letter of Credit following its receipt thereof, examine all documents purporting to represent a demand
for payment under such Letter of Credit and shall promptly, after such examination, notify the Administrative Agent and the Borrower by telephone (confirmed by hand delivery or facsimile) of such demand for payment if such
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.
|
|
|
(f) Reimbursements.
If an Issuing Bank shall make an LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount in the currency of such LC Disbursement
equal to such LC Disbursement not later than 12:00 noon., New York City time, on the Business Day immediately following the day that the Borrower receives such notice; provided that, in the case of an LC Disbursement denominated in Dollars in an amount of $500,000 or more, the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Borrowing in an equivalent amount, and, to the extent so financed, the Borrower’s obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to reimburse any LC Disbursement by the time specified above, then, (i) if the currency of the applicable LC Disbursement is a
Designated Foreign Currency, the Borrower’s obligation to reimburse such LC Disbursement shall automatically and with no further action required be converted into an obligation to reimburse the Dollar Equivalent of such LC
Disbursement, calculated by the Administrative Agent using the Exchange Rate on the applicable LC Participation Calculation Date, and (ii) in the case of each LC Disbursement, the applicable Issuing Bank shall promptly
notify the Administrative Agent, and the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the amount and currency of the payment then due from the Borrower in respect of the
applicable LC Disbursement and such Revolving Lender’s Applicable Percentage thereof. Promptly following receipt of such notice (and, in any event, by the next Business Day), each Revolving Lender shall pay to the
Administrative Agent in Dollars its Applicable Percentage of the amount then due from the Borrower, in the same manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the payment obligations
of the Revolving Lenders pursuant to this paragraph), and the Administrative Agent shall promptly remit to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders. Promptly following receipt by
the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made
payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse an Issuing Bank for an LC Disbursement (other than the funding of an ABR Revolving Borrowing as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such
LC Disbursement. If the Borrower’s reimbursement of, or obligation to reimburse, any amounts in any Designated Foreign Currency, would subject the Administrative Agent, the applicable Issuing Bank or any Revolving Lender to
any stamp duty, ad valorem charge or similar tax that would not be payable if such reimbursement were made or required to be made in Dollars, the Borrower shall pay the amount of any such tax requested by the Administrative
Agent, such Issuing Bank or such Revolving Lender.
|
72
|
(g) Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section is absolute, unconditional and irrevocable and shall be performed strictly in accordance with the
terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision thereof or hereof,
(ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by an Issuing
Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) any force majeure or other event that under any rule of law or uniform
practices to which any Letter of Credit is subject (including Section 3.14 of the ISP) permits a drawing to be made under such Letter of Credit after the stated expiration date thereof or of the Revolving Commitments or (v)
any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this paragraph, constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders, the Issuing Banks or any of their Related Parties shall have any liability or responsibility by reason of or in connection with
the issuance or transfer of any Letter of Credit, any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of
technical terms, any error in translation or any other act, failure to act or other event or circumstance; provided that the
foregoing shall not be construed to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of an Issuing Bank (as determined by a court of competent
jurisdiction in a final and nonappealable judgment), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion, either accept and make
payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in
strict compliance with the terms of such Letter of Credit.
|
73
|
(h) Interim
Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement in full, (i) in the case of any LC Disbursement denominated in
Dollars, and at all times following the conversion to Dollars of any LC Disbursement made in any Designated Foreign Currency pursuant to paragraph (f) or (n) of this Section, at the rate per annum then applicable to ABR
Revolving Loans and (ii) if such LC Disbursement is made in a Designated Foreign Currency, at all times prior to its conversion to Dollars pursuant to paragraph (f) or (n) of this Section, at a rate equal to the rate
reasonably determined by the applicable Issuing Bank to be the cost to such Issuing Bank of funding such LC Disbursement (which determination shall be conclusive absent manifest error) plus the Applicable Rate applicable to
Term Benchmark Revolving Loans at such time; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (f) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be paid to the Administrative Agent, for the account of the applicable Issuing Bank, except that interest
accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (f) of this Section to reimburse such Issuing Bank for such LC Disbursement shall be for the account of such Lender to the extent of such
payment, and shall be payable on demand or, if no demand has been made, on the date on which the Borrower reimburses the applicable LC Disbursement in full.
|
|
|
(i) Cash
Collateralization. If any Event of Default described in clause (a), (b), (i) or (j) of Article VII shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative
Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, a Majority in Interest of the Revolving Lenders) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders (the “Collateral
Account”), an amount in cash and in the currency of such Letter of Credit equal to (i) in the case of any Letter of Credit denominated in Dollars, 102% of the LC Exposure as of such date attributable to such
Letter of Credit, plus any accrued and unpaid interest thereon, and (ii) in the case of any Letter of Credit denominated in a Designated Foreign Currency 105% of the LC Exposure as of such date attributable to such Letter of
Credit plus any accrued and unpaid interest thereon; provided that the (A) amounts payable in respect of any Letter of Credit
denominated in a Designated Foreign Currency in respect of which the Borrower’s reimbursement obligations have been converted to obligations in Dollars as provided in paragraph (f) or (n) of this Section, and interest accrued
thereon, shall be payable in Dollars and (B) the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (i) or (j) of Article VII. The Borrower also shall deposit cash collateral in Dollars in accordance with this paragraph as and
to the extent required by Section 2.10(b) or 2.19. Each such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Agreement. In
addition, and without limiting the foregoing or paragraph (c) of this Section, if any LC Exposure remains outstanding after the expiration date specified in said paragraph (c), the Borrower shall promptly deposit into the
Collateral Account an amount in cash and in the currency of such Letter of Credit equal to (i) in the case of any Letter of Credit denominated in Dollars, 102% of the LC Exposure as of such date attributable to such Letter of
Credit, plus any accrued and unpaid interest thereon, and (ii) in the case of any Letter of Credit denominated in a Designated Foreign Currency 105% of the LC Exposure as of such date attributable to such Letter of Credit plus
any accrued and unpaid interest thereon.
|
74
|
The Administrative Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made as mutually agreed by the Administrative Agent and the Borrower and at the Borrower’s
risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse
each Issuing Bank for LC Disbursements for which they have not been reimbursed, together with related fees, costs and customary processing charges, and, to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of a Majority in Interest of the Revolving Lenders), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence and continuance of an Event of Default, such amount
(to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived. If the Borrower is required to provide an amount of cash collateral
hereunder pursuant to Section 2.10(b), such amount (to the extent not applied as aforesaid) shall be returned to the Borrower as and to the extent that, after giving effect to such return, the Aggregate Revolving Exposure
would not exceed the Aggregate Revolving Commitment and no Default shall have occurred and be continuing.
|
|
|
(j) Designation
of Additional Issuing Banks. The Borrower may, at any time and from time to time, with the consent of the Administrative Agent (which consent shall not be unreasonably withheld), designate as additional
Issuing Banks one or more Revolving Lenders that agree to serve in such capacity as provided below. The acceptance by a Revolving Lender of an appointment as an Issuing Bank hereunder shall be evidenced by an agreement,
which shall be in form and substance reasonably satisfactory to the Administrative Agent and shall specify the LC Commitment of such Issuing Bank, executed by the Borrower, the Administrative Agent and such designated
Revolving Lender and, from and after the effective date of such agreement, (i) such Revolving Lender shall have all the rights and obligations of an Issuing Bank under this Agreement and (ii) references herein to the term
“Issuing Bank” shall be deemed to include such Revolving Lender in its capacity as an issuer of Letters of Credit hereunder.
|
75
|
(k) Termination
of an Issuing Bank. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the
Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the 10th Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by
such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the terminated Issuing Bank
pursuant to Section 2.11(b). Notwithstanding the effectiveness of any such termination, the terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such termination, but shall not issue any additional Letters of Credit.
|
|
|
(l) Issuing
Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in addition to its notification obligations set forth elsewhere in this Section,
report in writing to the Administrative Agent (i) periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters of Credit issued by such Issuing Bank,
including all issuances, extensions and amendments, all expirations and cancellations and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends or extends any Letter
of Credit, the date of such issuance, amendment or extension, and the currency and stated amount of the Letters of Credit issued, amended or extended by it and outstanding after giving effect to such issuance, amendment or
extension (and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date, currency and amount of such LC Disbursement, (iv) on any Business
Day on which the Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on such day, the date of such failure and the currency and amount of such LC Disbursement and (v) on any other
Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of Credit issued by such Issuing Bank.
|
|
|
(m) LC Exposure
Determination. For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the stated amount
thereof shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at the time of determination.
|
|
|
(n) Conversion.
In the event that the Loans become immediately due and payable on any date pursuant to Article VII, all amounts (i) that the Borrower is at the time or becomes thereafter required to reimburse or otherwise pay to the Administrative
Agent in respect of LC Disbursements made under any Letter of Credit denominated in a Designated Foreign Currency (other than amounts in respect of which the Borrower has deposited cash collateral, if such cash collateral was
deposited in the applicable currency), (ii) that the Revolving Lenders are at the time or become thereafter required to pay to the Administrative Agent (and the Administrative Agent is at the time or becomes thereafter required to
distribute to the applicable Issuing Bank) pursuant to paragraph (f) of this Section in respect of unreimbursed LC Disbursements made under any Letter of Credit denominated in a Designated Foreign Currency and (iii) of each
Revolving Lender’s participation in any Letter of Credit denominated in a Designated Foreign Currency under which an LC Disbursement has been made shall, automatically and with no further action required, be converted into the
Dollar Equivalent, calculated using the Exchange Rate on such date (or in the case of any LC Disbursement made after such date, on the date such LC Disbursement is made), of such amounts. On and after such conversion, all amounts
accruing and owed to the Administrative Agent, any Issuing Bank or any Revolving Lender in respect of the obligations described in this paragraph shall accrue and be payable in Dollars at the rates otherwise applicable hereunder.
|
76
77
|
|
(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;
|
78
|
|
(iii) |
whether the resulting Borrowing is to be an ABR Borrowing (in the case of Borrowings denominated in Dollars), a Term
Benchmark Borrowing or an RFR Borrowing; and
|
|
|
|
|
|
|
(iv) |
if the resulting Borrowing is to be a Term Benchmark 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 Term Benchmark Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
|
|
|
(d) Promptly following receipt of an Interest Election Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the applicable Class of the details thereof and of such Lender’s portion of each resulting Borrowing.
|
|
|
(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Term
Benchmark 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 (i) in the case of a
Borrowing denominated in Dollars, be converted to an ABR Borrowing, and (ii) in the case of a Term Benchmark Borrowing denominated in a Designated Foreign Currency, be continued as a Term Benchmark Borrowing for an
additional Interest Period of one month. Notwithstanding any contrary provision hereof, if an Event of Default under clause (i) or (j) of Article VII has occurred and is continuing with respect to the Borrower, or if
any other Event of Default has occurred and is continuing and the Administrative Agent, at the request of a Majority in Interest of Lenders of any Class, has notified the Borrower of the election to give effect to this
sentence on account of such other Event of Default, then, in each such case, so long as such Event of Default is continuing, (i) no outstanding Borrowing (or Borrowing of the applicable Class, as applicable) denominated
in Dollars may be converted to or continued as a Term Benchmark Borrowing, (ii) unless repaid, (x) each Term Benchmark Borrowing (or Term Benchmark Borrowing of the applicable Class, as applicable) and each RFR
Borrowing, in each case denominated in Dollars shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto and (y) each Term Benchmark Borrowing and each RFR Borrowing, in each case
denominated in a Designated Foreign Currency shall bear interest at the Central Bank Rate (or in the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error)
that the Central Bank Rate (or in the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any
Designated Foreign Currency other than Dollars shall either be (A) converted to an ABR Borrowing denominated in Dollars (in an amount equal to the Dollar Equivalent of such Designated Foreign Currency) at the end of the
Interest Period, as applicable, therefor or (B) prepaid at the end of the applicable Interest Period, as applicable, in full; provided further that if no election is made by the Borrower by the earlier of (x) the date that is three Business Days after receipt by the
Borrower of such notice and (y) the last day of the current Interest Period for the applicable Term Benchmark Loan, the Borrower shall be deemed to have elected clause (A) above.
|
79
80
81
82
83
|
|
(i) |
the Administrative Agent determines (which determination shall be conclusive absent manifest error) (A) prior to the commencement of
any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate (including because the
Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the
applicable Adjusted Daily Simple RFR for Sterling; or
|
84
|
|
(ii) |
the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term
Benchmark Borrowing, the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate for the applicable Agreed Currency and such 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 the applicable Agreed Currency and such Interest Period or (B) at any time, the applicable Adjusted Daily Simple RFR for Sterling
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 the applicable Agreed Currency;
|
|
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect
to the relevant Benchmark and (y) the Borrower delivers a new Interest Election Request in accordance with the terms of Section 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in
Dollars, any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark
Revolving Borrowing shall instead be deemed to be an Interest Election Request or a Borrowing Request, as applicable, for (x) an Adjusted Daily Simple SOFR Borrowing so long as the Adjusted Daily Simple SOFR is not also the subject of
Section 2.13(a)(i) or (ii) above or (y) an ABR Borrowing if Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, and (B) for Loans denominated in a Designated Foreign Currency, any Interest Election
Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing or an RFR Borrowing, in
each case, for the relevant Benchmark, shall be ineffective; provided that if the circumstances giving rise to such notice affect only one
Type of Borrowings, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of the notice from the
Administrative Agent referred to in this Section 2.13(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then
until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Interest Election
Request in accordance with the terms of Section 2.06 or a new Borrowing Request in accordance with the terms of Section 2.03, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period
applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, (x) an Adjusted Daily Simple SOFR Borrowing so long as Adjusted Daily Simple SOFR is not also the subject of Section 2.13(a)(i) or (ii) above
or (y) an ABR Loan if Adjusted Daily Simple SOFR also is the subject of Section 2.13(a)(i) or (ii) above, on such day, and (B) for Loans denominated in a Designated Foreign Currency, (1) any Term Benchmark Loan shall, on the last day
of the Interest Period applicable to such Loan bear interest at the Central Bank Rate (or in the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate (or in
the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Designated Foreign Currency shall, at the Borrower’s
election prior to such day: (A) be prepaid by the Borrower on such day or (B) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Designated
Foreign Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall
bear interest at the Central Bank Rate for Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which
determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for Sterling cannot be determined, any outstanding affected RFR Loans denominated in Sterling, at the Borrower’s election, shall either
(A) be converted into ABR Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Designated Foreign Currency) immediately or (B) be prepaid in full immediately.
|
85
|
(b) Notwithstanding anything to the contrary herein or in any other Loan Document (and any
Hedging Agreement shall be deemed not to be a “Loan Document” for purposes of this Section 2.13), if a Benchmark Transition Event
and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with
clause (1) of the definition of “Benchmark Replacement” with respect to Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any
Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if
a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark Replacement
will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth Business Day after the date notice of
such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has
not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Class.
|
|
|
(c) Notwithstanding anything to the contrary herein or in any other Loan Document, the
Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments
implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
|
|
|
(d) The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of
a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to
clause (f) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made
by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.13, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence
of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without
consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.13.
|
86
|
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at
any time (including in connection with the implementation of a Benchmark Replacement), (1) if the then-current Benchmark is a term rate (including the Term SOFR Rate, EURIBOR Rate or TIBOR Rate) and either (a) any
tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (b) the
regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then
the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (2) if a tenor that was removed
pursuant to clause (i) above either (a) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (b) is not, or is no longer, subject to an announcement
that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or
after such time to reinstate such previously removed tenor.
|
|
|
(f) Upon the Borrower’s receipt of notice of the commencement of a Benchmark
Unavailability Period, the Borrower may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any
Benchmark Unavailability Period and, failing that, either (x) the Borrower will be deemed to have converted any request for (1) a Term Benchmark Borrowing denominated in Dollars into a request for a Borrowing of or
conversion to (A) an RFR Borrowing denominated in Dollars so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (B) an ABR Borrowing if Adjusted Daily Simple SOFR is the
subject of a Benchmark Transition Event or (y) any Term Benchmark Borrowing or RFR Borrowing denominated in a Designated Foreign Currency shall be ineffective. During any Benchmark Unavailability Period or at any
time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any
determination of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement
for such Agreed Currency is implemented pursuant to this Section 2.13, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan be
converted by the Administrative Agent to, and shall constitute, (x) an RFR Borrowing denominated in Dollars so long as Adjusted Daily Simple SOFR is not the subject of a Benchmark Transition Event or (y) an ABR
Loan if Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event, on such day and (B) for Loans denominated in a Designated Foreign Currency, (1) any Term Benchmark Loan shall, on the last day of
the Interest Period applicable to such Loan bear interest at the Central Bank Rate (or in the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest
error) that the Central Bank Rate (or in the case of the Yen, the Japanese Prime Rate) for the applicable Designated Foreign Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated
in any Designated Foreign Currency shall, at the Borrower’s election prior to such day: (a) be prepaid by the Borrower on such day or (b) solely for the purpose of calculating the interest rate applicable to such
Term Benchmark Loan, such Term Benchmark Loan denominated in any Designated Foreign Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate
applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for Sterling plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for
Sterling cannot be determined, any outstanding affected RFR Loans denominated in Sterling, at the Borrower’s election, shall either (A) be converted into ABR Loans denominated in Dollars (in an amount equal to the
Dollar Equivalent of such Designated Foreign Currency) immediately or (B) be prepaid in full immediately.
|
87
|
|
(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 or Issuing Bank (except any such reserve requirement reflected in the Adjusted EURIBOR Rate or the Adjusted TIBOR Rate, as applicable);
|
|
|
|
|
|
|
(ii) |
impose on any Lender or Issuing Bank or the applicable offshore interbank market for the applicable Agreed Currency any other condition, cost or
expense (other than Taxes) affecting this Agreement or Term Benchmark Loans made by such Lender or any Letter of Credit or participation therein; or
|
| (iii) |
subject any Recipient to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, letters of credit, commitments or other
obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
|
|
and the result of any of the foregoing shall be to increase the cost to such Lender or other Recipient
of making or maintaining any Term Benchmark Loan (or of maintaining its obligation to make any such Loan), to increase the cost to such Lender, Issuing Bank or other Recipient of participating in, issuing or maintaining any Letter of
Credit (or of maintaining its obligation to participate in or issue any Letter of Credit) or to reduce the amount of any sum received or receivable by such Lender, Issuing Bank or other Recipient hereunder (whether of principal,
interest or otherwise), then, from time to time upon request of such Lender, Issuing Bank or other Recipient, the Borrower will pay to such Lender, Issuing Bank or other Recipient, as the case may be, such additional amount or amounts
as will compensate such Lender, Issuing Bank or other Recipient, as the case may be, for such additional costs or expenses incurred or reduction suffered.
|
88
|
(b) If any Lender or
Issuing Bank determines that any Change in Law regarding capital requirements or liquidity has had or would have the effect of reducing the rate of return on such Lender’s or Issuing Bank’s capital or on the capital of such Lender’s
or Issuing Bank’s holding company, if any, as a consequence of this Agreement, the Commitments of or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank,
to a level below that which such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or Issuing Bank’s policies and the
policies of such Lender’s or Issuing Bank’s holding company with respect to capital adequacy and liquidity), then, from time to time upon request of such Lender or Issuing Bank, the Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such Lender or Issuing Bank or such Lender’s or Issuing Bank’s holding company for any such reduction suffered.
|
|
|
(c) A certificate of a Lender or Issuing Bank setting forth the amount or amounts necessary to compensate such
Lender or Issuing Bank or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or Issuing
Bank, as the case may be, 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 or Issuing Bank to demand compensation pursuant to this
Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender or Issuing Bank pursuant to this Section for any increased costs or expenses incurred or reductions suffered more than 180 days prior to the date that such Lender or Issuing Bank, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs or expenses or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or expenses or
reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
|
|
|
(e) Notwithstanding any other provision of this Section, no Lender shall demand compensation for any increased
cost or reduction pursuant to this Section in respect of any Change in Law described in the proviso to the definition of the term “Change in Law” if it shall not be the general policy or practice of such Lender to demand such compensation
in similar circumstances from similarly-situated borrowers (it being understood that this paragraph (e) shall not (i) require any Lender to breach any confidentiality agreement or to disclose any information otherwise required to be held
in confidence by it or (ii) limit the discretion of any Lender to waive the right to demand such compensation in any given case).
|
89
90
|
(b) Payment of Other Taxes by
the Borrower. The Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
|
|
|
(c) Evidence of Payment.
As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority pursuant to this Agreement, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
|
|
|
(d) Indemnification by the Loan
Parties. The Loan Parties shall indemnify each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in connection with this Agreement (including amounts paid or payable under this paragraph) and
any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this paragraph shall be
paid within 20 days after the Recipient delivers to any Loan Party a certificate stating the amount of any Indemnified Taxes so paid or payable by such Recipient and describing in reasonable detail the basis for the indemnification
claim. Such certificate shall be conclusive of the amount so paid or payable absent manifest error. Such Recipient shall deliver a copy of such certificate to the Administrative Agent.
|
|
|
(e) Indemnification by the
Lenders. Each Lender shall severally indemnify the Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the Administrative Agent
for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent in connection with this Agreement (including any Taxes
attributable to such Lender’s failure to comply with the provisions of Section 9.04(c) relating to the maintenance of a Participant Register) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this paragraph shall be paid within 10 days after the Administrative Agent delivers to the applicable Lender a certificate stating
the amount of Taxes so paid or payable by the Administrative Agent. Such certificate shall be conclusive of the amount so paid or payable absent manifest error.
|
|
|
(f) Status of Lenders.
|
|
|
(i) |
(i) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under this Agreement shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the
Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In
addition, any Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by law or reasonably requested by the Borrower or the Administrative Agent as will enable the
Borrower or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the
preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (A) through (E) of paragraph (f)(ii) and paragraph (f)(iii) below) shall not be required
if in the Lender’s judgment such completion, execution or submission would materially prejudice the legal or commercial position of such Lender. Upon the reasonable request of the Borrower or the Administrative Agent, any Lender
shall update any form or certification previously delivered pursuant to this Section 2.16(f). If any form or certification previously delivered pursuant to this Section 2.16(f) expires or becomes obsolete or inaccurate in any
respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after such expiration, obsolescence or inaccuracy) notify the Borrower and the Administrative Agent in writing of such expiration,
obsolescence or inaccuracy and update the form or certification if it is legally eligible to do so. Notwithstanding any other provision of this paragraph, a Lender shall not be required to deliver any form pursuant to this
paragraph that it is not legally able to deliver.
|
91
|
|
(ii) |
Without limiting the generality of the foregoing, each Lender shall, if it is legally eligible to do so, deliver to the Borrower and the
Administrative Agent (in such number of copies as is reasonably requested by the Borrower and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent), duly completed and executed copies of whichever of the following is applicable:
|
|
|
(A)
|
in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
|
|
| (B) |
in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States of America is a party (1) with respect to
payments of interest under this Agreement, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other
applicable payments under this Agreement, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
|
||
| (C) |
in the case of a Foreign Lender for whom payments under this Agreement constitute income that is effectively connected with such Lender’s conduct
of a trade or business in the United States of America, IRS Form W-8ECI;
|
92
|
|
(D)
|
in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, both (1) IRS
Form W‑8BEN or W-8BEN-E and (2) a certificate substantially in the form of Exhibit I-1, Exhibit I-3 or Exhibit I-4 (each, a “U.S. Tax Certificate”),
as applicable, to the effect that such Lender is not (x) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (y) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code or (z) a
“controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;
|
|
| (E) |
in the case of a Foreign Lender that is not the beneficial owner of payments made under this Agreement (including a partnership or a
participating Lender), (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner or partner of
such partnership if such beneficial owner or partner were a Lender; provided that if such Lender is a partnership and one or more of its partners
are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate substantially in the form of Exhibit I-2 on behalf of such partners; or
|
||
| (F) |
any other form prescribed by law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax, together with such
supplementary documentation as shall be necessary to enable the Borrower or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld.
|
|
|
(iii) |
If a payment made to a Lender under this Agreement would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender
were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time
or times prescribed by law and at such time or times reasonably requested by the Withholding Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such
additional documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that such Lender has or has not complied with such
Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.16(f)(iii), the term “FATCA” shall include any amendments made to
FATCA after the date of this Agreement.
|
|
(g) Treatment of Certain
Refunds. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.16 (including additional
amounts paid pursuant to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 2.16 with respect to the Taxes giving rise to
such refund), net of all out-of-pocket expenses (including any Taxes) of Recipient and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party,
upon the request of such Recipient, shall repay to such Recipient the amount paid to such Recipient pursuant to the prior sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the
event such Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph, in no event will any Recipient be required to pay any amount to any indemnifying
party pursuant to this paragraph if such payment would place such Recipient in a less favorable position (on a net after-Tax basis) than such Recipient would have been in if the Tax subject to indemnification and giving rise to such
refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any Recipient to
make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
|
93
94
|
(c) Except to the extent that this Agreement provides for payments to be disproportionately allocated
to or retained by a particular Lender or group of Lenders (including in connection with the payment of interest or fees at different rates and the repayment of principal amounts of Loans at different times as a result of
Extension Permitted Amendments effected under Section 2.21), each Lender agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any
of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than
the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the
extent necessary so that the amount of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amounts of principal of and accrued interest on their Loans and participations in LC Disbursements;
provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower
pursuant to and in accordance with the express terms of this Agreement (for the avoidance of doubt, as in effect from time to time) or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any Person that is an Eligible Assignee (as such term is defined from time to time). The 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 the Borrower rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
|
|
|
(d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Administrative Agent for the account of the Lenders or Issuing Banks hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such
payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or Issuing Banks, as the case may be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or Issuing Banks, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon,
for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation.
|
|
|
(e) If any Lender shall fail to make any payment required to be made by it hereunder to or for the
account of the Administrative Agent or any Issuing Bank, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender’s obligations in respect of such payment until all such unsatisfied obligations have been discharged or (ii) hold any such amounts in a segregated account as cash collateral
for, and application to, any future funding obligations of such Lender pursuant to Sections 2.04(d), 2.04(f), 2.05(b), 2.17(c), 2.17(d) and 9.03(c), in each case in such order as shall be determined by the Administrative Agent
in its discretion.
|
95
96
|
|
(i) |
all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the Non-Defaulting Lenders in
accordance with their respective Applicable Percentages (with the term “Applicable Percentage” meaning, with respect to any Lender for purposes of reallocations to be made pursuant to this paragraph (c), the percentage
of the Aggregate Revolving Commitment represented by such Lender’s Revolving Commitment at the time of such reallocation calculated disregarding the Revolving Commitments of the Defaulting Lenders at such time) but
only to the extent that the sum of all Non-Defaulting Lenders’ Revolving Exposures plus such Defaulting Lender’s LC Exposure does not exceed the sum of all Non-Defaulting Lenders’ Revolving Commitments; provided that no reallocation under this clause (i) shall constitute a waiver or release of any claim of any party hereunder against
a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation;
|
97
|
|
(ii) |
if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any right or remedy available to it hereunder or under law, within one Business Day following notice by the Administrative Agent cash collateralize for the benefit of the Issuing Banks the portion of
such Defaulting Lender’s LC Exposure that has not been reallocated in accordance with the procedures set forth in Section 2.04(i) for so long as such LC Exposure is outstanding;
|
| (iii) |
if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall
not be required to pay participation fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such portion of such Defaulting Lender’s LC Exposure for so long as such Defaulting Lender’s LC Exposure is cash
collateralized;
|
|
| (iv) |
if any portion of the LC Exposure of such Defaulting Lender is reallocated pursuant to clause (i) above, then the fees payable to the
Lenders pursuant to Sections 2.11(a) and 2.11(b) shall be adjusted to give effect to such reallocation; and
|
|
| (v) |
if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or
(ii) above, then, without prejudice to any rights or remedies of any Issuing Bank or any other Lender hereunder, all participation fees payable under Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be
payable to the Issuing Banks (and allocated among them ratably based on the amount of such Defaulting Lender’s LC Exposure attributable to Letters of Credit issued by each Issuing Bank) until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and
|
|
(d) so long as such Revolving Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend, renew or extend any
Letter of Credit, unless it is satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be fully covered by the Revolving Commitments of the Non-Defaulting Lenders and/or cash
collateral provided by the Borrower in accordance with Section 2.19(c), and participating interests in any such issued, amended, reviewed or extended Letter of Credit will be allocated among the Non-Defaulting Lenders in a
manner consistent with Section 2.19(c)(i) (and such Defaulting Lender shall not participate therein).
|
98
99
|
(b) The effectiveness of each Incremental Facility Amendment will be subject to the conditions
that (i) at the time of each such request and upon the effectiveness of each Incremental Facility Amendment or incurrence of such Incremental Equivalent Debt, no Event of Default has occurred and is continuing or shall
result therefrom (provided that in the event the proceeds of any Incremental Extensions of Credit are used to finance any Permitted
Acquisition or other Investment permitted hereunder, such condition precedent set forth in this clause (i) may be waived or limited as agreed between the Borrower and the Lenders providing such Incremental Extension of
Credit, without the consent of any other Lenders), (ii) the representations and warranties of the Borrower and each other Loan Party, as applicable, set forth in the Loan Documents would be true and correct in all material
respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of, and immediately after giving effect to, the incurrence of such Incremental Extension of
Credit (provided that in the event the proceeds of any Incremental Extension of Credit are used to finance any Permitted Acquisition
or other Investment permitted hereunder, such condition precedent set forth in this clause (ii) may be limited to (x) customary specified representations and warranties with respect to the Borrower and its Subsidiaries and
(y) customary specified acquisition agreement representations with respect to the Person to be acquired), (iii) after giving effect to such Incremental Extension of Credit and the application of the proceeds therefrom (and
assuming that the full amount of such Incremental Extension of Credit shall have been funded on such date), the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13
recomputed as of the last day of the most recently ended Test Period of the Borrower in respect of which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such
financial statements, as of the last day of the most recent Test Period contained in the financial statements referred to in Section 3.04) (provided
that in the event the proceeds of any Incremental Extension of Credit are used to finance any Permitted Acquisition or the irrevocable redemption or repayment of Indebtedness, such condition precedent set forth in this
clause (iii) shall be required to be satisfied, at the Borrower’s election, as of the date on which the binding agreement for such Permitted Acquisition is entered into or the irrevocable redemption or repayment of
Indebtedness, rather than the date of effectiveness, of the applicable Incremental Extension of Credit; provided further that if the Borrower has made the election to measure such compliance on the date on which such a binding agreement for such
Permitted Acquisition is entered into or the date of irrevocable notice of redemption or repayment, as applicable, then in connection with the calculation of any financial ratio with respect to any covenant set forth in
Article VI, in each case on or following such date and prior to the date on which such acquisition is consummated or the related binding agreement is terminated or such redemption or repayment is made, such financial ratio
shall be calculated on a Pro Forma Basis assuming such acquisition, repayment or redemption and any other pro forma events in connection therewith (including the incurrence of Indebtedness and such Incremental Extension of
Credit) have been consummated, except to the extent such calculation would result in a lower Net Leverage Ratio or a higher Interest Coverage Ratio than would apply if such calculation was made without giving effect to such
acquisition, the irrevocable redemption or repayment of Indebtedness and other pro forma events in connection therewith or the incurrence of Indebtedness or any Incremental Extension of Credit on a Pro Forma Basis) and (iv)
the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (i), (ii) and (iii) above, together with reasonably detailed calculations demonstrating compliance with clause (B) of
paragraph (a) of this Section and clause (iii) above, (iv), upon the effectiveness of any Incremental Facility, all fees and expenses and cost reimbursements owing in respect of such Incremental Facility to the
Administrative Agent and the Incremental Lenders with respect to such Incremental Facility shall have been paid and (v), upon the effectiveness of any Incremental Facility, the Borrower shall have delivered to the
Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as required by the relevant Incremental Facility Amendment and generally consistent with those
delivered on the Original Effective Date under Section 4.01 of the Original Credit Agreement other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion
reasonably satisfactory to the Administrative Agent.
|
100
|
(c) The terms and conditions of any Incremental Facility and the Loans and other extensions of
credit to be made thereunder shall be on terms and conditions and pursuant to documentation to be determined by the Borrower and the Lenders providing such Incremental Facility and shall be set forth in the applicable
Incremental Facility Amendment; provided that (i) to the extent such terms and documentation are not consistent with the terms and
conditions of this Agreement, such terms and conditions shall be reasonably satisfactory to the Administrative Agent (except to the extent applicable only to periods after the Latest Maturity Date) and (ii) any Incremental
Facility shall not have a final maturity date earlier than (but may have a maturity date later than) the Latest Maturity Date at the time of incurrence of such Incremental Facility. Notwithstanding anything to the
contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
|
|
|
(d) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and
proposed terms of the relevant Incremental Extension of Credit but shall not constitute an offer to any Lender of an opportunity to participate in each Incremental Extension of Credit unless otherwise specified by the Borrower
in such notice. Any additional bank, financial institution, existing Lender or other Person that elects to extend commitments in respect of any Incremental Facility shall be reasonably satisfactory to the Borrower and, in the
case of any Incremental Revolving Commitments, the Administrative Agent and each Issuing Bank (such approval not to be unreasonably withheld). Each Incremental Facility will be implemented pursuant to an Incremental Facility
Amendment that will constitute an amendment to this Agreement and, as appropriate, the other Loan Documents, which shall be executed by the Borrower, each Incremental Lender party thereto and the Administrative Agent (but will
not require the consent of any other Lenders). No Lender shall be obligated to provide any Incremental Extension of Credit unless it so agrees, nor shall any Lender have a right to participation in any Incremental Extension
of Credit. Commitments in respect of any Incremental Facility will become Commitments (or in the case of any Incremental Revolving Commitment to be provided by an existing Revolving Lender, an increase in such Lender’s
Revolving Commitment) under this Agreement upon the effectiveness of such Incremental Facility Amendment. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this
Agreement or to any other Loan Document as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section (including to provide for voting provisions applicable to the
Incremental Lenders comparable to the provisions of Section 9.02(b)).
|
101
|
(e) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving
Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each Revolving Lender, at the principal amount
thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders (including such Incremental Revolving Lenders) ratably in accordance with their
Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment. Any assignment pursuant to this paragraph (e) by an existing Revolving Lender of any portion of a Term
Benchmark Revolving Loan will be treated as a prepayment of such assigned portion and shall be subject to compensation by the Borrower pursuant to the provisions of Section 2.15 if the date of the effectiveness of the
related Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
|
|
|
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental
Facility Amendment, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental
Facility Amendment.
|
|
|
(g) The
Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.20(a) and of the effectiveness of any Incremental Commitments or
Incremental Equivalent Debt, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after
giving effect thereto and of the assignments required to be made pursuant to Section 2.20(e).
|
102
103
104
|
(b) The Refinancing Commitments will be effected pursuant to one or more Refinancing
Facility Agreements, which shall be consistent with the provisions set forth in clause (a) above, executed and delivered by the Borrower, each Refinancing Lender providing such Refinancing Commitment, and the
Administrative Agent; provided that no Refinancing Commitments shall become effective unless:
|
|
|
(i) |
no Event of Default shall have occurred and be continuing on the Refinancing Closing Date;
|
| (ii) |
on the Refinancing Closing Date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be
true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of
any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respect (or, in the case of the representations
and warranties qualified as to materiality, in all respects) on and as of such earlier date;
|
|
| (iii) |
the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates,
officer’s certificates and other documents as required by the relevant Refinancing Facility Agreement and generally consistent with those delivered on the Original Effective Date under Section 4.01 of the Original Credit
Agreement other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent;
|
|
| (iv) |
each Refinancing Revolving Lender and each Refinancing Term Lender shall be an Eligible Assignee and, if not already a Revolving
Lender, each Refinancing Revolving Lender (A) shall be reasonably acceptable to the Administrative Agent (such acceptance not to be unreasonably withheld) and (B) shall be approved by each Issuing Bank (such approval not
to be unreasonably withheld);
|
|
| (v) |
substantially concurrently with the incurrence of any Refinancing Term Loan Indebtedness, the Borrower shall repay or prepay then
outstanding Incremental Term Loans of the Class or Classes being refinanced (together with any accrued but unpaid interest thereon and any prepayment premium with respect thereto) in an aggregate principal amount equal to
the Net Proceeds of such Refinancing Term Loan Indebtedness; and
|
|
| (vi) |
substantially concurrently with the effectiveness of any Refinancing Revolving Commitments, the Borrower shall reduce then
outstanding Revolving Commitments in an aggregate amount equal to the aggregate amount of such Refinancing Revolving Commitments and shall make any prepayments of the outstanding Revolving Loans required pursuant to Section
2.10 in connection with such reduction, and any such reduction of the Revolving Commitments shall be made ratably among the Revolving Lenders in accordance with their individual Revolving Commitments.
|
105
|
(c) Any Lender or any other Eligible Assignee approached by the Borrower to provide
all or a portion of the Refinancing Term Loan Indebtedness or the Refinancing Revolving Commitments may elect or decline, in its sole discretion, to provide any Refinancing Term Loan Indebtedness or Refinancing
Revolving Commitments, as the case may be.
|
|
|
(d) Each Refinancing Facility Agreement shall be binding on the Lenders, the Loan Parties and
the other parties hereto and may effect amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect
provisions of this Section, including any amendments necessary to treat such Refinancing Term Loans or Refinancing Revolving Commitments (and the Refinancing Revolving Loans of the same Class) as a new “Class” of
commitments or loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Facility Agreement.
|
ARTICLE III
Representations and Warranties
106
107
108
109
110
111
112
ARTICLE IV
Conditions
113
ARTICLE V
Affirmative Covenants
114
|
(c) on the date of delivery of financial statements under clause (a) or (b) above, a completed Compliance Certificate signed by a Financial
Officer of the Borrower, (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations, demonstrating compliance with Section 6.12 and Section 6.13 and computing each of the Interest Coverage Ratio, the Total Leverage Ratio and the Net Leverage Ratio as of the last day of the fiscal period covered by
such financial statements, (iii) stating whether any material change in GAAP or in the application thereof has occurred since the date of the consolidated balance sheet of the Borrower most recently theretofore delivered under
clause (a) or (b) above (or, prior to the first such delivery, referred to in Section 3.04) and, if any such change has occurred, specifying the effect of such change on the financial statements (including those for the prior periods)
accompanying such certificate, (iv) certifying that all notices required to be provided under Sections 5.03 and 5.04 have been provided, (v) in the case of any delivery of financial statements under clause (a) above, setting forth
reasonably detailed calculations as of the last day of the fiscal year covered by such financial statements with respect to which Subsidiaries are Material Subsidiaries based on the information contained in such financial statements and
identifying each Subsidiary, if any, that has automatically been designated a Material Domestic Subsidiary in order to satisfy the condition set forth in the definition of the term “Material Domestic Subsidiary” and (vi) identifying, as
of the last day of the most recent fiscal quarter covered by such financial statements, each Person that has become a Domestic Subsidiary during such fiscal quarter and specifying whether that Subsidiary is an Excluded Subsidiary; provided that notwithstanding the foregoing, solely for the purpose of the fiscal quarter ended April 1, 2023, the Compliance Certificate shall be in
the form required pursuant to the Original Credit Agreement;
|
|
|
(d) promptly after any request therefor by the Administrative Agent or any Lender, copies of (i) any documents described in Section 101(k)(1)
of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1) of ERISA that the Borrower or any of its ERISA Affiliates may request with
respect to any Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested such documents or notices from
the administrator or sponsor of the applicable Multiemployer Plan as of the date that the Administrative Agent or a Lender makes a request for such documents from the Borrower, the Borrower or the applicable ERISA Affiliate shall
promptly make a request for such documents and notices from such administrator or sponsor and shall provide copies of such documents and notices promptly after receipt thereof; and
|
115
116
117
118
119
ARTICLE VI
Negative Covenants
|
|
(i) |
Indebtedness created under the Loan Documents (including Incremental Facilities);
|
120
|
|
(ii) |
Indebtedness existing on the Restatement Effective Date and set forth on Schedule 6.01 to the Disclosure Letter and
Refinancing Indebtedness in respect thereof;
|
| (iii) |
Indebtedness of the Borrower to any Subsidiary or any Subsidiary to the Borrower or any other Subsidiary; provided that (A) such Indebtedness shall not have been transferred to any Person other than the Borrower or any Subsidiary, (B) any such Indebtedness owing by any Loan
Party to any Subsidiary that is not a Loan Party shall be unsecured and subordinated in right of payment to the Loan Document Obligations in accordance with the provisions of the Global Intercompany Note, (C) any such Indebtedness
owing by any Subsidiary that is not a Loan Party to any Loan Party shall be incurred in compliance with Section 6.04;
|
|
| (iv) |
Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary; provided that (A) the Indebtedness so Guaranteed is permitted by this Section (other than clause (ii)), (B) Guarantees by any Loan Party of such
Indebtedness of any Subsidiary that is not a Subsidiary Loan Party shall be incurred in compliance with Section 6.04, (C) Guarantees permitted under this clause (iv) shall be subordinated to the Obligations of the applicable
Subsidiary to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
|
|
| (v) |
Indebtedness of the Borrower or any Subsidiary (A) incurred to finance the acquisition, construction or improvement of any fixed or capital
assets, including Finance Lease Obligations, provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or
the completion of such construction or improvement and the principal amount of such Indebtedness does not exceed the cost of acquiring, constructing or improving such fixed or capital assets or (B) assumed in connection with the
acquisition of any fixed or capital assets or secured by a Lien on such assets prior to the acquisition thereof, and Refinancing Indebtedness in respect of any of the foregoing; provided that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (v) shall not at any time of incurrence exceed the greater of (x) $150,000,000 and (y)
10% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b);
|
|
| (vi) |
Permitted Acquired Debt; provided that the
aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (vi) shall not at any time of incurrence exceed the greater of (x) $150,000,000 and (y) 10% of Consolidated Tangible Net Worth as of the last
day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b); provided, however, that Permitted Acquired Debt shall be permitted to be incurred notwithstanding the
foregoing limitations if after giving effect to the acquisition of the obligor in respect thereof or the assumption by any Subsidiary of such Permitted Acquired Debt (A) the Borrower shall be in compliance on a Pro Forma Basis with
the financial covenants under Sections 6.12 and 6.13 for the most recent Test Period prior to such time for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any
such financial statements, for the most recent Test Period contained in the financial statements referred to in Section 3.04) and (B) such Permitted Acquired Debt is repaid within 90 days after the closing of the related acquisition;
|
121
|
|
(vii) |
Indebtedness of Foreign Subsidiaries; provided
that the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (vii) shall not at any time of incurrence exceed the greater of (x) $150,000,000 and (y) 10% of Consolidated
Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b);
|
| (viii) |
Indebtedness of the Borrower or Subsidiaries in respect of Cash Management Services incurred in the ordinary course of business; provided that, except in the case of Indebtedness in respect of Cash Management Services consisting of credit card and other card services, such
Indebtedness shall be repaid in full within 15 Business Days of the incurrence thereof;
|
|
| (ix) |
(A) Indebtedness in respect of letters of credit, surety and performance bonds, bank guarantees, appeal bonds, performance and completion
guarantees and similar instruments issued for the account of the Borrower or any Subsidiary in the ordinary course of business and only to backstop or support obligations customarily requiring such instruments to be provided and
(B) Indebtedness of the type referred to in clause (f) of the definition thereof securing judgments, decrees, attachments or awards that do not constitute an Event of Default under clause (a) of Article VII;
|
|
| (x) |
Indebtedness of the Borrower or any Subsidiary in the form of purchase price adjustments, earn-outs, indemnification obligations,
non-competition agreements or other arrangements representing acquisition consideration or deferred payments of a similar nature incurred in connection with any Permitted Acquisition or any other Investment permitted by Section
6.04;
|
|
| (xi) |
Incremental Equivalent Debt; provided that the
aggregate principal amount of such Incremental Equivalent Debt issued in accordance with this clause (xi) shall not exceed the amount permitted under Section 2.20 and the conditions that apply to issuance of such Incremental
Equivalent Debt set forth in Section 2.20 shall be satisfied;
|
|
| (xii) |
Refinancing Term Loan Indebtedness or Refinancing Revolving Commitments; provided that the Net Proceeds from such Indebtedness are applied to make the prepayments or reductions, as applicable, required under Section 2.22, and the requirements with respect to such
Indebtedness or Commitments set forth in Section 2.22 shall be satisfied;
|
122
|
|
(xiii) |
Indebtedness owed to any Person (including obligations in respect of letters of credit for the benefit of such Person) providing workers’
compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of
business;
|
| (xiv) |
Foreign Jurisdiction Deposits;
|
|
| (xv) |
Indebtedness in the form of (x) Guarantees of loans and advances permitted by Section 6.04(b)(xi) and (y) reimbursements owed to officers,
directors, consultants and employees in the ordinary course of business;
|
|
| (xvi) |
Permitted Subordinated Indebtedness, provided that,
after giving effect to the incurrence thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a Pro Forma Basis and Refinancing Indebtedness in respect thereof;
|
|
| (xvii) |
Permitted Senior Unsecured Indebtedness, provided
that, immediately before and after giving effect to the incurrence thereof, the Borrower shall be in compliance with the covenants set forth in Section 6.12 and Section 6.13 on a Pro Forma Basis (provided that, for purposes of pro forma compliance with Section 6.12, the maximum permitted Net Leverage Ratio shall be deemed to be decreased by 0.25 to 1.00 from the
otherwise then applicable level) and Refinancing Indebtedness in respect thereof;
|
|
| (xviii) |
all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on
obligations described in clauses (i) through (xvii) above and clause (xx) below;
|
|
| (xix) |
Indebtedness in respect of Third Party Interests issued by Securitization Vehicles in Securitizations permitted by Section 6.05 and
Indebtedness consisting of representations, warranties, covenants and indemnities made by, and repurchase and other obligations of, a Foreign Subsidiary in connection with Securitizations permitted by Section 6.05; provided that such representations, warranties, covenants, indemnities and repurchase and other obligations are of the type customarily included in
securitizations of accounts receivable intended to constitute true sales of such accounts receivable to a securitization vehicle; and
|
|
| (xx) |
other Indebtedness of any Loan Party; provided that
the aggregate outstanding principal amount of Indebtedness incurred in reliance on this clause (xiv) shall not at any time of incurrence exceed the greater of (x) $150,000,000 and (y) 10% of Consolidated Tangible Net Worth as of the
last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b).
|
|
(b) Neither the Borrower nor any Subsidiary will issue any preferred stock or other preferred Equity
Interests; provided that (i) the Borrower may issue preferred stock or other preferred Equity Interests that, in each case, do not
constitute Disqualified Equity Interests, (ii) any Subsidiary may issue preferred stock or other preferred Equity Interests issued to and at all times held by the Borrower or a wholly-owned Subsidiary and (iii) Securitization
Vehicles may issue Third Party Interests.
|
123
|
|
(i) |
Liens created under the Loan Documents (including Liens securing any Incremental Facility) and any Liens on cash or deposits granted in
favor of any Issuing Bank to cash collateralize any Defaulting Lender’s participation in Letters of Credit as contemplated by this Agreement;
|
| (ii) |
Permitted Encumbrances;
|
|
| (iii) |
any Lien on any asset of the Borrower or any Subsidiary existing on the Restatement Effective Date and set forth on Schedule 6.02 to the
Disclosure Letter; provided that (A) such Lien shall not apply to any other asset of the Borrower or any Subsidiary (other than (x) assets
financed by the same financing source pursuant to the same financing scheme, (y) after-acquired property that is affixed or incorporated into the property covered by such Lien and (z) proceeds and products of the property covered by
such Lien) and (B) such Lien shall secure only those obligations that it secures on the date hereof and any extensions, renewals, replacements and refinancings thereof that, to the extent constituting Indebtedness, are permitted
under Section 6.01 as Refinancing Indebtedness in respect thereof;
|
|
| (iv) |
any Lien existing on any asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any asset of any Person
that becomes a Subsidiary (or of any Person not previously a Subsidiary that is merged or consolidated with or into the Borrower or a Subsidiary in a transaction permitted hereunder) after the date hereof prior to the time such
Person becomes a Subsidiary (or is so merged or consolidated); provided that (A) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary (or such merger or consolidation), (B) such Lien shall not apply to any other asset of the Borrower or any Subsidiary (other than (w) assets financed by the same financing
source pursuant to the same financing scheme, (x) after-acquired property that is affixed or incorporated into the property covered by such Lien, (y) proceeds and products of the property covered by such Lien and (z) in the case of
any such merger or consolidation, the assets of any Subsidiary that is a party thereto) and (C) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a
Subsidiary (or is so merged or consolidated), and any extensions, renewals, replacements and refinancings thereof that do not increase the outstanding principal amount thereof and, in the case of any such obligations constituting
Indebtedness, that are permitted under Section 6.01 as Refinancing Indebtedness in respect thereof;
|
124
|
|
(v) |
Liens on fixed or capital assets acquired, constructed or improved (including any assets made the subject of a Finance Lease Obligation
incurred) by the Borrower or any Subsidiary; provided that (x) such Liens secure only Indebtedness permitted by clause (v) of Section 6.01 and
obligations relating thereto not constituting Indebtedness and (y) such Liens shall not apply to any other asset of the Borrower or any Subsidiary (other than (x) assets financed by the same financing source pursuant to the same
financing scheme, (y) after-acquired property that is affixed or incorporated into the property covered by such Lien and (z) proceeds and products of the property covered by such Lien);
|
| (vi) |
in connection with the sale or transfer of any Equity Interests or other assets in a transaction permitted under Section 6.05, customary
rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;
|
|
| (vii) |
in the case of (A) any Subsidiary that is not a wholly-owned Subsidiary or (B) the Equity Interests in any Person that is not a Subsidiary,
any encumbrance or restriction, including any put and call arrangements, related to Equity Interests in such Subsidiary or such other Person set forth in the organizational documents of such Subsidiary or such other Person or any
related joint venture, shareholders’ or similar agreement;
|
|
| (viii) |
Liens solely on any cash earnest money deposits, escrow arrangements or similar arrangements made by the Borrower or any Subsidiary in
connection with any letter of intent or purchase agreement for a Permitted Acquisition or other transaction permitted hereunder and Liens on cash advances in favor of the seller of any property to be acquired in an Investment
pursuant to Section 6.04 to be applied against the purchase price for such Investment;
|
|
| (ix) |
any interest or title of a lessor under leases (other than leases constituting Finance Lease Obligations) entered into by the Borrower or
any of the Subsidiaries in the ordinary course of business;
|
|
| (x) |
Liens deemed to exist in connection with Investments in repurchase agreements that are Cash Equivalents;
|
|
| (xi) |
Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods by the Borrower or any of the
Subsidiaries in the ordinary course of business;
|
|
| (xii) |
Liens on cash, bank accounts and general intangibles relating thereto securing obligations for Cash Management Services in the ordinary
course of business;
|
125
|
|
(xiii) |
leases, licenses, subleases or sublicenses (including with respect to rights in Intellectual Property), including non-exclusive software
licenses, granted to others that do not (A) interfere in any material respect with the business of the Borrower and the Subsidiaries, taken as a whole, or (B) secure any Indebtedness;
|
| (xiv) |
Liens on Collateral securing any Permitted Pari Passu Refinancing Debt or Permitted Junior Lien Refinancing Debt or Incremental Equivalent
Debt;
|
|
| (xv) |
Liens on assets of any Foreign Subsidiary;
|
|
| (xvi) |
Liens on any property of (A) any Loan Party in favor of any other Loan Party, (B) any Foreign Subsidiary in favor of any Loan Party and (C)
any Subsidiary that is not a Loan Party in favor of the Borrower or any other Loan Party;
|
|
| (xvii) |
Liens in favor of any Securitization Vehicle or any collateral agent on Securitization Assets transferred or purported to be transferred to
such Securitization Vehicle in connection with Securitizations permitted by Section 6.05;
|
|
| (xviii) |
Liens that are contractual rights of set-off (i) relating to pooled deposit or sweep accounts of the Borrower or any Subsidiary to permit
satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Subsidiary or (ii) relating to purchase orders and other agreements entered into with customers of the Borrower or
any Subsidiary in the ordinary course of business;
|
|
| (xix) |
in connection with the sale, disposition or transfer of all the Equity Interests in a Subsidiary or of assets in either case in a
transaction permitted under Section 6.05, customary rights and restrictions contained in agreements relating to such sale or transfer pending the completion thereof;
|
|
| (xx) |
any purchase options, calls or similar rights of a third party in respect of any joint venture permitted to be entered into pursuant to
this Agreement;
|
|
| (xxi) |
Liens in respect of any Foreign Jurisdiction Deposit; and
|
|
| (xxii) |
other Liens securing Indebtedness or other obligations in an aggregate principal amount not to exceed the greater of (x) $105,000,000 and
(y) 8% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to Section 5.01(a) or 5.01(b).
|
|
(b) Notwithstanding the foregoing, no Material Domestic Subsidiary shall create, incur, assume or permit to exist any Lien
(other than any non-consensual Lien or any Lien of the type referred to in Section 6.02(a)(i), (ii), (iv), (vi), (vii), (xiv) and (xv)) on any Equity Interests that are required by the Collateral and Guarantee
Requirement to be pledged as Collateral (or, in the case of Equity Interests of any Foreign Subsidiary or CFC Holdco, Equity Interests that would be required to be pledged if such Subsidiary became a Material Foreign
Subsidiary) except pursuant to the Security Documents.
|
126
127
|
(b) in addition, any of the following Investments may be made at any time:
|
|
|
(i) |
cash and Cash Equivalents;
|
| (ii) |
Investments existing on the date hereof and set forth on Schedule 6.04 to the Disclosure Letter and any modification, replacement,
renewal, reinvestment or extension thereof; provided that (A) no Investment may be made therein or in respect thereof if such Investment
would increase the outstanding amount of such Investment to an amount in excess of the amount of such Investment on the Restatement Effective Date (net of return of capital in respect thereof after the Restatement Effective
Date), other than (x) to the extent required by the terms of such Investment as in effect on the Restatement Effective Date up to the amount specified for such Investment on Schedule 6.04 to the Disclosure Letter or (y) to the
extent made in reliance on another paragraph of this Section 6.04 and (B) the terms of any such Investment are not otherwise modified from the terms that are in effect as of the date hereof in a manner that is materially adverse
to the Lenders;
|
|
| (iii) |
Investments by the Borrower and the Subsidiaries in Equity Interests in their Subsidiaries; provided that (A) such subsidiaries are Subsidiaries prior to such investments, (B) any such Equity Interests held by a Loan Party shall be pledged if and to the extent required to
satisfy the Collateral and Guarantee Requirement, and (C) the aggregate amount of such Investments by the Loan Parties in Subsidiaries that are not Loan Parties, taken together with the aggregate amount of loans and advances by
the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness of Subsidiaries that are not Loan Parties made in reliance on clauses (iv) and (v) below, but excluding all such Investments, loans, advances and Guarantees
existing on the date hereof and permitted by clause (ii) above, and net of any dividends, distributions, returns of capital or payments of Indebtedness made to the Loan Parties by Subsidiaries that are not Loan Parties and
release of Guarantees of Indebtedness of non-Loan Parties, shall not exceed $150,000,000; and provided further that in no event shall any Subsidiary that is a Material Domestic Subsidiary cease to be a Loan Party pursuant to this clause (iii) except as a result of a
consolidation, merger or similar transaction in which the continuing or surviving Person is a Loan Party;
|
|
| (iv) |
loans or advances made by the Borrower or any Subsidiary to the Borrower or any Subsidiary; provided that (A) any such loans and advances made by a Loan Party shall be evidenced by the Global Intercompany Note or another promissory note, in each case, pledged pursuant to
the Collateral Agreement, (B) the Indebtedness resulting therefrom is permitted by clause (iii) of Section 6.01, and (C) the amount of such loans and advances made by the Loan Parties to Subsidiaries that are not Loan Parties
shall be subject to the limitation set forth in clause (iii) above;
|
|
| (v) |
Guarantees by the Borrower or any Subsidiary of Indebtedness or other obligations of the Borrower or any Subsidiary (including any such
Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (A) a Subsidiary shall not Guarantee any Indebtedness of any Loan Party (or any Refinancing Indebtedness in respect thereof) unless (x) such Subsidiary has Guaranteed
the Obligations pursuant to the Collateral Agreement and (y) any such Guarantee of Subordinated Indebtedness is subordinated to the Loan Document Obligations on terms no less favorable to the Lenders than those of the
Subordinated Indebtedness, (B) any such Guarantee constituting Indebtedness is permitted by Section 6.01, and (C) the aggregate amount of Indebtedness of Subsidiaries that are not Loan Parties that is Guaranteed by any Loan
Parties shall be subject to the limitation set forth in clause (iii) above;
|
128
| (vi) |
Permitted Acquisitions (subject to the restrictions and conditions in the definition of such term with respect to Non-Compliant
Subsidiaries and Non-Compliant Assets);
|
|
| (vii) |
Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers or as an advance that will be applied as payment for the provision of goods or services from suppliers, in each case in the ordinary course of business;
|
|
| (viii) |
Investments made as a result of the receipt of noncash consideration from a Disposition of any asset in compliance with Section 6.05;
|
|
| (ix) |
Investments by the Borrower or any Subsidiary that result solely from the receipt by the Borrower or such Subsidiary from any of its
subsidiaries of a dividend or other Restricted Payment in the form of Equity Interests, evidences of Indebtedness or securities (but not any additions thereto made after the date of the receipt thereof);
|
|
| (x) |
payroll, travel and similar advances to directors and employees of the Borrower or any Subsidiary to cover matters that are expected at
the time of such advances to be treated as expenses of the Borrower or such Subsidiary for accounting purposes and that are made in the ordinary course of business;
|
|
| (xi) |
loans or advances to directors, officers, consultants and employees of the Borrower or any Subsidiary made in the ordinary course of
business; provided that the aggregate amount of such loans and advances outstanding at any time shall not exceed $5,000,000;
|
|
| (xii) |
Investments to the extent the consideration therefor consists of Qualified Equity Interests of the Borrower;
|
|
| (xiii) |
Investments in the form of Hedging Agreements permitted by Section 6.07;
|
|
| (xiv) |
Investments of any Person existing at the time such Person becomes a Subsidiary or consolidates or merges with the Borrower or any
Subsidiary so long as such Investments were not made in contemplation of such Person becoming a Subsidiary or of such consolidation or merger and so long as each such Investment that absent this paragraph (xiv) could not be made
or held without reliance on another paragraph of this Section 6.04 shall be deemed to have been made or to be held, as applicable, in reliance on such other paragraph and not in reliance on this paragraph (xiv);
|
129
| (xv) |
Investments resulting from pledges or deposits described in clause (c), (d) or (n) of the definition of the term “Permitted Encumbrance”;
|
|
| (xvi) |
receivables or other trade payables owing to the Borrower or a Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as
the Borrower or any Subsidiary deems reasonable under the circumstances;
|
|
| (xvii) |
mergers and consolidations permitted under Section 6.03 that do not involve any Person other than the Borrower and Subsidiaries that are
wholly owned Subsidiaries; provided that any such merger or consolidation that results in an Investment by a Loan Party in a Subsidiary that is
not a Loan Party shall be deemed made in reliance on paragraph (iii) above;
|
|
| (xviii) |
Guarantees to insurers required in connection with worker’s compensation and other insurance coverage of business operating risks (but not
any credit or financial risks) arranged in the ordinary course of business;
|
|
| (xix) |
Guarantees by the Borrower and the Subsidiaries, in the ordinary course of business, of obligations of Subsidiaries to suppliers,
contractors, and foundries in an aggregate amount outstanding not at any time in excess of $50,000,000;
|
|
| (xx) |
Investments consisting of Sellers’ Retained Interests in Securitizations permitted by Section 6.05;
|
|
| (xxi) |
Guarantees by the Borrower and the Subsidiaries, in the ordinary course of business, of obligations of Subsidiaries not constituting
Indebtedness;
|
|
| (xxii) |
Qualifying Round-Trip Investments, provided that
any Investment made in reliance on this clause (xxii) that ceases at any time to meet the requirements for a Qualifying Round-Trip Investment will automatically cease to be permitted pursuant to this clause (xxii) and, if maintained,
must be permitted by another applicable clause under this Section 6.04;
|
|
| (xxiii) |
other Investments in an aggregate outstanding amount not to exceed $300,000,000, subject to a cap of an aggregate principal amount of
$100,000,000 in any calendar year, with up to $25,000,000 of any unused amount of such base amount from any calendar year available for use in the next succeeding calendar year following the use of the base amount permitted by this
clause (xxiii) in such succeeding calendar year, but not for use in any subsequent year; provided that the permitted amount for each calendar
year shall be used prior to any amount carried over from the previous calendar year; and
|
130
| (xxiv) |
Investments in respect of the Borrower’s entry into (including any payments of premiums in connection therewith), and performance of
obligations under, any Permitted Call Spread Transaction.
|
131
|
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the
joint venture parties set forth in joint venture arrangements and similar binding arrangements;
|
|
|
(j) Dispositions of Equity Interests or assets purchased or otherwise acquired in connection with a Permitted Acquisition or other acquisition
permitted hereunder; provided that (i) each such sale, transfer or other disposition shall have been made within 18 months of the consummation of
the related Permitted Acquisition or other acquisition and (ii) the aggregate fair market value of the Equity Interests or assets sold, transferred or otherwise disposed of in reliance on this clause (j) shall not exceed $25,000,000
during any fiscal year of the Borrower;
|
|
|
(k) Dispositions of assets that are not permitted by any other clause of this Section; provided that the aggregate fair value of all assets sold, transferred, leased or otherwise disposed of in reliance on this clause (k) shall not exceed during any fiscal year of the Borrower the
greater of (x) $150,000,000 and (y) 10.00% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements shall have been delivered pursuant to
Section 5.01(a) or 5.01(b);
|
|
|
(l) Dispositions of assets that are not permitted by any other clause of this Section; provided that 100% of the Net Proceeds therefrom are used to prepay Loans to the extent then outstanding (it being understood and agreed that (x) such Net Proceeds shall be applied first to any Term
Loans outstanding and (y) to the extent of any repayment of Revolving Loans, the Revolving Commitments shall permanently be reduced by a corresponding amount); provided further that no such prepayment or reduction shall be required to the extent that such Net Proceeds are reinvested in assets used or useful in the
business of the Borrower or the Subsidiaries within 180 days of the receipt thereof;
|
|
|
(m) the granting of Liens not prohibited by this Agreement;
|
|
|
(n) any financing transaction with respect to property built or acquired by Borrower or any Subsidiary, including sale and lease-back
transactions, in each case, to the extent not prohibited by this Agreement;
|
|
|
(o) any surrender or waiver of contract rights or the settlement, release or surrender of contract rights or other litigation claims in the
ordinary course of business;
|
|
|
(p) the voluntary unwinding of any Hedging Agreements or Permitted Call Spread Transaction; and
|
|
|
(q) any Foreign Subsidiary may sell Securitization Assets to one or more Securitization Vehicles in Securitizations; provided that (i) each such Securitization is effected on market terms, (ii) the aggregate amount of Third Party Interests in respect of all such Securitizations shall
not exceed, at any time outstanding, the greater of (x) $150,000,000 and (y) 10.00% of Consolidated Tangible Net Worth as of the last day of the fiscal quarter, if any, of the Borrower most recently ended for which financial statements
shall have been delivered pursuant to Section 5.01(a) or 5.01(b), (iii) the aggregate amount of the Sellers’ Retained Interests in such Securitizations does not exceed an amount at any time outstanding that is customary for similar
transactions and (iv) the proceeds to each such Securitization Vehicle from the issuance of Third Party Interests are applied substantially simultaneously with the receipt thereof to the purchase from such Foreign Subsidiary of
Securitization Assets,
|
132
133
|
|
(i) |
the Borrower and its Subsidiaries may declare and make any Restricted Payments so long as at the time each such Restricted Payment is made (i)
no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Net Leverage Ratio at such time, calculated on a Pro Forma Basis giving effect to such Restricted Payment, is equal to or less
than 2.50 to 1.00; and
|
| (ii) |
in addition, any of the following Restricted Payments may be declared and made at any time:
|
|
|
(A)
|
the Borrower may declare and pay dividends with respect to its Equity Interests payable solely in additional Equity Interests permitted
hereunder;
|
|
| (B) |
any Subsidiary may declare and pay dividends or make other distributions with respect to its capital stock, partnership or membership interests
or other similar Equity Interests, or make other Restricted Payments in respect of its Equity Interests, in each case ratably to the holders of such Equity Interests or its Equity Interests of the relevant class, as the case may be, or
otherwise in connection with a Qualifying Round-Trip Investment;
|
||
| (C) |
the Borrower may acquire Equity Interests upon the exercise of stock options if such Equity Interests are transferred in satisfaction of a
portion of the exercise price of such options;
|
||
| (D) |
the Borrower may make cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Borrower in
connection with the exercise of warrants, options or other securities convertible into or exchangeable for Equity Interests in the Borrower;
|
||
| (E) |
the Borrower may make Restricted Payments, not exceeding $10,000,000 in the aggregate during any fiscal year, pursuant to and in accordance with
stock option plans or other benefit plans or agreements approved by the Borrower’s board of directors for directors, officers or employees of the Borrower and the Subsidiaries;
|
||
| (F) |
the Borrower may make cash payments upon conversion of the Convertible Senior Debt (or other convertible securities with terms substantially
similar to, and no less favorable to the Lenders than, those of the Convertible Senior Debt) into Common Stock in an amount not to exceed the stated principal amount of the Convertible Senior Debt (or such other convertible securities) so
converted and otherwise in accordance with Section 6.08(b)(ii);
|
134
|
|
(G)
|
the Borrower may pay the premium in respect of, make payments (of cash or deliveries in shares of the Borrower’s Common Stock (or other
securities or property following a merger event, reclassification or other change of the Common Stock and cash in lieu of fractional shares) required by, and otherwise perform its obligations under, any Permitted Call Spread
Transaction, including in connection with any settlement, unwind or termination thereof;
|
|
| (H) |
other Restricted Payments following the Restatement Effective Date in an aggregate outstanding amount not to exceed, together with the amount
of any payments made pursuant to Section 6.08(b)(ii)(G), $300,000,000, subject to a cap of $100,000,000 in any calendar year, with up to $25,000,000 of any unused amount of such base amount from any calendar year available for use in
the next succeeding calendar year following the use of the base amount permitted by this clause (H) in such succeeding calendar year, but not for use in any subsequent year; provided that the permitted amount for each calendar year shall be used prior to any amount carried over from the previous calendar year; and
|
|
(b) None of the Borrower or any Subsidiary will, directly or indirectly, prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner any Junior Indebtedness, including by making any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, defeasance, cancellation or termination
of any Junior Indebtedness prior to the scheduled maturity thereof, or make any payment in violation of any subordination terms of any Junior Indebtedness; except:
|
|
|
(i) |
the prepayment, redemption, purchase, defeasance or other satisfaction of Junior Indebtedness shall be permitted so long as at the time
thereof (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the Net Leverage Ratio, calculated on a Pro Forma Basis giving effect to such prepayment, redemption, purchase,
defeasance or other satisfaction of Junior Indebtedness, is equal to or less than 2.50 to 1.00; and
|
| (ii) |
the Borrower may make any of the following payments for or in respect of Junior Indebtedness (to the extent such payments are not otherwise
permitted pursuant to clause (b)(i) of this Section 6.08):
|
| (A) |
regularly scheduled interest and principal payments and fees as and when due in respect of any Junior Indebtedness, and any payments or
prepayments in respect of Junior Indebtedness owed by any Loan Party to the Borrower or any Subsidiary, in each case other than payments in respect of Junior Indebtedness prohibited by the subordination provisions thereof;
|
135
| (B) |
refinancings of Junior Indebtedness to the extent permitted under Section 6.01;
|
||
| (C) |
the conversion of any Junior Indebtedness to Equity Interests (other than Disqualified Equity Interests) of the Borrower;
|
||
| (D) |
payments of or in respect of Junior Indebtedness made solely with Equity Interests in the Borrower (other than Disqualified Equity
Interests);
|
||
| (E) |
the prepayment, redemption, purchase, defeasance or other satisfaction of Junior Indebtedness incurred or assumed pursuant to Section
6.01(a)(vi), so long as at the time each such payment is made no Default shall have occurred and be continuing or would result therefrom;
|
||
| (F) |
payment of interest in the form of payments in kind, accretion or similar payments;
|
||
| (G) |
the Borrower and the Subsidiaries may make additional cash payments following the Restatement Effective Date of or in respect of Junior
Indebtedness (unless such payments would be prohibited by the subordination provisions thereof), so long as at the time each such payment is made no Default shall have occurred and be continuing or would result therefrom, (x) in an
amount not in excess of, together with the amount of any Restricted Payments made pursuant to Section 6.08(a)(ii)(G), $300,000,000, subject to a cap of an aggregate principal amount of $100,000,000 in any calendar year, with up to
$25,000,000 of any unused amount of such base amount from any calendar year available for use in the next succeeding calendar year following the use of the base amount permitted by this clause (G) in such succeeding calendar year, but
not for use in any subsequent year; provided that the permitted amount for each calendar year shall be used prior to any amount carried over
from the previous calendar year; and
|
||
| (H) |
the Borrower or any Subsidiary may make other payments of Junior Indebtedness as a result of a “change of control” or Disposition so long as,
in each case, any rights of the holders thereof upon such “change of control” or Disposition shall be subject to the prior repayment in full of the outstanding Loans and all other outstanding Obligations (including accrued interest,
fees and other accrued Obligations) and the termination of the Commitments and the expiration, cancellation, termination or cash collateralization of any Letters of Credit in accordance with the terms of this Agreement.
|
|
(c) For the avoidance of doubt, (1) payments in respect of the Convertible Senior Debt or other debt convertible into Equity
Interests of the Borrower (prior to or in connection with the conversion thereof into Equity Interests of the Borrower) or (2) payments required by any Permitted Call Spread Transaction, including in connection with any
settlement, unwind or termination thereof, shall not constitute Restricted Payments or payments in respect of Junior Indebtedness restricted by this Section 6.08.
|
136
137
138
ARTICLE VII
Events of Default
|
If any of the following events (“Events
of Default”) shall occur:
|
|
|
(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement 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 or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement or any other Loan Document, 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 representation or warranty made or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in any written report, certificate, financial statement or other information furnished pursuant to any Loan Document or any amendment or modification thereof
or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made;
|
|
|
(d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.05 (with respect to
the existence of the Borrower) or 5.11 or in Article VI;
|
|
|
(e) any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after notice thereof from the Administrative Agent or any Lender to the Borrower (with a copy to the
Administrative Agent in the case of any such notice from a Lender);
|
|
|
(f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal, interest, termination payment or other payment
obligation and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period in respect of such failure under the documentation
representing such Material Indebtedness);
|
139
|
(g) any event or condition resulting from the breach of any covenant or obligation or the occurrence of any “default”, “event of
default” or “termination event” (however denominated, and including in any case any event analogous to a Default or an Event of Default hereunder) occurs that results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf, or, in the case
of any Hedging Agreement, the applicable counterparty, to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or, in the
case of any Hedging Agreement, to cause the termination thereof; provided that this clause (g) shall not apply to (A) any secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the assets securing such Indebtedness, (B) any Indebtedness that becomes due as a result of a refinancing thereof permitted under Section 6.01,
(C) any requirement to prepay or offer to repurchase or prepay Material Indebtedness pursuant to customary terms thereof that are not otherwise prohibited hereby with respect to asset sale or excess cash flow prepayment
requirements, borrowing base or lending commitment exposure limits, margin maintenance requirements or similar provisions or (D) any early payment requirement or unwinding or termination with respect to Permitted Call Spread
Transaction or satisfaction of any condition giving rise to or permitting the foregoing, in accordance with the terms thereof where neither the Borrower nor any of its Subsidiaries is the “defaulting party” (or substantially
equivalent term) under the terms of such Permitted Call Spread Transaction; provided further that any such prepayment or repurchase requirement does not result from the breach of any covenant or obligation or the occurrence of any “event of default” or “termination event”
(however denominated, and including in any case any event analogous to an Event of Default hereunder);
|
|
|
(h) one or more ERISA Events shall have occurred that would, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect;
|
|
|
(i) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or a Material Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
|
|
|
(j) the Borrower or any Material Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation
(other than any liquidation permitted by clause (iv) of Section 6.03(a)), reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or any Material Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it
in any such proceeding or (v) make a general assignment for the benefit of creditors, or the board of directors (or similar governing body) of the Borrower or any Material Subsidiary (or any committee thereof) shall adopt any
resolution or otherwise authorize any action to approve any of the actions referred to above in this clause (j) or clause (i) of this Article;
|
140
|
(k) one or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than any such judgment
covered by insurance (other than under a self-insurance program) to the extent a claim therefor has been made in writing and liability therefor has not been denied by the insurer), shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain unpaid or undischarged for a period of 60 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment;
|
|
|
(l) any Lien purported to be created under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party
not to be, a valid and perfected Lien on any material Collateral, with the priority required by the applicable Security Document, except as a result of (i) a Disposition of the applicable Collateral in a transaction permitted
under the Loan Documents or (ii) the release thereof as provided in Section 9.14 or (iii) the Administrative Agent’s failure to maintain possession of any stock certificate, promissory note or other instrument delivered to it
under the Collateral Agreement or to maintain in effect UCC financing statements, unless such failure is attributable to any failure of a Loan Party to perform its obligations under any Loan Document;
|
|
|
(m) any Guarantee of a Loan Party purported to be created under any Loan Document shall cease to be, or shall be asserted in writing
by any Loan Party not to be, in full force and effect, except (i) upon the consummation of any transaction permitted under this Agreement as a result of which the Subsidiary Loan Party providing such Guarantee ceases to be a
Subsidiary or (ii) as a result of the release thereof as provided in the applicable Loan Document or Section 9.14; or
|
|
|
(n) a Change in Control shall occur;
|
|
|
then, and in every such event (other than an event with respect to the Borrower described in clause (i) or (j) of
this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part (but ratably as among
the Classes of Loans and the Loans of each Class at the time outstanding), in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), 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 hereunder, shall become due and payable immediately and (iii) require the deposit of cash
collateral in respect of LC Exposure as provided in Section 2.04(i), in each case without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in the case of any event with
respect to the Borrower described in clause (i) or (j) of this Article, the Commitments shall automatically terminate, the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower hereunder, shall immediately and automatically become due and payable and the deposit of such cash collateral in respect of LC Exposure shall immediately and automatically become due, in each case
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
|
141
ARTICLE VIII
The Administrative Agent
|
Each of the Lenders and the Issuing Banks hereby irrevocably appoints the entity named as Administrative Agent
in the heading of this Agreement and its successors to serve as administrative agent and collateral agent under the Loan Documents, and authorizes the Administrative Agent to take such actions and to exercise such powers as
are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any
jurisdiction other than the United States of America, each of the Lenders and the Issuing Banks hereby grants to the Administrative Agent any required powers of attorney to execute any Security Document governed by the laws
of such jurisdiction on such Lender’s or Issuing Bank’s behalf. It is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference to the Administrative
Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used as a matter of market custom and is intended to
create or reflect only an administrative relationship between contracting parties. Without limiting the generality of the foregoing, the Lenders and the Issuing Banks hereby expressly authorize the Administrative Agent to
execute any and all documents (including releases and intercreditor agreements) with respect to the Collateral (including any amendment, supplement, modification or joinder with respect thereto) and the rights of the Secured
Parties with respect thereto, as contemplated by and in accordance with the provisions of this Agreement and the Security Documents and acknowledge and agree that any such action by the Administrative Agent shall bind the
Lenders.
|
|
|
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender or an
Issuing Bank as any other Lender or Issuing Bank and may exercise the same as though it were not the Administrative Agent, and 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 Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders or the Issuing Banks.
|
142
|
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the 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 to exercise any discretionary power, except discretionary rights
and powers expressly contemplated by the 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, or as the Administrative Agent shall believe in good faith to be necessary, under the circumstances as provided in the Loan Documents), provided that the Administrative Agent shall not be required to
take any action that, in its opinion, could expose the Administrative Agent to liability or be contrary to any Loan Document or applicable law and (c) except as expressly set forth in the Loan Documents, 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, any Subsidiary or any other Affiliate of any of the foregoing that
is communicated to or obtained by the Person 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, or as the Administrative Agent shall believe in good faith to be necessary, under the
circumstances as provided in the Loan Documents) or in the absence of its own gross negligence or wilful misconduct, as determined by a court of competent jurisdiction by a final and non-appealable judgment. The
Administrative Agent shall be deemed not to have knowledge of any (1) notice of any of the events or circumstances set forth or described in Section 5.02 unless and until written notice thereof stating that it is a
“notice under Section 5.02” in respect of this Agreement and identifying the specific clause under said Section is given to the Administrative Agent by the Borrower, or (2) notice of any Default or Event of Default
unless and until written notice thereof (stating that it is a “notice of Default” or a “notice of an Event of Default”) is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank. Further, 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 any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document
or the occurrence of any Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition
set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or satisfaction of any condition that expressly refers to
the matters described therein being acceptable or satisfactory to the Administrative Agent. Notwithstanding anything herein to the contrary, the Administrative Agent shall not have any liability arising from any
confirmation of the Revolving Exposure or the component amounts thereof.
|
|
|
The Administrative Agent shall be entitled to rely, 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 (whether or not such Person in fact meets the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof). The Administrative Agent
also shall be entitled to rely, and shall not incur any liability for relying, upon any statement made to it orally or by telephone and believed by it to be made by the proper Person (whether or not such Person in fact meets
the requirements set forth in the Loan Documents for being the signatory, sender or authenticator thereof), and may act upon any such statement prior to receipt of written confirmation thereof. In determining compliance with
any condition hereunder to the making of a Loan, or the issuance, extension or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, the Administrative Agent
may presume that such condition is satisfactory to such Lender or such Issuing Bank unless the Administrative Agent shall have received notice to the contrary from such Lender or such Issuing Bank prior to the making of such
Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the 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.
|
143
|
The Administrative Agent may perform any of and all 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 of and all their duties and exercise their rights and powers
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 nonappealable judgment that the Administrative Agent acted with gross negligence or wilful
misconduct in the selection of such sub-agents.
|
|
|
Subject to the terms of this paragraph, the
Administrative Agent may resign at any time from its capacity as such. In connection with such resignation, the Administrative Agent shall give notice of its intent to resign to the Lenders, the Issuing Banks 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. If no 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 intent to resign, then the retiring Administrative Agent may, on behalf of the Lenders and the
Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise
agreed by the Borrower and such successor. Notwithstanding the foregoing, in the event no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Banks and the Borrower, whereupon,
on the date of effectiveness of such resignation stated in such notice, (a) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents; provided
that, solely for purposes of maintaining any security interest granted to the Administrative Agent under any Security Document for the benefit of the Secured Parties, the retiring Administrative Agent shall continue to be
vested with such security interest as collateral agent for the benefit of the Secured Parties and, in the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in
each case until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this paragraph (it being understood and agreed that the retiring Administrative Agent shall have no
duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (b) the Required Lenders shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that (i) all payments required to be made hereunder or under any other Loan Document to the Administrative
Agent for the account of any Person other than the Administrative Agent shall be made directly to such Person and (ii) all notices and other communications required or contemplated to be given or made to the Administrative
Agent shall also directly be given or made to each Lender and each Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as such, the provisions of this Article and
Section 9.03, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent and in respect of the matters referred to in the proviso under clause
(a) above.
|
144
|
Each Lender and each Issuing Bank represents and warrants that (1) the Loan Documents set forth the terms of a commercial lending
facility, (2) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of
business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing), (3) it
has, independently and without reliance upon the Administrative Agent, any Arranger, any Co-Syndication Agent, any Co-Documentation Agent or any other Lender or Issuing Bank, or any of the Related Parties of any of the
foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and the Restatement Agreement as a Lender, and to make, acquire or
hold Loans hereunder and (4) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing
Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such
commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger any Co-Syndication
Agent, any Co-Documentation Agent or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information
within the meaning of the United States securities laws concerning the Borrower and its Affiliates) 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.
|
145
|
Each
Lender, by delivering its signature page to the Restatement Agreement and funding its Loans on the Restatement Effective Date or delivering its signature page to an Assignment and Assumption or an Incremental Facility Amendment pursuant to which it shall become a Lender
hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the
Administrative Agent or the Lenders on the Restatement Effective Date.
|
|
|
Each Lender hereby agrees that (x) if the Administrative
Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment
or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such
Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a
demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the
Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent
permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or
counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to
any Lender under this paragraph shall be conclusive, absent manifest error.
|
|
|
Each Lender hereby further agrees that if it
receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its
Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such
Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and,
upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand
was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative
Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
|
146
|
The Borrower and each other Loan Party hereby agrees that (x) in the event an
erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender
with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party.
|
|
|
Each party’s obligations under each of the preceding three paragraphs shall survive the resignation or replacement of the
Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
|
|
|
Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.08 or with respect to a Lender’s right to
file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all
powers, rights and remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Administrative
Agent on any of the Collateral pursuant to a public or private sale or other disposition, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other
disposition, and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in
writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Loan Document
Obligations as a credit on account of the purchase price for any collateral payable by the Administrative Agent on behalf of the Secured Parties at such sale or other disposition. Each Secured Party, whether or not a party
hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Loan Documents, to have agreed to the foregoing provisions.
|
|
|
In furtherance of the foregoing and not in limitation thereof, no Hedging Agreement, agreement or arrangement with
respect to Cash Management Services or other agreement (other than the Loan Documents) the obligations under which constitute Obligations will create (or be deemed to create) in favor of any Secured Party that is a party thereto any
rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such
Hedging Agreement or agreement or arrangement with respect to Cash Management Services, as applicable, shall be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan
Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
|
147
|
The Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, (i) to
subordinate 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 by Section 6.02(a)(v) and (ii) to agree to or enter into
subordination or intercreditor agreements applicable to any interests in any Securitization Vehicle or any Third Party Interests, in each case to the extent pledged under any Security Document to secure the Obligations. The
Administrative Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection
of the Administrative Agent’s Lien thereon or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable to the Lenders for any failure to monitor or maintain any
portion of the Collateral.
|
|
|
In case of the pendency of any proceeding with respect to any Loan Party under any Federal, State or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any Loan or any LC Disbursement 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 (but not obligated) 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, LC Exposure and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Administrative Agent
(including any claim under Sections 2.12, 2.13, 2.15, 2.16, 2.17 and 9.03) 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 proceeding is hereby
authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the
Lenders, the Issuing Banks or the other Secured Parties, to pay to the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including under Section 9.03).
|
|
|
Notwithstanding anything herein to the contrary, neither the Arrangers nor any Person named on the cover page of this
Agreement as a Co-Documentation Agent, Joint Lead Arranger or Joint Bookrunner shall have any duties or obligations under this Agreement or any other Loan Document (except in its capacity, as applicable, as a Lender or an Issuing
Bank), but all such Persons shall have the benefit of the indemnities provided for hereunder.
|
148
|
The provisions of this Article VIII are solely for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and none
of the Borrower or any other Loan Party shall have any rights as a third party beneficiary of any such provisions.
|
ARTICLE IX
Miscellaneous
|
|
(i) |
if to the Borrower, to it at 63 Lancaster Avenue, Malvern, Pennsylvania 19355, Attention of the Chief Financial Officer (email: [personal
email redacted]), with a copy to the General Counsel (email: [personal email redacted]) and the Corporate Treasurer (email: [personal email redacted]);
|
| (ii) |
if to the Administrative Agent, to it at JPMorgan Chase Bank, N.A., 131 S Dearborn St, Floor 04, Chicago, IL, 60603-5506, Attention of Loan
and Agency Servicing (Email: jpm.agency.cri@jpmorgan.com and copy [personal email redacted]) (Agency Withholding Tax Inquiries, Email: agency.tax.reporting@jpmorgan.com) (Agency Compliance/Financials/Intralinks, Email:
covenant.compliance@jpmchase.com);
|
|
| (iii) |
if to an Issuing Bank, to it at (A) in the case of JPMorgan Chase Bank, N.A., 10 South Dearborn, Floor L2, Suite IL1-0480, Chicago, IL,
60603-2300, Attention of LC Agency Team (Fax: 856-294-5267) (Tel: 800-364-1969) (Email: chicago.lc.agency.activity.team@jpmchase.com and copy [personal email redacted]), with a copy to JPMorgan Chase Bank, N.A., 10 South Dearborn,
Floor L2, Suite IL1-0480, Chicago, IL, 60603-2300, Attention of Loan & Agency Services Group (Email: jpm.agency.cri@jpmorgan.com), and (B) in the case of any other Issuing Bank, its address or email (or fax number) most recently
specified by it in a notice delivered to the Administrative Agent and the Borrower (or, in the absence of any such notice, to the address (or fax number) set forth in the Administrative Questionnaire of the Lender that is serving as
such Issuing Bank or is an Affiliate thereof); and
|
|
| (iv) |
if to any other Lender, to it at its address or email (or fax number) set forth in its Administrative Questionnaire.
|
|
|
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by fax 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); and notices delivered through electronic communications to the extent provided in paragraph (b) below shall be effective as provided in such paragraph.
|
149
|
(b) Notices and other communications to the Lenders and Issuing Banks hereunder may be delivered or furnished by electronic communications
(including email and Internet and intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices under Article II to any Lender or Issuing Bank if such Lender or Issuing Bank, as applicable, has notified the Administrative Agent and the Borrower that it is incapable of receiving notices under such
Article by electronic communication. Any notices or other communications to the Administrative Agent or the Borrower may be delivered or furnished by electronic communications pursuant to procedures approved by the recipient
thereof prior thereto; provided that approval of such procedures may be limited or rescinded by any such Person by notice to each other such
Person.
|
|
|
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment) and (ii) notices and other
communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or
communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice or
other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
|
|
|
(c) Any party hereto may change its address or fax number for notices and other communications hereunder by notice to the other parties
hereto.
|
|
| (d) (i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Banks by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic platform chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”). |
| (ii) |
Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and
policies implemented or modified by the Administrative Agent from time to time (including, as of the Restatement Effective Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a
per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, each of the Issuing Banks and the Borrower acknowledges and agrees that the
distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the
Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, each of the Issuing Banks and the Borrower hereby approves distribution of the
Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution.
|
150
| (iii) |
THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED
BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE
COMMUNICATIONS. 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 THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY CO-SYNDICATION
AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER, ANY
ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN
PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM.
|
|
| (iv) |
Each Lender and each Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been
posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender and Issuing Bank agrees (1) to notify the Administrative Agent
in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (2)
that the foregoing notice may be sent to such email address.
|
|
| (v) |
Each of the Lenders, each of the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
|
|
| (vi) |
Nothing herein shall prejudice the right of the Administrative Agent, any Lender or any Issuing Bank to give any notice or other
communication pursuant to any Loan Document in any other manner specified in such Loan Document.
|
151
152
| the Collateral Agreement (including any such release by the Administrative Agent in connection with any sale or other disposition of any Subsidiary upon the exercise of remedies under the Security Documents), it being understood and agreed that an amendment or other modification of the type of obligations guaranteed under the Collateral Agreement shall not be deemed to be a release or limitation of any Guarantee), (G) release all or substantially all the Collateral from the Liens of the Security Documents, without the written consent of each Lender (except as expressly provided in Section 9.14 or the applicable Security Document (including any such release by the Administrative Agent in connection with any sale or other disposition of the Collateral upon the exercise of remedies under the Security Documents), it being understood and agreed that an amendment or other modification of the type of obligations secured by the Security Documents shall not be deemed to be a release of the Collateral from the Liens of the Security Documents), (H)(i) subordinate (1) the Lien on all or substantially all of the Collateral to any Lien on the Collateral securing any other Indebtedness for borrowed money incurred by any Loan Party or (2) the Obligations in right of payment to any other Indebtedness for borrowed money incurred by any Loan Party, in each case, other than any Indebtedness that is expressly permitted by this Agreement as in effect on the Restatement Effective Date (or as later amended in connection with an unrelated transaction), to either be senior in right of payment to the Obligations or to be secured by a Lien on the Collateral that is senior to the Lien securing the Obligations, without the written consent of each directly and adversely affected Lender, in each case, except to the extent that such directly and adversely affected Lender is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on substantially the same terms (including economic terms in respect of any commitments or loans provided in connection with such Indebtedness) as all other Lenders (it being understood, for the avoidance of doubt, that in the event that such a bona fide opportunity is offered to any such directly and adversely affected Lender, any such change contemplated by this Section 9.02(b)(H) shall still require the consent of the Required Lenders), or (ii) waive, amend or modify the provisions of Section 2.17 in a manner that would by its terms alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby, and (I) change any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of Collateral or payments due to Lenders holding Loans of any Class differently than those holding Loans of any other Class, without the written consent of Lenders representing a Majority in Interest of each affected Class; provided further that (1) no such agreement shall amend, modify, extend or otherwise affect the rights or obligations of the Administrative Agent, any Issuing Bank without the prior written consent of the Administrative Agent, such Issuing Bank, as the case may be and (2) any amendment, waiver or other modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Lenders of a particular Class (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing, (i) no consent with respect to any amendment, waiver or other modification of this Agreement or any other Loan Document shall be required of (x) any Defaulting Lender, except with respect to any amendment, waiver or other modification referred to in clause (A), (B), (C) or (D) of the first proviso of this paragraph and then only in the event such Defaulting Lender shall be affected by such amendment, waiver or other modification or (y) in the case of any vote requiring the approval of all Lenders or each affected Lender, any Lender that receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such Lender or accrued for the account of such Lender under this Agreement and the other Loan Documents at the time such amendment, waiver or other modification becomes effective and whose Commitments terminate by the terms and upon the effectiveness of such amendment, waiver or other modification; provided that any amendment, waiver or other modification of this Agreement or any other Loan Document requiring the consent of all Lenders or of each affected Lender that affects any Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender and (ii) this Agreement may be amended to provide for Incremental Extensions of Credit in the manner contemplated by Section 2.20, Extension Permitted Amendments as provided in Section 2.21 and the incurrence of Refinancing Revolving Commitments and Refinancing Term Loans as provided in Section 2.22, in each case without any additional consents. | |
|
(c) Notwithstanding anything herein to the contrary, the Administrative Agent may, without the consent of any
Secured Party, consent to a departure by any Loan Party from any covenant of such Loan Party set forth in this Agreement, the Collateral Agreement or any other Security Document to the extent such departure is consistent with
the authority of the Administrative Agent set forth in the definition of the term “Collateral and Guarantee Requirement”.
|
|
|
(d) The Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender, execute amendments, waivers or other
modifications on behalf of such Lender. Any amendment, waiver or other modification effected in accordance with this Section 9.02 shall be binding upon each Person that is at the time thereof a Lender and each Person that
subsequently becomes a Lender.
|
153
154
|
(c) The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), the Arrangers, each Lender and Issuing Bank (each
such Person, an “Indemnified Institution”), and each Related Party of any of the foregoing Persons (each Indemnified Institution and each
such Person being called an “Indemnitee”), against, and hold each Indemnitee harmless from, any and all Liabilities and related expenses,
including the reasonable and documented out-of-pocket fees, charges and disbursements of a single firm of counsel for all Indemnitees, taken as a whole, and, if reasonably necessary, of a single firm of local counsel in each
appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all Indemnitees taken as a whole (and, in the case of an actual or perceived conflict of interest, where an Indemnified
Institution affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnified Institution), incurred by or asserted against any
Indemnitee arising out of, in connection with, based upon, or as a result of (i) the structuring, arrangement and the syndication of the credit facilities provided for herein, the preparation, execution, delivery and
administration of the Engagement Letter, this Agreement, the other Loan Documents or any other agreement or instrument contemplated hereby or thereby, the performance by the parties to the Engagement Letter, this Agreement or the
other Loan Documents of their obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan, Letter of Credit or the use of the proceeds therefrom (including any
refusal by any Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or
prospective Proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and whether initiated against or by any party to the Engagement Letter, this Agreement or any other Loan Document, any
Affiliate of any of the foregoing or any third party (and regardless of whether any Indemnitee is a party thereto and regardless of whether such claim, litigation or proceeding is brought by a third party or by the Borrower or any
of the Subsidiaries) or (iv) any actual or alleged presence or Release of Hazardous Materials on, at, under or from any property currently or formerly owned, leased or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries; provided that, in the case of each of clause (i),
(ii) and (iii) above, such indemnity shall not, as to any Indemnified Institution, be available to the extent that such Liabilities or related expenses resulted from (A) (i) the gross negligence, bad faith or willful misconduct of
such Indemnified Institution or any of its Related Parties (as determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) a material breach by such Indemnified Institution or one of its Related
Parties of this Agreement as determined by a court of competent jurisdiction in a final and non-appealable decision or (B) the subject of a Proceeding brought by an Indemnified Institution against any other Indemnified Institution
(other than any claims against any Arranger or the Administrative Agent in its capacity as such) and are found by a final, non-appealable judgment of a court of competent jurisdiction not to have resulted from an act or omission
by the Borrower or its affiliates. This paragraph shall not apply with respect to Taxes other than any Taxes that represent Liabilities arising from any non-Tax claim.
|
155
156
| (A) |
the Borrower; provided that no consent of the
Borrower shall be required (1) for an assignment (x) of a Term Commitment or a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund or (y) of a Revolving Commitment or a Revolving Loan to a Revolving Lender, an
Affiliate of a Revolving Lender or an Approved Fund in respect of a Revolving Lender and (2) if an Event of Default pursuant to clause (a), (b), (i) or (j) of Article VII has occurred and is continuing, for any other assignment; provided further that (x) in the case of an assignment of a
Term Commitment or a Term Loan, 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 ten Business Days after having received notice
thereof and (y) in the case of an assignment of a Revolving Commitment or a Revolving Loan, 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 ten Business Days after having received notice thereof;
|
||
| (B) |
the Administrative Agent; provided that no
consent of the Administrative Agent shall be required for an assignment and delegation of all or any portion of a Term Loan to a Lender, an Affiliate of a Lender or an Approved Fund; and
|
||
| (C) |
each Issuing Bank, in the case of any assignment and delegation of all or a portion of a Revolving Commitment or any Lender’s obligations
in respect of its LC Exposure;
|
| (ii) |
Assignments shall be subject to the following additional conditions:
|
| (A) |
except in the case of an assignment and delegation to a Lender, an Affiliate of a Lender or an Approved Fund or an assignment and
delegation of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment and delegation (determined as of
the trade date specified in the Assignment and Assumption with respect to such assignment and delegation or, if no trade date is so specified, as of the date the Assignment and Assumption with respect to such assignment and
delegation is delivered to the Administrative Agent) shall not be less than $5,000,000 or, in the case of Term Loans, $500,000, unless each of the Borrower and the Administrative Agent otherwise consents (such consent not to be
unreasonably withheld or delayed); provided that no such consent of the Borrower shall be required if an Event of Default under clause (a),
(b), (i) or (j) of Article VII has occurred and is continuing;
|
157
| (B) |
each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under
this Agreement; provided that this clause (B) shall not be construed to prohibit the assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or Loans but not those in respect of a second Class;
|
||
| (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; provided that only one such processing and recordation fee shall be payable in the event of
simultaneous assignments from any Lender or its Approved Funds to one or more other Approved Funds of such Lender;
|
||
| (D) |
with respect to any assignment and delegation pursuant to Section 2.18(b), the parties hereto agree that such assignment and delegation may
be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and the assignee and that the Lender required to make such assignment and delegation need not be a party thereto; and
|
||
| (E) |
the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent any tax forms required by Section 2.16(f) and an
Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain MNPI) will be made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable law, including Federal, State and foreign securities laws.
|
| (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 the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any
assignment or other transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with Section 9.04(c).
|
158
| (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 Commitment of, and principal amount of and stated interest on the Loans and
LC Disbursements 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, the Issuing Banks 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, as to entries pertaining to it, any Issuing Bank or Lender, at any
reasonable time and from time to time upon reasonable prior notice.
|
|
| (v) |
Upon receipt by the Administrative Agent of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire and any tax forms required by Section 2.16(f) (unless the assignee shall already be a Lender hereunder) and the processing and recordation fee referred to in this Section and any
written consent to such assignment and delegation 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; provided that the Administrative Agent shall not be required to accept such Assignment and Assumption or so record the information contained therein
if the Administrative Agent reasonably believes that such Assignment and Assumption lacks any written consent required by this Section or is otherwise not in proper form, it being acknowledged that the Administrative Agent shall have
no duty or obligation (and shall incur no liability) with respect to obtaining (or confirming the receipt) of any such written consent or with respect to the form of (or any defect in) such Assignment and Assumption, any such duty and
obligation being solely with the assigning Lender and the assignee. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph, and following such
recording, unless otherwise determined by the Administrative Agent (such determination to be made in the sole discretion of the Administrative Agent, which determination may be conditioned on the consent of the assigning Lender and
the assignee), shall be effective notwithstanding any defect in the Assignment and Assumption relating thereto. Each assigning Lender and the assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to
have represented to the Administrative Agent that all written consents required by this Section with respect thereto (other than the consent of the Administrative Agent) have been obtained and that such Assignment and Assumption is
otherwise duly completed and in proper form, and each assignee, by its execution and delivery of an Assignment and Assumption, shall be deemed to have represented to the assigning Lender and the Administrative Agent that such assignee
is an Eligible Assignee.
|
|
| (vi) |
The words “execution”, “signed”, “signature” and words of like import in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as applicable, 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.
|
159
|
(c) (i) Any Lender may, without the consent of the Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or
more Eligible Assignees (“Participants”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a
portion of its Commitments and Loans of any Class); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s 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 or any other Loan Document; 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 or requires the approval of all the Lenders. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the
requirements and limitations therein, including the requirements under Section 2.16(f) (it being understood that the documentation required under Section 2.16(f) shall be delivered to the participating Lender)) to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (x)
agrees to be subject to the provisions of Sections 2.17 and 2.18 as if it were an assignee under paragraph (b) of this Section and (y) shall not be entitled to receive any greater payment under Section 2.14 or 2.16, with respect to
any participation, than its participating Lender would have been entitled to receive, unless the sale of such participation was made with the Borrower’s prior written consent and the entitlement to receive a greater payment results
from a Change in Law that occurs after the Participant acquired the applicable participation. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.17(c) as though it were a Lender. Each Lender that sells a participation shall,
acting solely for this purpose as a nonfiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant to which it has sold a participation and the principal amounts (and stated
interest) of each such Participant’s interest in the Loans or other rights and obligations of such Lender under this Agreement (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participant’s interest in any Loans or other rights and obligations under any this Agreement) except to the extent that such disclosure is necessary to establish that such
Loan or other right or obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall
treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
|
160
161
|
(b) Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Loan Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 9.01), certificate,
request, statement, disclosure or authorization related to this Agreement, any other Loan Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be
effective as delivery of a manually executed counterpart of this Agreement, such other Loan Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or
relating to this Agreement, any other Loan Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed
pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof
or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to
accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (1) to the extent the Administrative Agent has agreed
to accept any Electronic Signature, the Administrative Agent and each of the Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of the Borrower or any other Loan Party without further
verification thereof and without any obligation to review the appearance or form of any such Electronic signature and (2) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed
by a manually executed counterpart. Without limiting the generality of the foregoing, the Borrower and each Loan Party hereby (a) agrees that, for all purposes, including without limitation, in connection with any workout,
restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders, and the Borrower and the Loan Parties, Electronic Signatures transmitted by telecopy, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Loan Document and/or any Ancillary Document shall have the same legal effect, validity and
enforceability as any paper original, (b) the Administrative Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Loan Document and/or any Ancillary Document in the form of an imaged
electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes
and shall have the same legal effect, validity and enforceability as a paper record), (c) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Loan Document and/or
any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Loan Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (d) waives
any claim against any Lender-Related Person for any Liabilities arising solely from the Administrative Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by telecopy, emailed pdf. or any other
electronic means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of the Borrower and/or any Loan Party to use any available security measures in connection
with the execution, delivery or transmission of any Electronic Signature.
|
162
163
164
165
166
167
| (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 Affected Financial
Institution, its parent entity, 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
|
168
| (iii) |
the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the
applicable Resolution Authority.
|
| (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 Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments 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 Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement;
|
|
| (iii) |
(A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B)
such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (C) the
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to
the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of
Credit, the Commitments and this Agreement; or
|
|
| (iv) |
such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and
such Lender.
|
169
170
Exhibit 99.1
Vishay Intertechnology Announces Amendment and Extension of $750 Million Credit Facility
MALVERN, PA — May 8, 2023 -- Vishay Intertechnology, Inc. (NYSE: VSH) (“Vishay” or the “Company”) today announced that it has entered into an amendment
and restatement of its $750 million credit facility.
The amended and restated credit facility extends the maturity date of the revolving credit agreement until May 8, 2028, replaces the existing total
leverage ratio used for financial covenant compliance measurement with a net leverage ratio, and replaces the LIBOR-based interest rate and related LIBOR-based mechanics applicable to U.S. dollar borrowings under the revolving credit agreement with
an interest rate based on the Secured Overnight Financing Rate ("SOFR") (including a customary spread adjustment) and related SOFR-based mechanics.
The amended and restated credit facility also allows for borrowings in euro, British sterling, and Japanese yen, subject to a $250 million limit.
Borrowings in foreign currency bear interest at a local reference rate plus an interest margin. The applicable interest margin is based on Vishay's total leverage ratio. Based on Vishay's current total leverage ratio, borrowings bear interest at
SOFR plus 1.60%, including the applicable credit spread. Vishay also pays a commitment fee, also based on its total leverage ratio, on undrawn amounts. The undrawn commitment fee, based on Vishay's current total leverage ratio, is 0.25% per
annum.
Lori Lipcaman, Vishay's Chief Financial Officer said, "The amendment and extension of our credit facility provides us with more than ample financial and
operating flexibility to execute our plans for growth."
JPMorgan Chase Bank, N.A. acted as administrative agent. JP Morgan Chase Bank, N.A.; Comerica Bank; HSBC Bank USA, National Association; UniCredit Bank
AG; and TD Bank, N.A. served as joint lead arrangers, joint bookrunners and co-syndication agents. Santander Bank, National Association and Bank of America, N.A. functioned as co-documentation agents.
Forward-Looking Statements
All statements other than statements relating to present facts or current conditions included in this release are forward-looking statements within the
safe harbor provisions of Private Securities Litigation Reform Act of 1995. Words and expressions such as “will,” “expect,” “anticipate,” “looking ahead” or other similar words or expressions often identify forward-looking statements. Such
statements are based on current expectations only, and are subject to certain risks, uncertainties and assumptions, many of which are beyond our control. Should one or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results, performance, or achievements may vary materially from those anticipated, estimated or projected. Among the factors that could cause actual results to materially differ include: general business and
economic conditions; manufacturing or supply chain interruptions or changes in customer demand because of COVID-19 or otherwise; delays or difficulties in implementing our cost reduction strategies; delays or difficulties in expanding our
manufacturing capacities; an inability to attract and retain highly qualified personnel; changes in foreign currency exchange rates; uncertainty related to the effects of changes in foreign currency exchange rates; competition and technological
changes in our industries; difficulties in new product development; difficulties in identifying suitable acquisition candidates, consummating a transaction on terms which we consider acceptable, and integration and performance of acquired
businesses; changes in U.S. and foreign trade regulations and tariffs, and uncertainty regarding the same; changes in applicable domestic and foreign tax regulations, and uncertainty regarding the same; changes in applicable accounting standards
and other factors affecting our operations that are set forth in our filings with the Securities and Exchange Commission, including our annual reports on Form 10-K and our quarterly reports on Form 10-Q. We undertake no obligation to publicly
update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
About Vishay
Vishay manufactures one of the world’s largest portfolios of discrete semiconductors and passive electronic components that are essential to innovative
designs in the automotive, industrial, computing, consumer, telecommunications, military, aerospace, and medical markets. Serving customers worldwide, Vishay is The DNA of tech.™ Vishay Intertechnology, Inc. is a Fortune 1,000 Company listed on the
NYSE (VSH). More on Vishay at www.Vishay.com.
The DNA of tech™ is a trademark
of Vishay Intertechnology.
Contact:
Vishay Intertechnology, Inc.
Peter Henrici
Executive Vice President, Corporate Development
+1-610-644-1300
Peter Henrici
Executive Vice President, Corporate Development
+1-610-644-1300