EXECUTION VERSION REVOLVING CREDIT AGREEMENT Dated as of

EXECUTION VERSION
REVOLVING CREDIT AGREEMENT
Dated as of
March 31, 2014
among
CENGAGE LEARNING ACQUISITIONS, INC.,
as Borrower,
CENGAGE LEARNING HOLDCO, INC.,
as Holdings,
CENGAGE LEARNING HOLDINGS II, INC. f/k/a/ CENGAGE LEARNING HOLDINGS II, L.P.,
as Parent
THE GUARANTORS AND LENDERS PARTY HERETO
and
CITIBANK, N.A.,
as Administrative Agent
and
CITIBANK, N.A.,
as Collateral Agent
CITIGROUP GLOBAL MARKETS INC.,
MORGAN STANLEY SENIOR FUNDING, INC.,
DEUTSCHE BANK SECURITIES INC.,
CREDIT SUISSE SECURITIES (USA) LLC
and
KKR CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01
SECTION 1.02
SECTION 1.03
SECTION 1.04
SECTION 1.05
Defined Terms ..............................................................................................................................1
Terms Generally ......................................................................................................................... 45
[Reserved] ................................................................................................................................... 46
Classification of Loans and Borrowings.................................................................................... 46
Currency Equivalents Generally ................................................................................................ 46
ARTICLE II
THE CREDITS
SECTION 2.01
SECTION 2.02
SECTION 2.03
SECTION 2.04
SECTION 2.05
SECTION 2.06
SECTION 2.07
SECTION 2.08
SECTION 2.09
SECTION 2.10
SECTION 2.11
SECTION 2.12
SECTION 2.13
SECTION 2.14
SECTION 2.15
SECTION 2.16
SECTION 2.17
SECTION 2.18
SECTION 2.19
SECTION 2.20
SECTION 2.21
SECTION 2.22
SECTION 2.23
SECTION 2.24
SECTION 2.25
SECTION 2.26
Commitments .............................................................................................................................. 47
Loans and Borrowings ............................................................................................................... 47
Borrowing Procedure ................................................................................................................. 49
Evidence of Debt; Repayment of Loans ..................................................................................... 49
Fees ............................................................................................................................................. 50
Interest on Loans ........................................................................................................................ 50
Default Interest ........................................................................................................................... 51
Alternate Rate of Interest ........................................................................................................... 51
Termination and Reduction of Commitments ........................................................................... 51
Conversion and Continuation of Borrowings ............................................................................ 51
Repayment of Revolving Credit Loans....................................................................................... 52
Optional Prepayment .................................................................................................................. 53
Mandatory Prepayments............................................................................................................. 53
Reserve Requirements; Change in Circumstances .................................................................... 53
Change in Legality...................................................................................................................... 54
Indemnity .................................................................................................................................... 55
Pro Rata Treatment .................................................................................................................... 55
Sharing of Setoffs ....................................................................................................................... 56
Payments ..................................................................................................................................... 56
Taxes ........................................................................................................................................... 56
Assignment of Commitments Under Certain Circumstances; Duty to Mitigate ....................... 58
Swingline Loans ......................................................................................................................... 59
Letters of Credit .......................................................................................................................... 61
Incremental Facilities................................................................................................................. 64
Defaulting Lenders ..................................................................................................................... 65
Extensions of Revolving Credit Commitments. ......................................................................... 67
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01
SECTION 3.02
SECTION 3.03
SECTION 3.04
SECTION 3.05
SECTION 3.06
SECTION 3.07
Existence, Qualification and Power; Compliance with Laws ................................................... 69
Authorization; No Contravention .............................................................................................. 69
Governmental Authorization; Other Consents .......................................................................... 69
Binding Effect ............................................................................................................................. 69
Financial Statements; No Material Adverse Change ................................................................ 69
Litigation ..................................................................................................................................... 70
Ownership of Property; Liens .................................................................................................... 70
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Page
SECTION 3.08
SECTION 3.09
SECTION 3.10
SECTION 3.11
SECTION 3.12
SECTION 3.13
SECTION 3.14
SECTION 3.15
SECTION 3.16
SECTION 3.17
SECTION 3.18
SECTION 3.19
Environmental Compliance ....................................................................................................... 70
Taxes ........................................................................................................................................... 71
ERISA Compliance..................................................................................................................... 71
Subsidiaries; Equity Interests..................................................................................................... 71
Margin Regulations; Investment Company Act ........................................................................ 72
Disclosure ................................................................................................................................... 72
Intellectual Property; Licenses, Etc. .......................................................................................... 72
Solvency ...................................................................................................................................... 72
Collateral Documents ................................................................................................................. 72
USA PATRIOT Act; OFAC ....................................................................................................... 72
Foreign Corrupt Practices Act ................................................................................................... 73
Senior Indebtedness .................................................................................................................... 73
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01
SECTION 4.02
Conditions Precedent to Initial Extension of Credit ................................................................. 73
Conditions to All Credit Extensions ........................................................................................... 76
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01
SECTION 5.02
SECTION 5.03
SECTION 5.04
SECTION 5.05
SECTION 5.06
SECTION 5.07
SECTION 5.08
SECTION 5.09
SECTION 5.10
SECTION 5.11
SECTION 5.12
SECTION 5.13
SECTION 5.14
SECTION 5.15
SECTION 5.16
Financial Statements, Reports, etc. ............................................................................................ 77
Certificates; Other Information ................................................................................................. 78
Notices ......................................................................................................................................... 79
[Reserved] ................................................................................................................................... 79
Preservation of Existence, Etc ................................................................................................... 79
Maintenance of Properties ......................................................................................................... 79
Maintenance of Insurance ......................................................................................................... 79
Compliance with Laws................................................................................................................ 80
Books and Records ..................................................................................................................... 80
Inspection Rights ........................................................................................................................ 80
Covenant to Guarantee Obligations and Give Security ............................................................. 80
Use of Proceeds........................................................................................................................... 82
Further Assurances and Post-Closing Conditions .................................................................... 82
Designation of Subsidiaries ........................................................................................................ 82
Cash Dominion ........................................................................................................................... 82
Payment of Taxes, etc. ................................................................................................................ 82
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01
SECTION 6.02
SECTION 6.03
SECTION 6.04
SECTION 6.05
SECTION 6.06
SECTION 6.07
SECTION 6.08
SECTION 6.09
SECTION 6.10
Liens ............................................................................................................................................ 83
Investments ................................................................................................................................. 86
Indebtedness ............................................................................................................................... 88
Fundamental Changes ............................................................................................................... 90
Dispositions ................................................................................................................................. 92
Restricted Payments.................................................................................................................... 93
Change in Nature of Business and Changes in Fiscal Year ..................................................... 95
Transactions with Affiliates ....................................................................................................... 95
Other Indebtedness and Agreements. ........................................................................................ 96
Holdings Negative Covenants .................................................................................................... 96
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Page
SECTION 6.11
SECTION 6.12
Minimum Fixed Charge Coverage Ratio ................................................................................... 97
Negative Pledge .......................................................................................................................... 97
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01
SECTION 7.02
SECTION 7.03
SECTION 7.04
Events of Default ........................................................................................................................ 98
Remedies Upon Event of Default ............................................................................................. 100
Exclusion of Immaterial Subsidiaries ...................................................................................... 100
Application of Funds ................................................................................................................ 101
ARTICLE VIII
AGENTS
SECTION 8.01
SECTION 8.02
SECTION 8.03
SECTION 8.04
SECTION 8.05
SECTION 8.06
SECTION 8.07
SECTION 8.08
SECTION 8.09
SECTION 8.10
SECTION 8.11
Authorization and Action ......................................................................................................... 102
Agent Individually .................................................................................................................... 102
Duties of Agents; Exculpatory Provisions ............................................................................... 103
Reliance by Agents.................................................................................................................... 104
Indemnification ........................................................................................................................ 104
Delegation of Duties ................................................................................................................. 105
Resignation of Agent ................................................................................................................ 105
Non-Reliance on Agent and Other Lenders ............................................................................ 106
No Other Duties, etc. ................................................................................................................ 106
Agent May File Proofs of Claim .............................................................................................. 106
Other Secured Agreements ....................................................................................................... 107
ARTICLE IX
MISCELLANEOUS
SECTION 9.01
SECTION 9.02
SECTION 9.03
SECTION 9.04
SECTION 9.05
SECTION 9.06
SECTION 9.07
SECTION 9.08
SECTION 9.09
SECTION 9.10
SECTION 9.11
SECTION 9.12
SECTION 9.13
SECTION 9.14
SECTION 9.15
SECTION 9.16
SECTION 9.17
SECTION 9.18
SECTION 9.19
SECTION 9.20
SECTION 9.21
SECTION 9.22
SECTION 9.23
Notices ....................................................................................................................................... 107
Survival of Agreement .............................................................................................................. 109
Binding Effect ........................................................................................................................... 109
Successors and Assigns ............................................................................................................ 109
Expenses; Indemnity ................................................................................................................ 112
Right of Setoff ........................................................................................................................... 113
Withholding Tax ....................................................................................................................... 113
Applicable Law ......................................................................................................................... 114
Waivers; Amendment ............................................................................................................... 114
Interest Rate Limitation............................................................................................................ 115
Entire Agreement...................................................................................................................... 115
WAIVER OF JURY TRIAL ..................................................................................................... 115
Severability ................................................................................................................................ 116
Counterparts ............................................................................................................................. 116
Headings ................................................................................................................................... 116
Jurisdiction; Consent to Service of Process............................................................................. 116
Confidentiality .......................................................................................................................... 116
Tax Forms................................................................................................................................. 117
USA PATRIOT Act Notice ....................................................................................................... 118
[Reserved] ................................................................................................................................. 118
No Fiduciary Duty .................................................................................................................... 118
Release of Liens and Guarantees ............................................................................................. 119
Intercreditor Agreements ......................................................................................................... 119
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SCHEDULES
Schedule 1
Schedule 2
Schedule 2.01
Schedule 3.06
Schedule 3.11
Schedule 5.02
Schedule 5.13
Schedule 6.01(b)
Schedule 6.03(b)
Schedule 6.08
–
–
–
–
–
–
–
–
–
Guarantors
Closing Date Intercompany Indebtedness
Revolving Credit Commitments
Litigation
Subsidiaries
Addresses
Post-Closing Deliveries
Existing Liens
Existing Indebtedness
Existing Transactions with Affiliates
–
–
–
–
–
–
–
–
–
–
Form of Administrative Questionnaire
Form of Assignment and Acceptance
Form of Borrowing Request
Form of Term Loan/Revolving Facility Intercreditor Agreement
[Reserved]
[Reserved]
[Reserved]
Forms of U.S. Tax Compliance Certificate
Form of Borrowing Base Certificate
Form of Solvency Certificate
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Exhibit J
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REVOLVING CREDIT AGREEMENT dated as of March 31, 2014, among CENGAGE LEARNING
HOLDINGS II, INC. (f/k/a CENGAGE LEARNING HOLDINGS II, L.P.), a Delaware limited partnership (“Parent”), CENGAGE LEARNING HOLDCO, INC., a Delaware corporation (“Holdings”), CENGAGE LEARNING
ACQUISITIONS, INC., a Delaware corporation (the “Borrower”) CITIBANK, N.A., as administrative agent (in
such capacity, the “Administrative Agent”) for the Lenders and CITIBANK, N.A., as collateral agent (in such capacity, the “Collateral Agent”) for the Lenders.
PRELIMINARY STATEMENTS
(1)
On July 2, 2013, Cengage Learning, Inc. (“CLI”) and certain of its affiliates (the “Debtors”) filed
voluntary petitions with the United States Bankruptcy Court for the Eastern District of New York (the “Bankruptcy
Court”) initiating cases under Chapter 11 of the U.S. Bankruptcy Code (11 U.S.C. §§ 101 et seq.; the “Bankruptcy
Code” and such cases, the “Chapter 11 Cases”) and have continued in the possession of their assets and in the management of their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
(2)
On March 14, 2014, the Bankruptcy Court entered the Findings of Fact, Conclusions of Law, and
Order Confirming the Debtors' Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy
Code [Docket No. 1225] (the “Plan Confirmation Order”), which, among other things, confirmed the Debtors’
Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code, dated March 12, 2014
[Docket No. 1215] (as supplemented, amended, or modified the “Plan of Reorganization”).
(3)
In connection with the confirmation and implementation of the Plan of Reorganization, the Debtors have requested that the Lenders provide them with an exit revolving credit facility in an aggregate principal
amount of $250,000,000. The Lenders are willing to extend such credit under such facility to the Borrower on the
terms and subject to the conditions set forth herein.
ARTICLE I
Definitions
SECTION 1.01
ings specified below:
Defined Terms. As used in this Agreement, the following terms shall have the mean-
“ABL Priority Collateral” shall have the meaning assigned to such term in the Term Loan/Revolving Facility Intercreditor Agreement.
“ABR,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“Accounts” shall have the meaning set forth in the UCC.
“Acquired Affiliate” shall mean an Affiliate of a Loan Party that is merged into, acquired by, or that sells
assets to, a Loan Party, which Affiliate is not a Loan Party prior to such merger, acquisition or sale.
“Activities” shall have the meaning set forth in Section 8.02(b).
“Adjusted LIBO Rate” shall mean, for any Interest Period, an interest rate per annum equal to the product
of (a) the LIBO Rate in respect of U.S. Dollars for the applicable Class of Loans for such Interest Period multiplied
by (b) Statutory Reserves.
“Adjustment Date” shall have the meaning specified in the definition of “Applicable Percentage.”
“Administrative Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of Exhibit A, or
such other form as may be supplied from time to time by the Administrative Agent.
“Affiliate” shall mean, with respect to any Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided
that any Person that, directly or indirectly, owns less than 5% of the Equity Interests of another Person shall not constitute an Affiliate thereof.
“Agent Parties shall have the meaning assigned to such term in Section 9.01(c).
“Agents” shall mean, collectively, the Administrative Agent and the Collateral Agent.
“Agent’s Group” shall have the meaning set forth in Section 8.02(b).
“Agreement” shall mean this Revolving Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
“Aggregate Commitments” shall mean the Commitment of all the Lenders.
“Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Exposures.
“Alternate Base Rate” shall mean, for any day, a rate per annum equal to the higher of (a) 1% plus the Adjusted LIBO Rate for a one-month Interest Period commencing two Business Days after such day, as determined on
such day and (b) the higher of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b)(ii) of the
preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate
Base Rate due to a change in the Adjusted LIBO Rate, Prime Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the Adjusted LIBO Rate, Prime Rate or the Federal Funds Effective
Rate, as the case may be.
“Alternative Currency” shall mean British Pounds Sterling, Euros, Mexican Pesos and each other currency
(other than Dollars) that is approved by the Administrative Agent and each Issuing Bank in their sole discretion.
“Alternative Currency Equivalent” shall mean, at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative
Agent and the applicable Issuing Bank at such time on the basis of the Spot Rate (determined in respect of the most
recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“Alternative Currency Letter of Credit” shall mean any Letter of Credit denominated in an Alternative
Currency.
“Alternative Currency L/C Exposure” shall mean any L/C Exposure arising from an Alternative Currency
Letter of Credit.
“Alternative Currency L/C Sublimit” shall mean an amount equal to $15,000,000.
“Applicable Fee Percentage” shall mean 0.50% per annum; provided that on and after the first Adjustment
Date occurring three full calendar months after the Closing Date, the Applicable Fee Percentage will be determined
by reference to the pricing grid below based upon Average Facility Usage for the most recently ended fiscal quarter
immediately preceding such Adjustment Date:
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Average Facility Usage
Applicable Fee
Percentage
0.375%
0.50%
> 50%
< 50%
“Applicable Percentage” shall mean 2.00% per annum, in the case of Eurocurrency Loans, and 1.00% per
annum, in the case of ABR Loans; provided that on or after the first Adjustment Date occurring three full calendar
months after the Closing Date, the Applicable Percentage will be the rate per annum as determined pursuant to the
pricing grid below based upon the average daily Availability for the most recently ended fiscal quarter immediately
preceding such Adjustment Date:
Average Daily Availability
> $133 million
> $67 million but < $133 million
< $67 million
Applicable Percentage for
Eurocurrency Loans
1.75%
2.00%
2.25%
Applicable Percentage for
ABR Loans
0.75%
1.00%
1.25%
Any change in the Applicable Percentage resulting from changes in average daily Availability shall become
effective on the first day of the fiscal quarter (the “Adjustment Date”) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any such Borrowing Base Certificate is not delivered within the
time period specified in Section 5.01(e), then, until the date that is three Business Days after the date on which such
Borrowing Base Certificate is delivered, the rate level that is one rate level lower (i.e., higher margins) than the rate
level theretofore in effect shall apply until such Borrowing Base Certificate is delivered; provided that if the Borrowing Base Certificate is not delivered within 5 days after the due date specified therefor in Section 5.01(e) then
commencing on the day that occurs 5 days after such due date, until the date that is three Business Days after the
date on which such Borrowing Base Certificate is delivered, the highest rate set forth in each column of the above
pricing grid shall apply.
In the event that at any time after the end of a fiscal quarter it is discovered that the average daily Availability for such fiscal quarter used for the determination of the Applicable Percentage was less than the actual amount of
the average daily Availability for such fiscal quarter, the Applicable Percentage for such prior fiscal quarter shall be
adjusted to the applicable percentage based on such actual average daily Availability for such fiscal quarter and any
additional interest for the applicable period payable as a result of such recalculation shall be paid to Lenders on the
next date on which interest is due and payable to the Lenders under Section 2.06.
“Applicable Time” shall mean, with respect to any borrowings and payments in any Alternative Currency,
the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative
Agent or the 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.
“Approval Order” shall mean the order authorizing the Debtors to (a) enter into the Engagement Letter to
obtain exit financing, and the fee letters related thereto, (b) incur and pay certain fees and expenses, subject to the
terms of the Engagement Letter and fee letters, and (c) file redacted versions of the Engagement Letter and the fee
fetters, which was entered by the Bankruptcy Court on February 3, 2014.
“Arrangers” shall mean Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc., Deutsche
Bank Securities Inc., Credit Suisse Securities (USA) LLC and KKR Capital Markets LLC.
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an
assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other form as shall be approved by the Administrative Agent.
“Attributable Indebtedness” shall mean, on any date, in respect of any Capitalized Lease Obligation of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date
in accordance with GAAP
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“Audited Financial Statements” shall mean the audited balance sheets of the Parent and its Restricted Subsidiaries as of each of June 30, 2013, and the related audited statements of income and cash flows of the Parent and
its Restricted Subsidiaries for the fiscal year ended June 30, 2013, previously delivered to the Administrative Agent.
“Availability” at any time shall be equal to (a) the lesser of (i) the Borrowing Base at such time (as determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to
Section 5.01(e), as adjusted in accordance with this Agreement) and (ii) the Total Revolving Credit Commitment at
such time minus (b) the Aggregate Revolving Credit Exposure at such time.
“Average Facility Usage” shall mean, for such fiscal quarter, the percentage obtained by dividing (a) the
amount obtained by adding the Aggregate Revolving Credit Exposure at the end of each day during such period and
by dividing such sum by the number of days in such period by (b) the amount obtained by adding the Total Revolving Credit Commitment in effect at the end of each day during such period and by dividing such sum by the number
of days in such period.
“Bank Product Reserves” means, as of any date of determination, those reserves that the Administrative
Agent deems necessary to establish in its Permitted Discretion based upon the Hedge Bank’s and the counterparty of
any Cash Management Obligations’ determination of the Other Pari Passu Secured Obligations then outstanding.
“Bankruptcy Code” shall have the meaning assigned to such term in the preliminary statements of this
Agreement.
“Bankruptcy Court” shall have the meaning assigned to such term in the preliminary statements of this
Agreement.
“Bankruptcy Laws” shall mean the Bankruptcy Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or
similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Billing Date” shall mean, with respect to any Account, the date on which the invoice with respect thereto
was generated.
“BK Obligor” shall mean an Obligor that is (a) a debtor in a voluntary or involuntary bankruptcy proceeding or (b) the subject of a comparable receivership or insolvency proceeding.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower” shall have the meaning assigned to such term in the preamble to this Agreement.
“Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on the same
date and, in the case of Eurocurrency Loans, as to which a single Interest Period is in effect, or (b) a Swingline
Loan.
“Borrowing Base” shall mean, at any time, the sum of (a) 65% of Eligible Credit Card Receivables and
other Eligible Receivables, plus (b) 85% of the Orderly Liquidation Value of Eligible Inventory plus (c) 100% of
Eligible Cash Amounts up to an aggregate amount not to exceed $35,000,000 at any time less (d) Reserves (without
duplication of any items that may be addressed in more than one Reserve or are otherwise addressed through eligibility criteria). The cost of Eligible Inventory shall be determined in accordance with GAAP.
The parties understand that the exclusionary criteria in the definitions of Eligible Inventory, Eligible Credit
Card Receivables, Eligible Receivables, any Reserves that may be imposed as provided herein, any deductions or
other adjustments to determine book value of Eligible Receivables and factors considered in the calculation of the
Orderly Liquidation Value of Eligible Inventory have the effect of reducing the Borrowing Base, and, accordingly,
whether or not any provisions hereof so state, all of the foregoing shall be determined without duplication so as not
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to result in multiple reductions in the Borrowing Base for the same facts or circumstances and Reserves shall not
duplicate eligibility criteria contained in the definition of Eligible Credit Card Receivables, Eligible Inventory or
Eligible Receivables.
In connection with any acquisition that is permitted under the Loan Documents, the Borrower may submit a
calculation of the Borrowing Base on a pro forma basis with adjustments to reflect the acquisition of such business
and the inclusion in the Borrowing Base of the Eligible Credit Card Receivables, Eligible Receivables, Eligible Cash
Amounts (subject to the limitation set forth in clause (c) of the definition thereof) and Eligible Inventory that will be
acquired with respect thereto, and the Borrowing Base and Availability shall be increased accordingly so long as the
Administrative Agent shall have completed its review of such acquired assets, including receipt of new (or, if agreed
to by the Administrative Agent, recently completed) collateral audits, appraisals and field exams as the Administrative Agent shall require in its Permitted Discretion and the Borrower shall, for the avoidance of doubt, be allowed to
utilize any increase in the Borrowing Base resulting from such adjustment for the purpose of funding the purchase of
such acquired assets so long as the requisite field exams, appraisals and collateral audits have been completed (unless the Administrative Agent otherwise agrees in its reasonable discretion). The Administrative Agent agrees to
promptly undertake and diligently pursue such due diligence.
“Borrowing Base Certificate” shall mean a certificate in substantially the form of Exhibit I hereto (or another form reasonably acceptable to the Administrative Agent and the Borrower).
“Borrowing Minimum” shall mean $1,000,000.
“Borrowing Multiple” shall mean $500,000.
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03
and substantially in the form of Exhibit C, or such other form as shall be approved by the Administrative Agent.
“Breakage Event” shall have the meaning assigned to such term in Section 2.16.
“Budget” shall have the meaning assigned to such term in Section 5.01(f).
“Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New York
City are authorized or required by law to close; provided, however, that when used in connection with a Eurocurrency Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in deposits
in such currency in the London interbank market.
“Capital Expenditures” shall mean, for any period, the aggregate of, without duplication, (a) all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such
period that, in conformity with GAAP, are or are required to be included as additions during such period to property,
plant or equipment reflected in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries, (b)
all Capitalized Software Expenditures for such period, (c) the value of all assets under Capitalized Lease Obligations
incurred by the Borrower and the Restricted Subsidiaries during such period (other than as a result of purchase accounting) and (d) less any capital grants received from a Governmental Authority that are reflected as a reduction of
fixed assets in conformity with GAAP; provided that the term “Capital Expenditures” shall not include, without
duplication, (i) expenditures made in connection with the replacement, substitution, restoration or repair of assets to
the extent financed with (x) insurance proceeds paid on account of the loss of or damage to the assets being replaced, restored or repaired or (y) awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced, (ii) the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit
granted by the seller of such equipment for the equipment being traded in at such time, (iii) the purchase of plant,
property or equipment to the extent financed with the proceeds of Dispositions that are not required to be applied to
prepay Term Loan Facility Indebtedness pursuant to Section 2.05(b) of the Term Loan Agreement, (iv) expenditures
that constitute any part of Consolidated Lease Expense, (v) expenditures that are accounted for as capital expenditures by the Borrower or any Restricted Subsidiary and that actually are paid for by a Person other than the Borrower or any Restricted Subsidiary and for which none of the Borrower or any Restricted Subsidiary has provided or is
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required to provide or incur, directly or indirectly, any consideration or obligation to such Person or any other Person (whether before, during or after such period), (vi) the book value of any asset owned by the Borrower or any
Restricted Subsidiary prior to or during such period to the extent that such book value is included as a capital expenditure during such period as a result of such Person reusing or beginning to reuse such asset during such period
without a corresponding expenditure actually having been made in such period; provided that (x) any expenditure
necessary in order to permit such asset to be reused shall be included as a Capital Expenditure during the period in
which such expenditure actually is made and (y) such book value shall have been included in Capital Expenditures
when such asset was originally acquired, (vii) expenditures that constitute Permitted Acquisitions, (viii) any capitalized interest expense reflected as additions to property, plant or equipment in the consolidated balance sheet of the
Borrower and the Restricted Subsidiaries or (ix) any non-cash compensation or other non-cash costs reflected as
additions to property, plant or equipment in the consolidated balance sheet of the Borrower and the Restricted Subsidiaries.
“Capitalized Lease Obligations” shall mean at the time any determination thereof is to be made, the
amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected
as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP; provided that obligations of the Borrower or its Restricted Subsidiaries, or of a special purpose or other entity not consolidated with the
Borrower and its Restricted Subsidiaries, either existing on the Closing Date or created thereafter that (a) initially
were not included on the consolidated balance sheet of the Borrower as Capitalized Lease Obligations and were subsequently recharacterized as Capitalized Lease Obligations or, in the case of such a special purpose or other entity
becoming consolidated with the Borrower and its Restricted Subsidiaries were required to be characterized as Capitalized Lease Obligations upon such consideration, in either case, due to a change in accounting treatment or otherwise, or (b) did not exist on the Closing Date and were required to be characterized as Capitalized Lease Obligations
but would not have been required to be treated as capital lease obligations on the Closing Date had they existed at
that time, shall for all purposes not be treated as Capitalized Lease Obligations or Indebtedness.
“Capitalized Software Expenditures” shall mean, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by the Borrower and the Restricted Subsidiaries during such period in respect of licensed or purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of the
Borrower and the Restricted Subsidiaries.
“Cash Collateralize” shall mean, to pledge and deposit with or deliver to the Administrative Agent, for the
benefit of one or more of the Issuing Banks or Lenders, as collateral for L/C Exposure or obligations of Lenders to
fund participations in respect of L/C Exposure, cash or deposit account balances (or, if the Administrative Agent and
each applicable Issuing Bank shall agree in their sole discretion, other credit support), in each case in an amount not
less than 103% (or 100%, in the case of Cash Collateralization required under Section 2.25(d)) of the face amount of
such L/C Exposure pursuant to documentation in form and substance reasonably satisfactory to the Administrative
Agent and each applicable Issuing Bank. “Cash Collateral” shall have a meaning correlative to the foregoing and
shall include the proceeds of such cash collateral and other credit support.
“Cash Dominion Period” shall mean (a) the period from the date Availability shall have been, for three (3)
consecutive Business Days, less than of the greater of (i) $31,250,000 and (ii) 12.5% of the lesser of (x) the Borrowing Base and (y) Total Revolving Credit Commitments to the date that Availability shall have been, for thirty
(30) consecutive calendar days, at least the greater of (i) $31,250,000 and (ii) 12.5% of the lesser of (x) the Borrowing Base and (y) Total Revolving Credit Commitments or (b) following the period of a Specified Event of Default,
for the period during which such Specified Event of Default shall be continuing.
“Cash Equivalents” shall mean any of the following types of Investments, to the extent owned by the Borrower or any Restricted Subsidiary:
(1)
U.S. Dollars or Canadian Dollars;
(2)
(a) Sterling, Euros or any national currency of any participating member state of the
EMU or (b) in the case of any Foreign Subsidiary that is a Restricted Subsidiary, such local currencies held
by it from time to time in the ordinary course of business;
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(3)
securities issued or directly and fully and unconditionally guaranteed or insured by the
United States or Canadian governments or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;
(4)
certificates of deposit, time deposits and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any domestic or foreign commercial bank having capital and
surplus of not less than $500,000,000 in the case of U.S. banks and $1,000,000,000 (or the Dollar equivalent as of the date of determination) in the case of non-U.S. banks;
(5)
repurchase obligations for underlying securities of the types described in clauses (3), (4)
and (8) entered into with any financial institution meeting the qualifications specified in clause (4) above;
(6)
commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case
maturing within 24 months after the date of creation thereof and Indebtedness or preferred stock issued by
Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 24
months or less from the date of acquisition;
(7)
marketable short-term money market and similar securities having a rating of at least P-2
or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency selected by the Borrower) and in each case maturing within 24 months after the date of creation or acquisition
thereof;
(8)
readily marketable direct obligations issued by any state, commonwealth or territory of
the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(9)
readily marketable direct obligations issued by any foreign government or any political
subdivision or public instrumentality thereof, in each case having an Investment Grade Rating from either
Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
(10)
Investments with average maturities of 12 months or less from the date of acquisition in
money market funds rated within the top three ratings category by S&P or Moody’s;
(11)
money market funds that (i) comply with the criteria set forth in Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AA by S&P and Aa2 by Moody’s and (iii) have portfolio assets of at least $500,000,000; and
(12)
investment funds investing 90% of their assets in securities of the types described in
clauses (1) through (11) above.
In the case of Investments by any Foreign Subsidiary that is a Restricted Subsidiary or Investments made in
a country outside the United States of America, Cash Equivalents shall also include (i) investments of the type and
maturity described in clauses (1) through (8) and clauses (10), (11) and (12) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies and (ii) other short-term investments utilized by Foreign Subsidiaries that
are Restricted Subsidiaries in accordance with normal investment practices for cash management in investments
analogous to the foregoing investments in clauses (1) through (12) and in this paragraph.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other
than those set forth in clauses (1) and (2) above, provided that such amounts are converted into any currency listed
in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of
such amounts. At any time at which the value, calculated in accordance with GAAP, of all investments of the Bor-
-7-
rower and its Restricted Subsidiaries that were deemed, when made, to be Cash Equivalents in accordance with
clauses (1) through (12) above exceeds the Indebtedness of the Borrower and its Restricted Subsidiaries, “Cash
Equivalents” shall also mean any investment (a “Qualifying Investment”) that satisfies the following two conditions: (a) the Qualifying Investment is of a type described in clauses (1) through (11) and the immediately preceding
paragraph of this definition, but has an effective maturity (whether by reason of final maturity, a put option or, in the
case of an asset-backed security, an average life) of five years and one month or less from the date of such Qualifying Investment (notwithstanding any provision contained in such clauses (1) through (11) or the immediately preceding paragraph requiring a shorter maturity); and (b) the weighted average effective maturity of such Qualifying
Investment and all other investments that were made as Qualifying Investments in accordance with this paragraph,
does not exceed two years from the date of such Qualifying Investment.
“Cash Management Obligations” shall mean obligations owed by the Borrower or any Restricted Subsidiary to any Agent, Lender or any Affiliate of an Agent or a Lender in respect of any overdraft and related liabilities
arising from treasury, depository and cash management services or any automated clearing house transfers of funds.
“Casualty Event” shall mean any event that gives rise to the receipt by the Borrower or any Restricted Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property
(including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“Cengage CV Loan” shall have the meaning assigned to such term in the definition of Indebtedness.
“Change in Law” shall mean (a) the adoption of any law, rule, regulation or treaty after the Closing Date,
(b) any change in law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental
Authority after the Closing Date or (c) compliance by any Lender (or, for purposes of 2.14(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any written request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date; provided, however, that notwithstanding anything herein to the contrary, (x) all requests, rules, guidelines or directives
under or issued in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act, all interpretations and applications thereof and any compliance by a Lender with any request or directive relating thereto and
(y) all requests, rules, guidelines or directives promulgated under or in connection with, all interpretations and applications of, or and any compliance by a Lender with any request or directive relating to International Settlements, the
Basel Committee on Banking Supervision (or any successor or similar authority) or the United States of America or
foreign regulatory authorities, in each case pursuant to Basel III, shall in each case under this clauses (x) and (y) be
deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” shall mean the earliest to occur of:
(a)
the Permitted Holders ceasing to have, on an aggregated basis the power, directly or indirectly, to vote or direct the voting of securities having a majority of the ordinary voting power for the election of directors of Parent; provided that the occurrence of the foregoing event shall not be deemed a
Change of Control if,
(i)
any time prior to the consummation of a Qualifying IPO, and for any reason
whatsoever, (A) the Permitted Holders otherwise have, on an aggregate basis, the right, directly or
indirectly, to designate (and do so designate) a majority of the board of directors of Parent at such
time or (B) the Permitted Holders own on an aggregate basis a majority of the outstanding voting
Equity Interests of Parent at such time; or
at any time upon or after the consummation of a Qualifying IPO, and for any reason whatsoever,
(A) no “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act), excluding the Permitted Holders, shall become the “beneficial owner” (as defined in Rules
13(d)-3 and 13(d)-5 under such Act), directly or indirectly, of more than the percentage of the then
outstanding voting stock of Parent owned, directly or indirectly, beneficially by the Permitted
Holders in the aggregate; or
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(b)
at any time prior to a Qualifying IPO of the Borrower, (i) Holdings ceasing to be a direct
Subsidiary of Parent under the Control of Parent (other than to the extent Holdings is merged into Parent or
the Borrower in a transaction permitted pursuant to Section 6.04) or (ii) the Borrower ceasing to be a direct
Subsidiary of (x) Holdings or Parent and under the Control thereof or (y) if any Intermediate Holding
Company is formed, the Intermediate Holding Company that is a direct parent of the Borrower.
“Chapter 11 Cases” shall have the meaning assigned to such term in the preliminary statements of this
Agreement.
“Charges” shall have the meaning assigned to such term in Section 9.10.
“Class,” when used in reference to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Credit Loans, Extended Revolving Credit Loans or Swingline Loans and
(b) when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment or Extended Revolving Credit Commitment.
“Closing Date” shall mean the first date on which all the conditions precedent in Section 4.01 are satisfied
(or waived pursuant to Section 9.09).
“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended from time to time, and rules and
regulations related thereto.
“Collateral” shall mean all the “Collateral” (or equivalent term) as defined in any Collateral Document and
shall also include the Mortgaged Properties.
“Collateral Agent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Collateral and Guarantee Requirement” shall mean, at any time, the requirement that:
(a)
the Collateral Agent shall have received each Collateral Document required to be delivered on the Closing Date pursuant hereto or pursuant to Section 5.11 or Section 5.13 after the Closing Date
at such time, duly executed by each Loan Party thereto;
(b)
all Obligations shall have been unconditionally guaranteed (the “Guarantees”) by Parent,
Holdings, any Intermediate Holding Company, each Restricted Subsidiary (other than the Borrower and
any Excluded Subsidiary) that is a wholly-owned Material Domestic Subsidiary including those that are
listed on Schedule 1 hereto (each, a “Guarantor”);
(c)
[reserved];
(d)
the Obligations and the Guarantees shall have been secured by a second-priority security
interest in (i) all the Equity Interests of the Borrower held by Holdings, the Parent or any Intermediate
Holding Company, (ii) all Equity Interests (other than (x) Equity Interests of Unrestricted Subsidiaries and
and Equity Interests of any Restricted Subsidiary pledged to secure Indebtedness permitted under Section
6.03(q) to the extent and for so long as (i) the terms of any contractual obligation governing such Indebtedness prohibits the creation of any other Lien on such Equity Interests and (ii) a Lien thereon shall not have
been granted in favor of the Term Facility Administrative Agent and (y) Equity Interests of any joint venture or other non-wholly-owned Subsidiary of Parent, Holdings, any Intermediate Holdings Company, the
Borrower or any Guarantor if and for so long as the terms of any Organizational Document or equity holders’ agreement of such Subsidiary prohibits the creation of any Lien on such Equity Interests (in each case,
after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law and other than proceeds and receivables thereof, the assignment of which is expressly deemed effected under the
UCC or other applicable law notwithstanding such prohibition) (collectively, the “Excluded Equity”)) of
each wholly-owned Domestic Subsidiary of Parent, Holdings, any Intermediate Holding Company, the
Borrower or any Guarantor that is a direct Subsidiary of Holdings, any Intermediate Holding Company, the
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Borrower or any Guarantor and (iii) 65% of the issued and outstanding Equity Interests of each whollyowned Material Foreign Subsidiary that is directly owned by the Borrower, or any Domestic Subsidiary of
the Borrower that is a Guarantor;
(e)
except to the extent otherwise provided hereunder or under any Collateral Document, the
Obligations and the Guarantees shall have been secured by a perfected security interest in, and mortgages
on (subject to the last paragraph of this definition), substantially all tangible and intangible assets of Holdings, the Borrower and each other Guarantor (including accounts receivable), inventory, equipment, investment property, intercompany notes, intellectual property, other general intangibles, owned (but not
leased) real property and proceeds of the foregoing), in each case, with the priority required by the Loan
Documents; provided that security interests in real property shall be limited to the Mortgaged Properties;
(f)
6.01; and
none of the Collateral shall be subject to any Liens other than Liens permitted by Section
(g)
the Collateral Agent shall have received (i) counterparts of a Mortgage with respect to
each Material Real Property (each a “Mortgaged Property,” and collectively, the “Mortgaged Properties”)
duly executed and delivered by the record owner of such property, (ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or the equivalent or other form available in
each applicable jurisdiction (the “Mortgage Policies”) insuring the Lien of each such Mortgage as a valid
Lien on the property described therein, free of any other Liens except as expressly permitted by Section
6.01, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request, (iii) a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Loan Party relating thereto),
(iv) a copy of, or a certificate as to coverage under, and a declaration page relating to, the insurance policies
required by Section 5.07 (including, without limitation, flood insurance policies) and the applicable provisions of the Collateral Documents, each of which (1) shall be endorsed or otherwise amended to include a
“standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable), (2) shall name
the Collateral Agent, on behalf of the Secured Parties, as additional insured, (3) in the case of flood insurance, shall (a) identify the addresses of each property located in a special flood hazard area, (b) indicate the
applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (c)
provide that the insurer will give the Collateral Agent 45 days written notice of cancellation or non-renewal
and (4) shall be otherwise in form and substance satisfactory to the Collateral Agent, and (v) such existing
surveys (provided that, if any such existing survey along with an affidavit of no change is not sufficient to
induce the title company issuing the applicable Mortgage Policy to issue the so-called comprehensive and
other survey-related endorsements and to remove the standard survey exceptions from such Mortgage Policy, then a new survey prepared in accordance with the 2011 Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys will be required), existing abstracts, existing appraisals, legal opinions
and other documents as the Collateral Agent may reasonably request with respect to any such Mortgaged
Property.
The foregoing definition shall not require the creation or perfection of pledges of or security interests in, or
the obtaining of title insurance or surveys with respect to, particular assets if and for so long as the Administrative
Agent and the Borrower agree the cost of creating or perfecting such pledges or security interests in such assets or
obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained
by the Lenders therefrom.
The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date
for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines,
in consultation with the Borrower, that perfection cannot be accomplished without undue effort or expense by the
time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other
Loan Document to the contrary, (a) with respect to leases of real property entered into by any Loan Party, such Loan
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Party shall not be required to take any action with respect to creation or perfection of security interests with respect
to such leases, (b) Liens required to be granted from time to time pursuant to the Collateral and Guarantee Requirement shall be subject to exceptions and limitations set forth in the Collateral Documents and, to the extent appropriate in the applicable jurisdiction, as agreed between the Administrative Agent and the Borrower and (c) the Collateral and Guarantee Requirement shall not apply to any of the following assets: (i) any fee-owned real property that
is not a Material Real Property and any leasehold interests in real property (including landlord waivers other than to
the extent required to comply with Borrowing Base requirements; provided that a failure to provide a landlord waiver shall result in the creation of a Rent Reserve and not an Event of Default), (ii) except to the extent a security interest thereon can be perfected by filing of a UCC financing statement, motor vehicles and other assets subject to
certificates of title, letter of credit rights and commercial tort claims less than $10,000,000, (iii) assets for which a
pledge thereof or a security interest therein (y) is prohibited by applicable Laws or which would require governmental (including regulatory) consent, approval, license or authorization to provide such security interest unless such
consent, approval, license or authorization has been received or (z) would, in the case of intellectual property, result
in the invalidation or cancellation thereof (including, without limitation, all U.S. trademark applications filed on an
“intent to use” basis prior to the filing and acceptance by the United States Patent and Trademark Office of a verified statement of use or an amendment to allege use with respect thereto), (iv) any lease, license or other agreements
or any property subject to a purchase money security interest, Capitalized Lease Obligations or any similar arrangement permitted hereunder to the extent that a pledge thereof or a security interest therein would violate or invalidate
such lease, license or agreement, purchase money financing arrangement, Capitalized Lease Obligations or similar
arrangement or create a right of termination in favor of, or require the consent of, any other party thereto (other than
the Borrower or a Guarantor) after giving effect to the applicable anti-assignment clauses of the Uniform Commercial Code, other than the proceeds and receivables thereof, the assignment of which is expressly deemed effective
under the Uniform Commercial Code notwithstanding such prohibition, (v) cash and Cash Equivalents that constitute cash collateral pledged to support Pre-Petition Letters of Credit but only so long as such cash or Cash Equivalents constitute cash collateral thereunder and (vi) “margin stock” as defined in Regulation U and the Excluded Equity (the assets set forth in this clause (c) being, the “Excluded Assets”; provided, however, that Excluded Assets
shall not include any Proceeds of the foregoing, substitutions or replacements of any Excluded Assets referred to in
clause (i) through (v) (unless such Proceeds, substitutions or replacements would independently constitute Excluded
Assets referred to in clauses (i) through (v)).
Notwithstanding anything to the contrary, the Borrower and the Guarantors shall not be required, nor shall
the Administrative Agent be authorized, (i) to perfect security interests and mortgages by any means other than
through (A) filings pursuant to the Uniform Commercial Code in the office of the secretary of state (or similar central filing office) of the relevant State(s) and filings in the applicable real estate records with respect to mortgaged
properties or any fixtures relating to mortgaged properties, (B) filings with the United States Patent and Trademark
Office or United States Copyright Office, (C) Mortgages in Material Real Property, (D) delivery to the Administrative Agent to be held in its possession of all Collateral consisting of intercompany notes, instruments or stock certificates of the Borrowers and the Subsidiaries, (E) control agreements in respect of deposit accounts and securities
accounts as provided in Section 5.15 or to the extent required to comply with Borrowing Base requirements and (F)
necessary perfection steps with respect to commercial tort claims or letters of credit in excess of $10,000,000 or (ii)
to take any action (other than the actions listed in clause (i)(A), (D) and (F) above) with respect to any assets of the
Borrower or any Guarantor located outside of the United States (it being understood that there shall be no security
agreements or pledge agreements governed under the laws of any jurisdiction other than the United States) (collectively, the “Excluded Actions”).
“Collateral Documents” shall mean, collectively, the Security Agreement, the Intellectual Property Security Agreement, the Mortgages, each of the mortgages, collateral assignments, Security Agreement Supplements, Intellectual Property Security Agreement Supplements, security agreements, pledge agreements or other similar
agreements delivered to the Collateral Agent and the Lenders pursuant to Section 4.01(a), Section 5.11 or 5.13, the
Guaranty and each of the other agreements, instruments or documents that creates or purports to create a Lien or
Guarantee in favor of the Collateral Agent for the benefit of the Secured Parties.
“Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit Commitment and
Extended Revolving Credit Commitment.
“Communications” shall have the meaning assigned to such term in Section 9.01(b).
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“Compliance Certificate” shall have the meaning assigned to such term in Section 5.01(d).
“Consolidated Cash Interest Expense” shall mean “Consolidated Interest Expense,” calculated excluding
(i) any non-cash interest or deferred financing costs, (ii) any amortization or write-down of deferred financing fees,
debt issuance costs including original issue discount, discounted liabilities, commissions, fees and expenses, (iii) any
expensing of commitment and other financing fees, (iv) penalties and interest related to Taxes, but including any
cash costs otherwise excluded by the definition thereof and (v) any capitalized interest or payment in kind interest.
“Consolidated EBITDA” shall mean with respect to Borrower and the Restricted Subsidiaries on a consolidated basis for any period, the Consolidated Net Income of the Borrower and its Restricted Subsidiaries for such
period plus (a) the sum of the following subclauses (i) through (xvii) (in each case without duplication and to the
extent the respective amounts described in subclauses (i) through (xv) (other than (xii) of this clause (a) reduced
such Consolidated Net Income (and were not excluded therefrom) for the respective period for which Consolidated
EBITDA is being determined):
(i)
provision for Taxes based on income, profits or capital of the Borrower and its Restricted
Subsidiaries for such period, including, without limitation, state, franchise and similar taxes and foreign
withholding taxes (including penalties and interest related to taxes or arising from tax examinations),
(ii)
Consolidated Interest Expense (and to the extent not included in Consolidated Interest
Expense, (x) cash dividend payments (excluding items eliminated in consolidation) on any series of disqualified stock, (y) bank fees and (z) costs of surety bonds in connection with financing activities) of the
Borrower and its Restricted Subsidiaries for such period,
(iii)
depreciation and amortization expenses of the Borrower and its Restricted Subsidiaries
for such period including the amortization of intangible assets, deferred financing fees and Capitalized
Software Expenditures and amortization of unrecognized prior service costs and actuarial gains and losses
related to pensions and other post-employment benefits,
(iv)
business optimization expenses and other restructuring charges or reserves (which, for the
avoidance of doubt, shall include the effect of inventory optimization programs, any one-time costs incurred in connection with acquisitions, facility closure, facility consolidations, retention, severance, systems establishment costs, contract termination costs, future lease commitments and excess pension charges); provided, that, the aggregate amount of such business optimization expenses and other restructuring
charges or reserves added back to Consolidated EBITDA shall not exceed, together with any add-backs
pursuant to clauses (viii) (other than with respect to the Chapter 11 Cases (and costs and expenses associated with the emergence therefrom)), (xi) and (xii), 20% of Consolidated EBITDA for the most recently ended Testing Period,
(v)
any other non-cash charges; provided, that for purposes of this subclause (v) of this
clause (a), any non-cash charges or losses shall be treated as cash charges or losses in any subsequent period during which cash disbursements attributable thereto are made (but excluding, for the avoidance of
doubt, amortization of a prepaid cash item that was paid in a prior period),
(vi)
the amount of any minority interest expense consisting of Subsidiary income attributable
to minority equity interests of third parties in any non-wholly owned Subsidiary,
(vii)
any net loss from disposed or discontinued operations,
(viii)
any expenses, costs or charges (other than depreciation or amortization expense as described in the preceding clause (iii)) related to any issuance of Equity Interests (including, without limitation, any such expenses, costs or charges associated with an initial public offering), Investment, acquisition,
New Project, Disposition, recapitalization or the incurrence, modification or repayment of permitted Indebtedness (including a refinancing thereof) (whether or not successful), the Chapter 11 Cases (and costs
and expenses associated with the emergence therefrom), the Plan of Reorganization, including (x) such
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fees, expenses or charges related to the Transactions, the Term Loan Agreement and any other Indebtedness and (y) any amendment or other modification of the obligations hereunder or other Indebtedness; provided, that, the aggregate amount of such expenses, costs or charges added back to Consolidated EBITDA
(other than with respect to the Chapter 11 Cases (and costs and expenses associated with the emergence
therefrom)), together with the add-backs pursuant to clauses (iv), (xi) and xii), shall not exceed 20% of
Consolidated EBITDA for the most recently ended Testing Period,
(ix)
[reserved],
(x)
any costs or expense incurred pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement,
(xi)
the amount of any loss attributable to a New Project, until the date that is 12 months after
the date of completing the construction, acquisition, assembling or creation of such New Project, as the
case may be; provided, that (A) such losses are reasonably identifiable and factually supportable and certified by a Responsible Officer of the Borrower and (B) losses attributable to such New Project after 12
months from the date of completing such construction, acquisition, assembling or creation, as the case may
be, shall not be included in this clause (xi); provided, that, the aggregate amount of such losses added back
to Consolidated EBITDA, together with any add-backs pursuant to clauses (iv), (viii) (other than with respect to the Chapter 11 Cases (and costs and expenses associated with the emergence therefrom)) and (xii)
shall not exceed 20% of Consolidated EBITDA for the most recently ended Testing Period,
(xii)
the amount of “run-rate” cost savings projected by the Borrower in good faith to result
from actions either taken or expected to be taken within 18 months of such actions (which cost savings
shall be calculated on a pro forma basis as though such cost savings had been realized on the first day of
such period), net of the amount of actual benefits realized from such actions; provided, that (A) such cost
savings are reasonably identifiable and factually supportable and (B) no cost savings shall be added pursuant to this clause (x) to the extent duplicative of any expenses or charges relating to such cost savings that
are included in clause (v) above with respect to such period (it being understood and agreed that “run-rate”
means the full recurring benefit that is associated with any action taken or expected to be taken); provided,
that, the aggregate amount of such “run-rate” cost savings added back to Consolidated EBITDA, together
with any add-backs pursuant to clauses (iv), (viii) (other than with respect to the Chapter 11 Cases (and
costs and expenses associated with the emergence therefrom)) and (xi) shall not exceed 20% of Consolidated EBITDA for the most recently ended Testing Period,
(xiii)
one-time costs associated with commencing the compliance with (including the preparation thereof) the rules and regulations of a reporting company following an initial public offering,
(xiv)
cash receipts (or any netting arrangements resulting in reduced cash expenditures) not
representing Consolidated EBITDA or Consolidated Net Income in any period to the extent non-cash gains
relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph
(b) below for any previous period and not added back, and
(xv)
non-recurring litigation or claim settlement charges or expenses associated with the Plan
of Reorganization, the Chapter 11 Cases or otherwise (including the resolution of retained claims);
minus (b) the sum of (without duplication and to the extent the amounts described in this clause (b) increased such
Consolidated Net Income for the respective period for which Consolidated EBITDA is being determined) non-cash
items increasing Consolidated Net Income of the Borrower and the Subsidiaries for such period (but excluding any
such items (A) in respect of which cash was received in a prior period or will be received in a future period or (B)
which represent the reversal of any accrual of, or cash reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period).
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Consolidated EBITDA shall be calculated during any period so as to exclude (without duplication of the
other adjustments set forth in the definition of Consolidated EBITDA) any re-evaluation of any assets or liabilities
due to “fresh-start” accounting adjustments resulting from the Borrower’s emergence from the Chapter 11 Cases.
In addition, notwithstanding the foregoing, for purposes of calculating EBITDA for any relevant period (A)
accrued expenditures in respect of prepublication costs in the relevant period shall be deducted from EBITDA and
(B) amortization of prepublication costs for the relevant period shall be added to EBITDA.
Notwithstanding anything to the contrary contained herein and subject to adjustments permitted hereunder
with respect to acquisitions, Dispositions and other transactions occurring following the Closing Date and/or pursuant to the definition of “Pro Forma Basis”, for purposes of determining Consolidated EBITDA for March 31, 2013,
June 30, 2013, September 30, 2013 and December 31, 2013, Consolidated EBITDA shall be deemed to be
$66,200,000, $50,200,000, $276,200,000 and $121,700,000, respectively.
“Consolidated Interest Expense” shall mean for the Borrower and the Restricted Subsidiaries on a consolidated basis for any period, the sum of (a) gross interest expense of such person for such period on a consolidated
basis, including (i) the amortization of debt discounts, (ii) the amortization of all fees (including fees with respect to
hedging agreements) payable in connection with the incurrence of Indebtedness to the extent included in interest
expense, (iii) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement
in the mark to market valuation of obligations under any Hedging Agreements or other derivative instruments pursuant to GAAP) and (iv) the portion of any payments or accruals with respect to Capitalized Lease Obligations allocable to interest expense and (b) capitalized interest of such person. For purposes of the foregoing, gross interest
expense shall be determined after giving effect to any net payments made or received and costs incurred by the Borrower and the Restricted Subsidiaries with respect to Hedging Agreements, and interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP.
“Consolidated Lease Expense” shall mean, for any period, all rental expenses (excluding real estate taxes,
insurance costs and common area maintenance charges and net of sublease income) of the Borrower and the Restricted Subsidiaries during such period under operating leases for real or personal property (including in connection
with Permitted Sale Leasebacks) other than (a) obligations under vehicle leases entered into in the ordinary course of
business, (b) all such rental expenses associated with assets acquired pursuant to a Permitted Acquisition to the extent such rental expenses relate to operating leases in effect at the time of (and immediately prior to) such acquisition
and related to periods prior to such acquisition and (c) all obligations under Capitalized Lease Obligations, all as
determined on a consolidated basis in accordance with GAAP.
“Consolidated Net Income” shall mean, for the Borrower and the Restricted Subsidiaries for any period,
the aggregate of the Net Income (determined in accordance with GAAP and before any reduction in respect of preferred stock dividends) of such person and its Subsidiaries for such period, on a consolidated basis; provided, however, that, without duplication,
(a)
any net after-tax extraordinary, nonrecurring or unusual gains or losses or income or expense or charge (less all fees and expenses relating thereto), including any severance, relocation or other restructuring expenses, any expenses related to any New Project or any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, fees, expenses or charges relating to
facilities closing costs, curtailments or modifications to pension and post-retirement employee benefit
plans, excess pension charges, acquisition integration costs, facilities opening costs, signing, retention or
completion bonuses, and expenses or charges related to any offering of equity interests or debt securities of
the Borrower, Parent (or any direct or indirect parent entity thereof, including, without limitation, any such
expenses or charges associated with an initial public offering), any Investment, acquisition, Disposition, recapitalization or issuance, repayment, refinancing, amendment or modification of Indebtedness (in each
case, whether or not successful), and any fees, expenses or charges relating to the Transactions (including
any costs relating to auditing prior periods, any transition-related expenses, and Transaction-related expenses incurred before, on or after the Closing Date), in each case, shall be excluded,
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(b)
any net after-tax income or loss from Disposed of, abandoned, closed or discontinued operations or fixed assets and any net after-tax gain or loss on the Dispositions of Disposed of, abandoned,
closed or discontinued operations or fixed assets shall be excluded,
(c)
any net after-tax gain or loss (less all fees and expenses or charges relating thereto) attributable to business Dispositions or asset Dispositions other than in the ordinary course of business (as
determined in good faith by the management of the Borrower) shall be excluded,
(d)
any net after-tax income or loss (less all fees and expenses or charges relating thereto) attributable to the early extinguishment of Indebtedness, Hedging Agreements or other derivative instruments
shall be excluded,
(e)
the Net Income for such period of any person that is not a Subsidiary of such Person, or is
an Unrestricted Subsidiary, or that is accounted for by the equity method of accounting, shall be included
only to the extent of the amount of dividends or distributions or other payments paid in cash (or to the extent converted into cash) to the referent Person or a Subsidiary thereof (other than an Unrestricted Subsidiary of such referent Person) in respect of such period,
(f)
the cumulative effect of a change in accounting principles during such period shall be ex-
cluded,
(g)
effects, of purchase accounting adjustments (including the effects of such adjustments
pushed down to such person and its subsidiaries) in component amounts required or permitted by GAAP,
resulting from the application of purchase accounting or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,
(h)
any impairment charges or asset write-offs, in each case pursuant to GAAP, and the
amortization of intangibles and other fair value adjustments arising pursuant to GAAP, shall be excluded,
(i)
any non-cash compensation charge or expenses realized or resulting from stock option
plans, employee benefit plans or post-employment benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights shall be excluded,
(j)
accruals and reserves that are established or adjusted within twelve months after the Closing Date and that are so required to be established or adjusted in accordance with GAAP or as a result of
adoption or modification of accounting policies shall be excluded,
(k)
non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP and related interpretation shall be excluded,
(l)
any non-cash charges for deferred tax asset valuation allowances shall be excluded,
(m)
any currency translation gains and losses related to currency remeasurements of Indebtedness, and any net loss or gain resulting from Hedging Agreements for currency exchange risk, shall be
excluded,
(n)
(i) the Net Income of any Person and its Subsidiaries shall be calculated without deducting the income attributable to, or adding the losses attributable to, the minority equity interests of third parties in any non-wholly owned Subsidiary except to the extent of dividends declared or paid in respect of
such period or any prior period on the shares of Equity Interests of such Subsidiary held by such third parties and (ii) any ordinary course dividend, distribution or other payment paid in cash and received from any
Person in excess of amounts included in clause (e) above shall be included,
(o)
(i) to the extent covered by insurance and actually reimbursed, or, so long as such person
has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed
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by the insurer and only to the extent that such amount is (x) not denied by the applicable carrier in writing
within 180 days and (y) in fact reimbursed within 365 days following the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within such 365 days), expenses with
respect to liability or Casualty Events or business interruption shall be excluded; and (ii) amounts estimated
in good faith to be received from insurance in respect of lost revenues or earnings in respect of liability or
Casualty Events or business interruption shall be included (with a deduction for amounts actually received
up to such estimated amount to the extent included in Net Income in a future period),
(p)
(i) revenues received in cash during the relevant period in advance of sales, for which
recognition has been deferred under GAAP, shall be included in the relevant period and (ii) the amount of
deferred revenues recognized under GAAP during the relevant period shall be excluded to the extent such
revenues were recognized in a prior period, in each case estimated on a good faith basis, and
(q)
without duplication, an amount equal to the amount of distributions actually made to any
parent or equity holder of such person in respect of such period for the payment of various taxes as though
such amounts had been paid as income taxes directly by such person for such period.
“Contract” shall mean any agreement or invoice pursuant to, or under which, an Obligor shall be obligated
to make payments with respect to any Account.
“Contractual Obligation” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its
property is bound.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management or policies of a Person, whether through ability to exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” shall have meanings correlative thereto.
“Copyrights” shall have the meaning assigned to such term in the Security Agreement.
“Credit Card Issuer” shall mean any Person (other than the Borrower or a Subsidiary Guarantor) who issues or whose members issue credit cards or debit cards, including, without limitation, American Express, MasterCard or VISA bank credit or debit cards or other bank credit or debit cards issued through MasterCard International,
Inc., Visa, U.S.A., Inc. or Visa International and American Express, Discover, Diners Club, Carte Blanche and other
non-bank credit or debit cards, including, without limitation, credit or debit cards issued by or through American
Express Travel Related Services Company, Inc. or Discover Financial Services, Inc.
“Credit Card Processor” shall mean any servicing or processing agent or any factor or financial intermediary who facilitates, services, processes or manages the credit authorization, billing transfer and/or payment procedures with respect to the Borrower’s or a Subsidiary Guarantor’s sales transactions involving credit card or debit
card purchases by customers using credit cards or debit cards issued by any Credit Card Issuer.
“Credit Card Receivables” shall mean each right to payment, whether or not it constitutes a “payment intangible” or an “Account” (as defined in the UCC) together with all income, payments and proceeds thereof, owed
by a Credit Card Issuer or by a Credit Card Processor to the Borrower or a Subsidiary Guarantor resulting from purchases by a customer of the Borrower or a Subsidiary Guarantor using credit or debit cards issued by such Credit
Card Issuer in connection with the sale of goods by the Borrower or a Subsidiary Guarantor, or services performed
by the Borrower or a Subsidiary Guarantor, in each case in the ordinary course of its business.
“Credit Event” shall have the meaning assigned to such term in Section 4.02.
“Credit Facilities” shall mean the revolving credit, swingline and letter of credit facilities provided for by
this Agreement.
“Cure Notice” shall have the meaning assigned to such term in Section 6.11(b).
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“Cure Period” shall have the meaning assigned to such term in Section 6.11(b).
“Data Maintenance Reserve” shall mean the aggregate amount of all expected costs to run the data sites
necessary to fulfill the needs of electronic media for one year from the date hereof, as reasonably determined by the
Administrative Agent.
“Debtor” shall have the meaning assigned to such term in the preliminary statements of this Agreement.
“Debtor Relief Laws” shall mean the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time
to time in effect and affecting the rights of creditors generally.
“Default” shall mean any Event of Default or any event or condition which upon notice, lapse of time or
both would constitute an Event of Default.
“Default Rate” means an interest rate equal to (a) in the case of overdue Loans, the Alternate Base Rate
plus (i) the Applicable Percentage applicable to such ABR Loans plus (ii) 2.0% per annum (provided that with respect to a Eurocurrency Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Percentage) otherwise applicable to such Loan plus 2.0% per annum) and (b) in the case of all other overdue amounts, the Alternate Base Rate plus (i) the Applicable Percentage applicable to ABR Loans plus (ii) 2.0%, in
each case, to the fullest extent permitted by applicable Laws.
“Defaulting Lender” shall mean, subject to Section 2.25(b), any Lender that (a) has failed to (i) fund all or
any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such
Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay
to the Administrative Agent, any Issuing Bank, any Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans)
within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or any Issuing Bank or Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or
has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written
request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative
Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a
proceeding under any Bankruptcy Law, 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 (subject to Section 2.25(b)) upon delivery of
written notice of such determination to the Borrower, each Issuing Bank, each Swingline Lender and each Lender.
“Designated Amount” shall have the meaning assigned to such term in Section 8.11(a).
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“Designated Non-Cash Consideration” shall mean the fair market value of non-cash consideration received by the Borrower or a Restricted Subsidiary in connection with a Disposition pursuant to Section 6.05(j) that
is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower setting forth the basis of such valuation less the amount of cash or Cash Equivalents received in connection
with a subsequent disposition of such Designated Non-Cash Consideration.
“Designated Pari Passu Amount” shall have the meaning assigned to such term in Section 8.11(a).
“Dilution Ratio” shall mean, the percent equal to (a) bad debt write-downs or write-offs, discounts, returns,
promotions, credits, credit memos and other dilutive items with respect to Eligible Receivables calculated on a
monthly basis for the twelve most recently ended fiscal months divided by (b) gross sales, determined based on information contained in the most recent field examination (or, in the Permitted Discretion of the Administrative
Agent, based on updated information provided to the Administrative Agent by the Borrower) calculated on a monthly basis for the twelve most recently ended fiscal months.
“Dilution Reserve” shall mean an amount equal to the amount of Eligible Receivables under any Facility,
multiplied by the percentage by which the Dilution Ratio exceeds 20%.
“Disclosure Statement” shall mean that certain Disclosure Statement approved by the Bankruptcy Court on
November 25, 2013 as supplemented pursuant to the Supplemental Disclosure Statement approved by the Bankruptcy Court on February 12, 2014.
“Disposition” or “Dispose” shall mean the sale, transfer, license, lease or other disposition (including any
Sale Leaseback and any sale of Equity Interests) of any property by any Person, including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith; provided that “Disposition” and “Dispose” shall not be deemed to include any issuance by Parent of any of its Equity Interests to another Person.
“Disqualified Equity Interests” shall mean any Equity Interest which, by its terms (or by the terms of any
security or other Equity Interests into which it is convertible or for which it is exchangeable), or upon the happening
of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Equity Interests),
pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as
any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the
prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the
Commitments and all outstanding Letters of Credit), (b) is redeemable at the option of the holder thereof (other than
solely for Qualified Equity Interests), in whole or in part, (c) provides for the scheduled payments of dividends in
cash, or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interests that would
constitute Disqualified Equity Interests, in each case, prior to the date that is ninety-one (91) days after the Maturity
Date of all then outstanding Loans.
“Disregarded Entity” shall mean any Domestic Subsidiary that is disregarded for U.S. federal income tax
purposes.
“Disqualified Lender” shall mean (a) any financial institutions and entities identified by the Borrower to
the Arrangers by name in writing on or prior to February 19, 2014 and (b) any competitors of the Borrower or affiliates of such competitors identified by the Borrower by name in writing from time to time but excluding (in the case
of clause (b)) bona fide debt funds.
“Domestic Subsidiary” shall mean any Subsidiary incorporated or organized under the laws of the United
States of America, any State thereof or the District of Columbia.
“Eligible Assignee” shall mean any commercial bank, insurance company, investment or mutual fund, financial institution or other entity that is an “accredited investor” (as defined in Regulation D under the Securities
Act of 1933, as amended) that extends credit or invests in bank loans in the ordinary course; provided that no natural
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person, nor the Borrower nor any of its Affiliates and no Disqualified Lender shall be an Eligible Assignee. It is
understood and agreed that as of the Closing Date, certain Affiliates of the Borrower constitute Lenders hereunder.
“Eligible Cash Amounts” shall mean, as of any date of determination, the aggregate amount of Unrestricted Domestic Cash and Cash Equivalents (which Unrestricted Domestic Cash and Cash Equivalents shall not be subject to any Liens other than Liens securing the Obligations and, the Obligations pursuant to the Term Loan Agreement (or Permitted Refinancings thereof, or Designated Refinancing Debt (as defined in the Term Loan Agreement)
in respect thereof) subject to the Term Loan/Revolving Facility Intercreditor Agreement) of the Borrower held in
Qualified Accounts on such date, calculated as of the open of business on such date (or if such date is not a Business
Day, as of the open of business on the most recent Business Day preceding such date).
“Eligible Credit Card Receivables” shall mean at the time of any determination thereof, each Credit Card
Receivable that satisfies the following criteria at the time of creation and continues to meet the same at the time of
such determination: such Credit Card Receivable is not ineligible for inclusion in the calculation of the Borrowing
Base pursuant to any of clauses (a) through (k) below. Without limiting the foregoing, to qualify as an Eligible
Credit Card Receivable, an Account shall indicate no Person other than the Borrower or a Subsidiary Guarantor as
payee or remittance party. Any Credit Card Receivable included within any of the following categories shall not
constitute an Eligible Credit Card Receivable but only as long as such Credit Card Receivable falls within any of the
following categories:
(a)
Credit Card Receivables which do not constitute an “Account” or a “payment intangible”
(as defined in the UCC);
(b)
Credit Card Receivables that have been outstanding for more than five (5) Business Days
from the date of sale;
(c)
Credit Card Receivables (i) that are not subject to a perfected first-priority security interest in favor of the Collateral Agent (it being the intent that chargebacks in the ordinary course by Credit
Card Processors or Credit Card Issuers shall not be deemed violative of this clause) (other than Permitted
Encumbrances not having priority over the Lien of the Collateral Agent), or (ii) with respect to which the
Borrower or a Subsidiary Guarantor does not have good and valid title thereto, free and clear of any Lien
(other than Liens granted to the Collateral Agent pursuant to the Collateral Documents and Permitted Encumbrances not having priority over the Lien of the Collateral Agent);
(d)
Credit Card Receivables which are disputed, are with recourse, or with respect to which a
claim, counterclaim, offset or chargeback (other than offset of fees and chargebacks of the applicable Credit Card Processor or Credit Card Issuer in the ordinary course (or as a result of changes in the policies of the
applicable Credit Card Processor applicable to its customers generally) has been asserted (to the extent of
such disputed amount, claim, counterclaim, offset or chargeback);
(e)
Credit Card Receivables as to which the Credit Card Processor has the right under certain
circumstances existing as of any date of determination to require the Borrower or a Subsidiary Guarantor,
as applicable, to repurchase the Accounts from such Credit Card Processor;
(f)
Credit Card Receivables due from a Credit Card Processor or Credit Card Issuer of the
applicable credit card which is the subject of any bankruptcy or insolvency proceedings;
(g)
Credit Card Receivables which are not a valid, legally enforceable obligation of the applicable Credit Card Issuer;
(h)
[reserved];
(i)
Credit Card Receivables which the Administrative Agent determines in its Permitted Discretion to be uncertain of collection due to the creditworthiness of the applicable Credit Card Issuer or
Credit Card Processor; or
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(j)
Credit Card Receivables which are subject to any receivables financing facility or securitization arrangement.
If any Account at any time ceases to be an Eligible Credit Card Receivable, then such Account shall
promptly be excluded from the calculation of the Borrowing Base until such time as such Account constitutes an
Eligible Credit Card Receivable.
The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to
adjust any of the exclusionary criteria set forth above and to establish new criteria that would have the effect of making more credit available to the Borrower than would have been available prior thereto based upon the criteria in
effect on the Closing Date, subject to the approval of Supermajority Lenders.
In the case of any past due Accounts of any Obligor, the Administrative Agent may in its Permitted Discretion make adjustments to such Accounts to reflect any credit balance of the Accounts of such Obligor (but not any
other Obligor).
“Eligible Inventory” shall mean all Inventory of the Borrower and Subsidiary Guarantors, except any Inventory with respect to which any of the exclusionary criteria set forth below applies (unless the Administrative
Agent in its sole discretion elects to include such Inventory). No Inventory shall be Eligible Inventory if it is:
(a)
Inventory to which the Borrower or a Subsidiary Guarantor does not have good, valid and
unencumbered title, subject to no Liens other than Liens granted to the Collateral Agent under the Loan
Documents, Liens granted under the Term Loan Agreement Documentation, Liens that are subject to the
Intercreditor Agreements and Permitted Encumbrances;
(b)
Inventory that is not finished goods, raw materials or work in process or that consists of
packaging or shipping materials, labels, samples, display items, bags, replacement parts or manufacturing
supplies;
(c)
Inventory held on consignment or subject to any deposit or downpayment, unless the Collateral Agent has received an appropriate Lien Waiver or collateral access agreement in form and substance
reasonably satisfactory to the Administrative Agent;
(d)
Inventory that is not in saleable condition or that is obsolete, nonconforming, unmerchantable, slow-moving, unusable, defective, damaged, shopworn or otherwise unfit for sale, or identified
as a write-off, overstock or excess by the Borrower or a Subsidiary Guarantor (as determined in the ordinary course of business);
(e)
Inventory that is subject to a recall or is otherwise being held for quality control purpos-
es;
(f)
Inventory that does not meet all standards imposed by any Governmental Authority or
that constitutes hazardous materials under any Environmental Law;
(g)
[reserved];
(h)
Inventory that is not subject to the Collateral Agent’s duly perfected, first priority Lien;
(i)
Inventory that is not within the United States, or that is in transit except between locations of the Borrower and the Subsidiary Guarantors;
(j)
Inventory that is subject to any warehouse receipt or negotiable Document;
(k)
after the Closing Date, any new Inventory for which field audits and appraisals have not
been completed by the Administrative Agent or a qualified independent appraiser reasonably acceptable to
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the Administrative Agent utilizing procedures and criteria reasonably acceptable to the Administrative
Agent for determining the value of such Inventory;
(l)
Inventory to the extent any value thereof is attributable to intercompany profit among the
Borrower and Subsidiary Guarantors or their Affiliates;
(m)
Inventory that is subject to any license or other arrangement that restricts the Borrower or
Subsidiary Guarantor’s, as applicable, or the Collateral Agent’s right to dispose of such Inventory, unless
the Collateral Agent has received an appropriate Lien Waiver or evidence that the applicable royalties have
been duly paid;
(n)
Inventory that is located at third party premises or a location not owned by the Borrower
or a Subsidiary Guarantor, and is subject to landlord’s or warehousemen’s Liens or other Liens arising by
operation of law, unless the premises or location are covered by a Lien Waiver or an appropriate Rent Reserve (and a Reserve in respect of offset or counterclaim) has been established; or
(o)
Inventory that is located at third party premises, the amount of which does not exceed
$100,000 at any one location.
If any Inventory at any time ceases to be Eligible Inventory, such Inventory shall promptly be excluded
from the calculation of the Borrowing Base until such time as such Inventory constitutes Eligible Inventory.
The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to
adjust any of the exclusionary criteria set forth above and to establish new criteria that would have the effect of making more credit available to the Borrower than would have been available prior thereto based upon the criteria in
effect on the Closing Date, subject to the approval of Supermajority Lenders.
“Eligible Receivable” shall mean, as of any date of determination, an Account (other than a Credit Card
Receivable) owned by the Borrower or a Subsidiary Guarantor:
(a)
(i) that is due and payable within 90 days of the Billing Date thereof and (ii) with respect
to which no payment or part thereof remains unpaid for more than 60 days after its original Receivable Maturity Date or more than 150 days after its Billing Date;
(b)
that is not a liability of an Obligor with respect to which more than 50% of the aggregate
outstanding balance of all Accounts owing by such Obligor are not Eligible Receivables due to the criteria
set forth in paragraph (a) above;
(c)
that is not a liability of an Excluded Obligor;
(d)
that is denominated and payable in U.S. Dollars and is not represented by a note or other
negotiable instrument or by chattel paper;
(e)
that is not subject to any right of rescission, dispute, offset (including, without limitation,
as a result of customer promotional allowances, deposits, overpayments, discounts, rebates, or claims for
damages), hold back defense, adverse claim or other claim or defense (with only the portion of any such
Account subject to any such right of rescission, dispute, offset (including, without limitation, as a result of
customer promotional allowances, deposits, overpayments, discounts, rebates, or claims for damages), hold
back defense, adverse claim or defense or other claim being considered not an Eligible Receivable by virtue
of this clause (d)), whether arising out of transactions concerning the Contract therefor or otherwise;
(f)
with respect to which the Obligor thereunder is not a BK Obligor unless the Borrower or
such Subsidiary Guarantor is determined in the applicable bankruptcy, receivership or insolvency proceedings to have a claim on such Account prior and senior to the claim of any other creditor of such Obligor on
such Account; provided that the Administrative Agent may, in its Permitted Discretion, include such Ac-
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counts if and to the extent that such Accounts are fully covered by credit insurance, letters of credit or other
sufficient third-party credit support, or are otherwise deemed by the Administrative Agent not to pose an
unreasonable risk of non-collectability;
(g)
that does not represent “billed but not yet shipped” goods or merchandise, partially performed or unperformed services, consigned goods or “sale or return” goods and does not arise from a transaction for which any additional performance by the Borrower or Subsidiary Guarantor, as applicable, or acceptance by or other act of the Obligor thereunder, including any required submission of documentation,
remains to be performed as a condition to any payments on such Eligible Receivable or the enforceability
of such Eligible Receivable under applicable law;
(h)
such Account is owned by the Borrower or such Subsidiary Guarantor, as applicable, free
and clear of any Liens other than Liens granted to the Collateral Agent under the Loan Documents, Liens
under the Term Loan Agreement Documentation, Liens that are subject to the Intercreditor Agreements and
Permitted Encumbrances;
(i)
that is not the liability of an Obligor that has any claim against or affecting the Borrower
or such Subsidiary Guarantor, as applicable, or the property of the Borrower or such Subsidiary Guarantor,
as applicable, which gives rise to a right of set-off against such Account (with only that portion of Accounts
owing by such Obligor equal to the amount of such claim being not an Eligible Receivable);
(j)
[reserved];
(k)
that arises under a Contract, which, together with such Account, is in full force and effect
and constitutes the genuine, legal, valid and binding obligation of the Obligor thereunder enforceable
against such Obligor by the holder thereof in accordance with its terms;
(l)
that is entitled to be paid pursuant to the terms of the Contract therefor and has not been
paid in full or been compromised, adjusted, extended, reduced, satisfied, subordinated, rescinded or modified;
(m)
that, together with the Contract, does not contravene any laws, rules or regulations applicable thereto (including laws, rules and regulations relating to usury, consumer protection, truth in lending,
fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy)
and with respect to which no party to the Contract therefor is in violation of any such law, rule or regulation
that, in each case, could reasonably be expected to have a material adverse effect on the collectability, value or payment terms of such Account;
(n)
with respect to which no proceedings or investigations are pending or threatened before
any Governmental Authority (i) asserting the invalidity of such Account or the Contract therefor, (ii) seeking payment of such Account or payment and performance of such Contract or (iii) seeking any determination or ruling that could reasonably be expected to materially and adversely affect the validity or enforceability of such Account or such Contract;
(o)
that is an “account” or a “payment intangible” within the meaning of the UCC (or any
other applicable legislation) of the jurisdictions in which the Borrower or such Subsidiary Guarantor, as
applicable, is organized and in which the chief executive office of the Borrower or such Subsidiary Guarantor, as applicable, is located;
(p)
that is payable solely and directly to the Borrower or a Subsidiary Guarantor and not to
any other Person (including any shipper of the merchandise or goods that gave rise to such Receivable);
(q)
with respect to which all material consents, licenses, approvals or authorizations of, or
registrations with, any Governmental Authority required to be obtained, effected or given in connection
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with the creation of such Account or the Contract therefor have been duly obtained, effected or given and
are in full force and effect;
(r)
that is created through the provision of merchandise, goods or services by the Borrower
or such Subsidiary Guarantor, as applicable, in the ordinary course of its business;
(s)
that is not the liability of an Obligor that (i) is receiving or should receive merchandise,
goods or services on a “cash on delivery” basis or (ii) is a credit or collection risk or on credit hold or
makes slow or inconsistent payments;
(t)
that does not constitute a rebilled amount arising from a deduction taken by an Obligor
with respect to a previously arising Account;
(u)
that is subject to the Collateral Agent’s duly perfected, first-priority Lien;
(v)
that does not represent sales tax;
(w)
that does not represent the balance owed by an Obligor on an Account in respect of which
the Obligor has made partial payment;
(x)
which arises under a Contract which does not contain a confidentiality provision that
would restrict the ability of the Administrative Agent or any Lender to exercise its rights under the Loan
Documents, including the right to review the Contract, provided the Borrower may redact certain sections
of any such Contract prior to the Administrative Agent’s review thereof to comply with any confidentiality
provision therein so long as such redacted sections do not impair the Administrative Agent’s ability to exercise its rights under such Contract;
(y)
which arises under a Contract that contains an obligation to pay a specified sum of money, contingent only upon the sale of goods or the provision of services by the Borrower or a Subsidiary
Guarantor;
(z)
with respect to which no check, draft or other item of payment was previously received
that was returned unpaid or otherwise;
(aa)
the Obligor of which is (x) domiciled in the United States of America or (y) domiciled in
any other jurisdiction approved by the Administrative Agent; provided that to the extent Accounts considered eligible by virtue of this clause (y) shall constitute more than ten (10%) percent of all Eligible Receivables, such excess shall constitute Eligible Receivables only to the extent backed by a letter of credit or insurance policy reasonably acceptable to the Administrative Agent;
(bb)
the Obligor of which is not (i) the government (or any department, agency, public corporation, or instrumentality thereof) of any country other than the United States (except to the extent such Accounts are backed by a letter of credit reasonable acceptable to the Administrative Agent), or (ii) the government of the United States, or any department, agency, public corporation, or instrumentality thereof, unless (x) the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C. § 3727 et seq. and 41
U.S.C. § 15 et seq.), and any other steps necessary to perfect the Lien of the Collateral Agent in such Accounts have been complied with to the Administrative Agent’s reasonable satisfaction or (y) in the case of
clause (ii), the aggregate amount of Accounts of the Borrower and all Subsidiary Guarantors described in
clause (ii) does not exceed five (5%) percent of all Eligible Receivables;
(cc)
which is not indebtedness of an Obligor (whether constituting an account, chattel paper,
document, instrument or general intangible (under which the Obligor’s principal obligation is a monetary
obligation) and whether or not earned by performance) arising from the provision of merchandise, goods or
services by an Acquired Affiliate to such Obligor prior to becoming an Acquired Affiliate, including the
right to payment of any interest or finance charges and other obligations of such Obligor with respect there-
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to, to the extent that the Borrower or Subsidiary Guarantor, as applicable, acquiring such Acquired Affiliate
has notified the Administrative Agent in writing that the sale, pledge or other transfer of such indebtedness
by the Borrower or such Subsidiary Guarantor, as applicable, would constitute a breach of, or otherwise
conflict with, any material agreement binding on or affecting such Acquired Affiliate or its property;
(dd)
that is a liability of an Obligor the total amount of Accounts owing by which to the Borrower and the Subsidiary Guarantors does not exceed (i) twenty-five percent (25%) of the total amount of
Accounts of the Borrower and the Subsidiary Guarantors in the aggregate if such Obligor is Amazon.com,
Inc., (ii) twenty percent (20%) of the total amount of Accounts of the Borrower and the Subsidiary Guarantors in the aggregate if such Obligor (a) has an Investment Grade Rating or (b) is Barnes and Noble or Follet Corp., otherwise (iii) fifteen percent (15%) of the total amount of Accounts of the Borrower and the
Subsidiary Guarantors in the aggregate; provided, that, any such limit pursuant to clause (i), (ii) or (iii)
above may be reduced by the Administrative Agent in its Permitted Discretion;
(ee)
ferred revenue;
that does not represent any portion of the Borrower or any Subsidiary Guarantor’s de-
(ff)
that does not represent any portion of any unapplied cash receipts of the Borrower or any
Subsidiary Guarantor; and
(gg)
after the Closing Date, any Eligible Receivables for which field audits and appraisals
have not been completed by the Administrative Agent or a qualified independent appraiser reasonably acceptable to the Administrative Agent utilizing procedures and criteria reasonably acceptable to the Administrative Agent for determining the value of such Eligible Receivables.
If any Account at any time ceases to be an Eligible Receivable, then such Account shall promptly be excluded from the calculation of the Borrowing Base until such time as such Account constitutes an Eligible Receivable.
The Administrative Agent reserves the right, at any time and from time to time after the Closing Date, to
adjust any of the exclusionary criteria set forth above and to establish new criteria that would have the effect of making more credit available to the Borrower than would have been available prior thereto based upon the criteria in
effect on the Closing Date, subject to the approval of Supermajority Lenders.
In the case of any past due Accounts of any Obligor, the Administrative Agent may in its Permitted Discretion make adjustments to such Accounts to reflect any credit balance of the Accounts of such Obligor (but not any
other Obligor).
“Engagement Letter” refers to that certain Engagement Letter dated as of December 26, 2013, by and
among Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and the Borrower, as the same may be
amended, supplemented or otherwise modified from time to time.
“Environmental Laws” shall mean any and all Laws relating to pollution, the protection of the environment, natural resources or to the release of any Hazardous Materials into the environment, or, to the extent relating
to exposure to Hazardous Materials, human health.
“Environmental Liability” shall mean any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities) of any Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) any actual or alleged violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
“Equity Cure” shall have the meaning assigned to such term in Section 6.11(b).
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“Equity Interests” shall mean, with respect to any Person, all of the shares, interests, rights, participations
or other equivalents (however designated) of capital stock of (or other ownership or profit interests or units in) such
Person and all of the warrants, options or other rights for the purchase, acquisition or exchange from such Person of
any of the foregoing (including through convertible securities).
“Equity Investors” shall mean the holders of the Equity Interests of Parent as of the Closing Date as set
forth in the Plan of Reorganization.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that is under common
control with any Loan Party and is treated as a single employer within the meaning of Section 414 of the Code or
Section 4001 of ERISA.
“ERISA Event” shall mean (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any
Loan Party or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Loan
Party or any ERISA Affiliate from a Multiemployer Plan, notification of any Loan Party or ERISA Affiliate concerning the imposition of Withdrawal Liability or notification that a Multiemployer Plan is insolvent or is in reorganization within the meaning of Title IV of ERISA or is in endangered or critical status, within the meaning of Section 305 of ERISA); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party or any ERISA Affiliate; (g) with respect to a Pension
Plan, a failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA,
whether or not waived, a failure to make by its due date a required installment under Section 430(j) of the Code with
respect to a Pension Plan or a failure to make a required contribution to a Multiemployer Plan; or (h) a determination
that any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 303(i)(4)(A) of
ERISA or Section 430(i)(4)(A) of the Code).
“Eurocurrency” 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 LIBO Rate.
“Events of Default” shall have the meaning assigned to such term in Article VII.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
“Excluded Accounts” shall mean (a) accounts used exclusively as payroll accounts, employee benefit accounts, withholding tax and other fiduciary accounts, escrow accounts in respect of arrangements with non-affiliated
third parties, Plan Distribution Accounts, accounts used exclusively as customs accounts, any account holding solely sales tax or other tax payments, cash collateral accounts subject to Liens permitted under the Loan Documents
and accounts held by non-Loan Parties and (b) such other deposit accounts and other bank or securities accounts
held by Loan Parties the balance of all of which is less than $7,500,000 in the aggregate at any time.
“Excluded Action” shall have the meaning assigned to such term in the definition of Collateral and Guarantee Requirement.
“Excluded Assets” shall have the meaning assigned to such term in the definition of Collateral and Guarantee Requirement.
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“Excluded Equity” shall have the meaning assigned to such term in the definition of Collateral and Guarantee Requirement.
“Excluded Obligor” shall mean any Obligor that is an Affiliate of a Loan Party.
“Excluded Subsidiary” shall mean (a) any Subsidiary of Parent to the extent the provision of a Guarantee
by such Subsidiary would result in material adverse tax consequences to the Parent and its Subsidiaries as reasonably determined by the Parent, (b) captive insurance companies, (c) special purpose entities, (d) any Subsidiary that is
prohibited by applicable law, rule or regulation or by any contractual obligation existing on the Closing Date from
guaranteeing the Credit Facilities or which would require governmental (including regulatory) consent, approval,
license or authorization to provide a Guarantee unless such consent, approval, license or authorization has been received prior to the Closing Date, (e) any Disregarded Entity substantially all the assets of which consist of equity
interests of Foreign Subsidiaries, (f) any Domestic Subsidiary that is a direct or indirect Subsidiary of a Foreign
Subsidiary (g) Immaterial Subsidiaries and (h) any restricted subsidiary acquired pursuant to a Permitted Acquisition
financed with secured indebtedness permitted to be incurred hereunder as assumed indebtedness (and not incurred in
contemplation of such Permitted Acquisition) and any restricted subsidiary thereof that guarantees such indebtedness, in each case to the extent such secured indebtedness prohibits such subsidiary from becoming a Guarantor or
enter into a Guarantee.
“Excluded Swap Obligation” shall mean, with respect to any Guarantor, any Hedging Agreement if, and
to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security
interest to secure, such Hedging Agreement (or any Guarantee thereof) is or becomes illegal under the Commodity
Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or
official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible
contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the
Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Hedging
Agreement, unless otherwise agreed between the Administrative Agent and the Borrower. If a Hedging Agreement
arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of
such Hedging Agreement that is attributable to swaps for which such Guarantee or security interest is or becomes
illegal.
“Extended Revolver Lender” shall have the meaning assigned to such term in Section 2.26(a)(ii).
“Extended Revolving Credit Commitments” shall have the meaning assigned to such term in Section
2.26(a)(ii).
“Extension” shall have the meaning assigned to such term in Section 2.26(a).
“Extension Offer” shall have the meaning assigned to such term in Section 2.26(a).
“Facility Increase” shall have the meaning assigned to such term in Section 2.24(a).
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (and any
amended or successor version that is substantively comparable and not materially more onerous to comply with) and
any current or future regulations or official interpretations thereof, any agreement entered into under Section
1471(b) of the Code as of the date of this Agreement, including, for the avoidance of doubt, any intergovernmental
agreement implementing the foregoing.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
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“Fee Letter” shall mean with respect to any Agent, the applicable fee letter then in effect between such
Agent and Borrower.
“Fees” shall mean the Unused Commitment Fees, the Administrative Agent Fees, and the L/C Participation
Fees.
“Field Examination Trigger Period” shall mean the period (a) commencing on any date on which Availability is less than the greater of (i) $37,500,000 and (ii) 15% of the of the lesser of (x) the Borrowing Base and (y)
the Total Revolving Credit Commitments; and (b) continuing until the date on which Availability for each day has
been greater than the greater of (i) $37,500,000 and (ii) 15% of the of the lesser of (x) the Borrowing Base and (y)
the Total Revolving Credit Commitments, for a period of thirty (30) consecutive calendar days.
“Financed Capital Expenditures” shall mean Capital Expenditures made during the applicable period that
are financed with the proceeds of Indebtedness or net cash proceeds of any Disposition of assets, any Casualty Event
or any issuance of Equity Interests (other than Disqualified Equity Interest or any other issuance of Equity Interests
which increases any available basket hereunder).
“Financial Covenant” shall mean, at any time the covenant contained in Section 6.11.
“Fixed Charge Coverage Ratio” shall mean, on any date, the ratio of (in each case on a consolidated basis
for Borrower and its Restricted Subsidiaries) (a) Consolidated EBITDA for the most recently ended Testing Period
minus, to the extent not already deducted from Consolidated EBITDA, Non-Financed Capital Expenditures paid in
cash during such period, to (b) Fixed Charges; provided that the Fixed Charge Coverage Ratio shall be determined
for the relevant Testing Period on a Pro Forma Basis.
“Fixed Charge Coverage Ratio Testing Period” shall mean the period commencing on the date when
Availability has been less than the greater of (a) 10% of the lesser of (i) the Borrowing Base or (ii) the Total Revolving Credit Commitments, and (b) $25,000,000 and continuing in effect until such time as Availability has been for
30 consecutive calendar days greater than the greater of (a) 10% of the lesser of (i) the Borrowing Base or (ii) the
Total Revolving Credit Commitments, and (b) $25,000,000.
“Fixed Charges” shall mean the sum of (i) taxes based on income, profits or losses paid in cash during
such period (net of any refunds in cash received in respect of such taxes during such period), plus (ii) Consolidated
Cash Interest Expense for such period, plus (iii) the aggregate amount of all scheduled principal payments of Indebtedness of the type described in clause (a) of the definition thereof paid in cash during such period, plus (iv) all Restricted Payments made pursuant to Section 6.06(m) paid in cash during such period; provided that for purposes of
determining the amount in clause (i), (ii) and (iii) as of any date on and prior to the first anniversary of the Closing
Date, such amount shall be calculated for the period from the Closing Date to such date divided by the number of
days in such period and multiplied by 365.
“Flood Insurance Laws” shall mean, collectively, (i) National Flood Insurance Reform Act of 1994 (which
comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973)
as now or hereafter in effect or any successor statute thereto, (ii) the Flood Insurance Reform Act of 2004 as now or
hereafter in effect or any successor statute thereto and (iii) the Biggert-Waters Flood Insurance Reform Act of 2012
as now or hereafter in effect or any successor statute thereto.
“Foreign Lender” shall mean any Lender and, for purposes of Section 2.20, any Issuing Bank that is not a
U.S. Person.
“Foreign Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by, or entered into with, any Loan Party or any Subsidiary with respect to employees employed outside the United States.
“Foreign Subsidiary” shall mean any direct or indirect Restricted Subsidiary of Parent which is not a Domestic Subsidiary.
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“FRB” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing
Bank, such Defaulting Lender’s Pro Rata Percentage of the outstanding L/C Exposure with respect to Letters of
Credit issued by such Issuing Bank other than L/C Exposure as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b)
with respect to any Swingline Lender, such Defaulting Lender’s Pro Rata Percentage of outstanding Swingline
Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“GAAP” shall mean generally accepted accounting principles in the United States of America, as in effect
from time to time; provided, however, (A) that if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing
Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or such provision amended in accordance
herewith and (B) GAAP shall be construed, and all computations of amounts and ratios referred to herein shall be
made, without giving effect to any election under FASB ASC Topic 825 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Parent or any of its Subsidiaries at “fair value,” as defined therein, and Indebtedness shall be measured at the aggregate principal amount thereof.
“Gale Business” shall mean all assets and liabilities comprising the library reference business (Gale).
“Governmental Authority” shall mean any nation or government, any state or other political subdivision
thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).
“Guarantee” shall have the meaning specified in the definition of Collateral and Guarantee Requirement.
“Guarantee Obligations” shall mean, as to any Person, without duplication, (a) any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
monetary obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other monetary obligation, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other
monetary obligation of the payment or performance of such Indebtedness or other monetary obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other monetary obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect
thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by
such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien); provided that the term “Guarantee Obligation” shall not include (x) with respect to any Guarantor at any time, Excluded Swap Obligations with respect to such Guarantor at such time or (y) endorsements for collection or deposit, in
either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the
Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion
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thereof, in respect of which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Guarantors” shall have the meaning assigned to such term in the Collateral and Guarantee Requirement.
“Guaranty” shall mean (a) the guaranty made by Parent, Holdings and the Subsidiary Guarantors in favor
of the Agents on behalf of the Secured Parties dated as of the date hereof and (b) each other guaranty and guaranty
supplement delivered pursuant to Section 5.11.
“Hazardous Materials” shall mean all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or 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 applicable Environmental Law.
“Hedge Bank” shall mean any Person that is an Agent, a Lender, an Arranger or an Affiliate of the foregoing at the time it enters into a Secured Hedge Agreement, in its capacity as a party thereto.
“Hedging Agreement” shall mean any agreement with respect to any swap, forward, future or derivative
transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic,
financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that
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 Holdings, the Restricted Subsidiaries or any of their Affiliates shall
be a Hedging Agreement.
“Holdings” shall have the meaning assigned to such term in the preamble to this Agreement.
“Immaterial Subsidiary” shall mean any subsidiary that is not a Material Subsidiary; provided that no
Guarantor or Borrower may be an Immaterial Subsidiary.
“Increased Amount Date” shall have the meaning assigned to such term in Section 2.24(a).
“Incremental Facility Amendment” shall have the meaning assigned to such term in Section 2.24(a).
“Indebtedness” of any person shall mean, if and to the extent (other than with respect to clause (i) of this
definition) the same would constitute indebtedness or a liability in accordance with GAAP, without duplication, (a)
all obligations of such person for borrowed money, (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 or assets purchased by such person, (d) all obligations of such person issued or assumed as the deferred purchase price of property or services (other than such obligations accrued in the ordinary
course), to the extent that the same would be required to be shown as a long term liability on a balance sheet prepared in accordance with GAAP, (e) all Attributable Indebtedness of such person, (f) all net payments that such person would have to make in the event of an early termination, on the date Indebtedness of such person is being determined, in respect of outstanding Hedging Agreements, (g) the principal component of all obligations, contingent
or otherwise, of such person as an account party in respect of letters of credit, (h) the principal component of all obligations of such person in respect of bankers’ acceptances, (i) all guarantees by such person of Indebtedness described in clauses (a) to (h) above and (j) the amount of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock (excluding accrued dividends that have not increased
the liquidation preference of such Disqualified Stock); provided, that Indebtedness shall not include (A) trade and
other ordinary-course payables, accrued expenses, and intercompany liabilities arising in the ordinary course of
business, (B) prepaid or deferred revenue, (C) purchase price holdbacks arising in the ordinary course of business in
respect of a portion of the purchase prices of an asset to satisfy unperformed obligations of the seller of such asset,
(D) earn-out obligations until such obligations become a liability on the balance sheet of such person in accordance
with GAAP, or (E) in the case of the Borrower and its Restricted Subsidiaries, (I) the intercompany Indebtedness set
forth on Schedule 2 as of the Closing Date (the “Cengage CV Loan”) and all other intercompany Indebtedness hav-
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ing a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and in each case made in the
ordinary course of business and (II) intercompany liabilities in connection with the cash management, tax and accounting operations of the Borrower and its Restricted Subsidiaries. The Indebtedness of any person shall include
the Indebtedness of any partnership in which such person is a general partner, other than to the extent that the instrument or agreement evidencing such Indebtedness limits the liability of such person in respect thereof.
“Indemnified Costs” shall have the meaning set forth in Section 8.05.
“Indemnitee” shall have the meaning assigned to such term in Section 9.05(b).
“Information” shall have the meaning assigned to such term in Section 9.17.
“Intellectual Property” shall have the meaning assigned to such term in the Collateral and Guarantee Requirement.
“Intellectual Property Security Agreement” shall mean the Intellectual Property Security Agreement entered into by and among the Administrative Agent and the other parties thereto under the Security Agreement, together with each other Intellectual Property Security Agreement Supplement executed and delivered pursuant to
Section 5.11.
“Intellectual Property Security Agreement Supplement” has the meaning specified in the Intellectual
Property Security Agreement.
“Intercreditor Agreement” shall mean the Term Loan/Revolving Facility Intercreditor Agreement or any
other Intercreditor Agreement, including any Junior Lien Intercreditor Agreement, that may be entered into in accordance with the terms hereof, as the context requires.
“Interest Payment Date” shall mean (a) with respect to any ABR Loan (including any Swingline Loan), the
last Business Day of each March, June, September and December and the Revolving Credit Maturity Date of the
Facility under which such Loan was made, commencing with the last Business Day of June 2014, and (b) with respect to any Eurocurrency 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 Eurocurrency Borrowing with an Interest Period of more than three months’ duration,
each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration
been applicable to such Borrowing.
“Interest Period” shall mean, with respect to any Eurocurrency Borrowing, the period commencing on the
date of such Borrowing and ending on the numerically corresponding day (or, if there is no numerically corresponding day, on the last day) one week or in the calendar month that is 1, 2, 3 or 6 months thereafter (or, if made available by all participating Lenders, 12 months), as the Borrower may elect; provided, however, 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 and (b) any Interest Period that commences on the last
day of a calendar month (or on a day for which there is no numerically corresponding day in the last month of such
Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. Interest shall
accrue from and including the first day of an Interest Period to but excluding the last day of such Interest Period.
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.
“Intermediate Holding Company” shall mean any Subsidiary of Parent or Holdings that, directly or indirectly, owns 100% of the issued and outstanding Equity Interests of the Borrower.
“Inventory” shall have the meaning specified in the UCC.
“Investment” shall mean, as to any Person, any direct or indirect acquisition or investment by such Person,
whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another
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Person, (b) a loan, advance or capital contribution to, Guarantee Obligation with respect to or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person (excluding, in the case of the Borrower and
its Restricted Subsidiaries, intercompany loans (including the Cengage CV Loan), advances, or Indebtedness having
a term not exceeding 364 days (inclusive of any roll over or extensions of terms) and made in the ordinary course of
business consistent with past practice) or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the
value of such Investment.
“Investment Company shall have the meaning assigned to such term in Section 3.12(b).
“Investment Grade Rating” shall mean a rating equal to or higher than Baa3 (or the equivalent) by
Moody’s, BBB- (or the equivalent) by S&P, or an equivalent rating by any other nationally recognized statistical
rating agency selected by the Borrower.
“IP Rights” shall have the meaning assigned to such term in Section 3.14.
“IRS” shall mean the Internal Revenue Service of the United States.
“Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).
“Issuing Banks” shall mean, as the context may require, (a) Citibank, N.A., Morgan Stanley Bank, N.A.,
Deutsche Bank AG New York Branch and Credit Suisse AG, Cayman Islands Branch acting through any of their
respective Affiliates or branches, in their capacity as the issuer of Letters of Credit hereunder, and (b) any other
Lender that may become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit
issued by such Lender. Any Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates or branches of such Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate or branch with respect to Letters of Credit issued by such Affiliate or branch.
“Junior/Pari Passu Financing” shall have the meaning assigned to such term in Section 6.09(a).
“Junior Lien Intercreditor Agreement” means an intercreditor agreement by and among the Collateral
Agent and the collateral agents or other representatives for the holders of Indebtedness secured by Liens on the Collateral that are intended to rank junior to the Liens securing the Obligations and that are otherwise Liens permitted
pursuant to Section 6.01 and are securing Indebtedness permitted pursuant to Section 6.03, providing that all proceeds of Collateral shall first be applied to repay the Obligations in full prior to being applied to any obligations under the Indebtedness secured by such junior Liens and that until the termination of the Commitments and the repayment in full (or cash collateralization of any Letters of Credit) of all Obligations (other than contingent obligations
not then due and payable), the Collateral Agent shall have the sole right to exercise remedies against the Collateral
(subject to customary exceptions and the expiration of any standstill provisions) and otherwise in form and substance reasonably satisfactory to the Collateral Agent and the Borrower.
“Latest Maturity Date” shall mean, at any date of determination, the latest maturity or expiration date applicable to any Loan or Commitment hereunder at such date.
“Laws” shall mean, collectively, all international, foreign, federal, state and local statutes, treaties, rules,
guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations
and permits of, and agreements with, any Governmental Authority
“L/C Commitment” shall mean the commitment of the Issuing Banks to issue Letters of Credit, which shall
be equal to $50,000,000.
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“L/C Disbursement” shall mean a payment or disbursement made by an Issuing Bank pursuant to a Letter
of Credit.
“L/C Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount of all outstanding
Letters of Credit and (b) the aggregate amount of all L/C Disbursements with respect to Letters of Credit that have
not yet been reimbursed by or on behalf of the Borrower at such time. The L/C Exposure of any Revolving Credit
Lender at any time shall equal its Pro Rata Percentage of the aggregate L/C Exposure at such time.
“L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).
“Lender Appointment Period” shall have the meaning set forth in Section 8.07.
“Lenders” shall mean Revolving Credit Lenders and the Swingline Lender (unless the context clearly indicates otherwise in the case of the Swingline Lender).
“Lending Office” shall mean, as to any Lender, the office or offices of such Lender described as such in
such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.23. A Letter of Credit may
be a commercial letter of credit or a standby letter of credit or in the case of Morgan Stanley Bank, N.A., only a
standby letter of credit.
“LIBO Rate” shall mean, with respect to any Eurocurrency Borrowing for any Interest Period, the rate per
annum determined on the basis of the rate for deposits in U.S. Dollars for a period equal to such Interest Period
commencing on the first day of such Interest Period appearing on Reuters Screen Libor01 Page as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on Reuters Screen LIBOR01 Page (or otherwise on such screen), the “LIBOR Rate” shall be determined by
reference to such other comparable publicly available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by reference to the rate at which the Administrative
Agent is offered U.S. Dollar deposits in the approximate amount of the applicable Eurocurrency Borrowing at or
about 11:00 A.M., New York City time, two Business Days prior to the beginning of such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and exchange operations are then being conducted for delivery on the first day of such Interest Period for the number of days comprised therein.
“Lien” shall mean any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance,
lien (statutory or other), charge, or preference, priority or other security interest or similar preferential arrangement
of any kind or nature whatsoever intended as security (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capitalized Lease Obligation having substantially the same economic effect as any of the foregoing). For the avoidance of doubt, “Lien” shall
not be deemed to include any license of intellectual property granted in the ordinary course of business which does
not impair, in any material respect, any Lender’s security under the Loan Documents.
“Lien Waiver” shall mean an agreement, in form and substance reasonably satisfactory to the Administrative Agent, by which (a) for any material Collateral located on leased premises, the lessor waives or subordinates
any Lien it may have on the Collateral, and agrees to permit the Administrative Agent to enter upon the premises
and remove the Collateral; (b) for any Collateral held by a warehouseman, processor, shipper, customs broker or
freight forwarder, such Person waives or subordinates any Lien it may have on the Collateral, agrees to hold any
Documents (as defined in the UCC) in its possession relating to the Collateral as agent for the Collateral Agent, and
agrees to deliver the Collateral to Agent upon request; (c) for any Collateral held by a repairman, mechanic or bailee, such Person acknowledges the Collateral Agent’s Lien, waives or subordinates any Lien it may have on the Collateral, and agrees to deliver the Collateral to the Collateral Agent upon request; and (d) for any Collateral subject to
a licensor’s intellectual property rights, the licensor grants to Agent the right, vis-à-vis such licensor, to enforce the
Collateral Agent’s Liens with respect to the Collateral, including the right to dispose of it with the benefit of the
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intellectual property, whether or not a default exists under any applicable license, or, in the case of each of clauses
(a) to (d) above, has such other terms that are reasonably satisfactory to the Administrative Agent.
“Loan Document Obligations” shall mean the due and punctual payment of (i) the principal of and interest
(including interest accruing during the pendency of any bankruptcy, examination, 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 to any of the Secured Parties under this Agreement
and each of the other Loan Documents, including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, examination, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding).
“Loan Documents” shall mean, collectively, (i) this Agreement, (ii) the Notes, (iii) the Guaranty, (iv) the
Collateral Documents and (v) the Term Loan/Revolving Facility Intercreditor Agreement, if in each case entered
into.
“Loan Parties” shall mean, collectively, (i) the Borrower, (ii) Holdings, (iii) Parent and (iv) each other
Guarantor.
“Loan Transactions” shall mean (i) the execution, delivery and performance by the Parent and the Borrower of this Agreement and the execution, delivery and performance by each Loan Party of the Loan Documents to
which it is to be a party, the borrowing of Loans on the Closing Date and the use of the proceeds and the issuance or
deemed issuance of letters of credit as provided herein and (ii) the execution, delivery and performance by each
Loan Party of the Term Loan Agreement and other Term Loan Agreement Documentation to which it is to be a party, the borrowing of loans under the Term Loan Agreement on the Closing Date, and the use of the proceeds thereof.
“Loans” shall mean the Revolving Credit Loans and the Swingline Loans.
“Local Time” shall mean with respect to a Loan, Borrowing or Letter of Credit, New York City time.
“Management Stockholders” shall mean the members of management of Holdings or any direct
or indirect parent thereof or any of its Subsidiaries, including the Borrower, who are investors in Holdings
or any direct or indirect parent thereof.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“Material Adverse Effect” shall mean (a) a material adverse change in or effect on the business, assets, liabilities (actual or contingent), operations, management, financial condition of the Parent and its Subsidiaries, taken
as a whole, (b) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under any Loan Document to which any Loan Party is a party thereto; provided that the
foregoing shall not include any material adverse effects arising out of the commencement of the Chapter 11 Cases or
the events leading thereto, or (c) a material impairment of the rights and remedies of or benefits available to the
Administrative Agent or the Lenders under any of the Loan Documents.
“Material Domestic Subsidiary” shall mean, at any date of determination, each of the Borrower’s Domestic Subsidiaries (a) whose total assets at the last day of the most recent Testing Period were equal to or greater than
5% of the Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose gross revenues for
such Testing Period were equal to or greater than 5% of the consolidated gross revenues of the Borrower and the
Restricted Subsidiaries for such period, in each case determined in accordance with GAAP; provided that “Material
Domestic Subsidiary” shall also include any of the Borrower’s Subsidiaries selected by the Borrower which is required to ensure that all Material Domestic Subsidiaries have in the aggregate (i) total assets at the last day of the
most recent Testing Period that were equal to or greater than 90% of the total assets of the Borrower and the Re-
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stricted Subsidiaries that are Domestic Subsidiaries at such date and (ii) gross revenues for such Testing Period that
were equal to or greater than 90% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries that are Domestic Subsidiaries for such period, in each case determined in accordance with GAAP;
“Material Foreign Subsidiary” shall mean, at any date of determination, each of the Borrower’s Foreign
Subsidiaries (a) whose total assets at the last day of the most recent Testing Period were equal to or greater than 5%
of the Total Assets of the Borrower and the Restricted Subsidiaries at such date or (b) whose gross revenues for such
Testing Period were equal to or greater than 5% of the consolidated gross revenues of the Borrower and the Restricted Subsidiaries for such period, in each case determined in accordance with GAAP.
“Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Hedging Agreements, of any one or more of the Borrower or any Restricted Subsidiary in an aggregate principal amount exceeding $50,000,000. For purposes of determining Material Indebtedness,
the “principal amount” of the obligations of Holdings or any Restricted Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that Holdings or such Restricted Subsidiary would be required to pay if such Hedging Agreement were terminated at such
time.
“Material Litigation” shall mean any action, suit, investigation, litigation or proceeding pending or (to the
knowledge of the Loan Parties) threatened in any court or before any arbitrator or governmental instrumentality
(other than the Chapter 11 Cases) that is not stayed and could reasonably be expected to have a Material Adverse
Effect.
“Material Real Property” shall mean any parcel of owned real property with a book value of at least
$25,000,000.
“Material Subsidiary” shall mean any Material Domestic Subsidiary or any Material Foreign Subsidiary.
“Maximum Rate” shall have the meaning assigned to such term in Section 9.10.
“Minimum Extension Condition” shall have the meaning assigned to such term in Section 2.26(b).
“Moody’s” shall mean Moody’s Investors Service, Inc. and any successor thereto.
“Mortgage Policies” shall have the meaning specified in paragraph (g) of the definition of Collateral and
Guarantee Requirement.
“Mortgaged Properties” shall have the meaning specified in paragraph (g) of the definition of Collateral
and Guarantee Requirement.
“Mortgages” shall mean collectively, the deeds of trust, trust deeds, hypothecs and mortgages creating and
evidencing a Lien on a Mortgaged Property made by the Loan Parties in favor or for the benefit of the Collateral
Agent on behalf of the Secured Parties in form and substance reasonably satisfactory to the Collateral Agent, and
any other mortgages executed and delivered pursuant to Sections 5.11 and 5.13.
“Multiemployer Plan” shall mean any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which any Loan Party or any ERISA Affiliate makes or is obligated to make contributions, or during the
period since January 1, 2003, has made or been obligated to make contributions.
“New Project” shall mean (x) each plant, facility or branch which is either a new plant, facility or branch or
an expansion of an existing plant, facility or branch owned or leased by the Borrower or its Restricted Subsidiaries
which in fact commences operations and (y) each creation (in one or a series of related transactions) of a business
unit to the extent such business unit commences operations or each expansion (in one or a series of related transactions) of business into a new market.
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“Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such
time.
“Non-Extending Lender” shall have the meaning assigned to such term in Section 2.26(e).
“Non-Financed Capital Expenditures” shall mean all Capital Expenditures made during the applicable period that are not Financed Capital Expenditures.
“Note” shall have the meaning assigned to such term in Section 2.04(e).
“Obligations” shall mean (a) the Loan Document Obligations and (b) the Other Secured Obligations.
“Obligor” shall mean, with respect to any Account, the Person primarily obligated to make payments in respect thereof.
“OFAC” shall have the meaning assigned to such term in Section 3.17(b).
“Orderly Liquidation Value” shall mean, with respect to Eligible Inventory, the net appraised recovery
value (net of costs and expenses incurred in connection with liquidation) of such Eligible Inventory as set forth in
the Borrower’s stock ledger, as a percentage of the cost of such Eligible Inventory, which percentage shall be determined by reference to, and adjusted seasonally in a manner consistent with, the most recent third-party appraisal of
such Eligible Inventory received by the Administrative Agent.
“Organization Documents” shall mean (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and
operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.
“Other Pari Passu Secured Obligations” shall mean Other Secured Obligations designated as Other Pari
Passu Secured Obligations in accordance with Section 8.11.
“Other Secured Agreement” shall mean, to the extent designated as such by the Borrower and each applicable Other Secured Party in writing to the Administrative Agent from time to time in accordance with Section 8.11,
any agreement evidencing obligations owing by any Loan Party under (a) any Hedging Agreement entered into by
Holdings or any of its Subsidiaries with any Person that at the time of entering into such Hedging Agreement is a
Lender, Arranger or Agent, or an Affiliate of a Lender, Arranger or Agent or (b) any cash management services
agreement entered into by Holdings or any of its Subsidiaries with any Person that at the time of entering into such
arrangement is a Lender, Arranger or Agent, or an Affiliate of a Lender, Arranger or Agent.
“Other Secured Obligations” shall mean the due and punctual payment and performance of all obligations
of each Loan Party under each Other Secured Agreement designated as such in accordance with Section 8.11.
“Other Secured Party” shall mean a Person that (a) is a party to an Other Secured Agreement and (b) at the
time of entering into such Other Secured Agreement, is a Lender, Arranger or Agent, or an Affiliate of a Lender,
Arranger or Agent.
“Other Taxes” shall have the meaning assigned to such term in Section 2.20(b).
“Parent” shall have the meaning assigned to such term in the preamble to this Agreement.
“Participant Register” shall have the meaning assigned to such term in Section 9.04(f).
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“Patents” shall have the meaning assigned to such term in the Security Agreement.
“Payment Conditions” shall mean prior to and after giving effect to the relevant action as to which the satisfaction of the Payment Conditions is being determined, (a) no Event of Default shall have occurred and is then
continuing; (b) on a pro forma basis, the Borrower has Availability equal to the greater of (x) $37,500,000 and (y)
15.0% of the lesser of (1) the Total Revolving Credit Commitments and (2) the Borrowing Base on such date; and
(c) on a pro forma basis, the Borrower has a Fixed Charge Coverage Ratio (with such Fixed Charge Coverage Ratio
to be tested as of the most recently ended Testing Period) of greater than 1.00 to 1.00, provided that the condition set
forth in this clause (c) shall not apply if the Borrower has, on a pro forma basis, Availability equal to the greater of
(x) $50,000,000 and (y) 20% of the lesser of (1) the Total Revolving Credit Commitments and (2) the Borrowing
Base.
“PBGC” shall mean the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of
ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by
any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate contributes or has an
obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA,
has made contributions at any time since January 1, 2003.
“Perfection Certificate” shall mean the perfection certificate, dated the Closing Date, among the Borrower,
Parent, Holdings and the Guarantors, as the same may be amended, supplemented or otherwise modified from time
to time.
“Permitted Acquisition” shall have the meaning specified in Section 6.02(j).
“Permitted Discretion” shall mean a determination made by the Administrative Agent in good faith and in
the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment in accordance
with customary business practices for comparable asset-based lending transactions and, as it relates to the establishment or increase of Reserves, shall require that, (a) such establishment, increase, adjustment or imposition of Reserves after the Closing Date be based on the analysis of facts or events first occurring or first discovered by the
Administrative Agent, after the Closing Date or that are materially different from facts or events occurring or known
to the Administrative Agent, on the Closing Date, (b) the contributing factors to the imposition or increase of any
Reserve shall not duplicate (i) the exclusionary criteria set forth in the definitions of “Eligible Inventory”, “Eligible
Credit Card Receivables”, and “Eligible Receivables” as applicable (and vice versa), or (ii) any reserves deducted in
computing book value, cost or Orderly Liquidation Value and (c) the amount of any such Reserve so established or
the effect of any adjustment or imposition of exclusionary criteria be a reasonable quantification of the incremental
dilution of the Borrowing Base attributable to such contributing factors.
“Permitted Encumbrances” shall mean Liens permitted pursuant to Section 6.01(c), (d), (e), (k) and (bb),
in each case, to the extent such Liens arise by operation of law and are not created, granted or incurred with the consent of any Loan Party.
“Permitted Equity Issuance” shall mean any sale or issuance of any Qualified Equity Interests of Holdings
or any direct or indirect parent of Holdings (and, after a Qualifying IPO, of any Intermediate Holding Company), in
each case to the extent permitted hereunder.
“Permitted Holders” shall mean each of (i) the Equity Investors and (ii) the Management Stockholders.
“Permitted Investments” shall mean:
(a)
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within
one year from the date of acquisition thereof;
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(b)
investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from
Moody’s;
(c)
investments in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any
commercial bank organized under the laws of the United States of America or any State thereof that has a
combined capital and surplus and undivided profits of not less than $250,000,000;
(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 of
clause (c) above;
(e)
investments in “money market funds” within the meaning of Rule 2a 7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type
described in clauses (a) through (d) above;
(f)
investments in so called “auction rate” securities rated AAA or higher by S&P or Aaa or
higher by Moody’s and which have a reset date not more than 90 days from the date of acquisition thereof,
and
(g)
other short term investments by Holdings and Foreign Subsidiaries in currencies other
than U.S. Dollars.
“Permitted Refinancing” shall mean, with respect to any Person, any modification (other than a release of
such Person), refinancing, refunding, renewal or extension of any Indebtedness of such Person; provided that (a) the
principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if
applicable) of the Indebtedness so modified, refinanced, refunded, renewed or extended (collectively, to “Refinance”) except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts
paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder, (b) other than with
respect to a Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.03(e), such modification, refinancing, refunding, renewal or extension has a final maturity date equal to or later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being modified, refinanced, refunded, renewed or extended, (c) other than with respect to a
Permitted Refinancing in respect of Indebtedness permitted pursuant to Section 6.03(e), at the time thereof, no Event
of Default shall have occurred and be continuing, and (d) if such Indebtedness being modified, refinanced, refunded,
renewed or extended is Indebtedness permitted pursuant to Section 6.03(b), 6.03(g), 6.03(q) or 6.03(r), (i) to the
extent such Indebtedness being so modified, refinanced, refunded, renewed or extended is subordinated in right of
payment to the Obligations, such modification, refinancing, refunding, renewal or extension is subordinated in right
of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation
governing the Indebtedness being so modified, refinanced, refunded, renewed or extended, (ii) the terms and conditions (including, if applicable, as to collateral but excluding as to subordination, interest rate and redemption premium) of any such modified, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Loan Parties or the Lenders than the terms and conditions of the Indebtedness being modified, refinanced, refunded, renewed or extended; provided that a certificate of a Responsible Officer delivered to the
Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the
foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement
unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with
such determination (including a reasonable description of the basis upon which it disagrees) and (iii) such modification, refinancing, refunding, renewal or extension is incurred by the Person who is the obligor of the Indebtedness
being so modified, refinanced, refunded, renewed or extended.
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“Permitted Sale Leaseback” shall mean any Sale Leaseback consummated by the Borrower or any of the
Restricted Subsidiaries after the Closing Date, provided that any such Sale Leaseback not between (a) a Loan Party
and another Loan Party or (b) a Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is
not a Loan Party is consummated for fair value as determined at the time of consummation in good faith by (i) the
Borrower or such Restricted Subsidiary and (ii) in the case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which exceed $50,000,000, the board of directors of the Borrower or such Restricted Subsidiary (which such determination may take into account any retained interest or other Investment of the Borrower or such Restricted Subsidiary in connection with, and any other material economic terms of, such Sale Leaseback).
“Permitted Subordinated Indebtedness” shall mean unsecured Indebtedness (a) the principal amount of
which is not by its terms required to be repaid, prepaid, redeemed, repurchased or defeased, in whole or in part, at
the option of any holder thereof or otherwise, on any date prior to the date that is six months after the Latest Maturity Date (determined as of the time of incurrence) (except (i) upon the occurrence of an event of default or a change
in control or similar event or (ii) pursuant to provisions requiring the issuer thereof to prepay or redeem, or offer to
prepay or redeem, such Indebtedness with the proceeds of asset sales or other dispositions or the incurrence of Indebtedness or issuance of Equity Interests; provided, that such provisions do not require any such prepayment, redemption or offer to prepay or redeem if such proceeds have been applied, inter alia, to reduce the outstanding
Loans and Revolving Credit Commitments), (b) that is not Guaranteed by Holdings or any Restricted Subsidiary
unless (i) a guarantee is provided for the benefit of the Lenders hereunder, (ii) the Guarantee is unsecured and subordinated in right of payment to its corresponding Guarantee of the Obligations under the applicable Collateral Document and (iii) such Guarantee provides for the release and termination thereof, without action by any party, upon
any release and termination of the corresponding Guarantee of the Obligations and (c) that is fully subordinated in
right of payment to the Obligations.
“person” or “Person” shall mean any natural person, corporation, business trust, joint venture, association,
company, limited liability company, partnership, Governmental Authority or other entity.
“Plan” shall mean any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), other
than a Foreign Plan, established or maintained by any Loan Party or, with respect to any such plan that is subject to
Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
“Plan Confirmation Order” shall have the meaning assigned to such term in the preliminary statements of
this Agreement.
“Plan Distribution Accounts” shall mean segregated accounts in respect of distributions required pursuant
to the Plan of Reorganization.
“Plan of Reorganization” shall have the meaning assigned to such term in the preliminary statements of
this Agreement.
“Platform” shall have the meaning assigned to such term in Section 9.01(b).
“Pre-Petition Letters of Credit” shall mean Letters of Credit issued by JPMorgan Chase Bank N.A. prior
to the consummation of the Plan of Reorganization, not to exceed $15,000,000 in the aggregate.
“Prime Rate” shall mean the rate of interest announced publicly by Citibank, N.A. in New York, from time
to time, as Citibank, N.A.’s prime rate.
“Pro Forma Basis” and “Pro Forma Effect” shall mean as to any person, for any events as described below that occur subsequent to the commencement of a period for which the financial effect of such events is being
calculated, and giving effect to the events for which such calculation is being made, such calculation as will give pro
forma effect to such events as if such events occurred on the first day of the four consecutive fiscal quarter period
ended on or before the occurrence of such event (the “Reference Period”): (i) pro forma effect shall be given to any
disposition, any acquisition, investment, capital expenditure, construction, repair, replacement, improvement, devel-
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opment, disposition, merger, amalgamation, consolidation, any dividend, distribution or other similar payment, any
designation of any subsidiary as an Unrestricted Subsidiary and any redesignation of a subsidiary as a Restricted
Subsidiary (a “Subsidiary Redesignation”), New Project, and any restructurings of the business of the Borrower or
any of its Restricted Subsidiaries that the Borrower or any of its Restricted Subsidiaries has determined to make
and/or made and are expected to have a continuing impact and are factually supportable, which would include cost
savings resulting from head count reduction, closure of facilities and similar operational and other cost savings (provided, at the election of the Borrower, pro forma effect shall not be required to be given to any of the foregoing to
the extent the aggregate consideration paid in connection with such transaction was less than $10,000,000), which
adjustments the Borrower determines are reasonable (the foregoing, together with any transactions related thereto or
in connection therewith, the “relevant transactions”), in each case that occurred during the reference period, occurring during the reference period or thereafter and through and including the date upon which the relevant transaction
is consummated, (ii) in making any determination on a Pro Forma Basis or giving Pro Forma Effect to any transaction, (x) all Indebtedness (including Indebtedness issued, incurred or assumed as a result of, or to finance, any relevant transactions and for which the financial effect is being calculated, whether incurred hereunder or otherwise, but
excluding normal fluctuations in revolving Indebtedness incurred for working capital purposes and not to finance
any acquisition) issued, incurred, assumed or permanently repaid during the reference period, occurring during the
reference period or thereafter and through and including the date upon which the relevant transaction is consummated) shall be deemed to have been issued, incurred, assumed or permanently repaid at the beginning of such period,
(y) Consolidated Interest Expense and Consolidated Cash Interest Expense of such person attributable to interest on
any Indebtedness, for which pro forma effect is being given as provided in the preceding clause (x), bearing floating
interest rates shall be computed on a pro forma basis as if the rates that would have been in effect during the period
for which pro forma effect is being given had been actually in effect during such periods, and (z) in giving effect to
clause (i) above with respect to each New Project which commences operations and records not less than one full
fiscal quarter’s operations during the reference period, the operating results of such New Project shall be annualized
on a straight line basis during such period, taking into account any seasonality adjustments determined by the Borrower in good faith, and (iii) (A) any Subsidiary Redesignation then being designated, effect shall be given to such
Subsidiary Redesignation and all other Subsidiary Redesignations after the first day of the relevant reference period
and on or prior to the date of the respective Subsidiary Redesignation then being designated, collectively, and (B)
any designation of a Subsidiary as an Unrestricted Subsidiary, effect shall be given to such designation and all other
designations of Subsidiaries as Unrestricted Subsidiaries after the first day of the relevant Reference Period and on
or prior to the date of the then applicable designation of a subsidiary as an Unrestricted Subsidiary, collectively.
Pro forma calculations made pursuant to the definition of the term “Pro Forma Basis” shall be determined
in good faith by a Responsible Officer of the Borrower and may include adjustments to reflect operating expense
reductions and other operating improvements, synergies or cost savings reasonably expected to result from any relevant pro forma event (including, to the extent applicable, the transactions) to the extent such adjustments, without
duplication, continue to be applicable to such reference period.
For purposes of this definition, any amount in a currency other than U.S. Dollars will be converted to Dollars based on the average exchange rate for such currency for the most recent twelve month period immediately prior to the date of determination in a manner consistent with that used in calculating Consolidated EBITDA for the
applicable period.
“Pro Rata Percentage” of any Revolving Credit Lender at any time shall mean the percentage of the applicable aggregate Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In the
event the aggregate applicable Revolving Credit Commitments shall have expired or been terminated, the aggregate
applicable Pro Rata Percentages shall be determined on the basis of the Revolving Credit Commitments most recently in effect, giving effect to any subsequent assignments.
“Protective Loans” shall have the meaning assigned to such term in Section 2.01(b).
“Qualified Account” shall mean any deposit account or any investment or other non-operating account of
a Loan Party maintained with a Lender (or until the 90th day after the Closing Date, another depository reasonably
acceptable to the Administrative Agent) which shall be subject to a control agreement reasonably acceptable to the
Administrative Agent which shall provide such account to be under the sole control and dominion of the Administrative Agent or Collateral Agent during any Cash Dominion Period.
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“Qualified Equity Interests” shall mean any Equity Interests that are not Disqualified Equity Interests.
“Qualifying IPO” shall mean the issuance or registration by Parent, Holdings, any Intermediate Holding
Company, the Borrower, any direct or indirect parent of Parent, Holdings or the Borrower or any successor of any of
the foregoing of its common Equity Interests in a Public Offering (other than a Public Offering pursuant to a registration statement on Form S-8), in each case, pursuant to an effective registration statement filed with the SEC in
accordance with the Securities Act of 1933 (whether alone or in connection with a secondary public offering).
“Rate” shall have the meaning assigned thereto in the definition of “Type.”
“Receivable Maturity Date” shall mean, with respect to any Account, the due date for payment therefor
specified in the Contract therefor, or, if no date is so specified, 30 days from the Billing Date.
“Refinance” shall have the meaning assigned to such term in the definition of Permitted Refinancing.
“Register” shall have the meaning assigned to such term in Section 9.04(d).
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings
and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment vehicle
that invests in bank loans and similar extensions of credit, any other fund that invests in bank loans and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates and the respective directors, trustees, officers, employees, partners, agents, counsel, advisors and attorneys-in-fact of such person
and such person’s Affiliates.
“Release” shall mean 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.
“Rent Reserve” shall mean the aggregate of (a) all past due rent and other past due amounts owing by a
Loan Party to any landlord, warehouseman, processor, repairman, mechanic, shipper, freight forwarder, broker or
other Person who possesses any Eligible Inventory or could assert a Lien on any Eligible Inventory plus (b) a reserve established by the Administrative Agent in its Permitted Discretion in an amount up to three months’ rent
payments payable by any Loan Party for each third party or leased location at which Eligible Inventory in excess of
$100,000 is located that is not subject to a Lien Waiver.
“Required Lenders” shall mean, at any time, Lenders having Revolving Credit Exposure, unused Revolving Credit Commitments representing more than 50% of the sum of the Aggregate Revolving Credit Exposure and
all unused Revolving Credit Commitments at such time; provided that (a) the Revolving Credit Exposure of any
Defaulting Lender and (b) the unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded
in the determination of the Required Lenders at any time.
“Reserves” shall mean (a) Bank Product Reserves plus (b) Rent Reserves plus (c) Dilution Reserve plus (d)
Data Maintenance Reserves, plus (e) such other reserves as the Administrative Agent in its Permitted Discretion
may establish from time to time upon at least three days’ notice to the Borrower or immediately, without prior written notice, (x) with respect to Rent Reserves or Reserves taken upon the occurrence of consignees’ warehousemen’s
and bailees’ charges or (y) when, in the good faith judgment of the Administrative Agent, failure to implement a
Reserve immediately could reasonably be expected to result in a Material Adverse Effect or materially and adversely affect the Collateral or the rights of the Lenders hereunder and during the continuance of an Event of Default.
The Administrative Agent acknowledges that as of the Closing Date, other than as agreed on or prior to the Closing
Date between the Administrative Agent and the Borrower, it does not know of any other circumstance or condition
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with respect to the Accounts, Inventory or Borrowing Base that would require the imposition of a Reserve that has
not been imposed as of the Closing Date.
“Responsible Officer” of any person shall mean the chief executive officer, president, vice president, chief
financial officer, treasurer or assistant treasurer or other similar officer of a Loan Party and, as to any document delivered on the Closing Date, any secretary or assistant secretary of a Loan Party. Any document delivered hereunder
that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer
shall be conclusively presumed to have acted on behalf of such Loan Party.
“Restricted Payment” shall mean any dividend or other distribution (whether in cash, securities or other
property) with respect to any Equity Interest of the Borrower or any Restricted 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, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account
of any return of capital to the Borrower’s stockholders, partners or members (or the equivalent Persons thereof).
“Restricted Subsidiary” shall mean each Subsidiary of Holdings that is not an Unrestricted Subsidiary.
“Revaluation Date” means with respect to any Letter of Credit, each of the following: (a) each date of issuance of an Alternative Currency Letter of Credit, (b) each date of an amendment of any such Alternative Currency
Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount) and
(c) such additional dates as the Administrative Agent or the applicable Issuing Bank shall reasonably determine or
the Required Lenders shall reasonably require, so long as such additional dates occur no less frequently than monthly at any time an Alternative Currency Letter of Credit is issued or outstanding or any Alternative Currency L/C
Exposure exists.
“Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Credit Loans advanced
pursuant to Revolving Credit Commitments after the Closing Date pursuant to Section 2.01(a) and Section 2.24.
“Revolving Credit Commitment” shall mean, with respect to each Revolving Credit Lender, any Revolving
Credit Commitment provided by such Revolving Credit Lender pursuant to this Agreement on the date hereof and as
provided on Schedule 2.01 hereto, or in the Assignment and Acceptance pursuant to which such Revolving Credit
Lender assumed its Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Revolving Credit Lender pursuant to Section 9.04. As of the Closing Date, the Revolving Credit Commitment is
$250,000,000.
“Revolving Credit Exposure” shall mean, with respect to any Revolving Credit Lender after the Closing
Date, the aggregate principal amount at such time of all outstanding Revolving Credit Loans of such Revolving
Credit Lender, plus the aggregate amount at such time of such Revolving Credit Lender’s L/C Exposure, plus the
aggregate amount at such time of such Revolving Credit Lender’s Swingline Exposure.
“Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment or Revolving Credit
Exposure.
“Revolving Credit Loans” shall mean the revolving credit loans made by the Revolving Credit Lenders to
the Borrower pursuant to Section 2.01 (a) and unless the context requires otherwise, shall be deemed to include any
Protective Loan.
“Revolving Credit Maturity Date” shall mean
(a)
with respect to the Revolving Credit Loans, the date that is the 5th anniversary of the
Closing Date; and
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(b)
with respect to the Extended Revolving Credit Loans, the date set forth in the Extension
Offer.
If any such date is not a Business Day, then the Revolving Credit Maturity Date shall be the most recent
Business Day preceding such date.
“S&P” shall mean Standard & Poor’s Rating Services LLC.
“Secured Hedge Agreement” shall mean any Hedging Agreement permitted under Section 6.03(f) that is
entered into by and between any Loan Party or any Restricted Subsidiary and any Hedge Bank. Notwithstanding the
foregoing, for all purposes of the Loan Documents, any Guarantee of, or grant of any Lien to secure, any obligations
in respect of a Secured Hedge Agreement by a Guarantor shall not include any Excluded Swap Obligations.
“Secured Parties” shall mean (i) the Lenders, (ii) the Administrative Agent, (iii) the Collateral Agent, (iv)
any Issuing Bank, (v) each Other Secured Party, (vi) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (vii) the successors and assigns of each of the foregoing.
“Security Agreement” shall mean, collectively, the Security Agreement executed by the Loan Parties dated as of the Closing Date together with each other Security Agreement Supplement executed and delivered pursuant
to Section 5.11.
“Security Agreement Supplement” has the meaning specified in the Security Agreement.
“Settlement” shall have the meaning assigned to such term in Section 2.22(f).
“Solvency Certificate” shall mean a certificate stating that the Parent and its subsidiaries on a consolidated
basis are Solvent in accordance with the terms of Section 3.15 and substantially in the form of Exhibit J, or such
other form as shall be approved by the Administrative Agent.
“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date
(a) the fair value of the property (for the avoidance of doubt, calculated in accordance with GAAP) of such Person is
greater than the total amount of liabilities, including contingent, subordinated and other liabilities, of such Person,
(b) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay
the probable liability including contingent, subordinated and other liabilities of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and will not, incur debts or liabilities beyond such
Person’s ability to pay such debts and liabilities as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably
be expected based on financial statements to become an actual or matured liability.
“SPC” shall have the meaning assigned to such term in Section 9.04(i).
“Specified Equity Contribution” shall mean cash equity contributions (which if in the form of preferred
equity shall be on terms and conditions reasonably acceptable to the Administrative Agent) made directly or indirectly to the Borrower as cash equity after the Closing Date and on or prior to the day on which any Borrowing
hereunder is requested when a Fixed Charge Coverage Ratio Testing Period has occurred, which equity contribution
is added to Consolidated EBITDA solely for the purposes of calculating compliance with Section 6.11.
“Specified Event of Default” shall mean any Event of Default under Sections 7.01(a), (f), (b) (solely with
respect to Section 5.15), (c) (solely with respect to Section 5.01(e)).
“Specified L/C Sublimit” shall mean, with respect to Citibank, N.A. as an Issuing Bank, 29.5% of the L/C
Commitments; with respect to Morgan Stanley Bank, N.A. as an Issuing Bank, 23.5% of the L/C Commitments;
with respect to Deutsche Bank AG New York Branch as an Issuing Bank, 23.5% of the L/C Commitments; and with
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respect to Credit Suisse AG, Cayman Islands Branch as an Issuing Bank, 23.5% of the L/C Commitments, or in each
case such lower percentage as is specified in this Agreement pursuant to which any other person becomes an Issuing
Bank pursuant to Section 2.23(i) or 2.23(k) hereof.
“Spot Rate” for a currency means the rate determined by the Administrative Agent or an Issuing Bank, as
applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office; provided that the
Administrative Agent or a Issuing Bank may obtain such spot rate from another financial institution designated by
the Administrative Agent or such Issuing Bank if the Person acting in such capacity does not have as of the date of
determination a spot buying rate for any such currency; and provided that the Issuing Bank may use such spot rate
quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in an Alternative Currency.
“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is the number
one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board
and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including
any branch, Affiliate or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as
defined in Regulation D of the Board). Eurocurrency Loans shall be deemed to constitute Eurocurrency Liabilities
(as defined in Regulation D of the Board) and to be subject to such reserve requirements without benefit of or credit
for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D.
Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subordinated Indebtedness” shall mean any Indebtedness that is expressly subordinated in right of payment to the prior payment of all Obligations of the Loan Parties under the Loan Documents.
“Subsidiary” or “subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), a
corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the election of directors or other governing
body (other than securities or interests having such power only by reason of the happening of a contingency) are at
the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary”
or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
“Subsidiary Guarantor” shall mean collectively, the Subsidiaries of the Borrower that are Guarantors.
“Successor Borrower” shall have the meaning assigned to such term in Section 6.04(e).
“Supermajority Lenders” shall mean, at any time, Lenders having Revolving Credit Exposure and unused
Revolving Credit Commitments representing at least 66⅔% of the sum of the Aggregate Revolving Credit Exposure
and all unused Revolving Credit Commitments at such time; provided that the Revolving Credit Exposure and unused Revolving Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the Supermajority Lenders at any time.
“Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time shall equal its Pro Rata
Percentage of the aggregate Swingline Exposure at such time.
“Swingline Lender” shall mean Citibank, N.A., acting through any of its Affiliates or branches, in its capacity as lender of Swingline Loans hereunder.
“Swingline Limit” shall mean the amount equal to $25,000,000.
“Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.22.
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“Taxes” has the meaning specified in Section 2.20(a).
“Term Facility Administrative Agent” shall mean Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent under the Term Loan Agreement Documentation and any successor agent to Credit
Suisse AG, Cayman Islands Branch.
“Term Loan Agreement” shall mean the Term Loan Agreement dated as of the date hereof among Holdings, the Borrower, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent and the
other parties thereto, as such agreement may be amended, supplemented, waived or otherwise modified from time to
time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time
(whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders
or otherwise, and whether provided under the original Term Loan Agreement or other credit agreements or otherwise, unless such agreement, instrument or document expressly provides that it is not intended to be and is not a
Term Loan Agreement) in each case to the extent permitted hereunder and the Term Loan/Revolving Facility Intercreditor Agreement.
“Term Loan Agreement Documentation” shall mean the Term Loan Agreement, all “Loan Documents”
(as defined in the Term Loan Agreement) and all other security agreements, guarantees, pledge agreements and other agreements or instruments executed in connection therewith.
“Term Loan Agreement Event of Default” means “Event of Default”, as such term is defined in the Term
Loan Agreement.
“Term Loan Facility Indebtedness” shall mean “Obligations” as defined in the Term Loan Agreement.
“Term Loan/Revolving Facility Intercreditor Agreement” shall mean the Intercreditor Agreement dated as
of the date hereof among the Agents, the administrative agent and the collateral agent in respect of the Term Loan
Agreement, the Borrower and the other parties thereto, substantially in the form of Exhibit D or as the same may be
supplemented or modified from time to time and shall include any replacement intercreditor agreement.
“Testing Period” means, at any date of determination, the most recently completed four consecutive fiscal
quarters of the Borrower ending on or prior to such date for which financial statements were required to be delivered
pursuant to Section 5.01; provided that, prior to the first date pursuant to which the financial statements have been
delivered pursuant to Section 5.01, the Fixed Charge Coverage Ratio Testing Period shall be the four fiscal quarter
period ending December 31, 2013.
“Total Assets” shall mean the total assets of the Borrower and the Restricted Subsidiaries on a consolidated basis, as shown on the most recent balance sheet of the Borrower delivered pursuant to Section 5.01(a) or (b) or,
for the period prior to the time any such statements are so delivered pursuant to Section 5.01(a) or (b), the balance
sheet set forth in the Audited Financial Statements.
“Total Revolving Credit Commitment” shall mean, at any time, the aggregate amount of the Revolving
Credit Commitments, as in effect at such time.
“Trademarks” shall have the meaning assigned to such term in the Security Agreement.
“Transactions” shall mean, collectively, (a) the Loan Transactions, (b) the consummation of the Plan of
Reorganization and (c) all other transactions related to the forgoing clauses (a) and (b), including the payment of
fees and expenses (including Transaction Expenses) in connection herewith and therewith.
“Type” when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes hereof, the term “Rate”
shall mean the Adjusted LIBO Rate and the Alternate Base Rate.
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“UCC” shall mean the Uniform Commercial Code as the same may from time to time be in effect in the
State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent
it may be required to apply to any item or items of Collateral.
“Unaudited Financial Statements” shall mean the unaudited combined balance sheets and related statements of income and cash flows of the Parent and its Restricted Subsidiaries, for the six month period ended December 31, 2013, previously delivered to the Administrative Agent.
“Unrestricted Domestic Cash and Cash Equivalents” shall mean domestic cash, Cash Equivalents and
Permitted Investments of Holdings and its Restricted Subsidiaries that are Domestic Subsidiaries, which cash, Cash
Equivalents and Permitted Investments are not subject to any contractual, regulatory or legal restrictions on the use
thereof to repay the Loans under this Agreement or the other Loan Documents and (c) are held in accounts that are
pledged to the Secured Parties pursuant to the Security Agreement and subject to one or more control agreements or
maintained with the Collateral Agent.
“Unrestricted Subsidiary” shall mean a Subsidiary which has been designated as such pursuant to Section
5.14 and which has not been re-designated as a Restricted Subsidiary pursuant to Section 5.14.
“Unused Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).
“U.S. Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in U.S. Dollars,
such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount
thereof in Dollars as determined by the Administrative Agent and the applicable Issuing Bank at such time on the
basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of U.S. Dollars
with such Alternative Currency.
“U.S. Dollars” or “U.S.$” or “$” shall mean the lawful currency of the United States of America.
“U.S. Lender” shall have the meaning assigned to such term in Section 9.18(b).
“U.S. Person” shall mean any “United States Person” within the meaning of Section 7701(a)(30) of the
Code and any Person treated as a “domestic corporation” for purposes of the Code.
“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107 56 (signed into law October
26, 2001)).
“Waterfall” shall have the meaning assigned to such term in Section 7.04.
“wholly owned” of any person shall mean, with respect to a Subsidiary of a Person, a Subsidiary of such
Person all of the outstanding Equity Interests of which (other than (x) director’s qualifying shares and (y) shares
issued to foreign nationals to the extent required by applicable Law) are owned by such Person and/or by one or
more wholly owned Subsidiaries of such Person.
“Withdrawal Liability” shall mean the liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02
Terms Generally. The definitions in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed
to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and
effect as the word “shall”; and the words “asset” and “property” shall be construed as having the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless the context shall otherwise re-
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quire. Except as otherwise expressly provided herein, (a) any reference in this Agreement to any agreement or document shall mean such agreement or document as amended, restated, supplemented or otherwise modified from time
to time (subject to any restrictions in any Loan Document on the amendment, restatement, supplement or other modification thereof) and (b) all terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided, however, that if the Borrower notifies the Administrative Agent that the
Borrower wishes to amend any covenant in Article VI, any other provision hereof or any related definition to eliminate the effect of any material change in GAAP or the application thereof occurring after the date of this Agreement
on the operation of such covenant or provision (or if the Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI, any other provision hereof or any related definition for such purpose),
regardless of whether any such notice is given before or after such change in GAAP or the application thereof, then
such covenant or provision shall be interpreted on the basis of GAAP in effect and applied immediately before such
change became effective, until either such notice is withdrawn or such covenant or provision is amended in a manner satisfactory to the Borrower and the Required Lenders. In addition, notwithstanding any other provision contained herein, the definitions set forth in the Loan Documents and any financial calculations required by the Loan
Documents shall be computed to exclude any change to lease accounting rules from those in effect pursuant to Financial Accounting Standards Board Accounting Standards Codification 840 (Leases) and other related lease accounting guidance as in effect on the Closing Date. When any Reserve is to be established or a change in any
amount, percentage, reserve, eligibility criteria or other item in the definitions of the terms “Bank Product Reserves,” “Borrowing Base,” “Eligible Cash Amounts,” “Eligible Credit Card Receivables,” “Eligible Inventory,”
“Eligible Receivables,” “Rent Reserve” “Data Maintenance Reserves” and “Reserves” is to be determined in each
case in the Administrative Agent’s Permitted Discretion, such Reserve shall be implemented or such change shall
become effective on the third day after the date of delivery of a written notice thereof to the Borrower, or immediately, without prior written notice, during the continuance of an Event of Default or as otherwise provided herein.
SECTION 1.03
[Reserved].
SECTION 1.04
Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a “Revolving Credit Loan”) or by Type (e.g., a “Eurocurrency Revolving Credit Loan”) or by Class and Type (e.g., a “Eurocurrency Revolving Credit Loan”). Borrowings also
may be classified and referred to by Class (e.g., a “Revolving Credit Borrowing”) or by Type (e.g., a “Eurocurrency Borrowing”) or by Class and Type (e.g., a “Eurocurrency Revolving Credit Borrowing”).
SECTION 1.05
Currency Equivalents Generally.
(a)
The Administrative Agent and the applicable Issuing Bank shall determine the Spot Rates
as of each Revaluation Date to be used for calculating U.S. Dollar Equivalents of credit extensions and outstanding
amounts denominated in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation
Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the
next Revaluation Date to occur. Except for purposes of financial statements delivered by Loan Parties hereunder or
calculating financial ratios hereunder or except as otherwise provided herein, the applicable amount of any currency
(other than Dollars) for purposes of the Loan Documents shall be such U.S. Dollar Equivalent as so determined by
the Administrative Agent.
(b)
Wherever in this Agreement in connection with the issuance, amendment or extension of
an Alternative Currency Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed
in Dollars, but such Alternative Currency Letter of Credit is denominated in an Alternative Currency, such amount,
other than in cases where a U.S. Dollar Equivalent is expressly included, shall be the relevant Alternative Currency
Equivalent of such U.S. Dollar Equivalent (rounded to the nearest unit of such Alternative Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent and the applicable Issuing Bank.
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ARTICLE II
The Credits
SECTION 2.01
Commitments.
(a)
Subject to the terms and conditions herein set forth, each Revolving Credit Lender
agrees, severally and not jointly, to make Revolving Credit Loans to the Borrower, at any time and from time to time
on or after the Closing Date and until the earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitment of such Lender in accordance with the terms hereof, in an aggregate principal
amount at any time outstanding that will not result in such Lender’s Revolving Credit Exposure exceeding the lesser
of such Lender’s Revolving Credit Commitment and such Lender’s Pro Rata Percentage of the Borrowing Base.
Within the limits of the foregoing, and subject to the terms, conditions and limitations otherwise set forth herein, the
Borrower may borrow, pay or prepay and reborrow Revolving Credit Loans.
(b)
The Administrative Agent shall be authorized, in its Permitted Discretion, at any time
that any conditions in Section 4.02 are not satisfied, to make Revolving Credit Loans in U.S. Dollars that are ABR
Loans (any such Revolving Credit Loans made pursuant to this Section 2.01(b), “Protective Loans”) in an aggregate
amount not to exceed $10,000,000 at any time outstanding, if the Administrative Agent reasonably deems such Protective Loans necessary or desirable to preserve or protect Collateral, or to enhance the collectability or repayment
of Obligations; provided that no Protective Loan shall continue outstanding for more than 90 consecutive days (and
no further Protective Loan may be made for at least five consecutive days after the repayment by the Borrower of
any outstanding Protective Loans) or such longer period as the Administrative Agent may agree in its reasonable
discretion. Protective Loans shall constitute Revolving Credit Loans and Obligations secured by the Collateral and
shall be entitled to all of the benefits of the Loan Documents. Immediately upon the making of a Protective Loan,
each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase
from the Administrative Agent a risk participation in such Protective Loan in an amount equal to such Lender’s Pro
Rata Percentage of such Protective Loan. From and after the date, if any, on which any Lender is requested by the
Administrative Agent to fund, and has funded its participation in any Protective Loan purchased hereunder, the Administrative Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Percentage of all payments of
principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Loan (and prior to such date, all payments on account of the Protective Loans shall be payable to the Administrative Agent solely for its own account). The Required Lenders may at any time revoke the Administrative Agent’s
authority to make further Protective Loans by written notice to the Administrative Agent. Absent such revocation,
the Administrative Agent’s determination that funding of a Protective Loan is appropriate shall be conclusive. In no
event shall Protective Loans cause any Lender’s Revolving Credit Exposure to exceed such Lender’s Revolving
Credit Commitment. Protective Loans shall be payable by the Borrower on demand.
SECTION 2.02
Loans and Borrowings.
(a)
Each Revolving Credit Loan (other than Swingline Loans) shall be made as part of a Borrowing consisting of Loans made by the applicable Revolving Credit Lenders, as applicable, ratably in accordance
with their applicable Commitments; provided, however, that the failure of any Revolving Credit Lender to make any
Revolving Credit Loan, as applicable, shall not in itself relieve any other Revolving Credit Lender of its obligation
to lend hereunder (it being understood, however, that no Revolving Credit Lender shall be responsible for the failure
of any other Revolving Credit Lender to make any Revolving Credit Loan required to be made by such other Revolving Credit Lender, as applicable). Except for Revolving Credit Loans deemed made pursuant to Section 2.02(f),
the Revolving Credit Loans comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum or (ii) equal to the remaining
available balance of the Revolving Credit Commitments.
(b)
Subject to Sections 2.02(f), 2.08 and 2.15, each Borrowing shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the Borrower may request pursuant to Section 2.03. Each Lender may at its
option make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the
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same time; provided, however, that the Borrower shall not be entitled to request any Borrowing that, if made, would
result in more than ten (10) Eurocurrency Borrowings outstanding hereunder at any time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall
be considered separate Borrowings.
(c)
Except with respect to Loans made pursuant to Section 2.02(f)(ii), each Lender shall
make each Revolving Credit Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account as the Administrative Agent may designate not later than 1:00 p.m., Local
Time, and the Administrative Agent shall promptly credit the amounts so received to an account designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so received to the respective Lenders.
(d)
Unless the Administrative Agent shall have received notice from a Lender prior to the
date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s portion
of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with paragraph (c) above and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount.
If the Administrative Agent shall have so made funds available then, to the extent that such Lender shall not have
made such portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each
day from the date such amount is made available to the Borrower to but excluding the date such amount is repaid to
the Administrative Agent at (i) in the case of the Borrower, a rate per annum equal to the interest rate applicable at
the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, a rate determined by the Administrative Agent to represent its cost of overnight or short term funds (which determination shall be conclusive
absent manifest error). If such Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.
(e)
Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Revolving Credit Borrowing if the Interest Period requested
with respect thereto would end after the Revolving Credit Maturity Date.
(f)
In the case of any L/C Disbursement with respect to a Letter of Credit, if the Issuing
Bank shall not have received from the Borrower the payment required to be made by Section 2.23(e) within the time
specified in such Section, the Issuing Bank will promptly notify the Administrative Agent of the L/C Disbursement
and the Administrative Agent will promptly notify each Revolving Credit Lender of such L/C Disbursement and its
Pro Rata Percentage thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately available
funds to the Administrative Agent not later than 2:00 p.m., Local Time, on such date (or, if such Revolving Credit
Lender shall have received such notice later than 12:00 (noon), Local Time, on any day, not later than 10:00 a.m.,
Local Time, on the immediately following Business Day), an amount equal to such Lender’s Pro Rata Percentage of
such L/C Disbursement (it being understood that (i) if the conditions precedent to borrowing set forth in Section
4.02 have been satisfied, such amount shall be deemed to constitute an ABR Revolving Credit Loan of such Lender
and, to the extent of such payment, the obligations of the Borrower in respect of such L/C Disbursement shall be
discharged and replaced with the resulting ABR Revolving Credit Borrowing, and (ii) if such conditions precedent
to borrowing have not been satisfied, then any such amount paid by any Revolving Credit Lender shall not constitute
a Revolving Credit Loan and shall not relieve the Borrower from its obligation to reimburse such L/C Disbursement), and the Administrative Agent will promptly pay to the Issuing Bank amounts so received by it from the Revolving Credit Lenders. The Administrative Agent will promptly pay to the Issuing Bank any amounts received by
it from the Borrower pursuant to Section 2.23(e) prior to the time that any Revolving Credit Lender makes any payment pursuant to this paragraph (f); any such amounts received by the Administrative Agent thereafter will be
promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made such payments
and to the Issuing Bank, as their interests may appear. If any Revolving Credit Lender shall not have made its Pro
Rata Percentage of such L/C Disbursement available to the Administrative Agent as provided above, such Lender
and the Borrower severally agree to pay interest on such amount, for each day from and including the date such
amount is required to be paid in accordance with this paragraph to but excluding the date such amount is paid, to the
Administrative Agent for the account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum equal
to the interest rate applicable to the Revolving Credit Loans pursuant to Section 2.06(a) or 2.07 (as applicable) and
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(ii) in the case of such Lender, for the first such day, the Federal Funds Effective Rate, and for each day thereafter,
the Alternate Base Rate.
SECTION 2.03
Borrowing Procedure. In order to request a Revolving Credit Borrowing (other than
a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.03 shall not apply),
the Borrower shall notify the Administrative Agent of such request by telephone or in writing (a) in the case of a
Eurocurrency Borrowing, not later than 1:00 p.m., New York City time, three Business Days before a proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 1:00 p.m., New York City time, one Business Day
before a proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable, and shall be confirmed
promptly by hand delivery, fax or electronic mail to the Administrative Agent of a written Borrowing Request and
shall specify the following information: (i) whether such Borrowing is to be a Eurocurrency Borrowing or an ABR
Borrowing; (ii) the date of such Borrowing (which shall be a Business Day); (iii) the number and location of the
account to which funds are to be disbursed; (iv) the amount of such Borrowing; and (v) if such Borrowing is to be a
Eurocurrency Borrowing, the Interest Period with respect thereto; provided that notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any Eurocurrency Borrowing is specified in any
such notice, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice given pursuant to this Section 2.03
(and the contents thereof), and of each Lender’s portion of the requested Borrowing.
SECTION 2.04
Evidence of Debt; Repayment of Loans.
(a)
The Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Revolving Credit Loan of such Lender on the
Revolving Credit Maturity Date. The Borrower hereby promises to pay to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the Revolving Credit Maturity Date.
(b)
Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c)
The Administrative Agent shall maintain accounts in which it will record (i) the amount
of each Loan made hereunder, the Class, Type and series thereof (as applicable) and, if applicable, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender’s share thereof.
(d)
The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above
shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrower to repay the Loans in accordance with their terms.
(e)
Any Lender may request that Loans made by it hereunder be evidenced by a promissory
note (a “Note”. In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns and in a form and substance reasonably acceptable to the Administrative
Agent and the Borrower. Notwithstanding any other provision of this Agreement, in the event any Lender shall request and receive such a promissory note, the interests represented by such note shall at all times (including after
any assignment of all or part of such interests pursuant to Section 9.04) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
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SECTION 2.05
Fees.
(a)
The Borrower agrees to pay to the Administrative Agent, in U.S. Dollars, for the account
of each Revolving Credit Lender on the last Business Day of March, June, September and December of each year
(commencing with the last Business Day of June 2014) during the period from and including the Closing Date to but
excluding the Revolving Credit Maturity Date and on each date on which the Revolving Credit Commitment of such
Lender shall expire or be terminated as provided herein a fee (an “Unused Commitment Fee”) at a rate per annum
equal to the Applicable Fee Percentage on the daily unused amount of the Revolving Credit Commitment of such
Lender (but disregarding any of its share of any Swingline Exposure) during the preceding quarter (or other period
commencing with the date hereof or ending with the Revolving Credit Maturity Date or the date on which the Revolving Credit Commitment of such Lender shall expire or be terminated, as applicable); provided that the Borrower
shall not pay any Unused Commitment Fee for the account of any Revolving Credit Lender that is a Defaulting
Lender. All Unused Commitment Fees shall be computed on the basis of the actual number of days elapsed in a
year of 360 days.
(b)
The Borrower agrees to pay to the Administrative Agent, in U.S. Dollars, for its own account, the administration fees set forth in the Fee Letter at the times and in the amounts specified therein (the “Administrative Agent Fees”).
(c)
The Borrower agrees to pay (i) to each Revolving Credit Lender, through the Administrative Agent, on the last Business Day of March, June, September and December of each year (commencing with the
last Business Day of June 2014) during the period from and including the Closing Date to but excluding the Revolving Credit Maturity Date and on the date on which the Revolving Credit Commitment of such Revolving Credit
Lender shall be terminated as provided herein, a fee (an “L/C Participation Fee”) calculated on such Revolving
Credit Lender’s Pro Rata Percentage of the daily aggregate L/C Exposure (excluding the portion thereof attributable
to unreimbursed L/C Disbursements) during the preceding quarter (or shorter period commencing with the date
hereof or ending with the Revolving Credit Maturity Date or the date on which all Letters of Credit have been canceled or have expired and the Revolving Credit Commitments of all Revolving Credit Lenders shall have been terminated) at a rate per annum equal to the Applicable Percentage from time to time used to determine the interest rate
on Revolving Credit Borrowings comprised of Eurocurrency Loans pursuant to Section 2.06, and (ii) to the Issuing
Bank with respect to each Letter of Credit issued by it, on the last Business Day of March, June, September and December of each year (commencing with the last Business Day of June 2014) during the period from and including
the Closing Date to but excluding the Revolving Credit Maturity Date and on any earlier date upon which all the
Revolving Credit Commitments terminate, a fronting fee calculated on the daily aggregate L/C Exposure (excluding
the portion thereof attributable to unreimbursed L/C Disbursements) attributable to such Letters of Credit during the
preceding quarter (or shorter period commencing with the date hereof or ending with the Revolving Credit Maturity
Date or the date on which such Letters of Credit have been canceled or have expired and the Revolving Credit
Commitments of all Revolving Credit Lenders shall have been terminated) at a rate per annum equal to 0.125%, and
the Issuing Bank’s standard issuance, administration, amendment, extension and drawing fees specified from time to
time by the Issuing Bank (the “Issuing Bank Fees”). All L/C Participation Fees and Issuing Bank Fees shall be
payable in U.S. Dollars computed on the basis of the actual number of days elapsed in a year of 360 days.
(d)
All Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.06
Interest on Loans.
(a)
Subject to the provisions of Section 2.07, the Loans comprising each ABR Borrowing,
including each Swingline Loan, shall bear interest (computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, when the Alternate Base Rate is determined by reference to the Prime
Rate and over a year of 360 days at all other times and calculated from and including the date of such Borrowing to
but excluding the date of repayment thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable Percentage in effect from time to time.
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(b)
Subject to the provisions of Section 2.07, the Loans comprising each Eurocurrency Borrowing shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Percentage in effect from time to time.
(c)
Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or Adjusted LIBO Rate
for each Interest Period or day within an Interest Period, as the case may be, shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.07
Default Interest. The Borrower shall pay interest on past due amounts hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws. Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and
payable upon demand.
SECTION 2.08
Alternate Rate of Interest. In the event, and on each occasion, that on the day two
Business Days prior to the commencement of any Interest Period for a Eurocurrency Borrowing, the Administrative
Agent shall have determined that deposits in the principal amounts of the Loans comprising such Borrowing are not
generally available in the relevant interbank market, or that the rates at which such deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or maintaining its Eurocurrency Loan during such
Interest Period, or that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written, fax or electronic mail notice of such determination to the
Borrower and the Lenders. In the event of any such determination, until the Administrative Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (a) any request
by the Borrower for a Eurocurrency Borrowing pursuant to Section 2.03 shall be deemed to be a request for an ABR
Borrowing and (b) any request by the Borrower for a Eurocurrency Borrowing pursuant to Section 2.10 shall be
deemed a request for an ABR Borrowing. Each determination by the Administrative Agent under this Section 2.08
shall be conclusive absent manifest error.
SECTION 2.09
Termination and Reduction of Commitments.
(a)
Any Revolving Credit Commitments shall automatically terminate on the Revolving
Credit Maturity Date. Any L/C Commitment shall automatically terminate on the earlier to occur of (i) the termination of the Revolving Credit Commitments and (ii) the date five days prior to the Revolving Credit Maturity Date.
(b)
Upon at least three Business Days’ prior irrevocable written, fax or electronic mail notice
to the Administrative Agent, the Borrower may at any time in whole permanently terminate, or from time to time in
part permanently reduce, the Revolving Credit Commitments (if any); provided, however, that (i) each partial reduction of the Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and in a minimum amount
of $5,000,000, and (ii) the Revolving Credit Commitment shall not be reduced to an amount that is less than the
Aggregate Revolving Credit Exposure at the time; provided further that, if a notice of termination of the Revolving
Credit Commitments is given in connection with a conditional notice of optional prepayment as contemplated by
Section 2.12(b), then such notice of termination may be revoked if such notice of optional prepayment is revoked in
accordance with Section 2.12(b).
(c)
Each reduction in the Revolving Credit Commitments hereunder shall be made ratably
among the Lenders in accordance with their respective applicable Commitments. The Borrower shall pay to the
Administrative Agent for the account of the Revolving Credit Lenders, on the date of each termination or reduction
of the Revolving Credit Commitments, the Unused Commitment Fees, as applicable, on the amount of the Revolving Credit Commitments, so terminated or reduced accrued to but excluding the date of such termination or reduction.
SECTION 2.10
Conversion and Continuation of Borrowings. The Borrower shall have the right at
any time upon prior irrevocable notice to the Administrative Agent (a) not later than 1:00 p.m., New York City time,
three Business Day prior to conversion, to convert any Eurocurrency Borrowing into an ABR Borrowing, (b) not
later than 1:00 p.m., New York City time, three Business Days prior to conversion or continuation, to convert any
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ABR Borrowing into a Eurocurrency Borrowing or to continue any Eurocurrency Borrowing as a Eurocurrency Borrowing for an additional Interest Period, and (c) not later than 1:00 p.m., Local Time, three Business Days prior to
conversion, to convert the Interest Period with respect to any Eurocurrency Borrowing to another permissible Interest Period, subject in each case to the following:
(i)
each conversion or continuation shall be made pro rata among the Lenders in accordance
with the respective principal amounts of the Loans comprising the converted or continued Borrowing;
(ii)
if less than all the outstanding principal amount of any Borrowing shall be converted or
continued, then each resulting Borrowing shall satisfy the limitations specified in Sections 2.02(a) and
2.02(b) regarding the principal amount and maximum number of Borrowings of the relevant Type;
(iii)
each conversion shall be effected by each Lender and the Administrative Agent by recording for the account of such Lender the new Loan of such Lender resulting from such conversion and
reducing the Loan (or portion thereof) of such Lender being converted by an equivalent principal amount;
accrued interest on any Eurocurrency Loan (or portion thereof) being converted shall be paid by the Borrower at the time of conversion;
(iv)
if any Eurocurrency Borrowing is converted at a time other than the end of the Interest
Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to the Lenders pursuant
to Section 2.16;
(v)
any portion of a Borrowing maturing or required to be repaid in less than one month may
not be converted into or continued as a Eurocurrency Borrowing;
(vi)
any portion of a Eurocurrency Borrowing that cannot be converted into or continued as a
Eurocurrency Borrowing by reason of the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Borrowing into an ABR Borrowing; and
(vii)
upon notice to the Borrower from the Administrative Agent given at the request of the
Required Lenders, after the occurrence and during the continuance of an Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurocurrency Loan.
Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this Agreement and specify
(i) the identity and amount of the Borrowing that the Borrower request be converted or continued, (ii) whether such
Borrowing is to be converted to or continued as a Eurocurrency Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of such conversion (which shall be a Business Day) and (iv) if such Borrowing is
to be converted to or continued as a Eurocurrency Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or continuation as a Eurocurrency Borrowing, the Borrower shall be deemed to have selected an Interest Period of one month’s duration. The Administrative
Agent shall advise the Lenders of any notice given pursuant to this Section 2.10 and of each Lender’s portion of any
converted or continued Borrowing. If the Borrower shall not have given notice in accordance with this Section 2.10
to continue any Eurocurrency Borrowing into a subsequent Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the Interest
Period applicable thereto (unless repaid pursuant to the terms hereof), automatically be continued into an ABR Borrowing.
SECTION 2.11
Repayment of Revolving Credit Loans.
(a)
All Revolving Credit Loans shall be due and payable on the Revolving Credit Maturity
Date, together with accrued and unpaid interest on the principal amount to be paid to but excluding the date of payment.
(b)
All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.
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SECTION 2.12
Optional Prepayment.
(a)
Subject to paragraph (d) below, the Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, (i) in the case of a Eurocurrency Borrowing, upon at least
three Business Days’ prior written, fax or electronic mail notice (or telephone notice promptly confirmed by written,
fax or electronic mail notice) or (ii) in the case of an ABR Borrowing, upon at least one Business Day’s prior written, fax or electronic mail notice (or telephone notice promptly confirmed by written, fax or electronic mail notice),
in each case to the Administrative Agent before 1:00 p.m., New York City time; provided, however, that (i) each
partial prepayment shall be in an amount that is an integral multiple of the Borrowing Multiple and not less than the
Borrowing Minimum and (ii) any prepayment of a Borrowing pursuant to this Section 2.12(a) shall be made on a
pro rata basis among the Loans comprising such Borrowing based on the aggregate principal amount of such Loans
then outstanding.
(b)
Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the Borrower to prepay
such Borrowing by the amount stated therein on the date stated therein; provided that, a notice of optional prepayment may state that such notice is conditioned upon the receipt of net proceeds from other Indebtedness, in which
case such notice may be revoked by the Borrower (by written notice to the Administrative Agent) on or prior to the
fourth Business Day after such notice of optional prepayment is delivered. All prepayments under this Section 2.12
shall be subject to Section 2.16 but otherwise without premium or penalty. All prepayments under this Section 2.12
(other than prepayments of ABR Revolving Credit Loans that are not made in connection with the termination or
permanent reduction of the Revolving Credit Commitments) shall be accompanied by accrued and unpaid interest on
the principal amount to be prepaid to but excluding the date of payment.
SECTION 2.13
Mandatory Prepayments.
(a)
In the event of any termination of all the Revolving Credit Commitments, the Borrower
shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the Issuing Banks with respect to) all outstanding Letters of Credit. If, after giving effect to
any partial reduction of the Revolving Credit Commitments (if any), the Aggregate Revolving Credit Exposure
would exceed the lesser of the Borrowing Base and the Total Revolving Credit Commitment, then the Borrower
shall, on the date of such reduction, repay or prepay the Revolving Credit Borrowings or Swingline Loans (or a
combination thereof) and, after the Revolving Credit Borrowings and Swingline Loans shall have been repaid or
prepaid in full, replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent
and the Issuing Banks with respect to) Letters of Credit in an amount sufficient to eliminate such excess.
(b)
The Borrower shall, on each Business Day, if applicable, prepay (with no corresponding
Commitment reduction) an aggregate principal amount of the Loans in an amount equal to the amount, if any, by
which (i) the Aggregate Revolving Credit Exposure exceeds (ii) the lesser of the Borrowing Base and the Total Revolving Credit Commitment (except as a result of Protective Loans made under Section 2.01(b) and not outstanding
for more than 90 consecutive days); provided that in respect of any prepayment under this Section 2.13(b) directly
attributable to any adjustment of Reserves, such prepayment shall be made not later than the Business Day immediately following the date such adjusted Reserves became effective; provided that in respect of any prepayment under
this Section 2.13(b) directly attributable to the funding of a Protective Loan by the Administrative Agent, such prepayment shall be due on the earlier of (x) 90 days after the funding of such Protective Loan and (y) one Business
Day after demand by the Administrative Agent.
(c)
During any Cash Dominion Period, the Borrower shall prepay outstanding Obligations in
accordance with Section 5.15(iii).
SECTION 2.14
Reserve Requirements; Change in Circumstances.
(a)
Notwithstanding any other provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender or the Issuing Banks (except any such reserve requirement
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which is reflected in the Adjusted LIBO Rate) or shall impose on such Lender or the Issuing Banks or the London
interbank market any other condition affecting this Agreement or Eurocurrency Loans made by such Lender or any
Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such
Lender or the Issuing Banks of making or maintaining any Eurocurrency Loan or increase the cost to any Lender of
issuing or maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce the
amount of any sum received or receivable by such Lender or the Issuing Banks hereunder (whether of principal,
interest or otherwise, but excluding any such increased costs resulting from (X) Taxes or Other Taxes indemnified
pursuant to Section 2.20, (Y) any taxes not indemnifiable pursuant to the terms of Section 2.20(d), Section 2.20(e)
or Section 9.18) or (Z) the imposition of, or any change in the rate of, any taxes imposed on or measured by net income (including branch profits) and franchise (and similar) taxes imposed in lieu of net income taxes imposed on
such Lender by the jurisdiction (or any political subdivision thereof) under the laws of which such Lender is organized or maintains a Lending Office) by an amount deemed by such Lender or the Issuing Banks to be material, then
the Borrower will pay to such Lender or the Issuing Banks, as the case may be, upon demand such additional
amount or amounts as will compensate such Lender or the Issuing Banks, as the case may be, for such additional
costs incurred or reduction suffered.
(b)
If any Lender or any Issuing Bank shall have determined that any Change in Law regarding capital adequacy has or would have the effect of reducing the rate of return on such Lender’s or such Issuing
Bank’s capital or on the capital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence
of this Agreement or the Loans made or participations in Letters of Credit purchased by such Lender pursuant hereto
or the Letters of Credit issued by such Issuing Bank pursuant hereto to a level below that which such Lender or such
Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or
such Issuing Bank’s holding company with respect to capital adequacy) by an amount deemed by such Lender or
such Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender or such Issuing
Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered.
(c)
A certificate of a Lender or an Issuing Bank setting forth the amount or amounts necessary to compensate such Lender or such Issuing Bank or its holding company, as applicable, as specified in paragraph (a) or (b) above, and if applicable, with calculations thereof, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank the amount shown as
due on any such certificate delivered by it within 10 days after its receipt of the same.
(d)
Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
for any increased costs or reduction in amounts received or receivable or reduction in return on capital shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be under any obligation to compensate any Lender or any Issuing Bank under paragraph (a) or (b)
above with respect to increased costs or reductions with respect to any period prior to the date that is 9 months prior
to such request if such Lender or such Issuing Bank knew or could reasonably have been expected to know of the
circumstances giving rise to such increased costs or reductions and of the fact that such circumstances would result
in a claim for increased compensation by reason of such increased costs or reductions; provided further that the
foregoing limitation shall not apply to any increased costs or reductions arising out of the retroactive application of
any Change in Law within such 9 month period. The protection of this Section 2.14 shall be available to each Lender and each Issuing Bank regardless of any possible contention of the invalidity or inapplicability of the Change in
Law that shall have occurred or been imposed.
SECTION 2.15
Change in Legality.
(a)
Notwithstanding any other provision of this Agreement, if any Change in Law shall make
it unlawful for any Lender to make or maintain any Eurocurrency Loan or to give effect to its obligations as contemplated hereby with respect to any Eurocurrency Loan, then, by written notice to the Borrower and to the Administrative Agent:
(i)
such Lender may declare that Eurocurrency Loans will not thereafter (for the duration of
such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods) and
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ABR Loans will not thereafter (for such duration) be converted into Eurocurrency Loans, whereupon any
request for a Eurocurrency Borrowing (or to convert an ABR Borrowing to a Eurocurrency Borrowing or to
continue a Eurocurrency Borrowing for an additional Interest Period) shall, as to such Lender only, be
deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert such a Eurocurrency Loan into an ABR Loan, as the case may be); and
(ii)
such Lender may require that all outstanding Eurocurrency Loans made by it be converted to ABR Loans, in which event all such Eurocurrency Loans shall be automatically converted to ABR
Loans as of the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurocurrency Loans that would have been made by such
Lender or the converted Eurocurrency Loans of such Lender shall instead be applied to repay the ABR Loans made
by such Lender in lieu of, or resulting from the conversion of, such Eurocurrency Loans.
(b)
For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be effective as to each Eurocurrency Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurocurrency Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.
SECTION 2.16
Indemnity. The Borrower shall indemnify each Lender against any loss or expense
(other than any loss of the Applicable Percentage or other profit margin) that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the performance of its obligations hereunder,
which results in (i) such Lender receiving or being deemed to receive any amount on account of the principal of any
Eurocurrency Loan prior to the end of the Interest Period in effect therefor (including pursuant to a required assignment pursuant to Section 2.21(a)), (ii) the conversion of any Eurocurrency Loan to an ABR Loan, or the conversion
of the Interest Period with respect to any Eurocurrency Loan, in each case other than on the last day of the Interest
Period in effect therefor, or (iii) any Eurocurrency Loan to be made by such Lender (including any Eurocurrency
Loan to be made pursuant to a conversion or continuation under Section 2.10) not being made after notice of such
Loan shall have been given by the Borrower hereunder (any of the events referred to in this clause (a) being called a
“Breakage Event”) or (b) any default in the making of any payment or prepayment required to be made hereunder.
In the case of any Breakage Event, such loss shall be equal to, as reasonably determined by such Lender its cost of
obtaining funds for the Eurocurrency Loan that is the subject of such Breakage Event for the period from the date of
such Breakage Event to the last day of the Interest Period in effect (or that would have been in effect) for such Loan.
A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to receive pursuant to
this Section 2.16, with calculations thereof, shall be delivered to the Borrower and shall be conclusive absent manifest error. Failure or delay on the part of any Lender to demand indemnification under this Section 2.16 shall not
constitute a waiver of such right to demand such indemnification; provided that the Borrower shall not be under any
obligation to indemnify any Lender under this Section 2.16 for any claim made more than 180 days after the applicable Breakage Event.
SECTION 2.17
Pro Rata Treatment. Except as provided below in this Section 2.17 with respect to
Swingline Loans and as required under Section 2.15, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the Unused Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans of the applicable Class). For purposes of determining the
available Revolving Credit Commitments of the Lenders at any time, each outstanding Swingline Loan shall be
deemed to have utilized the Revolving Credit Commitments of the Lenders (including those Lenders which shall not
have made Swingline Loans) pro rata in accordance with such respective Revolving Credit Commitments. Each
Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative
Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole
dollar amount.
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SECTION 2.18
Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise of a right
of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party, or pursuant to a secured claim
under section 506 of the Bankruptcy Code or other security or interest arising from, or in lieu of, such secured claim,
received by such Lender under any applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, obtain payment (voluntary or involuntary) in respect of any Loan or Loans or L/C Disbursement as a
result of which the unpaid principal portion of its Loans and participations in L/C Disbursements shall be proportionately less than the unpaid principal portion of the Loans and participations in L/C Disbursements of any other
Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the Loans and L/C Exposure of such
other Lender, so that the aggregate unpaid principal amount of the Loans and L/C Exposure and participations in
Loans and L/C Exposure held by each Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Loans and L/C Exposure then outstanding as the principal amount of its Loans and L/C Exposure prior
to such exercise of banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans and
L/C Exposure outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18 and the
payment giving rise thereto shall thereafter be recovered, such purchase or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or adjustment restored without interest. The
Loan Parties expressly consent to the foregoing arrangements and agree that any Lender holding a participation in a
Loan or L/C Disbursement deemed to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all moneys owing by any Loan Party to such Lender by reason thereof as
fully as if such Lender had made a Loan directly to the Borrower in the amount of such participation. 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.
SECTION 2.19
Payments.
(a)
The Borrower shall make each payment (including principal of or interest on any Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under any other Loan Document not
later than 1:00 p.m., Local Time, on the date when due in immediately available U.S. Dollars, without setoff, defense or counterclaim. Each such payment (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Banks and (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline
Lender except as otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent at its address set
forth in Section 9.01. The Administrative Agent shall promptly distribute to each Lender any payments received by
the Administrative Agent on behalf of such Lender.
(b)
Except as otherwise expressly provided herein, whenever any payment (including principal of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan Document
shall become due, or otherwise would occur, on a day that is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or Fees, if applicable.
(c)
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 the 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 the 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 the 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.
SECTION 2.20
Taxes.
(a)
Except as provided in this Section 2.20, any and all payments by the Borrower or any
Guarantor to or for the account of any Agent or any Lender under any Loan Document shall be made free and clear
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of and without deduction for any and all present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities (including additions to tax, penalties and interest) with respect thereto, excluding, in the case of each Agent and each Lender, taxes imposed on or measured by its net income
(including branch profits), and franchise (and similar) taxes imposed on it in lieu of net income taxes, by the jurisdiction (or any political subdivision thereof) under the Laws of which such Agent or such Lender, as the case may
be, is organized or maintains a Lending Office, and all liabilities (including additions to tax, penalties and interest)
with respect thereto (all such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred to as “Taxes”). If the Borrower, any Guarantor or
any other applicable withholding agent shall be required by any Laws to deduct any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to any Agent or any Lender, (i) the sum payable by the applicable Loan Party shall be increased as necessary so that after all required deductions have been made (including
deductions applicable to additional sums payable under this Section 2.20), each of such Agent and such Lender receives an amount equal to the sum it would have received had no such deductions been made, (ii) the applicable
withholding agent shall make such deductions, (iii) the applicable withholding agent shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Laws, and (iv) within thirty
(30) days after the date of such payment (or, if receipts or evidence are not available within thirty (30) days, as soon
as possible thereafter), the Borrower (if a Loan Party is the applicable withholding agent) shall furnish to such Agent
or Lender (as the case may be) the original or a facsimile copy of a receipt evidencing payment thereof to the extent
such a receipt is issued therefor, or other written proof of payment thereof that is reasonably satisfactory to the Administrative Agent. If a Loan Party fails to pay any Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to any Agent or any Lender the required receipts or other required documentary evidence, the
Borrower shall indemnify such Agent and such Lender for any incremental taxes, interest or penalties that may become payable by such Agent or such Lender arising out of such failure.
(b)
In addition, the Borrower agrees to pay any and all present or future stamp, court or documentary taxes and any other excise, property, intangible or mortgage recording taxes or charges or similar levies
which arise from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document excluding, in each case, such amounts
that result from an Assignment and Assumption, grant of a Participation, transfer or assignment to or designation of
a new applicable Lending Office or other office for receiving payments under any Loan Document if such taxes result from such Lender being organized, resident or engaged in any business (other than a business arising or deemed
to arise solely as a result of the Loan Documents or transactions occurring pursuant thereto) in such jurisdiction,
except to the extent that any such change is requested or required in writing by the Borrower (all such non-excluded
taxes described in this Section 2.20(b) being hereinafter referred to as “Other Taxes”).
(c)
The Borrower agrees to indemnify each Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts
payable and paid under this Section 2.20) payable by such Agent and such Lender and (ii) any reasonable expenses
arising therefrom or with respect thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority; provided such Agent or Lender, as the case
may be, provides the Borrower with a written statement thereof setting forth in reasonable detail the basis and calculation of such amounts. Payment under this Section 2.20(c) shall be made within ten (10) days after the date such
Lender or such Agent makes a demand therefor.
(d)
The Borrower shall not be required pursuant to this Section 2.20 to pay any additional
amount to, or to indemnify, any Lender or Agent, as the case may be, to the extent that such Lender or such Agent
becomes subject to U.S. federal withholding Taxes subsequent to the Closing Date (or, if later, the date such Lender
or Agent becomes a party to this Agreement) as a result of a change in the place of organization or place of doing
business of such Lender or Agent or a change in the lending office of such Lender, except to the extent that any such
change is requested or required in writing by the Borrower (and provided that nothing in this clause (d) shall be construed as relieving the Borrower from any obligation to make such payments or indemnification in the event of a
change in lending office or place of organization or doing business that precedes a Change in Law to the extent such
Taxes result from a Change in Law).
(e)
Notwithstanding anything else herein to the contrary, if a Foreign Lender or an Agent is
subject to U.S. federal withholding tax (i) at a rate in excess of zero percent at the time such Lender or such Agent,
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as the case may be, first becomes a party to this Agreement or (ii) as a result of FATCA, U.S. federal withholding
tax (including additions to tax, penalties and interest imposed with respect to such U.S. federal withholding tax
which is excluded from Taxes under this clause (e)) imposed by such jurisdiction at such rate or as a result of
FATCA shall be considered excluded from Taxes unless, in the case of clause (i), such Lender or Agent, as the case
may be, is subject to a lesser rate of withholding and provides the appropriate forms certifying that a lesser rate applies, whereupon U.S. federal withholding tax at such lesser rate only shall be considered excluded from Taxes for
periods governed by such forms for which such lesser rate applies; provided that, if at the date of the Assignment
and Acceptance pursuant to which a Foreign Lender becomes a party to this Agreement, the Lender assignor was
entitled to payments under clause (a) of this Section 2.20 in respect of U.S. federal withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include the U.S. federal withholding tax, if any,
applicable with respect to the Lender assignee on such date. For the avoidance of doubt, any U.S. federal withholding tax resulting from a Change in Law after the date such Foreign Lender becomes a party to this Agreement shall
not be excluded from Taxes under this paragraph (e); provided, for the avoidance of doubt, that any amendment to,
or successor version of, Sections 1471 through 1474 of the Code (as in effect on the date of this Agreement) that is
substantively comparable and not materially more onerous to comply with, and any current or future regulations or
official interpretations thereof, shall not be considered a Change in Law.
(f)
If any Lender or Agent determines, in its reasonable discretion, that it is entitled to receive a refund in respect of any Taxes or Other Taxes as to which indemnification or additional amounts have been
paid to it by a Loan Party pursuant to this Section 2.20, it shall use its reasonable efforts to receive such refund and
upon receipt of any such refund shall promptly remit such refund (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.20 with respect to the Taxes or Other Taxes
giving rise to such refund plus any interest included in such refund by the relevant taxing authority attributable
thereto) to the Borrower, net of all reasonable out-of-pocket expenses (including any Taxes on such refund) of the
Lender or Agent, as the case may be and without interest (other than any interest paid by the relevant taxing authority with respect to such refund); provided that the Borrower, upon the request of the Lender or Agent, as the case
may be, agrees promptly to return such refund (plus any penalties, interest or other charges imposed by the relevant
taxing authority) to such party in the event such party is required to repay such refund to the relevant taxing authority. Such Lender or Agent, as the case may be, shall, at the Borrower’s request, provide the Borrower with a copy of
any notice of assessment or other evidence of the requirement to repay such refund received from the relevant taxing
authority (provided that such Lender or Agent may delete any information therein that such Lender or Agent deems
confidential). Nothing herein contained shall interfere with the right of a Lender or Agent to arrange its tax affairs
in whatever manner it thinks fit nor oblige any Lender or Agent to claim any tax refund or to make available its tax
returns or disclose any information relating to its tax affairs or any computations in respect thereof or require any
Lender or Agent to do anything that would prejudice its ability to benefit from any other refunds, credits, reliefs,
remissions or repayments to which it may be entitled.
(g)
Each Lender agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.20(a) or (c) with respect to such Lender it will, if requested by the Borrower, use commercially reasonable
efforts (subject to legal and regulatory restrictions) to designate another Lending Office for any Loan affected by
such event; provided that such efforts are made on terms that, in the reasonable judgment of such Lender, cause such
Lender and its Lending Office(s) to suffer no material economic, legal or regulatory disadvantage, and provided
further that nothing in this Section 2.20(g) shall affect or postpone any of the Obligations of the Borrower or the
rights of such Lender pursuant to Section 2.20(a) or (c).
SECTION 2.21
Assignment of Commitments Under Certain Circumstances; Duty to Mitigate.
(a)
In the event (i) any Lender or Issuing Bank delivers a certificate requesting compensation
pursuant to Section 2.14, (ii) any Lender or Issuing Bank delivers a notice described in Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender or Issuing Bank or any Governmental Authority on
account of any Lender or Issuing Bank pursuant to Section 2.20, (iv) any Lender becomes a Non-Extending Lender
or (v) any Lender refuses to consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of a greater percentage of the Lenders than the Required Lenders
and such amendment, waiver or other modification is consented to by the Required Lenders, the Borrower may, at
its sole expense and effort (including with respect to the processing and recordation fee referred to in Section
9.04(b)), upon notice to such Lender or Issuing Bank, as the case may be, and the Administrative Agent, require any
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such Lender or Issuing Bank to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all of its interests, rights and obligations under this Agreement to an assignee
that shall assume such assigned obligations and, with respect to clause (v) above, shall consent to such requested
amendment, waiver or other modification of any Loan Documents (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the Borrower shall have received
the prior written consent of the Administrative Agent (and, if a Revolving Credit Commitment is being assigned, of
the Issuing Banks and the Swingline Lender), which consents shall not unreasonably be withheld or delayed, and (z)
the Borrower or such assignee shall have paid to the affected Lender or Issuing Bank in immediately available funds
an amount equal to the sum of the principal of and interest accrued to the date of such payment on the outstanding
Loans or L/C Disbursements of such Lender or Issuing Bank, respectively, plus all Fees and other amounts accrued
for the account of such Lender or Issuing Bank hereunder with respect thereto (including any amounts under Sections 2.14 and 2.16); provided further that, if prior to any such transfer and assignment the circumstances or event
that resulted in such Lender’s or Issuing Bank’s claim for compensation under Section 2.14, notice under Section
2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to cause such Lender or Issuing Bank to
suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as
the case may be (including as a result of any action taken by such Lender or Issuing Bank pursuant to paragraph (b)
below), or if such Lender or Issuing Bank shall waive its right to claim further compensation under Section 2.14 in
respect of such circumstances or event or shall withdraw its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender or Issuing Bank shall not thereafter be required to make any such transfer and assignment hereunder. Each Lender hereby agrees that, in the event
the Borrower exercises its rights under and in accordance with this Section 2.21 to effect a transfer and assignment
of such Lender’s interests, rights and obligations under this Agreement (which may be effected without such Lender’s consent or execution and delivery of any Assignment and Acceptance), such Lender shall no longer be a party
hereto or have any rights or obligations hereunder; provided that (i) the obligations of the Borrower to such Lender
under this Agreement which by their terms survive the termination of this Agreement or the transfer and assignment
of the interests of a Lender hereunder and (ii) the obligations of such Lender under Section 9.05 (with respect to
unreimbursed expenses or indemnity payments sought before or as a result of such assignment) shall, in each case,
survive the Borrower’s exercise of such rights.
(b)
If (i) any Lender or Issuing Bank shall request compensation under Section 2.14, (ii) any
Lender or Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is required to pay any additional amount to any Lender or Issuing Bank or any Governmental Authority on account of any Lender or Issuing
Bank pursuant to Section 2.20, then such Lender or Issuing Bank shall use reasonable efforts (which shall not require such Lender or Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take
any action inconsistent with its internal policies or legal or regulatory restrictions or suffer any disadvantage or burden deemed by it to be significant) (x) to file any certificate or document reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and transfer its obligations hereunder to another of its offices, branches
or affiliates, if such filing or assignment would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section 2.20, as the case
may be, in the future. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred
by any Lender or Issuing Bank in connection with any such filing or assignment, delegation and transfer.
SECTION 2.22
Swingline Loans.
(a)
Swingline Facility. Subject to the terms and conditions herein set forth, at any time after
the Closing Date that any Revolving Credit Commitment shall exist hereunder, the Swingline Lender agrees that it
will make loans to the Borrower in U.S. Dollars at any time and from time to time on and after the Closing Date and
until the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit Commitments, in
an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of all
Swingline Loans exceeding the Swingline Limit or (ii) the Aggregate Revolving Credit Exposure, after giving effect
to any Swingline Loan, exceeding the lesser of the Borrowing Base and the Total Revolving Credit Commitment.
Each Swingline Loan shall be in a principal amount that is an integral multiple of $250,000 and not less than
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$1,000,000. Within the foregoing limits, the Borrower may borrow, pay or prepay and reborrow Swingline Loans
hereunder, subject to the terms, conditions and limitations set forth herein.
(b)
Swingline Loans. The Borrower shall notify the Swingline Lender (with a copy to the
Administrative Agent) by fax, or by telephone (promptly confirmed by fax or electronic mail), not later than 12:00
(noon), New York City time, on the day of a proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall be irrevocable and shall refer to this Agreement and shall specify the requested date (which shall be
a Business Day) and amount of such Swingline Loan and the wire transfer instructions for the account of the Borrower to which the proceeds of the Swingline Loan should be disbursed. The Administrative Agent will promptly
advise the Swingline Lender of any notice received from the Borrower pursuant to this paragraph (b). If the Swingline Lender shall be required to make such Swingline Loan, it shall make such Swingline Loan by wire transfer to
the account specified in such request. The Borrower shall repay the outstanding principal amount of each Swingline
Loan made by the Swingline Lender on the earlier of (x) the tenth Business Day following the making of such
Swingline Loan and (y) the Revolving Credit Maturity Date
(c)
Prepayment. The Borrower shall have the right at any time and from time to time to prepay any Swingline Loan, in whole or in part, upon giving written, fax or electronic mail notice (or telephone notice
promptly confirmed by written, fax or electronic mail notice) to the Swingline Lender (with a copy to the Administrative Agent) before 1:00 p.m., New York City time, on the date of prepayment at the Swingline Lender’s address
for notices specified in Section 9.01.
(d)
Interest. Each Swingline Loan shall be an ABR Loan and, subject to the provisions of
Section 2.07, shall bear interest as provided in Section 2.06(a).
(e)
Participations. The Swingline Lender may by written notice given to the Administrative
Agent not later than 1:00 p.m., New York City time, on any Business Day require the Revolving Credit Lenders to
acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice
shall specify the aggregate amount of Swingline Loans in which Revolving Credit Lenders will participate. The
Administrative Agent will, promptly upon receipt of such notice, give notice to each Revolving Credit Lender, specifying in such notice such Lender’s Pro Rata Percentage of such Swingline Loans. In furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender’s
Pro Rata Percentage of such Swingline Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default, and
that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each
Revolving Credit Lender shall comply with its obligation under this paragraph by wire transfer of immediately
available funds, in the same manner as provided in Section 2.02(c) with respect to Loans made by such Lender (and
Section 2.02(c) shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit Lenders) and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving
Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan
acquired pursuant to this paragraph and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the
Borrower (or other person on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline
Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to
the Revolving Credit Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower (or other person liable for obligations of the Borrower) of any default in the payment
thereof.
(f)
Settlement. Notwithstanding anything to the contrary contained in clause (e) above, the
Administrative Agent shall request settlement (a “Settlement”) with the Revolving Credit Lenders on at least a biweekly basis, or on a more frequent basis if so determined by the Administrative Agent, (a) on behalf of the Swingline Lender, with respect to each outstanding Swingline Loan and (b) with respect to collections received, in each
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case, by notifying the Revolving Credit Lenders of such requested Settlement, in each case as set forth in clause (e)
above.
SECTION 2.23
(a)
Letters of Credit.
General.
(i)
At any time after the Closing Date that any Revolving Credit Commitment shall exist
hereunder, the Borrower may request the issuance of a Letter of Credit for its own account or for the account of any
of its wholly owned Subsidiaries (in which case the Borrower and such wholly owned Subsidiary shall be co applicants with respect to such Letter of Credit), in a form reasonably acceptable to the Issuing Banks, at any time and
from time to time while the L/C Commitment in respect of any Revolving Credit Commitment remains in effect.
(ii)
Each Letter of Credit shall be denominated in U.S. Dollars or an Alternative Currency;
provided, that Morgan Stanley Bank, N.A. shall have no obligation to issue any Letter of Credit denominated in
Mexican Pesos. This Section shall not be construed to impose an obligation upon the Issuing Banks to issue any
Letter of Credit that is inconsistent with the terms and conditions of this Agreement.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to
request the issuance of a Letter of Credit (or to amend, renew or extend an outstanding Letter of Credit), the Borrower shall hand deliver, fax or e-mail to the Issuing Banks and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension, but in any event such request shall be no later than
12:00 noon, the Applicable Time, at least five (5) Business Days prior to the proposed date (or such lesser period as
may be agreed by the applicable Issuing Bank in its sole discretion)) a notice in the applicable Issuing Bank’s standard form of application requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount and currency of such Letter of Credit,
the name and address of the beneficiary thereof and such other information as shall be necessary to prepare such a
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if, and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant
that, after giving effect to such issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed the
L/C Commitment and (ii) the Aggregate Revolving Credit Exposure shall not exceed the lesser of the Borrowing
Base and the Total Revolving Credit Commitment; provided, further, that (i) no Letter of Credit shall be issued by
an Issuing Bank the stated amount of which, when added to the stated amount of all then-outstanding Letters of
Credit by issued such Issuing Bank, would exceed the applicable Specified L/C Sublimit of such Issuing Bank then
in effect and (ii) no Alternative Currency Letter of Credit shall be issued by an Issuing Bank the stated amount of
which, when added to the stated amount of all then-outstanding Alternative Currency Letters of Credit by issued
such Issuing Bank, would exceed the Alternative Currency L/C Sublimit of such Issuing Bank then in effect.
(c)
Expiration Date. Each Letter of Credit shall expire at the close of business on the earlier
of (i) the date one year after the date of the issuance of such Letter of Credit and (ii) the date that is five Business
Days prior to the Revolving Credit Maturity Date unless, to the extent agreed to by the applicable Issuing Bank in its
sole discretion, such Letter of Credit is Cash Collateralized prior to 12:00 noon, New York time on the date that is
five Business Days prior to the Revolving Credit Maturity Date; provided, however, that a Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter of Credit shall be renewed automatically
for additional consecutive periods of 12 months or less (but no such renewal shall be effected if such renewal would
cause the then expiry of such Letter of Credit to extend beyond the date referred to in clause (ii) above) unless the
Issuing Banks notify the beneficiary thereof at least 30 days (or such longer period as may be specified in such Letter of Credit) prior to the then-applicable expiration date that such Letter of Credit will not be renewed.
(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 Issuing Bank or the Revolving Credit Lenders, the Issuing Banks hereby grant to each Revolving Credit Lender, and each such Revolving Credit Lender hereby acquires from the Issuing Banks, a participation in such Letter of Credit equal to such Revolving
Credit Lender’s Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit,
effective upon the issuance of such Letter of Credit (and in each case, with respect to the participation in any Alter-61-
native Currency Letter of Credit, such participation shall occur on each Revaluation Date). In consideration and in
furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Banks, such Revolving Credit Lender’s Pro Rata Percentage
of each L/C Disbursement made by the Issuing Banks in respect of Letters of Credit and not reimbursed by the Borrower in U.S. Dollars or the Dollar Equivalent thereof in the case of an Alternative Currency (or, if applicable, another party pursuant to its obligations under any other Loan Document) forthwith on the date due as provided in
Section 2.02(f)(ii). Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of the Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default, and that each such
payment shall be made without any offset, abatement, withholding or reduction whatsoever.
(e)
Reimbursement. If the Issuing Banks shall make any L/C Disbursement in respect of
any Letter of Credit, the Borrower shall pay to the Administrative Agent an amount equal to such L/C Disbursement
not later than 12:00 noon, Local Time, on the next Business Day after the Borrower receives notice of such L/C
Disbursement. In the case of a Letter of Credit denominated in U.S. Dollars, the Borrower shall reimburse such
Issuing Bank in U.S. Dollars. In the case of a Letter of Credit denominated in an Alternative Currency, the Borrower shall reimburse such Issuing Bank in such Alternative Currency, unless (x) such Issuing Bank (at its option) shall
have specified in such notice that it will require reimbursement in U.S. Dollars, or (y) in the absence of any such
requirement for reimbursement in U.S. Dollars, the Borrower shall have notified such Issuing Bank promptly following receipt of the notice of drawing that the Borrower will reimburse such Issuing Bank in U.S. Dollars. In the
case of any such reimbursement in U.S. Dollars of a drawing as of the applicable Revaluation Date under a Letter of
Credit denominated in an Alternative Currency, such Issuing Bank shall notify the Borrower of the U.S. Dollar
Equivalent of the amount of the drawing promptly following the determination thereof.
(f)
Obligations Absolute. The Borrower’s obligations to reimburse L/C Disbursements as
provided in paragraph (e) above shall be 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 any Loan Document, or
any term or provision therein;
(ii)
any amendment or waiver of or any consent to departure from all or any of the provisions
of any Letter of Credit or any Loan Document;
(iii)
the existence of any claim, setoff, defense or other right that the Borrower, any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or other Affiliate thereof or any
other person may at any time have against the beneficiary under any Letter of Credit, the Issuing Banks, the
Administrative Agent or any Lender or any other person, whether in connection with this Agreement, any
other Loan Document or any other related or unrelated agreement or transaction;
(iv)
any draft or other document presented under a Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any
respect;
(v)
payment by the Issuing Banks 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;
(vi)
any other act or omission to act or delay of any kind of the Issuing Banks, the Lenders,
the Administrative Agent or any other person or any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or
equitable discharge of the Borrower’s obligations hereunder; and
(vii)
any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrower or any Subsidiary or in the relevant currency markets generally.
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Without limiting the generality of the foregoing, it is expressly understood and agreed that the absolute and unconditional obligation of the Borrower hereunder to reimburse L/C Disbursements will not be excused by the gross negligence or willful misconduct of the Issuing Banks. However, the foregoing shall not be construed to excuse the Issuing Banks 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 the Issuing Banks’ gross negligence or willful misconduct as found in a nonappealable judgment by a court of competent jurisdiction in determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. It is further understood and agreed that the Issuing
Banks may accept documents that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit (i) the
Issuing Banks’ exclusive reliance on the documents presented to them under such Letter of Credit as to any and all
matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its
face appears to be in order, and whether or not any other statement or any other document presented pursuant to
such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any
respect whatsoever and (ii) any noncompliance in any immaterial respect of the documents presented under such
Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute gross negligence or willful
misconduct of the Issuing Banks.
(g)
Disbursement Procedures. The Issuing Banks shall, promptly following their receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing
Banks shall as promptly as possible give telephonic notification, confirmed by fax or electronic mail, to the Administrative Agent and the Borrower of such compliant demand for payment and that the Issuing Banks have made an
L/C Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Banks and the applicable Revolving Credit Lenders with respect
to any such L/C Disbursement.
(h)
Interim Interest. If the Issuing Banks shall make any L/C Disbursement in respect of
any Letter of Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full on such date, the unpaid amount thereof shall bear interest for the account of the Issuing Banks, for each day from and including the date
of such L/C Disbursement, to but excluding the earlier of the date of payment by the Borrower or the date on which
interest shall commence to accrue thereon as provided in Section 2.02(f), at the rate per annum then applicable under
this Agreement to ABR Revolving Credit Loans; provided that, if the Borrower fails to reimburse such L/C Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.07 shall apply.
(i)
Resignation or Removal of the Issuing Banks. Any Issuing Bank may resign at any
time by giving 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower, and may be
removed at any time by the Borrower by notice to such Issuing Bank, the Administrative Agent and the Lenders.
Upon the acceptance of any appointment as an Issuing Bank hereunder by a Lender that shall agree to serve as successor Issuing Bank, such successor shall succeed to and become vested with all the interests, rights and obligations
of the retiring Issuing Bank. At the time such removal or resignation shall become effective, the Borrower shall pay
all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment as an Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor, in a form satisfactory to the Borrower and the Administrative Agent, and, from and after the effective date of such agreement, (i)
such successor Lender shall have all the rights and obligations of the previous Issuing Bank under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan Documents to the term “Issuing
Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the resignation or removal of an Issuing Bank hereunder, the
retiring Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement and the other Loan Documents with respect to Letters of Credit issued by it prior to
such resignation or removal, but shall not be required to issue additional Letters of Credit.
(j)
Cash Collateralization. If any Event of Default shall occur and be continuing, the Borrower shall, on the Business Day it receives notice from the Administrative Agent or the Required Lenders thereof
and of the amount to be deposited, deposit in an account (or accounts) with the Collateral Agent, for the benefit of
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the Revolving Credit Lenders, an amount in cash necessary to Cash Collateralize the L/C Exposure as of such date.
Such deposits shall be held by the Collateral Agent as collateral for the payment and performance of the Obligations.
The Collateral Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over
such account (or accounts). Other than any interest earned on the investment of such deposits in Permitted Investments, which investments shall be made at the option and sole discretion of the Collateral Agent, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such
account (or accounts) shall (i) automatically be applied by the Administrative Agent to reimburse the Issuing Banks
for L/C Disbursements for which they have not been reimbursed, (ii) be held for the satisfaction of the reimbursement obligations of the Borrower for the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of the Required Lenders), be applied to satisfy the Obligations. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence 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 on any Revaluation Date and solely as a result of
changes in Spot Rates, the Alternative Currency L/C Exposure would exceed the Alternative Currency L/C Sublimit,
immediate prepayment or Cash Collateralization of amounts owing in respect of outstanding Alternative Currency
Letters of Credit will be made on or in respect of such Alternative Currency L/C Exposure in an amount equal to the
difference.
(k)
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 or delayed) and such
Lender, designate one or more additional Lenders to act as an issuing bank under the terms of this Agreement. Any
Lender designated as an issuing bank pursuant to this paragraph (k) shall be deemed to be an “Issuing Bank” (in
addition to being a Lender) in respect of Letters of Credit issued or to be issued by such Lender, and, with respect to
such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Lender.
SECTION 2.24
Incremental Facilities.
(a)
The Borrower may by written notice to the Administrative Agent elect to request prior to
the Revolving Credit Maturity Date, one or more increases of the Revolving Credit Commitments (any such increase, a “Facility Increase”) on identical terms to the then-existing Revolving Credit Commitments, in amounts
that are (i) not to exceed, in the aggregate for all Facility Increases, $100,000,000 plus the amount of all optional
prepayments which resulted in a permanent reduction of the Revolving Credit Commitments prior to the Increased
Amount Date and (ii) individually not less than $20,000,000 (or any lesser amount that is approved by the Administrative Agent) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify the date
(each, an “Increased Amount Date”) on which the Borrower proposes that the Facility Increase shall be effective,
which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent. Such Facility Increase shall become effective as of such Increased Amount Date; provided that (1)
no Default shall exist on such Increased Amount Date before or after giving effect to such Facility Increase, as the
case may be (except in the case of a Facility Increase the proceeds of which are to be used to fund an acquisition
permitted hereunder, no Default shall exist at the time of entering into a binding agreement in respect of such acquisition); (2) such Facility Increase shall be effected pursuant to one or more agreements in form and substance reasonably satisfactory to the Borrower and the Administrative Agent (each an “Incremental Facility Amendment”)
executed and delivered by the Loan Parties, the lenders providing such Revolving Credit Commitments, the Administrative Agent and the other parties required to be a party thereto pursuant to the terms of this Section 2.24, each of
which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.20; and (3) the
representations and warranties set forth in Article III and in each other Loan Document shall be true and correct (or
true and correct in all material respects, in the case of any such representation or warranty that is not qualified as to
materiality) (except to the extent such representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct (or true and correct in all material respects, in the
case of any such representation or warranty that is not qualified as to materiality) as of such earlier date) immediately before and after giving effect to such Facility Increase (except in the case of a Facility Increase the proceeds of
which are to be used to fund an acquisition permitted hereunder, the terms of which require customary “Sungard” or
“Certain Funds” conditionality, in which case only such representations and warranties as are customarily included
in such provisions must be so made).
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(b)
To the extent that the Facility Increase is being established on a date when Revolving
Credit Commitments exist, subject to the satisfaction of the foregoing terms and conditions, (i) each of the then existing Revolving Credit Lenders, if any, shall assign to each of the Revolving Credit Lenders providing such Facility
Increase, and each of such Revolving Credit Lenders shall purchase from each of such existing Revolving Credit
Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit
Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such Revolving Credit Loans will be held by all Revolving Credit Lenders ratably in
accordance with their Revolving Credit Commitments after giving effect to such Facility Increase.
(c)
A Facility Increase may be provided by any existing Lender (but no existing Lender will
have any obligation to make any Facility Increase, nor will the Borrower have any obligation to approach any existing Lenders to provide any Facility Increase) or by any other bank or other financial institution; provided that the
Borrower, the Administrative Agent, the Swingline Lender and each Issuing Bank shall have consented (not to be
unreasonably withheld or delayed) to such lenders providing such Facility Increase to the extent such consent, if
any, would be required under Section 9.04(b), to such lender.
(d)
The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s
notice of each Increased Amount Date.
(e)
Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental
Facility Amendment, this Agreement and the other Loan Documents shall be deemed amended to the extent (but
only to the extent) necessary or appropriate to reflect the terms of the Facility Increase evidenced thereby, in the
applicable Incremental Facility Amendment. Any such deemed amendment may be memorialized in writing by the
Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
SECTION 2.25
Defaulting Lenders.
(a)
Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in
this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
(i)
Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.
(ii)
Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts
received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or
mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from
a Defaulting Lender pursuant to Section 2.08 or 9.06 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any
amounts owing by such Defaulting Lender to any Issuing Bank or Swingline Lender hereunder; third, to
Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender; fourth, as
the Borrower may request (so long as no Default exists), to the funding of any Loan in respect of which
such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined
by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be
held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing
Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of
Credit issued under this Agreement; sixth, to the payment of any amounts owing to the Lenders, the Issuing
Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by
any Lender, the Issuing Banks or Swingline Lenders against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default exists, to
the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s
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breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loans or L/C Disbursements in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time
when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely
to pay the Loans of, and L/C Disbursements owed to, all Non-Defaulting Lenders on a pro rata basis prior
to being applied to the payment of any Loans of, or L/C Disbursements owed to, such Defaulting Lender
until such time as all Loans and funded and unfunded participations in L/C Exposure and Swingline Loans
are held by the Lenders pro rata in accordance with the Commitments without giving effect to clause (iv)
below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.25(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
Certain Fees.
(A)
No Defaulting Lender shall be entitled to receive any Unused Commitment Fee
or L/C Participation Fee for any period during which that Lender is a Defaulting Lender (and the
Borrower shall not be required to pay any such fee that otherwise would have been required to
have been paid to that Defaulting Lender).
(B)
With respect to any fee not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of
any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Exposure or Swingline Loans that has been reallocated to such NonDefaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank and Swingline
Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to
the extent allocable to such Issuing Bank’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(iv)
Reallocation of Participations to Reduce Fronting Exposure. All or any part of such
Defaulting Lender’s L/C Exposure and participation in Swingline Loans shall be reallocated among the
Non-Defaulting Lenders in accordance with their respective Pro Rata Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause
the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting
Lender’s Revolving Credit Commitment. No reallocation hereunder shall constitute a waiver or release of
any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a
Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting
Lender’s increased exposure following such reallocation.
(v)
Cash Collateral, Repayment of Swingline Loans. If the reallocation described in clause
(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or
remedy available to the Borrower hereunder or under law, (x) first, prepay Swingline Loans in an amount
equal to the Swingline Lenders’ Fronting Exposure and (y) second, Cash Collateralize the Issuing Banks’
Fronting Exposure.
(b)
Defaulting Lender Cure. If the Borrower, the Administrative Agent and each Swingline
Lender and Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent
will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the
extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions
as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participation in Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments (without giving effect to Section 2.25(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender;
provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on
behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent
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otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.
(c)
New Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank
shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no
Fronting Exposure after giving effect thereto.
(d)
Cash Collateral.
(i)
At any time that there shall exist a Defaulting Lender, within one Business Day following
the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent), the
Borrower shall Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender
(determined after giving effect to Section 2.25(a)(iv) and any Cash Collateral provided by such Defaulting Lender).
If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person
other than the Administrative Agent and the Issuing Banks as herein provided or that the total amount of such Cash
Collateral is less than 100% of the Fronting Exposure of such Defaulting Lender, the Borrower will, promptly upon
demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an
amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting
Lender).
(ii)
Application. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under this Section 2.25 in respect of Letters of Credit shall be applied to the satisfaction of
the Defaulting Lender’s obligation to fund participations in respect of its L/C Exposure (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was
so provided, prior to any other application of such property as may otherwise be provided for herein.
(iii)
Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce any Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.25 following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Administrative Agent
and each Issuing Bank that there exists excess Cash Collateral; provided that, the Person providing Cash Collateral
and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure
or other obligations.
SECTION 2.26
Extensions of Revolving Credit Commitments.
(a)
Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Revolving Credit
Commitments with a like maturity date on a pro rata basis (based on the aggregate outstanding principal amount of
Revolving Credit Commitments with a like maturity date), on the same terms to each such Lender, the Borrower is
hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Revolving Credit Commitments,
and otherwise modify the terms of such Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Revolving
Credit Commitments or Revolving Credit Loans in respect thereof and/or modifying the scheduled termination of
such Revolving Credit Commitments and the scheduled repayments of principal in respect of such Revolving Credit
Loans) (each, an “Extension”), so long as the following terms are satisfied:
(i)
[reserved],
(ii)
except as to interest rates, fees and final maturity date (which shall, subject to the immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and set forth in the relevant
Extension Offer), the applicable Revolving Credit Commitments of any Lender that agrees to an Extension
with respect to such Revolving Credit Commitments (an “Extended Revolver Lender”) extended pursuant
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to any Extension (“Extended Revolving Credit Commitment”) shall have terms applicable prior to the original Revolving Credit Maturity Date related to the Extended Revolving Credit Commitments that are identical to the terms of the Revolving Credit Commitments subject to such Extension Offer, unless such terms
are added for the benefit of the Lenders hereunder,
(iii)
the final maturity date of any Extended Revolving Credit Commitments shall be no earlier than the Revolving Credit Maturity Date and at no time shall the Revolving Credit Commitments (including Extended Revolving Credit Commitments) have more than three different maturity dates,
(iv)
if the aggregate amount of Revolving Credit Commitments (calculated on the face
amount thereof), in respect of which applicable Revolving Credit Lenders shall have accepted the relevant
Extension Offer shall exceed the maximum aggregate amount of Revolving Credit Commitments offered to
be extended by the Borrower pursuant to such Extension Offer, then the Revolving Credit Commitments of
such applicable Revolving Credit Lenders shall be extended ratably up to such maximum amount based on
the respective Revolving Credit Commitments (but not to exceed actual Holdings of record) with respect to
which such Revolving Credit Lenders have accepted such Extension Offer,
(v)
(vi)
Borrower.
all documentation in respect of such Extension shall be consistent with the foregoing, and
any applicable Minimum Extension Condition shall be satisfied unless waived by the
(b)
With respect to all Extensions consummated by the Borrower pursuant to this Section
2.26(b), (i) such Extensions shall not constitute optional or mandatory payments or prepayments for purposes of
Section 2.12 and Section 2.13 and (ii) no Extension Offer is required to be in any minimum amount or any minimum
increment; provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant
Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of applicable Revolving
Credit Commitments be tendered. Agent and the Lenders hereby consent to the Extensions and the other transactions contemplated by this Section 2.26 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Credit Commitments on such terms as may be set forth in the relevant
Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Section 9.09 and any provision in this Agreement or the other Loan Documents providing for payment on a pro
rata basis) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction
contemplated by this Section 2.26.
(c)
No consent of any Lender or Agent shall be required to effectuate any Extension, other
than the consent of each Lender agreeing to such Extension with respect to any of its Revolving Credit Commitments (including any Extended Revolving Credit Commitments). All Extended Revolving Credit Commitments and
all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are
secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the
other Loan Documents. The Lenders hereby irrevocably authorize Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower and the other Loan Parties as may be necessary in order to
establish new tranches or sub-tranches in respect of the Revolving Credit Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.26.
(d)
In connection with any Extension, the Borrower shall provide the Administrative Agent
at least five (5) Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its sole discretion) prior written notice thereof, and shall agree to such procedures (to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to,
the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.26.
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(e)
In the event that the Borrower has provided any Extension Offer pursuant to this Section
2.26, then any Lender holding Revolving Credit Commitments with like maturity dates that is the subject to such
Extension Offer that does not elect to participate in the Extension shall be deemed a “Non-Extending Lender”.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent, the Collateral Agent, the Issuing Bank
and each of the Lenders on the Closing Date and on the date of each Credit Event that:
SECTION 3.01
Existence, Qualification and Power; Compliance with Laws. Each Loan Party and
each other Restricted Subsidiary (a) is a Person duly organized, incorporated or formed, validly existing and in good
standing, where applicable, under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents to which it is a party, (c) is duly qualified and in good standing under the
Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires
such qualification, (d) is in compliance with all Laws, orders, writs, injunctions and orders and (e) has all requisite
governmental licenses, authorizations, consents and approvals to operate its business as currently conducted; except
in each case referred to in clause (c), (d) or (e), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.
SECTION 3.02
Authorization; No Contravention. After giving effect to the Plan Confirmation Order and the Plan of Reorganization, the execution, delivery and performance by each Loan Party of each Loan Document to which such Person is a party, and the consummation of the Transaction, are within such Loan Party’s corporate or other powers, have been duly authorized by all necessary corporate or other organizational action, and do
not and will not (a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or result
in any breach or contravention of, or the creation of any Lien under (other than as permitted by Section 6.01), or
require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting
such Person or the properties of such Person or any of its Subsidiaries or (ii) any material order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c)
violate any material Law; except with respect to any conflict, breach or contravention or payment (but not creation
of Liens) referred to in clause (b)(i), to the extent that such conflict, breach, contravention or payment could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.03
Governmental Authorization; Other Consents. After giving effect to the Plan Confirmation Order and the Plan of Reorganization, no material approval, consent, exemption, authorization, or other
action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in
connection with (a) the execution, delivery or performance by, or enforcement against, any Loan Party of this
Agreement or any other Loan Document, or for the consummation of the Transaction, (b) the grant by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of the Liens
created under the Collateral Documents (including the priority thereof) or (d) the exercise by the Administrative
Agent or any Lender of its rights under the Loan Documents or the remedies in respect of the Collateral pursuant to
the Collateral Documents, except for (i) filings necessary to perfect the Liens on the Collateral granted by the Loan
Parties in favor of the Secured Parties, (ii) the approvals, consents, exemptions, authorizations, actions, notices and
filings which have been duly obtained, taken, given or made and are in full force and effect and (iii) those approvals,
consents, exemptions, authorizations or other actions, notices or filings, the failure of which to obtain or make could
not reasonably be expected to have a Material Adverse Effect.
SECTION 3.04
Binding Effect. This Agreement and each other Loan Document has been duly executed and delivered by each Loan Party that is party thereto. After giving effect to the Plan Confirmation Order and
Plan of Reorganization, this Agreement and each other Loan Document constitutes a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws and by general principles of equity.
SECTION 3.05
Financial Statements; No Material Adverse Change.
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(a)
The Audited Financial Statements and Unaudited Financial Statements fairly present in
all material respects the financial condition of the Business as of the dates thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied throughout the periods covered thereby,
except as otherwise expressly noted therein.
(b)
Since the Closing Date, there has been no event or circumstances, either individually or
in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 3.06
Litigation. Except as set forth on Schedule 3.06 and after giving effect to the Plan of
Reorganization and the Plan Confirmation Order, there are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower, threatened in writing or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or any Restricted Subsidiary that either individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.
SECTION 3.07
Ownership of Property; Liens. Each Loan Party and each of its Restricted Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests in, or easements or other limited
property interests in, all real property necessary in the ordinary conduct of its business, free and clear of all Liens
except for minor defects in title that do not materially interfere with its ability to conduct its business or to utilize
such assets for their intended purposes and Liens permitted by Section 6.01 and except where the failure to have
such title or other interest could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
SECTION 3.08
Environmental Compliance.
(a)
There are no pending or, to the knowledge of the Borrower, threatened claims, actions,
suits, or proceedings by or against the Borrower or any Restricted Subsidiary alleging any Environmental Liability,
or otherwise relating to, any applicable Environmental Law that could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(b)
Except as could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, (i) there are no and never have been any underground or aboveground storage tanks or any
surface impoundments, septic tanks, pits, sumps or lagoons in which Hazardous Materials are being or have been
treated, stored or disposed on any property currently owned, leased or operated by any Loan Party or any other Restricted Subsidiary or, to its knowledge, on any property formerly owned or operated by any Loan Party or any other
Restricted Subsidiary; (ii) there is no asbestos or asbestos-containing material on any property currently owned or
operated by any Loan Party or any other Restricted Subsidiary; and (iii) Hazardous Materials have not been released, discharged or disposed of by any of the Loan Parties or any other Restricted Subsidiary at any location in a
manner which would give rise to any Environmental Liability.
(c)
The properties currently or formerly owned, leased or operated by the Borrower and the
Restricted Subsidiaries do not contain any Hazardous Materials in amounts or concentrations which (i) constitute a
violation of, (ii) require remedial action under, or (iii) could give rise to any Environmental Liability, which violations, remedial actions and liabilities, individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(d)
Neither the Borrower nor any of the Restricted Subsidiaries is undertaking, or has completed, either individually or together with other potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release, discharge or disposal of Hazardous Materials
at any site or location, either voluntarily or pursuant to the order of any Governmental Authority or the requirements
of any applicable Environmental Law except for such investigation or assessment or remedial or response action
that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(e)
All Hazardous Materials transported from any property currently or formerly owned or
operated by any Loan Party or any other Restricted Subsidiary for off-site disposal have been disposed of in a manner not reasonably expected to result, individually or in the aggregate, in a Material Adverse Effect.
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(f)
Except as would not reasonably be expected to result, individually or in the aggregate, in
a Material Adverse Effect, none of the Loan Parties nor any other Restricted Subsidiary has contractually assumed
any liability or obligation under or relating to any applicable Environmental Law.
(g)
Except as would not reasonably be expected to result, individually or in the aggregate, in
a Material Adverse Effect, the Loan Parties and each other Restricted Subsidiary and their respective businesses,
operations and properties are and have been in compliance with all applicable Environmental Laws.
Notwithstanding anything herein to the contrary, the only representations and warranties concerning environmental matters (including Hazardous Materials) are the representations and warranties set forth
in this Section 3.08.
SECTION 3.09
Taxes. Except as could not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the Borrower and each Restricted Subsidiary have timely filed all federal, state, foreign and other tax returns and reports required to be filed, and have timely paid all federal, state, foreign and other taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with
GAAP.
SECTION 3.10
ERISA Compliance.
(a)
Other than as could not, either individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, each Plan is in compliance with the applicable provisions of ERISA, the Code
and other federal or state Laws.
(b)
(i) No ERISA Event has occurred or is reasonably expected to occur; (ii) neither any
Loan Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections
4201 et seq. or 4243 of ERISA with respect to a Multiemployer Plan; and (iii) neither any Loan Party nor any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA, except,
with respect to each of the foregoing clauses of this Section 3.10(b), as could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(c)
Other than where noncompliance would not reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect, (i) each Foreign Plan has been maintained in compliance with
its terms and with the requirements of any and all applicable laws, statutes, rules, regulations and orders, and (ii) no
Loan Party nor any other Restricted Subsidiary have incurred any obligation in connection with the termination of or
withdrawal from any Foreign Plan. Except as would not reasonably be expected to result in a Material Adverse Effect, the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan which is
funded, determined as of the end of the most recently ended fiscal year of a Loan Party or other Restricted Subsidiary (based on the actuarial assumptions used for purposes of the applicable jurisdiction’s financial reporting requirements), did not exceed the current value of the assets of such Foreign Plan, and for each Foreign Plan which is
not funded, the obligations of such Foreign Plan are properly accrued.
SECTION 3.11
Subsidiaries; Equity Interests. As of the Closing Date, neither the Borrower nor any
other Loan Party has any Subsidiaries other than those specifically disclosed in Schedule 3.11, and all of the outstanding Equity Interests in the Borrower and the Material Subsidiaries have been validly issued, are fully paid and
nonassessable and all Equity Interests owned Parent or any other Loan Party are owned free and clear of all Liens
except (i) those created under the Collateral Documents and (ii) any nonconsensual Lien that is permitted under Section 6.01. As of the Closing Date, Schedule 3.11 (a) sets forth the name and jurisdiction of each Subsidiary, (b) sets
forth the ownership interest of Parent, Holdings, the Borrower and any of their Subsidiaries in each of their Subsidiaries, including the percentage of such ownership and (c) identifies each Person the Equity Interests of which are
required to be pledged on the Closing Date pursuant to the Collateral and Guarantee Requirement.
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SECTION 3.12
Margin Regulations; Investment Company Act.
(a)
No Loan Party is engaged nor will it engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB),
or extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Borrowings or
drawings under any Letter of Credit will be used for any purpose that violates Regulation U.
(b)
None of the Borrower, any Person Controlling the Borrower or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.
SECTION 3.13
Disclosure. No report, financial statement, certificate, the Disclosure Statement or
other written information furnished by or on behalf of any Loan Party to any Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or any other
Loan Document (as modified or supplemented by other information so furnished) when taken as a whole contains
any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not materially misleading; provided that, with respect to
projected financial information and pro forma financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation; it
being understood that such projections may vary from actual results and that such variances may be material.
SECTION 3.14
Intellectual Property; Licenses, Etc.. Each of the Loan Parties and the other Restricted Subsidiaries own, license or possess the right to use, all of the trademarks, service marks, trade names, domain names, copyrights, patents, patent rights, technology, software, know-how, database rights, design rights and
other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their
respective businesses as currently conducted, except for such IP Rights the failure of which to own, license, or possess the right to use would not reasonably be expected to have, either individually or in the aggregate, a Material
Adverse Effect and, to the knowledge of the Borrower, without violation of the rights of any Person, except to the
extent such violations, either individually or in the aggregate, would not reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Borrower, no IP Rights owned by or exclusively licensed to the Borrower
infringe upon any rights held by any Person except for such infringements, individually or in the aggregate, which
could not reasonably be expected to have a Material Adverse Effect. No claim or litigation regarding any such IP
Rights, is pending or, to the knowledge of the Borrower, threatened in writing against any Loan Party or Subsidiary,
which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
SECTION 3.15
Solvency. On the Closing Date after giving effect to the Transaction the Loan Parties,
on a consolidated basis, are Solvent.
SECTION 3.16
Collateral Documents. The Collateral Documents are effective to create in favor of
the Collateral Agent for the benefit of the Secured Parties legal, valid and enforceable (subject to enforceability that
may be limited by Debtor Relief Laws or general principles of equity) Liens on, and security interests in, the Collateral and, (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under
applicable Laws (which filings or recordings shall be made to the extent required by any Collateral Document) and
(ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent required by any Collateral Document), such Collateral Document will constitute fully
perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in such Collateral, in each
case subject to no Liens other than the applicable Liens permitted under the Loan Documents.
SECTION 3.17
USA PATRIOT Act; OFAC.
(a)
Each Loan Party is in compliance in all material respects with the material provisions of
the USA PATRIOT Act applicable to it, and, on the Closing Date, the Borrower has provided to the Administrative
Agent all information related to the Loan Parties (including names, addresses and tax identification numbers (if applicable)) reasonably requested in writing by the Administrative Agent not less than ten (10) days prior to the Closing Date and mutually agreed to be required under “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, to be obtained by the Administrative Agent or any Lender.
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(b)
None of Parent, Holdings, the Borrower or any of its Subsidiaries nor, to the knowledge
of Borrower, any director, officer, agent, employee or Affiliate of Holdings, the Borrower or any of the Subsidiaries
is currently the subject of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”); and the Borrower will not directly or indirectly use the proceeds of the Loans or
otherwise make available such proceeds to any person, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
SECTION 3.18
Foreign Corrupt Practices Act. None of Parent, Holdings, the Borrower or any of its
Subsidiaries, nor, to the knowledge of the Borrower or any of its Subsidiaries, any of their directors, officers, agents
or employees, has in the past five (5) years violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977 or the Bribery Act 2010 of the United Kingdom or similar law of the European Union or any
European Union Member State or similar law of a jurisdiction in which the Borrower or any of its Subsidiaries conduct their business and to which they are lawfully subject.
SECTION 3.19
Senior Indebtedness. The Loan Document Obligations constitute “Senior Indebtedness” (or any comparable term) under and as defined in the documentation governing any Subordinated Indebtedness, if any.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Revolving Credit Loans and of the Issuing Bank to issue Letters of
Credit hereunder are subject to the satisfaction (or waiver in accordance with Section 9.09) of the following conditions:
SECTION 4.01
Conditions Precedent to Initial Extension of Credit. The obligation of the Lenders
to make Loans and of the Issuing Banks to issue Letters of Credit hereunder on the Closing Date is subject to the
satisfaction or waiver in accordance with Section 9.09 of the following conditions precedent:
(a)
Each of the Loan Documents (other than the Term Loan/Revolving Facility Intercreditor
Agreement), the Perfection Certificate, and other documentation relating to the Loans provided hereunder
(except in the case of any documentation to be delivered in accordance with Section 5.13) shall be in form
and substance reasonably satisfactory to the Administrative Agent and duly executed and delivered by each
of the Loan Parties;
(b)
Administrative Agent shall have received, in respect of each Loan Party,
(i)
the Notes to the extent requested at least three Business Days prior to the Clos-
ing Date;
(ii)
copies of each organizational or constitutive document (along with any amendments thereto) certified as of the Closing Date or a recent date prior thereto by the appropriate
Governmental Authority;
(iii)
certificate of the secretary or an assistant secretary of each Loan Party certifying
the names and true signatures of the officers of such Loan Party authorized to sign each Loan
Document to which it is or is to be a party and the other documents to be delivered hereunder and
thereunder;
(iv)
[reserved];
(v)
a certificate as to the good standing (or status or compliance, as applicable) of
each Loan Party as of a recent date, from the Secretary of State (or other applicable Governmental
Authority) of its jurisdiction of incorporation or formation;
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(vi)
a Solvency Certificate on the Closing Date after giving effect to the Transaction,
from the chief financial officer (or other officer with similar responsibilities) of the Parent; and
(vii)
except to the extent delivered to the collateral agent pursuant to and under the
Term Loan Agreement and the Term Loan/Revolving Facility Intercreditor Agreement, certificates, if any, representing the pledged equity referred to therein accompanied by undated stock
powers executed in blank and instruments evidencing the pledged debt referred to therein endorsed in blank.
(c)
A certificate of the Borrower, dated as of the Closing Date, and signed on behalf of the
Borrower by a Responsible Officer of the Borrower, confirming satisfaction of the conditions precedent set
forth in Section 4.01(h), (o), (q), (r), and (v).
(d)
All fees and expenses (including fees and expenses of outside counsel and upfront fees
required to be paid on the Closing Date) required to be paid hereunder and invoiced prior to the Closing
Date shall have been paid in cash or will be paid on the Closing Date to the Administrative Agent (for the
benefit of the Secured Parties, as applicable).
(e)
The Administrative Agent shall have received the Audited Financial Statements and the
Unaudited Financial Statements.
(f)
The Borrower shall have delivered a Borrowing Base Certificate to the Administrative
Agent.
(g)
The Administrative Agent and Lenders and their respective counsel shall have received
originally executed copies of a favorable written opinion of Kirkland & Ellis LLP, counsel for the Loan
Parties, dated as of the Closing Date, addressing such matters as the Administrative Agent may reasonably
request, in form and substance reasonably satisfactory to the Administrative Agent.
(h)
Since July 2, 2013, there has been no event or occurrence that has had or could reasonably be expected to result in a Material Adverse Effect.
(i)
There shall not exist any Material Litigation.
(j)
All material governmental and third party consents and approvals necessary in connection with the revolving credit facility hereunder and the transactions contemplated hereunder shall have
been obtained (without the imposition of any adverse conditions that are not reasonably acceptable to the
Administrative Agent) and shall remain in effect.
(k)
Each Lender shall have received at least four Business Days prior to the Closing Date, to
the extent requested no later than ten days prior to the Closing Date, 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.
(l)
The Administrative Agent and the Collateral Agent shall have conducted and completed,
in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent, its collateral due diligence (including, without limitation, completion of field audits and examinations and inventory appraisals); provided that the field examinations and inventory appraisals conducted by Weiser and
Hilco are satisfactory.
(m)
The Administrative Agent shall have received:
(i)
proper uniform commercial code financing statements for all applicable jurisdictions of the Loan Parties required to perfect and protect the Liens and security interests created or
purported to be created pursuant to the Collateral Documents covering the Collateral;
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(ii)
copies of a recent Lien, judgment, patent and trademark searches in each jurisdiction reasonably requested by the Agent with respect to the Loan Parties;
(iii)
satisfactory evidence that (a) the certificated securities (other than Excluded Equity) (if any) evidencing (i) all the Equity Interests of the Borrower and (ii) all Equity Interests
held directly by the Borrower or any Guarantor in any Wholly-Owned Subsidiary (other than Unrestricted Subsidiaries) and (b) instruments evidencing the Indebtedness pledged pursuant to the
Collateral Documents indorsed in blank, have been delivered to the Term Facility Administrative
Agent (which shall act, in accordance with the Term Loan/Revolving Facility Intercreditor
Agreement, as bailee for the Collateral Agent), in each case to the extent required to be delivered
on the Closing Date pursuant to the Collateral and Guarantee Requirement (as defined in the Term
Loan Agreement);
(iv)
the Intellectual Property Security Agreements, in form and substance reasonably
satisfactory to the Administrative Agent and in suitable form for recordation at the United States
Patent and Trademark Office and the United States Copyright Office, duly executed by all the parties thereto; and
(v)
evidence that all insurance (including title insurance) required to be maintained
pursuant to the Loan Documents has been obtained and is in effect and that the Administrative
Agent and Collateral Agent has been named as loss payee and additional insured under each insurance policy with respect to such insurance.
(n)
To the extent such items can be delivered on or prior to the Closing Date after the exercise of commercially reasonable efforts, the Administrative Agent shall have received account control
agreements to the extent required by this Agreement or any other Loan Document, in form and substance
reasonably satisfactory to the Administrative Agent, duly executed by all the parties thereto.
(o)
The Approval Order shall be in full force and effect and shall not be subject to any stay,
appeal, modification or reversal that would be adverse to the Administrative Agent or the Arrangers unless
consented to by the Administrative Agent and the Arrangers in their sole discretion.
(p)
The Plan of Reorganization and the terms and provisions of the restructuring of the debt
(or any new debt) capitalization and ownership of Parent and its Subsidiaries shall be satisfactory to the
Administrative Agent and the Arrangers in their sole discretion (it being understood that the terms of the
Plan of Reorganization provided prior to the date hereof shall be satisfactory).
(q)
The Plan Confirmation Order (i) shall be in full force and effect, unstayed and not subject
to any motion to stay unless waived by the Administrative Agent in writing in its sole discretion and (ii)
shall not have been reversed, vacated, amended, supplemented or otherwise modified in any manner that is
adverse to the Administrative Agent, any Arranger, any Lender or any of their respective affiliates without
the written consent, in their sole discretion.
(r)
The Plan of Reorganization shall have become effective and all conditions precedent to
effectiveness of the Plan of Reorganization shall have been or shall substantially concurrently be satisfied
without waiver unless such waiver is not adverse to the interests of the Lenders or consented to by the Administrative Agent and the Arrangers in their sole discretion
(s)
The Transaction shall have been consummated or shall be consummated simultaneously
with the Closing Date, in each case in all material respects in accordance with the terms hereof, and the
Borrower shall have borrowed not less than $1,750,000,000 in gross proceeds in respect of the Term Loan
Agreement on the Closing Date.
(t)
[Reserved].
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(u)
[Reserved].
(v)
The unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries shall be at least $50,000,000 (immediately prior to giving effect to the Loan Transactions).
SECTION 4.02
Conditions to All Credit Extensions. On the date of each Borrowing (other than a
conversion or a continuation of a Borrowing), including each Borrowing (including any Borrowing concurrently
with a Facility Increase (subject to the limitation set forth in clauses (1) and (4) of Section 2.24(a)) of a Swingline
Loan, and on the date of each issuance, extension or renewal of a Letter of Credit (each such event being called a
“Credit Event”):
(a)
The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02) or, in the case
of the issuance, extension or renewal of a Letter of Credit, the Issuing Banks and the Administrative Agent
shall have received a notice requesting the issuance, amendment or renewal of such Letter of Credit as required by Section 2.23(b) or, in the case of the Borrowing of a Swingline Loan, the Swingline Lender and
the Administrative Agent shall have received a notice requesting such Swingline Loan as required by Section 2.22(b).
(b)
The representations and warranties set forth in Article III and in each other Loan Document and the most recent Borrowing Base Certificate shall be true and correct (or true and correct in all material respects, in the case of any such representation or warranty that is not qualified as to materiality) on
and as of the date of such Credit Event (except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties shall be true and correct (or true
and correct in all material respects, in the case of any such representation or warranty that is not qualified
as to materiality) as of such earlier date).
(c)
At the time of and immediately after such Credit Event, no Default or Event of Default
shall have occurred and be continuing.
(d)
[reserved].
(e)
Each Credit Event shall be deemed to constitute a representation and warranty by the
Borrower on the date of such Credit Event as to the matters specified in paragraphs (b), (c) and (f) of this
Section 4.02.
(f)
After giving effect to any requested credit extension, the aggregate outstanding amount of
the Aggregate Revolving Credit Exposure would not exceed Availability at such time.
ARTICLE V
Affirmative Covenants
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder
(other than contingent indemnification obligations not yet due and payable or any Cash Management Obligations or
Secured Hedge Agreements) which is accrued and payable shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless the outstanding amount of the L/C Exposure related thereto has been Cash Collateralized or a backstop letter of credit reasonably satisfactory to the applicable Issuing Bank is in place) the Borrower shall, and shall (except in the case of the covenants set forth in Sections 5.01, 5.02 and 5.03) cause each Restricted Subsidiary to:
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SECTION 5.01
Financial Statements, Reports, etc.. Deliver to the Administrative Agent for prompt
further distribution to each Lender:
(a)
as soon as available, but in any event within one hundred and fifty (150) days after the
end of the first fiscal year ending after the Closing Date and within ninety (90) days after the end of each
subsequent fiscal year of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such fiscal year, and the related consolidated statements of income or operations, stockholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by a report and opinion of PricewaterhouseCoopers LLP or any other independent registered
public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like
qualification or exception (other than as a result of a pending maturity of the Loans or the Term Loan
Agreement or as a potential default for breach of the Financial Covenant);
(b)
as soon as available, but in any event within forty-five (45) days (or, in the case of the
first fiscal quarter ending after June 30, 2014, within ninety (90) days) after the end of each of the first
three (3) fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended June
30, 2014), a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal
quarter, and the related (i) consolidated statements of income or operations for such fiscal quarter and for
the portion of the fiscal year then ended and (ii) consolidated statements of cash flows for the portion of the
fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting in all material respects the financial condition, results of operations, stockholders’ equity and cash flows of the Borrower
and its Subsidiaries in accordance with GAAP, subject only to normal year-end adjustments and the absence of footnotes;
(c)
simultaneously with the delivery of each set of consolidated financial statements referred
to in Section 5.01(a) and (b) above, the related consolidating financial statements reflecting the adjustments
necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial
statements;
(d)
concurrently with any delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Responsible Officer of the Borrower opining on or certifying such statements (i) certifying
that no Default has occurred or, if such a Default has occurred, specifying the nature and extent thereof and
any corrective action taken or proposed to be taken with respect thereto and (ii) setting forth computations
in reasonable detail reasonably satisfactory to the Administrative Agent demonstrating compliance with the
Financial Covenant (any such certificate furnished pursuant to this clause (d), a “Compliance Certificate”);
provided that if there has been any material change in GAAP or in the application of GAAP referred to in
Section 1.02, the Compliance Certificate from the Responsible Officer shall identify such change and the
effect of such change on the financial statements accompanying such certificate;
(e)
a Borrowing Base Certificate, in each case with supporting documentation (including,
without limitation, the documentation described in Exhibit I), (i) on a monthly basis (as of the last day of
each calendar month), within twenty (20) days following the last day of each calendar month, commencing
with the calendar month ending March 31, 2014; and (ii) on a weekly basis (as of the last day of each calendar week), on or before the third Business Day following the last day of each calendar week, at any time
during a Cash Dominion Period; provided that the Borrower may, at its option, deliver Borrowing Base
Certificates more frequently than required by the foregoing provisions of this Section 5.01; and
(f)
as soon as available, but in any event within sixty (60) days after the beginning of each
fiscal year of Borrower (or, only in the case of the first fiscal year beginning after the Closing Date, by August 30, 2014), a detailed consolidated budget for Borrower and its Restricted Subsidiaries for such fiscal
year (which shall include a projected consolidated balance sheet of Borrower and its Restricted Subsidiaries
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as of the end of such fiscal year, and the related consolidated statements of projected cash flow and projected income) (the “Budget”).
Notwithstanding the foregoing, the obligations in paragraphs (a) and (b) of this Section 5.01 may be satisfied with respect to financial information of the Borrower and its Subsidiaries by furnishing (A) the applicable financial statements of any direct or indirect parent of the Borrower that holds all of the Equity Interests of the Borrower or (B) the Borrower’s (or any direct or indirect parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC; provided that, with respect to each of clauses (A) and (B), (i) to the extent such information
relates to a parent of the Borrower, such information is accompanied by consolidating information that explains in
reasonable detail the differences between the information relating to the Borrower (or such parent), on the one hand,
and the information relating to the Borrower and the Restricted Subsidiaries on a standalone basis, on the other hand
and (ii) to the extent such information is in lieu of information required to be provided under Section 5.01(a), such
materials are accompanied by a report and opinion of PricewaterhouseCoopers LLP or any other independent registered public accounting firm of nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception, (other than as a result of a pending maturity of the Loans or the Term Loan Agreement or as a
potential default as a result of a breach of the Financial Covenant).
SECTION 5.02
Certificates; Other Information. Deliver to the Administrative Agent for prompt further distribution to each Lender:
(a)
In the case of Holdings and the Borrower, each year, at the time of delivery of the annual
financial statements with respect to the preceding fiscal year pursuant to Section 5.01(a), deliver to the
Administrative Agent a certificate of a Responsible Officer setting forth the information required pursuant
to Schedules 1(a), 2, 9 and 12 of the Perfection Certificates or confirming that there has been no change in
such information since the date of the Perfection Certificates delivered on the Closing Date or the date of
the most recent schedules delivered pursuant to this Section 5.02;
(b)
promptly after the same are publicly available, copies of all annual, regular, periodic and
special reports and registration statements which the Borrower files with the SEC or with any Governmental Authority that may be substituted therefor (other than amendments to any registration statement (to the
extent such registration statement, in the form it became effective, is delivered), exhibits to any registration
statement and, if applicable, any registration statement on Form S-8) and in any case not otherwise required
to be delivered to the Administrative Agent pursuant hereto;
(c)
[reserved];
(d)
together with the delivery of the financial statements pursuant to Section 5.01(a) and each
Compliance Certificate pursuant to Section 5.01(d), (i) a report setting forth the information required by
Section 3.03(a) of the Security Agreement or confirming that there has been no change in such information
since the Closing Date or the date of the last such report), (ii) a description of each event, condition or circumstance during the last fiscal quarter covered by such Compliance Certificate requiring a mandatory prepayment under Section 2.13 and (iii) a list of Subsidiaries that identifies each Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate or a confirmation that there is no change in such information since the later of the Closing Date or the date of the
last such list;
(e)
promptly following any request therefor, 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 have not requested such documents or notices from the administrator or
sponsor of the applicable Multiemployer Plan, the Borrower or its ERISA Affiliates shall promptly make a
request for such documents or notices from such administrator or sponsor and shall provide copies of such
documents and notices promptly after receipt thereof; and
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(f)
promptly, such additional information regarding the business, legal, financial or corporate
affairs of any Loan Party or any Subsidiary, or compliance with the terms of the Loan Documents, as the
Administrative Agent or any Lender through the Administrative Agent may from time to time reasonably
request.
Documents required to be delivered pursuant to Section 5.01(a) or (b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed on
Schedule 5.02; or (ii) on which such documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) upon written
request by the Administrative Agent, the Borrower shall deliver paper copies of such documents to the Administrative Agent for further distribution to each Lender until a written request to cease delivering paper copies is given by
the Administrative Agent and (ii) the Borrower shall notify (which may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Each Lender shall be solely responsible for timely accessing posted documents or requesting delivery of paper copies of such documents from the Administrative Agent and
maintaining its copies of such documents.
SECTION 5.03
Notices. Promptly after a Responsible Officer obtains actual knowledge thereof, notify the Administrative Agent:
(a)
of the occurrence of any Default, which notice shall specify the nature thereof, the period
of existence thereof and what action the Borrower proposes to take with respect thereto;
(b)
any litigation or governmental proceeding pending against the Borrower or any of the
Subsidiaries that could reasonably be expected to be determined adversely and, if so determined, to result
in a Material Adverse Effect; and
(c)
SECTION 5.04
the occurrence of any ERISA Event.
[Reserved].
SECTION 5.05
Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization or incorporation and (b) take all reasonable action to maintain all rights, privileges (including its good standing), permits, licenses and franchises necessary
or desirable in the normal conduct of its business, except in the case of clause (a) and (b), (i) to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect or (ii) pursuant to a transaction permitted by Section 6.04 or Section 6.05.
SECTION 5.06
Maintenance of Properties. Except if the failure to do so could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or pursuant to a transaction permitted
by Section 6.04 or Section 6.05, (a) maintain, preserve and protect all of its material tangible properties and equipment necessary in the operation of its business in good working order, repair and condition, ordinary wear and tear
excepted and casualty or condemnation excepted, and (b) make all necessary renewals, replacements, modifications,
improvements, upgrades, extensions and additions thereof or thereto in accordance with prudent industry practice.
SECTION 5.07
Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business against loss or damage of the kinds customarily
insured against by Persons engaged in the same or similar business, of such types and in such amounts (after giving
effect to any self-insurance reasonable and customary for similarly situated Persons engaged in the same or similar
businesses as the Borrower and the Restricted Subsidiaries) as are customarily carried under similar circumstances
by such other Persons. If any portion of any Mortgaged Property is at any time located in an area identified by the
Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to
which flood insurance has been made available under the Flood Insurance Laws, then the Borrower shall, or shall
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cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer,
flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, including, without limitation, evidence of annual renewals of such insurance.
SECTION 5.08
Compliance with Laws. Comply in all material respects with the requirements of all
Laws and all orders, writs, injunctions, decrees and judgments applicable to it or to its business or property, except if
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
SECTION 5.09
Books and Records. Maintain proper books of record and account, in which entries
that are full, true and correct in all material respects and are in conformity with GAAP consistently applied shall be
made of all material financial transactions and matters involving the assets and business of the Borrower or such
Subsidiary, as the case may be.
SECTION 5.10
Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom (other than the records of the board of directors of
such Loan Party or such Subsidiary) and to discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the reasonable expense of the Borrower and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower;
provided that, excluding any such visits and inspections during the continuation of an Event of Default, only the
Administrative Agent on behalf of the Lenders may exercise rights of the Administrative Agent and the Lenders
under this Section 5.10 and the Administrative Agent shall not exercise such rights more often than two (2) times
during any calendar year absent the existence of an Event of Default and only one (1) such time shall be at the Borrower’s expense; provided further that when an Event of Default exists, the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and upon reasonable advance notice. The Administrative Agent
and the Lenders shall give the Borrower the opportunity to participate in any discussions with the Borrower’s independent public accountants. In addition, the Borrower will permit the Administrative Agent to conduct, at the sole
cost and expense of the Borrower, field audits and examinations of receivables and inventory, and appraisals of inventory; provided that (a) such field audits and examinations may be conducted not more than twice per any twelvemonth period and (b) such appraisals may be conducted not more than once per any twelve-month period (provided
that, during a Field Examination Trigger Period, the Administrative Agent shall be entitled to an additional field
audit and examination and appraisal during any twelve-month period, except that during the existence and continuance of an Event of Default, there shall be no limit on the number of additional field audits and examinations and
appraisals that shall be permitted at the Administrative Agent’s reasonable request). Notwithstanding anything to
the contrary in this Section 5.10, none of the Borrower or any Restricted Subsidiary will be required to disclose,
permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or
other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of
which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is
prohibited by Law or any binding agreement or (iii) that is subject to attorney client privilege or constitutes attorney
work product. Failure to provide information that adversely impacts the Borrower shall allow the Administrative
Agent to take Reserves in its Permitted Discretion.
SECTION 5.11
Covenant to Guarantee Obligations and Give Security. At the Borrower’s expense,
take all action necessary or reasonably requested by the Administrative Agent to ensure that the Collateral and
Guarantee Requirement continues to be satisfied, including:
(a)
upon the formation or acquisition of any new direct or indirect wholly owned Subsidiary
(in each case, other than an Unrestricted Subsidiary or an Excluded Subsidiary) by any Loan Party, the designation in accordance with Section 5.14 of any existing direct or indirect wholly owned Subsidiary as a
Restricted Subsidiary or any wholly owned Subsidiary becoming a Material Subsidiary or ceasing to be an
Excluded Subsidiary:
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(i)
within forty five (45) days after such formation, acquisition, designation or occurrence or such longer period as the Administrative Agent may agree in its reasonable discretion:
(A)
reserved;
(B)
cause each such Domestic Subsidiary that is required to become a
Guarantor pursuant to the Collateral and Guarantee Requirement to duly execute and deliver to the Administrative Agent or the Collateral Agent (as appropriate) Guaranty (or
supplement thereto), Mortgages, Security Agreement Supplements, Intellectual Property
Security Agreement Supplements and other security agreements and documents (including, with respect to Mortgages, the documents listed in paragraph (g) of the definition of
Collateral and Guarantee Requirement), as reasonably requested by and in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent (consistent with the Mortgages, Security Agreement, Intellectual Property Security Agreements and other Collateral Documents in effect on the Closing Date in cash to the extent
required pursuant to the Collateral and Guarantee Requirement), in each case granting
Liens required by the Collateral and Guarantee Requirement;
(C)
cause each such Restricted Subsidiary that is required to become a
Guarantor pursuant to the Collateral and Guarantee Requirement to deliver any and all
certificates representing Equity Interests (to the extent certificated) that are required to be
pledged pursuant to the Collateral and Guarantee Requirement, accompanied by undated
stock powers or other appropriate instruments of transfer executed in blank (or any other
documents customary under local law) and instruments evidencing the intercompany Indebtedness held by such Restricted Subsidiary and required to be pledged pursuant to the
Collateral Documents, indorsed in blank to the Collateral Agent; and
(D)
take and cause such Restricted Subsidiary and each direct or indirect
parent of such Restricted Subsidiary that is required to become a Guarantor pursuant to
the Collateral and Guarantee Requirement to take whatever action (including, in the case
of Domestic Subsidiaries, the recording of Mortgages, the filing of Uniform Commercial
Code financing statements and delivery of stock and membership interest certificates)
may be necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid and
perfected Liens required by the Collateral and Guarantee Requirement, enforceable
against all third parties in accordance with their terms, except as such enforceability may
be limited by Debtor Relief Laws and by general principles of equity (regardless of
whether enforcement is sought in equity or at law), and
(ii)
as promptly as practicable after the request therefor by the Collateral Agent, deliver to the Collateral Agent with respect to each Material Real Property, any existing title reports,
surveys or environmental assessment reports.
(b)
reserved; and
(i)
after the Closing Date, promptly after the acquisition of any Material Real Property by any Loan Party, if such Material Real Property shall not already be subject to a perfected
Lien pursuant to the Collateral and Guarantee Requirement, the Borrower shall give notice thereof
to the Administrative Agent and promptly thereafter shall cause such real property to be subjected
to a Lien to the extent required by the Collateral and Guarantee Requirement and will take, or
cause the relevant Loan Party to take, such actions as shall be necessary or reasonably requested
by the Administrative Agent or the Collateral Agent to grant and perfect or record such Lien, including, as applicable, the actions referred to in paragraph (g) of the definition of Collateral and
Guarantee Requirement and shall, within thirty (30) days after the request therefor by the Administrative Agent or the Collateral Agent (or such longer period as the Administrative Agent may
agree in its sole discretion), deliver to the Administrative Agent and the Collateral Agent a signed
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copy of an opinion of local counsel for such Loan Party in the jurisdiction of such Material Real
Property, addressed to the Administrative Agent and the Collateral Agent and the other Secured
Parties and reasonably acceptable to the Administrative Agent.
SECTION 5.12
Use of Proceeds. Use the proceeds of any credit extension, whether directly or indirectly, to consummate the Transactions contemplated under this Agreement or for general corporate purposes.
SECTION 5.13
Further Assurances and Post-Closing Conditions.
(a)
Promptly upon reasonable request by the Administrative Agent or the Collateral Agent (i)
correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation
of any Collateral Document or other filing, document or instrument relating to any Collateral, and (ii) do, execute,
acknowledge, deliver, record, re-record, file, and re-file any and all such further acts, deeds, certificates, assurances
and other instruments as the Administrative Agent or Collateral Agent may reasonably request from time to time in
order to carry out more effectively the purposes of the Collateral Documents.
(b)
Within the time periods set forth in Schedule 5.13, or within such longer periods that the
Administrative Agent in its sole discretion may permit, Holdings, the Borrower and the Restricted Subsidiaries shall
deliver to the Administrative Agent the documents, and perform the actions, set forth on Schedule 5.13.
SECTION 5.14
Designation of Subsidiaries. The board of directors of the Parent may at any time
designate any Restricted Subsidiary (other than the Borrower or a Restricted Subsidiary that owns any Equity Interests in any Loan Party) as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary so
long as no Default or Event of Default shall have occurred or be continuing before or after giving effect to such designation, and the Borrower shall be in compliance with the Financial Covenant on a pro forma basis. The designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Parent therein at the date
of designation in an amount equal to the net book value of the Parent’s investment therein. The designation of any
Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of any
Indebtedness or Liens of such Subsidiary existing at such time.
SECTION 5.15
Cash Dominion. Establish within 60 days after the Closing Date (subject to extension in the Administrative Agent’s sole discretion) and thereafter maintain with the Collateral Agent or another depository reasonably acceptable to the Administrative Agent one or more deposit accounts (provided, the Administrative Agent agrees that BMO Harris Bank, N.A. is an acceptable depository) (i) to be used by the Loan Parties as
their principal concentration accounts, (ii) into which shall be swept or deposited, on each Business Day, during any
Cash Dominion Period, all cash of the Loan Parties from any and all of their other deposit accounts and bank or securities accounts (other than the Excluded Accounts), (iii) from which cash shall be withdrawn and applied (A) in
accordance with the Waterfall on each Business Day during any Cash Dominion Period, if a Specified Event of Default shall have occurred and be continuing, or (B) to prepay outstanding Loans and to the extent due and payable,
any fees, interest and other amounts owing under this Agreement, on each Business Day during any Cash Dominion
Period, if a Specified Event of Default shall not have occurred and be continuing, and (iv) other than with respect to
accounts maintained with the Collateral Agent, which shall be subject to a control agreement reasonably acceptable
to the Administrative Agent and shall be under the sole control and dominion of the Administrative Agent and Collateral Agent during any Cash Dominion Period.
SECTION 5.16
Payment of Taxes, etc.. Except as could not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, the Borrower will, and will cause each Restricted
Subsidiary to, pay all federal, state, foreign and other taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP.
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ARTICLE VI
Negative Covenants
So long as this Agreement shall remain in effect and until all Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or amounts (other than contingent indemnification liabilities to the extent no claim giving rise thereto has been asserted or any Cash Management Obligations or
Hedge Agreement) payable under any Loan Document have been paid in full and all Letters of Credit have been
cancelled or have expired and all amounts drawn thereunder have been reimbursed in full or, with the consent of the
Issuing Bank in its sole discretion, such Letters of Credit shall have been Cash Collateralized pursuant to arrangements satisfactory to the Issuing Bank (which arrangements result in the release of the Revolving Credit Lenders
from their obligation to make payments in respect of L/C Disbursements pursuant to Section 2.23(d)), unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor will it cause or permit any of the
Restricted Subsidiaries to:
SECTION 6.01
Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:
(a)
Liens pursuant to any Loan Document;
(b)
Liens existing on the date hereof; provided that any such Lien securing Indebtedness in
excess of $5,000,000 or attaching to any ABL Priority Collateral shall only be permitted to the extent such
Lien is listed on Schedule 6.01(b);
(c)
Liens for taxes, assessments or governmental charges which are not overdue for a period
of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person to the extent required in accordance with GAAP;
(d)
statutory or common law Liens of landlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens arising in the ordinary course of business
which secure amounts not overdue for a period of more than thirty (30) days or if more than thirty (30)
days overdue, are unfiled (or if filed, have been discharged or stayed) and no other action has been taken to
enforce such Lien or which are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to
the extent required in accordance with GAAP;
(e)
(i) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits
in the ordinary course of business securing liability for reimbursement or indemnification obligations of
(including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers
providing property, casualty or liability insurance to the Borrower or any Restricted Subsidiary;
(f)
deposits to secure the performance of bids, trade contracts, governmental contracts and
leases (other than Indebtedness for borrowed money), statutory obligations, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including those to secure health, safety and environmental obligations) incurred in the ordinary course of business;
(g)
easements, rights-of-way, restrictions, encroachments, protrusions and other similar encumbrances and minor title defects affecting real property which, individually or in the aggregate, do not in
any case have a material adverse effect on the value of the property affected thereby or materially interfere
with the ordinary conduct of the business of the Borrower or any Material Subsidiary at the property affected thereby and any exception on the Mortgage Policies issued in connection with the Mortgaged Property;
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(h)
Liens securing judgments for the payment of money not constituting an Event of Default
under Section 7.01(h);
(i)
Liens securing Indebtedness permitted under Section 6.03(e); provided that (i) such Liens
attach concurrently with or within two hundred and seventy (270) days after the acquisition, construction,
repair, replacement or improvement (as applicable) of the property subject to such Liens, (ii) such Liens do
not at any time encumber any property other than the property financed by such Indebtedness, replacements
thereof and additions and accessions to such property and the proceeds and the products thereof and customary security deposits and (iii) with respect to Capitalized Lease Obligations, such Liens do not at any
time extend to or cover any assets (except for additions and accessions to such assets, replacements and
products thereof and customary security deposits) other than the assets subject to such Capitalized Lease
Obligations; provided that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;
(j)
leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not (i) interfere in any material respect with the business of the Borrower or any Material
Subsidiary, taken as a whole, or (ii) secure any Indebtedness;
(k)
Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods in the ordinary course of business;
(l)
Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on the items in the course of collection, (ii) attaching to commodity trading accounts or other commodities brokerage accounts incurred in the ordinary course of business and (iii) in favor of a banking or
other financial institution arising as a matter of law encumbering deposits or other funds maintained with a
financial institution (including the right of set off) and which are within the general parameters customary
in the banking industry;
(m)
Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 6.02(j) or (o) to be applied against the purchase price for such Investment and (ii) consisting of an agreement to Dispose of any property in a Disposition permitted under
Section 6.05, in each case, solely to the extent such Investment or Disposition, as the case may be, would
have been permitted on the date of the creation of such Lien;
(n)
Liens on property of any Restricted Subsidiary that is not a Guarantor securing Indebtedness of Restricted Subsidiaries that are not Guarantors incurred pursuant to Section 6.03(m), (o) or (u);
(o)
Liens in favor of the Borrower or a Restricted Subsidiary securing Indebtedness permitted under Section 6.03(d);
(p)
[Reserved];
(q)
any interest or title of a lessor under leases entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course of business;
(r)
Liens arising out of conditional sale, title retention, consignment or similar arrangements
for sale of goods entered into by the Borrower or any of the Restricted Subsidiaries in the ordinary course
of business;
(s)
Liens deemed to exist in connection with Investments in repurchase agreements under
Section 6.02 and reasonable customary initial deposits and margin deposits and similar Liens attaching to
commodity trading accounts or other brokerage accounts maintained in the ordinary course of business and
not for speculative purposes;
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(t)
Liens that are contractual rights of set-off (i) relating to the establishment of depository
relations with banks or other financial institutions not given in connection with the incurrence of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower and the Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into
with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business;
(u)
Liens solely on any cash earnest money deposits made by the Borrower or any of the Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted hereunder;
(v)
ground leases in respect of real property on which facilities owned or leased by the Borrower or any of its Subsidiaries are located;
(w)
Liens, if any, arising from precautionary Uniform Commercial Code financing statement
filings;
(x)
Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(y)
[Reserved];
(z)
any zoning or similar law or right reserved to or vested in any Governmental Authority to
control or regulate the use of any real property that does not have a materially adverse effect on the value of
the property affected thereby or materially interfere with the ordinary conduct of the business of the Borrower or any Material Subsidiary at the property affected thereby;
(aa)
any licenses of intellectual property granted in the ordinary course of business which
does not impair, in any material respect, any Lender’s security under the Loan Documents;
(bb)
Liens on specific items of inventory or other goods and the proceeds thereof securing
such Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or
goods;
(cc)
[Reserved];
(dd)
[Reserved];
(ee)
[Reserved];
(ff)
Liens securing cash collateral provided to support Pre-Petition Letters of Credit;
(gg)
the modification, replacement, renewal or extension of any Lien permitted by clauses (b),
(i), (hh) of this Section 6.01; provided that (i) the Lien does not extend to any additional property other than
(A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.03, and (B) proceeds and products thereof; and (ii) the
renewal, extension or refinancing of the obligations secured or benefited by such Liens is permitted by Section 6.03;
(hh)
other Liens securing Indebtedness or other obligations in an aggregate principal amount
at any time outstanding not to exceed the greater of $250,000,000 and 8.5% of Total Assets; provided that
if such Liens attach to any ABL Priority Collateral, such Liens shall rank junior to the Liens securing the
Obligations and will be subject to a Junior Lien Intercreditor Agreement;
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(ii)
any Lien on any property or asset of the Borrower or a Subsidiary Guarantor securing Indebtedness permitted by Section 6.03(q) or Section 6.03(r); provided that in the case of Liens securing Indebtedness incurred under Section 6.03(q), such Lien does not apply to any other property or assets of the
Borrower or any of the Subsidiary Guarantors not securing such Indebtedness at the date of the acquisition
of such property or asset (other than after acquired property subject to a Lien securing Indebtedness and
other obligations incurred prior to such date and permitted hereunder which contains a requirement for the
pledging of after acquired property, it being agreed that such after acquired property shall not include property of the Borrower and the Subsidiary Guarantors, other than any such acquired Subsidiary Guarantor of
the Borrower, that would have been included but for such acquisition); provided, further, in the event that
any such Liens are on any ABL Priority Collateral, such Liens shall be junior to the Liens securing the Obligations and subject to a Junior Lien Intercreditor Agreement;
(jj)
any Lien on any Collateral securing Indebtedness permitted by Section 6.03(r); provided,
in the event such Lien is on any ABL Priority Collateral, such Lien shall be junior to the Liens securing the
Obligations pursuant to a Junior Lien Intercreditor Agreement; and
(kk)
subject to the Term Loan/Revolving Facility Intercreditor Agreement, the Liens securing
Indebtedness permitted by Section 6.03(g) (unless such Indebtedness is Designated Refinancing Debt or
was incurred pursuant to clause 7.03(z) of the Term Loan Agreement and in each case is junior in ranking
to the Indebtedness under the Term Loan Agreement, in which case such Liens shall be subject to an Intercreditor Agreement, in form and substance reasonably satisfactory to the Administrative Agent).
SECTION 6.02
Investments. Make any Investments, except:
(a)
Investments by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investment was made;
(b)
loans or advances to officers, directors and employees of Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrower or the Restricted Subsidiaries (i) for
ordinary business purposes, including, without limitation, reasonable and customary business-related travel,
entertainment, and relocation, (ii) in connection with such Person’s purchase of Equity Interests of Holdings (or any direct or indirect parent thereof or after a Qualifying IPO, any Intermediate Holding Company
or the Borrower) (provided that the amount of such loans and advances shall be contributed to the Borrower
in cash as common equity) and (iii) for purposes not described in the foregoing clauses (i) and (ii), in an
aggregate principal amount outstanding not to exceed $5,000,000;
(c)
asset purchases (including purchases of inventory, supplies and materials and advances
and/or payments made in the ordinary course of business to authors and/or contributors in consideration of
intellectual property) and the licensing or contribution of intellectual property pursuant to joint marketing
arrangements with other Persons, in each case in the ordinary course of business;
(d)
Investments (i) (w) by any Loan Party in any other Loan Party, (x) by any Non-Loan Party in any other Non-Loan Party that is a Restricted Subsidiary, (y) by any Non-Loan Party in any Loan Party, (z) by any Loan Party in any Non-Loan Party that is a Restricted Subsidiary; provided that all such Investments pursuant to this clause (z) shall not exceed $100,000,000 in the aggregate and in the case of any
Investment that constitute a loan or an advance to a Non-Loan Party that is a Restricted Subsidiary shall be
in the form of intercompany loans and evidenced by notes that have been pledged (individually or pursuant
to a global note) to the Collateral Agent for the benefit of the Lenders and (ii) to the extent not otherwise
permitted pursuant to clause (i) hereto, intercompany Investments in order to consummate the Transactions
and the Plan of Reorganization;
(e)
Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other
credits to suppliers in the ordinary course of business;
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(f)
Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and
Restricted Payments permitted under Section 6.01, 6.03, 6.04, 6.05 and 6.06, respectively;
(g)
Investments consisting of any modification, replacement, renewal, reinvestment or extension of any Investment existing on the date hereof; provided that the amount of any Investment permitted
pursuant to this Section 6.02(g) is not increased from the amount of such Investment on the Closing Date
except pursuant to the terms of such Investment as of the Closing Date or as otherwise permitted by this
Section 6.02;
(h)
Investments in Hedging Agreements permitted under Section 6.03;
(i)
promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 6.05;
(j)
other Investments not otherwise permitted hereunder, including the purchase or other acquisition of property and assets or businesses of any Person or of assets constituting a business unit, a line
of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof,
will be a Restricted Subsidiary of the Borrower (including as a result of a merger or consolidation); provided that, in each case, with respect to each Investment, purchase or other acquisition made pursuant to this
Section 6.02(j) (each, a “Permitted Acquisition”), immediately before and immediately after giving Pro
Forma Effect to any such purchase or other acquisition, the Payment Conditions shall be met;
(k)
the Transaction;
(l)
Investments in the ordinary course of business consisting of Article III endorsements for
collection or deposit and Article IV customary trade arrangements with customers consistent with past
practices;
(m)
Investments (including debt obligations and Equity Interests) received in connection with
the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, or
other disputes with, customers and suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(n)
loans and advances to the Borrower (or any direct or indirect parent thereof) in lieu of,
and not in excess of the amount of (after giving effect to any other such loans or advances or Restricted
Payments in respect thereof), Restricted Payments to the extent permitted to be made to the Borrower (or
such direct or indirect parent) in accordance with Section 6.06(f), (g) or (m);
(o)
so long as immediately after giving effect to any such Investment no Default has occurred
and is continuing, other Investments that do not exceed $200,000,000 in the aggregate, plus any return representing return of capital in respect of any such investment and valued at the time of the making thereof;
provided that such amount shall be increased by the net cash proceeds of Permitted Equity Issuances that
are not otherwise applied (so long as such Investment is made contemporaneously with the receipt of proceeds from the Permitted Equity Issuances); provided, further, the aggregate amount specified in this Section 6.02(o) that may be used for the designation of Restricted Subsidiaries as Unrestricted Subsidiaries
shall not exceed $50,000,000 plus any return representing return of capital in respect of any such Unrestricted Subsidiary and valued at the time of making any such designation;
(p)
advances of payroll payments to employees in the ordinary course of business;
(q)
Investments to the extent that payment for such Investments is made solely with Qualified Equity Interests of Holdings (or of the Borrower or any Intermediate Holding Company or any direct
or indirect parent of Holdings after a Qualifying IPO of the Borrower, such Intermediate Holding Company
or such direct or indirect parent of Holdings, as the case may be); provided, that, any such Investment is
made contemporaneously with the receipt of the Qualified Equity Interests;
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(r)
Investments held by a Restricted Subsidiary acquired after the Closing Date or of a corporation merged into the Borrower or merged or consolidated with a Restricted Subsidiary in accordance
with Section 6.04 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of
such acquisition, merger or consolidation;
(s)
Guarantee Obligations of the Borrower or any Restricted Subsidiary in respect of leases
(other than Capitalized Lease Obligations) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;
(t)
[Reserved];
(u)
Investments constituting the non-cash portion of consideration received in a Disposition
permitted by Section 6.05; and
(v)
Investments of minority interests 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.
SECTION 6.03
(a)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
Indebtedness of the Borrower and any of its Subsidiaries under the Loan Documents;
(b)
Indebtedness outstanding on the date hereof and listed on Schedule 6.03(b) and any Permitted Refinancing thereof;
(c)
Guarantee Obligations of the Borrower and the Restricted Subsidiaries in respect of Indebtedness of the Borrower or any Restricted Subsidiary otherwise permitted hereunder (except that a Restricted Subsidiary that is not a Loan Party may not, by virtue of this Section 6.03(c), guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 6.03); provided that if the
Indebtedness being guaranteed is subordinated to the Obligations, such Guarantee Obligation shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d)
Indebtedness of the Borrower or any Restricted Subsidiary owing to the Borrower or any
other Restricted Subsidiary to the extent constituting an Investment permitted by Section 6.02; provided
that all such Indebtedness of any Loan Party owed to any Person that is not a Loan Party shall be subject to
subordination terms set forth in Section 5.01 of the Security Agreement;
(e)
(i) Attributable Indebtedness and other Indebtedness (including Capitalized Lease Obligations) financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets in an amount not to exceed $50,000,000 at any time; provided that such Indebtedness is incurred concurrently with or within two hundred and seventy (270) days after the applicable acquisition, construction,
repair, replacement or improvement, (ii) Attributable Indebtedness arising out of Permitted Sale Leasebacks and (iii) any Permitted Refinancing of any Indebtedness set forth in the immediately preceding clauses (i) and (ii);
(f)
Indebtedness in respect of Hedging Agreements designed to hedge against interest rates,
foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for
speculative purposes;
(g)
Indebtedness under the Term Loan Agreement, any Designated Refinancing Debt (as defined therein on the Closing Date) permitted thereunder, any Indebtedness incurred pursuant to Section
7.03(z) of the Term Loan Agreement and, in each case, any Permitted Refinancing thereof; provided that
the aggregate principal amount of Indebtedness permitted under this Section 6.03(g) shall not exceed
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$1,750,000,000 plus the amount of Incremental Term Loans (as defined in the Term Loan Agreement)
and/or Incremental Equivalent Debt (as defined in the Term Loan Agreement on the Closing Date), in each
case permitted to be incurred under the Term Loan Agreement (as in effect on the date hereof) (plus, in the
case of any such Permitted Refinancing, any fees, commissions and expenses, unpaid accrued interest and
premium thereon and underwriting discounts and defeasance costs related to the incurrence thereof) at any
time outstanding;
(h)
Indebtedness representing deferred compensation to employees of the Borrower (or any
direct or indirect parent of the Borrower) and the Restricted Subsidiaries incurred in the ordinary course of
business;
(i)
Indebtedness to current or former officers, directors, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings (or any direct or indirect parent thereof) permitted by Section 6.06;
(j)
Indebtedness incurred by the Borrower or any of the Restricted Subsidiaries in a Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in each case to the
extent constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;
(k)
Indebtedness consisting of obligations of the Borrower or any of the Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with
the Transaction and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(l)
Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts incurred in the ordinary course;
(m)
other Indebtedness not permitted hereunder in an aggregate principal amount not to exceed $500,000,000 at any time outstanding; provided that the aggregate amount of Indebtedness incurred
under this clause (m) by Restricted Subsidiaries that are not Guarantors shall not exceed $50,000,000;
(n)
Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(o)
Indebtedness incurred by the Borrower or any of the Restricted Subsidiaries in respect of
letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or
created in the ordinary course of business, including in respect of workers compensation claims, health,
disability or other employee benefits or property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(p)
obligations in respect of performance, bid, appeal and surety bonds and performance and
completion guarantees and similar obligations provided by the Borrower or any of the Restricted Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in
each case in the ordinary course of business or consistent with past practice;
(q)
(i) Indebtedness of a Restricted Subsidiary of the Borrower acquired after the Closing
Date and Indebtedness of a person merged or consolidated with or into a Restricted Subsidiary after the
Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in
each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation
of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii)
any Indebtedness that Refinanced such Indebtedness pursuant to the definition of Permitted Refinancing;
provided that at the time of the assumption of such Indebtedness by a Restricted Subsidiary, on a pro forma
basis after giving effect thereto, the Payment Conditions with respect thereto are satisfied;
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(r)
Indebtedness of the Borrower or any Restricted Subsidiary incurred after the Closing
Date to finance a Permitted Acquisition, and (ii) any Indebtedness that Refinanced such Indebtedness pursuant to the definition of Permitted Refinancing; provided that at the time of the incurrence of such Indebtedness by the Borrower or a Restricted Subsidiary, on a pro forma basis after giving effect thereto, the
Payment Conditions with respect thereto are satisfied;
(s)
[reserved];
(t)
[reserved];
(u)
Indebtedness incurred by Restricted Subsidiaries that are not Guarantors which, when aggregated with the principal amount of all other Indebtedness incurred pursuant to this clause (u) and Section 6.03(m) by Restricted Subsidiaries that are not Guarantors and then outstanding, does not exceed
$150,000,000;
(v)
[reserved];
(w)
[reserved];
(x)
[reserved];
(y)
Permitted Subordinated Indebtedness; provided that, in each case, (A) both before and after giving effect to the incurrence of any such Indebtedness, no Default shall have occurred and be continuing and (B) the Borrower would be in compliance with the covenant set forth in Section 6.11 as of the most
recently completed Testing Period (whether or not a Testing Period is in effect at such time);
(z)
any other Indebtedness of the Borrower or any Restricted Subsidiary not otherwise permitted hereunder incurred or assumed at any time when, on a pro forma basis after giving effect thereto, the
Payment Conditions are satisfied; provided, that, such Indebtedness (i) will not mature prior to the date that
is 91 days after the Latest Maturity Date in effect on the date of issuance or incurrence thereof, (ii) no
scheduled amortization or payments, repurchases or redemptions of principal (other than customary offers
to purchase upon asset sales or changes of control consistent with high yield bond indentures) and (iii) is
unsecured; and
(aa)
all premiums (if any), interest (including post-petition interest), fees, expenses, charges
and additional or contingent interest on obligations described in clauses (a) through (z) above.
For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency
shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect
on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated
restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced,
renewed or defeased.
The accrual of interest, the accretion of accreted value and the payment of interest in the form of
additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.03.
SECTION 6.04
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another
Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to or in favor of any Person, except that:
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(a)
Parent may merge with Holdings (it being understood that either entity may be the continuing or surviving Person);
(b)
any Restricted Subsidiary may merge with (i) the Borrower (including a merger, the purpose of which is to reorganize the Borrower into a new jurisdiction); provided that (x) the Borrower shall
be the continuing or surviving Person, and (y) such merger does not result in the Borrower ceasing to be incorporated under the Laws of the United States, any state thereof or the District of Columbia or (ii) any one
or more other Restricted Subsidiaries; provided that when any Restricted Subsidiary that is a Loan Party is
merging with another Restricted Subsidiary, a Loan Party shall be the continuing or surviving Person;
(c)
(i) any Subsidiary that is not a Loan Party may merge or consolidate with or into any
other Subsidiary that is not a Loan Party and (ii) (A) any Subsidiary may liquidate or dissolve or (B) the
Borrower or any Subsidiary may change its legal form if the relevant Person determines in good faith that
such action is in the best interests of the Borrower and its Subsidiaries and is not materially disadvantageous to the Lenders;
(d)
any Restricted Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to another Restricted Subsidiary; provided that if the transferor in such a
transaction is a Loan Party, then (i) the transferee must be a Loan Party or (ii) to the extent constituting an
Investment, such Investment must be a permitted Investment in or Indebtedness of a Restricted Subsidiary
which is not a Loan Party in accordance with Sections 6.02 and 6.03, respectively;
(e)
so long as no Default exists or would result therefrom, the Borrower may merge with any
other Person; provided that (i) the Borrower shall be the continuing or surviving corporation or (ii) if the
Person formed by or surviving any such merger or consolidation is not the Borrower (any such Person, the
“Successor Borrower”), (A) the Successor Borrower shall be an entity organized or existing under the laws
of the United States, any state thereof, the District of Columbia or any territory thereof, (B) the Successor
Borrower shall expressly assume all the obligations of the Borrower under this Agreement and the other
Loan Documents to which the Borrower is a party pursuant to a supplement hereto or thereto in form reasonably satisfactory to the Administrative Agent, (C) each Guarantor, unless it is the other party to such
merger or consolidation, shall have by a supplement to the Guaranty confirmed that its Guarantee shall apply to the Successor Borrower’s obligations under this Agreement, (D) each Loan Party, unless it is the
other party to such merger or consolidation, shall have by a supplement to the Security Agreement confirmed that its obligations thereunder shall apply to the Successor Borrower’s obligations under this
Agreement, (E) each mortgagor of a Mortgaged Property, unless it is the other party to such merger or consolidation, shall have by an amendment to or restatement of the applicable Mortgage (or other instrument
reasonably satisfactory to the Administrative Agent) confirmed that its obligations thereunder shall apply to
the Successor Borrower’s obligations under this Agreement, and (F) the Borrower shall have delivered to
the Administrative Agent an officer’s certificate and an opinion of counsel, each stating that such merger or
consolidation and such supplement to this Agreement or any other Loan Document comply with this
Agreement; provided further that if the foregoing are satisfied, the Successor Borrower will succeed to, and
be substituted for, the Borrower under this Agreement;
(f)
so long as no Default exists or would result therefrom, any Restricted Subsidiary may
merge with any other Person in order to effect an Investment permitted pursuant to Section 6.02; provided
that the continuing or surviving Person shall be a Restricted Subsidiary, which together with each of its Restricted Subsidiaries, shall have complied with the requirements of Section 5.11;
(g)
[reserved];
(h)
[reserved]; and
(i)
so long as no Default exists or would result therefrom, a merger, dissolution, liquidation,
consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section
6.05;
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SECTION 6.05
sition, except:
Dispositions. Make any Disposition or enter into any agreement to make any Dispo-
(a)
Dispositions of obsolete, worn out or surplus property, whether now owned or hereafter
acquired, in the ordinary course of business and Dispositions of property no longer used or useful in the
conduct of the business of the Borrower and the Restricted Subsidiaries;
(b)
Dispositions of inventory and immaterial assets in the ordinary course of business (including allowing any registrations or any applications for registration of any immaterial IP Rights to lapse,
expire, or go abandoned in the ordinary course of business);
(c)
Dispositions of property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property that is promptly purchased or (ii) the proceeds of
such Disposition are promptly applied to the purchase price of such replacement property (which replacement property is actually promptly purchased);
(d)
Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the
transferor of such property is a Loan Party (i) the transferee thereof must be a Loan Party or (ii) to the extent such transaction constitutes an Investment, such transaction is permitted under Section 6.02;
(e)
Dispositions permitted by Sections 6.02, 6.04 and 6.06 and Liens permitted by Section
(f)
Permitted Sale Leasebacks;
(g)
Dispositions in the ordinary course of business of Cash Equivalents;
6.01;
(h)
leases, subleases, licenses or sublicenses, in each case in the ordinary course of business
and which do not materially interfere with the business of the Borrower and the Restricted Subsidiaries,
taken as a whole;
(i)
transfers of property subject to Casualty Events upon receipt of the net cash proceeds of
such Casualty Event;
(j)
Dispositions of property not otherwise permitted under this Section 6.05 provided that
(A) if any ABL Priority Collateral with an aggregate value of greater than $10,000,000 is Disposed of, an
updated Borrowing Base Certificate shall have been delivered and the Borrowing Base shall immediately
be deemed recalculated in reliance thereon, and (B)(i) such Disposition shall be for fair market value as
reasonably determined by the Borrower or the applicable Restricted Subsidiary in good faith, (ii) with respect to any Disposition pursuant to this clause (j) for a purchase price in excess of $20,000,000, the Parent
or the applicable Restricted Subsidiary shall receive not less than 75% of such consideration in the form of
cash or Cash Equivalents (in each case, free and clear of all Liens at the time received, other than nonconsensual Liens permitted by Section 6.01); provided that for the purposes of this subclause (ii) the following
shall be deemed to be cash: (A) the assumption by the transferee of Indebtedness or other liabilities contingent or otherwise of any Loan Party and the release of the Borrower or such Restricted Subsidiary, other
than Indebtedness or other liabilities that are by their terms subordinated to the payment in cash of the Obligations, that are assumed by the transferee with respect to the applicable Disposition and for which the
Borrower and all of its Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing from all liability on such Indebtedness or other liability in connection with such Disposition, (B)
securities, notes or other obligations received by any Loan Party or applicable Restricted Subsidiary from
the transferee, (C) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a
result of such Disposition, to the extent that the Borrower and each other Restricted Subsidiary are released
from any Guarantee of payment of such Indebtedness in connection with such Disposition and (D) any
Designated Non-Cash Consideration received by the Person making such Disposition having an aggregate
fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to
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this clause (j) that is at that time outstanding, not to exceed $50,000,000 (with the fair market value of each
item of Designated Non-Cash Consideration being measured at the time received and without giving effect
to subsequent changes in value);
(k)
[Reserved];
(l)
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;
(m)
Dispositions of accounts receivable in the ordinary course of business in connection with
the collection or compromise thereof;
(n)
any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
(o)
the unwinding of any Hedging Agreement pursuant to its terms;
(p)
[reserved]; and
(q)
Disposition of the Gale Business.
To the extent any Collateral is Disposed of as expressly permitted by this Section 6.05 to any Person other than the Borrower or any Restricted Subsidiary, such Collateral shall be sold free and clear of the Liens
created by the Loan Documents, and, if requested by the Administrative Agent, upon the certification by the Borrower that such Disposition is permitted by this Agreement, the Administrative Agent or the Collateral Agent, as
applicable, shall be authorized to take and shall take any actions deemed appropriate in order to effect the foregoing.
SECTION 6.06
ment, except:
Restricted Payments. Declare or make, directly or indirectly, any Restricted Pay-
(a)
each Restricted Subsidiary may make Restricted Payments to the Borrower and to other
Restricted Subsidiaries (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and any other Restricted Subsidiary and to each other owner of Equity Interests of
such Restricted Subsidiary based on their relative ownership interests of the relevant class of Equity Interests);
(b)
(i) the Borrower may (or may make Restricted Payments to permit any direct or indirect
parent thereof to) redeem in whole or in part any of its Equity Interests for another class of its (or such parent’s) Equity Interests or rights to acquire its Equity Interests or with proceeds from substantially concurrent equity contributions or issuances of new Equity Interests, provided that any terms and provisions material to the interests of the Lenders, when taken as a whole, contained in such other class of Equity Interests
are at least as advantageous to the Lenders as those contained in the Equity Interests redeemed thereby and
(ii) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the Equity Interests (other than Disqualified Equity Interests not otherwise permitted by Section 6.03) of such Person;
(c)
Restricted Payments made on the Closing Date to consummate the Transactions;
(d)
to the extent constituting Restricted Payments, the Borrower and the Restricted Subsidiaries may enter into and consummate transactions expressly permitted by any provision of Section 6.02 or
6.04;
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(e)
repurchases of Equity Interests in the Borrower (or any direct or indirect parent thereof)
or any Restricted Subsidiary deemed to occur upon exercise of stock options or warrants if such Equity Interests represent a portion of the exercise price of such options or warrants;
(f)
the Borrower or any Restricted Subsidiary may pay (or make Restricted Payments to allow any direct or indirect parent thereof to pay) for the repurchase, retirement or other acquisition or retirement for value of Equity Interests of it or any direct or indirect parent thereof held by any future, present
or former employee, director, officer or consultant (or any Affiliates, spouses, former spouses, other immediate family members, successors, executors, administrators, heirs, legatees or distributees of any of the
foregoing) of the Borrower (or any direct or indirect parent of the Borrower) or any of its Subsidiaries pursuant to any employee, management or director equity plan, employee, management or director stock option plan or any other employee, management or director benefit plan or any agreement (including any
stock subscription or shareholder agreement) with any employee, director, officer or consultant of Parent,
Holdings (or any direct or indirect parent thereof), any Intermediate Holding Company, the Borrower or
any Subsidiary; provided that cancellation of Indebtedness owing to the Borrower (or any direct or indirect
parent of the Borrower) or any of its Subsidiaries from members of management of the Borrower, any of
the Borrower’s direct or indirect parent companies or any of the Borrower’s Restricted Subsidiaries in connection with a repurchase of Equity Interests of any of the Borrower’s direct or indirect parent companies
will not be deemed to constitute a Restricted Payment for purposes of this covenant or any other provision
of this Agreement.
(g)
the Borrower and its Restricted Subsidiaries may make Restricted Payments to any direct
or indirect parent of the Borrower:
(i)
to the extent that the Borrower is part of a consolidated, combined or similar tax
group for which it is not the common parent, the proceeds of which will be used to pay the tax liability to each relevant jurisdiction attributable to the income of the Borrower or its Subsidiaries determined as if the Borrower and its Subsidiaries filed separately;
(ii)
the proceeds of which shall be used to pay its operating costs and expenses incurred in the ordinary course of business, other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third parties) which are reasonable and customary and incurred in the ordinary course of business and attributable to the ownership or operations of the Borrower and its Subsidiaries (including any reasonable and customary
indemnification claims made by directors or officers of any direct or indirect parent of the Borrower attributable to the ownership or operations of the Borrower and its Subsidiaries) and fees
and expenses otherwise due and payable by the Borrower or any Restricted Subsidiary and permitted to be paid by the Borrower or such Restricted Subsidiary under this Agreement;
(iii)
the proceeds of which shall be used to pay franchise and excise taxes and other
fees, taxes and expenses required to maintain its (or any of its direct or indirect parents’) corporate
existence;
(iv)
to finance any Investment permitted to be made pursuant to Section 6.02; provided that (A) such Restricted Payment shall be made substantially concurrently with the closing
of such Investment and (B) the Borrower or such parent shall, immediately following the closing
thereof, cause (1) all property acquired (whether assets or Equity Interests) to be held by or contributed to a Restricted Subsidiary or (2) the merger (to the extent permitted in Section 6.04) of the
Person formed or acquired into it or a Restricted Subsidiary in order to consummate such Permitted Acquisition, in each case, in accordance with the requirements of Section 5.11;
(v)
the proceeds of which shall be used to pay customary costs, fees and expenses
(other than to Affiliates) related to any unsuccessful equity or debt offering permitted by this
Agreement; and
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(vi)
the proceeds of which shall be used to pay customary salary, bonus and other
benefits payable to officers and employees of any direct or indirect parent company of the Borrower to the extent such salaries, bonuses and other benefits are attributable to the ownership or
operation of the Borrower and its Restricted Subsidiaries;
(h)
the Borrower or any Restricted Subsidiary may (a) pay cash in lieu of fractional Equity
Interests in connection with any dividend, split or combination thereof or any Permitted Acquisition and (b)
honor any conversion request by a holder of convertible Indebtedness and make cash payments in lieu of
fractional shares in connection with any such conversion and may make payments on convertible Indebtedness in accordance with its terms;
(i)
[reserved];
(j)
[reserved];
(k)
the Borrower or any Restricted Subsidiary may make Restricted Payments in an amount
equal to withholding or similar Taxes payable or expected to be payable by any future, present or former
employee, director, manager or consultant (or any Affiliates, spouses, former spouses, other immediate
family members, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) and any repurchases of Equity Interests in consideration of such payments including deemed repurchases in connection with the exercise of stock options;
(l)
after the Closing Date, the Borrower may make Restricted Payments in accordance with
the Plan of Reorganization (i) in an aggregate amount not to exceed $11,800,000 in connection with the settlement of certain claims of general unsecured creditors and (ii) with the proceeds remaining in the Plan
Distribution Accounts after giving effect to all distributions and other payments of claims required to be
made pursuant to the Plan of Reorganization; and
(m)
the Borrower may make additional Restricted Payments so long as, on a pro forma basis
after giving effect thereto, the Payment Conditions are satisfied at such time.
SECTION 6.07
Change in Nature of Business and Changes in Fiscal Year.
(a)
Engage in any material line of business substantially different from those lines of business conducted by the Borrower and the Restricted Subsidiaries on the date hereof or any business reasonably related or ancillary thereto.
(b)
Change its fiscal year to end on a day other than March 31 in any calendar year; provided
that this clause (b) shall not apply until such time as the Parent and its Subsidiaries shall have changed their fiscal
year end to March 31; provided that subject to the prior written consent of the Administrative Agent, the Parent and
its Subsidiaries may change their fiscal year end to any other date reasonably acceptable to the Administrative Agent
and the Administrative Agent and the Borrower (without the consent of the Required Lenders) shall be permitted
(and are hereby authorized by the Lenders) to make modifications to this Agreement necessary to effect such change
in fiscal year end.
SECTION 6.08
Transactions with Affiliates. Other than in the case of transactions with a fair market
value less than $10,000,000, enter into any transaction of any kind with any Affiliate of the Borrower, whether or
not in the ordinary course of business, other than
(a)
[reserved];(b) transactions on terms substantially as favorable to the Borrower or such
Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a
comparable arm’s-length transaction with a Person other than an Affiliate;(c)
the Transactions and the
payment of fees and expenses related to the Transactions, including, without limitation, arrangements, fee
reimbursements and indemnities specifically and expressly permitted or required under the Plan of Reorganization;(d)
the issuance of Equity Interests to any officer, director, employee or consultant of the
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Borrower or any of its Subsidiaries or any direct or indirect parent of the Borrower in connection with the
Transaction;(e) [reserved];(f)
equity issuances, repurchases, redemptions, retirements or other acquisitions or retirements of Equity Interests by the Borrower or any Restricted Subsidiary permitted under Section 6.06;(g)
loans and other transactions by and among the Borrower and/or one or more Subsidiaries
(including any entity that becomes a Subsidiary as a result of such transaction) to the extent permitted under this Article VI;(h)
employment and severance arrangements between the Borrower and the Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements;(i)
payments by the Borrower
(and any direct or indirect parent thereof) and the Restricted Subsidiaries pursuant to the tax sharing
agreements among the Borrower (and any such direct or indirect parent thereof) and the Restricted Subsidiaries on customary terms to the extent attributable to the ownership or operation of the Borrower and the
Restricted Subsidiaries;(j) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, officers, employees and consultants of the Borrower and the Restricted Subsidiaries or any direct or indirect parent of the Borrower in the ordinary course of business to
the extent attributable to the ownership or operation of the Borrower and the Restricted Subsidiaries;(k)
transactions pursuant to permitted agreements in existence on the Closing Date and set forth on
Schedule 6.08 or any amendment thereto to the extent such an amendment is not adverse to the Lenders in
any material respect; and(l)
dividends permitted under Section 6.09.
SECTION 6.09
Other Indebtedness and Agreements.
(a)
Permit (i) any waiver, supplement, modification or amendment of any indenture, instrument or agreement in respect of (A) other than in the case of the Term Loan Agreement, Indebtedness of the type
described in clause (a) or (b) of the definition of Indebtedness that is (a) secured on a junior Lien basis to the Liens
securing the Obligations under this Agreement or (b) secured on a pari passu basis to the Liens securing the Obligations under this Agreement (the Indebtedness described herein being referred to as “Junior/Pari Passu Financing”)
or any unsecured Indebtedness in excess of $50,000,000 (such Indebtedness “Material Unsecured Indebtedness”),
in each case to the extent such waiver, supplement, modification or amendment would be materially adverse to the
interests of the Lenders and (B) the Term Loan Agreement that would adversely impact (x) the rights of the Agents
or Lenders hereunder in the ABL Priority Collateral, (y) any assets of a type included in the Borrowing Base or (z)
the ability of the Loan Parties to make payments required hereunder) or (ii) any waiver, supplement, modification or
amendment of its certificate of incorporation, by laws, operating, management or partnership agreement or other
organizational documents, to the extent any such waiver, supplement, modification or amendment would be materially adverse to the Lenders, except as expressly contemplated by the Plan of Reorganization
(b)
Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof in any manner any Junior/Pari Passu Financing, any Material Unsecured Indebtedness or the Term Loan
Agreement (it being understood that payments of regularly scheduled interest and mandatory prepayments under
such Junior/Pari Passu Financing, any Material Unsecured Indebtedness or the Term Loan Agreement shall be permitted), except for (i) the refinancing thereof with Permitted Refinancing, (ii) the conversion thereof to Equity Interests (other than Disqualified Equity Interests) of Parent, Holdings or the Borrower, (iii) prepayments, redemptions,
purchases, defeasances and other payments thereof prior to their scheduled maturity so long as the Payment Conditions have been satisfied at the time of such prepayment, redemption, purchase, defeasances or other payment and
(iv) prepayments, redemptions, purchases, defeasances and other payments thereof prior to their scheduled maturity
in an aggregate amount, measured at the time of payment, with the net cash proceeds of Permitted Equity Issuances
that are not otherwise applied (so long as such payments are made contemporaneously with the receipt of proceeds
from the Permitted Equity Issuances).
SECTION 6.10
Holdings Negative Covenants.
Parent and Holdings (prior to a Qualifying IPO of the Borrower) hereby covenant and agree with each
Lender that, until the repayment in full of all Obligations (other than contingent obligations not then due and payable), unless the Required Lenders shall otherwise consent in writing, (a) Parent and Holdings will not create, incur,
assume or permit to exist any Lien other than (i) Liens created under the Loan Documents and (ii) Liens not prohibited by Section 6.01 on any Equity Interests of the Borrower held by Holdings and (b) Parent and Holdings shall do
or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence; pro-96-
vided, that so long as no Default has occurred and is continuing or would result therefrom, Parent or Holdings may
merge with any other person (and if it is not the survivor of such merger, the survivor shall assume Parent or Holdings’ obligations, as applicable, under the Loan Documents).
SECTION 6.11
Minimum Fixed Charge Coverage Ratio.
(a)
Permit the Fixed Charge Coverage Ratio to be less than 1.0:1.0 as of (i) the date of commencement of a Fixed Charge Coverage Ratio Testing Period and (ii) the end of any Testing Period, which occurs
during such Fixed Charge Coverage Ratio Testing Period.
(b)
Notwithstanding anything to the contrary contained in Section 6.11(a), if the Borrower
fails to comply with the requirements of the covenant set forth in Section 6.11 (a) (the “Financial Covenant”), then,
at any time during the ten (10) day period following (x) in the case of the failure to comply with the Financial Covenant as of the start of the Fixed Charge Coverage Ratio Testing Period, the date of commencement of the Fixed
Charge Coverage Ratio Testing Period and (y) in the case of the failure to comply with the Financial Covenant as of
the most recently ended Testing Period during the Fixed Charge Coverage Ratio Testing Period, the date on which
the financial statements for the most recently ended fiscal period are required to be delivered Section 5.01(a) or Section 5.01(b), as applicable (such period, the “Cure Period”), the Borrower shall have the right to give written notice
(the “Cure Notice”) to the Administrative Agent of its intent to receive a Specified Equity Contribution in an
amount that, if added to Consolidated EBITDA for the relevant Testing Period, would have been sufficient to cause
compliance with the Financial Covenant for such Testing Period (an “Equity Cure”); provided that (A) in each four
consecutive fiscal quarter period, there shall be a period of at least two consecutive fiscal quarters in respect of
which no Specified Equity Contribution is made, (B) no more than five Specified Equity Contributions may be made
during the term of this Agreement, (C) the amount of any Specified Equity Contribution shall be no greater than the
amount required to cause the Borrower to be in compliance with the Fixed Charge Coverage Ratio specified above
on a pro forma basis, after giving effect to such Specified Equity Contribution, (D) any reduction of Indebtedness as
a result of payments thereof with the proceeds of a Specified Equity Contribution shall be disregarded for the purposes of determining compliance with the Financial Covenant, (E) all Specified Equity Contributions shall be disregarded for purposes of determining the Payment Conditions or any other condition based on a financial ratio, pricing or the amount or availability of any baskets with respect to the covenants contained herein, (F) the entire proceeds of each Specified Equity Contribution shall have been contributed to the Borrower as cash common Equity
Interests (which to the extent constitute Equity Interests other than common Equity Interests will be on terms and
conditions reasonably acceptable to the Administrative Agent) and (G) no Borrowings shall be permitted hereunder
until such Equity Cure shall have been actually received by the Borrower.
SECTION 6.12
Negative Pledge. Enter into any agreement, instrument, deed or lease that prohibits
or limits the ability of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist any Lien
upon any of their respective properties or revenues, whether now owned or hereafter acquired, for the benefit of the
Secured Parties with respect to the Obligations or under the Loan Documents; provided that the foregoing shall not
apply to:
(a)
restrictions and conditions imposed by (i) requirements of law, (ii) any Loan Document,
(iii) any documentation governing Indebtedness incurred pursuant to Section 6.03(g), (iv) the definitive documentation in respect of Indebtedness permitted pursuant to Section 6.03 to the extent such restrictions or conditions are no
more restrictive than the restrictions and conditions in the Loan Documents or, in the case of Permitted Subordinated
Indebtedness, are on market terms at the time of issuance or, in the case of Indebtedness of any Restricted Subsidiary that is not a Guarantor, are imposed solely on such Restricted Subsidiary and its Subsidiaries, provided that any
such restrictions or conditions permit compliance with the Collateral and Guarantee Requirement and Section 5.11
and (v) any documentation governing any Permitted Refinancing incurred to refinance any such Indebtedness referenced in clauses (i) through (iv) above; provided, that with respect to Indebtedness referenced in (A) clause (iii)
above, such restrictions shall be no more restrictive in any material respect than the restrictions and conditions in the
Loan Documents or, in the case of Junior/Pari Passu Financing, are market terms at the time of issuance and (B)
clause (v) above, such restrictions shall not expand the scope in any material respect of any such restriction or condition contained in the Indebtedness being Refinanced;
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(b)
customary restrictions and conditions existing on the Closing Date and any extension, renewal, amendment, modification or replacement thereof, except to the extent any such amendment, modification or
replacement expands the scope of any such restriction or condition;
(c)
restrictions and conditions contained in agreements relating to the sale of a Subsidiary or
any assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary or assets
that is or are to be sold and such sale is permitted hereunder;
(d)
(i) customary provisions in leases, licenses and other contracts restricting the assignment
thereof and (ii) customary restrictions and conditions arising in connection with any Disposition permitted by Section 6.05;
(e)
restrictions imposed by any agreement relating to secured Indebtedness permitted by this
Agreement to the extent such restriction applies only to the property securing by such Indebtedness;
(f)
any restrictions or conditions set forth in any agreement in effect at any time any Person
becomes a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided that such agreement was not entered into in contemplation of such Person becoming
a Restricted Subsidiary and the restriction or condition set forth in such agreement does not apply to the Borrower or
any Restricted Subsidiary;
(g)
restrictions on cash (or Permitted Investments) or other deposits imposed by agreements
entered into in the ordinary course of business (or other restrictions on cash or deposits constituting Permitted Encumbrances or Cash Equivalents);
(h)
customary provisions in joint venture agreements and other similar agreements applicable
to joint ventures permitted by Section 6.01 and applicable solely to such joint venture and entered into in the ordinary course of business; and
(i)
customary net worth provisions contained in real property leases entered into by Subsidiaries, so long as the Borrower has determined in good faith that such net worth provisions could not reasonably be
expected to impair the ability of the Borrower and its Restricted Subsidiaries to meet their ongoing obligations.
ARTICLE VII
Events of Default
SECTION 7.01
Events of Default. Any of the following events referred to in any of clauses (a)
through (k) inclusive of this 7.01 shall constitute an “Event of Default”:
(a)
Non-Payment. Any Loan Party fails to pay (i) when and as required to be paid herein,
any amount of principal of any Loan or the reimbursement with respect to any L/C Disbursement, or (ii)
within five (5) Business Days after the same becomes due, any interest on any Loan or L/C Disbursement
or any other amount payable hereunder or with respect to any other Loan Document; or
(b)
Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Sections 5.01(e)(ii), 5.03(a) or 5.05(a) (solely with respect to the Borrower),
Section 5.01(e)(i) (which shall continue unremedied for a period of five days) or Section 5.15 (which shall
continue unremedied for a period of five days) or Article VI; or
(c)
Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 7.01 (a) or (b) above) contained in any Loan Document on its part to be
performed or observed and such failure continues for thirty (30) days after receipt by the Borrower of written notice thereof by the Administrative Agent or the Required Lenders; or
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(d)
Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Loan Party herein, in any other Loan Document,
or in any document required to be delivered in connection herewith or therewith shall be incorrect or misleading in any material respect when made or deemed made and which (x) other than in the case of representations and warranties in any Borrowing Base Certificate or relating to assets included in any Borrowing
Base calculation, which shall have no grace period and (y) if capable of being cured, such incorrect or misleading representation, warranty, certification or statement of fact remains so incorrect or misleading for
thirty (30) days after receipt by the Borrower of written notice thereof by Administrative Agent or the Required Lenders; or
(e)
Cross-Default. Any Loan Party or any Restricted Subsidiary (A) fails to make any payment beyond the applicable grace period with respect thereto, if any (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Material Indebtedness (other than
Indebtedness hereunder), or (B) fails to observe or perform any other agreement or condition relating to any
such Material Indebtedness, or any other event occurs (other than, with respect to Indebtedness consisting
of Swap Agreements, termination events or equivalent events pursuant to the terms of such Swap Agreements), the effect of which default or other event is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Material Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Material Indebtedness to be made, prior to its stated maturity; provided that this
clause (e)(B) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder
and under the documents providing for such Indebtedness; provided further that such failure is unremedied
and is not waived by the holders of such Indebtedness; provided that a Term Loan Agreement Event of Default shall not in and of itself constitute an Event of Default under this paragraph unless (i) such Term Loan
Agreement Event of Default is in respect of Section 7.01(a) (or such corresponding section) of the Term
Loan Agreement, (ii) such Term Loan Agreement Event of Default is a Term Loan Agreement Event of
Default other than the type set forth in clause (i) and such Term Loan Agreement Event of Default has not
been cured within a 45 calendar day period following the giving of notice of such Term Loan Agreement
Event of Default by the administrative agent (or a lender, as applicable) in accordance with the terms of the
Term Loan Agreement or (iii) the Indebtedness under the Term Loan Agreement has been accelerated as a
result of such Term Loan Agreement Event of Default (which shall constitute an Event of Default under
this paragraph as of the date of such acceleration); or
(f)
Insolvency Proceedings, Etc. Any Loan Party or any of the Restricted Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator, administrator, administrative receiver or similar officer for it or for all
or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator,
administrator, administrative receiver or similar officer is appointed without the application or consent of
such Person and the appointment continues undischarged or unstayed for sixty (60) calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues undismissed or unstayed for sixty
(60) calendar days; or an order for relief is entered in any such proceeding; or
(g)
Inability to Pay Debts; Attachment. (i) Any Loan Party or any Restricted Subsidiary becomes unable or admits in writing its inability or fails generally to pay its Material Indebtedness as such
Material Indebtedness becomes due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of the Loan Parties, taken as a whole,
and is not released, vacated or fully bonded within sixty (60) days after its issue or levy; or
(h)
Judgments. There is entered against any Loan Party or any Restricted Subsidiary a final
judgment or order for the payment of money in an aggregate amount exceeding $50,000,000 (to the extent
not covered by independent third-party insurance) (other than a claim described in the Plan of Reorganization or Disclosure Statement as arising after the date of the Plan of Reorganization) and such judgment or
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order shall not have been satisfied, vacated, discharged or stayed or bonded pending an appeal for a period
of sixty (60) consecutive days; or
(i)
ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of any Loan Party under Title
IV of ERISA in an aggregate amount which could reasonably be expected to result in a Material Adverse
Effect, (ii) any Loan Party or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its Withdrawal Liability under Section 4201 of
ERISA under a Multiemployer Plan which could reasonably be expected to result in a Material Adverse Effect, or (iii) a termination, withdrawal or noncompliance with applicable law or plan terms or termination,
withdrawal or other event similar to an ERISA Event occurs with respect to a Foreign Plan that could reasonably be expected to result in a Material Adverse Effect; or
(j)
Invalidity of Collateral Documents and Plan of Reorganization and Plan Confirmation
Order. Any material provision of any Collateral Document, the Plan of Reorganization or the Plan Confirmation Order at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder (including as a result of a transaction permitted under Section 6.04 or 6.05)
or the satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in writing the validity or enforceability of any material provision of any Collateral Document, the Plan
of Reorganization or the Plan Confirmation Order or ceases to create a valid and perfected Lien on the Collateral as required hereby or by the Collateral Documents (other than any such loss of perfection or priority
which results from the failure of the Administrative Agent or the Collateral Agent to maintain possession of
certificates actually delivered to it representing securities pledged under the Collateral Documents or to file
Uniform Commercial Code continuation statements and except as to Collateral consisting of real property
to the extent that such losses are covered by a lender’s title insurance policy and such insurer has not denied
or failed to acknowledge coverage); or any Loan Party denies in writing that it has any or further liability or
obligation under any Collateral Document (other than as a result of repayment in full of the Obligations and
termination of the Aggregate Commitments), or purports in writing to revoke or rescind any Collateral
Document; and
(k)
Change of Control. There occurs any Change of Control.
SECTION 7.02
Remedies Upon Event of Default. If any Event of Default occurs and is continuing,
the Administrative Agent may and, at the request of the Required Lenders, shall take any of the following actions:
(a)
terminate the Commitments;
(b)
declare the Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under
any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event described in
paragraph (f) or (g) above, the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan Document, shall automatically become
due and payable, without presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and
(c)
exercise on behalf of itself and the Lenders all rights and remedies available to it and the
Lenders under the Loan Documents or applicable Law.
SECTION 7.03
Exclusion of Immaterial Subsidiaries. Solely for the purpose of determining whether a Default has occurred under clause (f) or (g) of Section 7.01, any reference in any such clause to any Restricted
Subsidiary or Loan Party shall be deemed not to include any Restricted Subsidiary affected by any event or circum-100-
stances referred to in any such clause that is not a Material Subsidiary (or at such time any Subsidiary that the Borrower could designate a Subsidiary as an Immaterial Subsidiary) (it being agreed that all Restricted Subsidiaries
affected by any event or circumstance referred to in any such clause shall be considered together, as a single consolidated Restricted Subsidiary, for purposes of determining whether the condition specified above is satisfied).
SECTION 7.04
Application of Funds. After the occurrence and during the continuance of any Event
of Default and acceleration of the Loans, all proceeds realized from any Loan Party or on account of any Collateral
owned by any Loan Party, any payments in respect of any Obligations and all proceeds of the Collateral, shall be
applied in the following order (the “Waterfall”):
First, ratably to pay the Obligations in respect of any fees and expenses, indemnities and other
amounts (including, without limitation, amounts in respect of any Loans advanced by the Administrative
Agent on behalf of a Lender for which the Administrative Agent has not been reimbursed) then due to the
Administrative Agent and Collateral Agent, until paid in full;
Second, ratably to pay any expenses, indemnities, and fees then due to the Lenders and Issuing
Banks, until paid in full;
Third, to the Administrative Agent on behalf of the Swingline Lender and any Lender that has acquired and fully paid for its participating interest in the applicable Swingline Loans, ratably to pay Obligations in respect of Swingline Loans then due to the Swingline Lender and each such Lender, until paid in
full;
Fourth, to the Administrative Agent on behalf of the Issuing Banks and any Lender that has acquired and fully paid for its participating interest in the applicable Letters of Credit, ratably to pay Obligations in respect of such Letters of Credit then due to the Issuing Banks and each such Lender, until paid in
full;
Fifth, ratably to pay the accrued but unpaid interest and fees in respect of the Loans, until paid in
full;
Sixth, ratably (A) to pay the unpaid principal in respect of the Loans and to Cash Collateralize L/C
Exposure and (B) to the extent a Bank Product Reserve has been established therefor by the Administrative
Agent in accordance with the terms hereof, to pay or cash collateralize unpaid Other Pari Passu Secured
Obligations, until paid in full;
Seventh, ratably to pay other Obligations then due, including Other Secured Obligations that are
not Other Pari Passu Secured Obligations, until paid in full; and
Eighth, to the Borrower or such other person entitled thereto under applicable law.
Amounts distributed with respect to any Other Secured Obligations shall be the lesser of (x) the maximum Other
Secured Obligations last reported to the Administrative Agent and (y) the Other Secured Obligations as calculated
by the methodology reported by each applicable Other Secured Party to Administrative Agent for determining the
amount due. The Administrative Agent shall have no obligation to calculate the amount to be distributed with respect to any Other Secured Obligations, and at any time and from time to time may request a reasonably detailed
calculation of such amount from the applicable Other Secured Party holding such Other Secured Obligations. If any
Other Secured Party fails to deliver such calculation within five (5) days following request by the Administrative
Agent, the Administrative Agent may assume the amount to be distributed is no greater than the maximum amount
of the applicable Other Secured Obligations last reported to Administrative Agent.
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ARTICLE VIII
Agents
SECTION 8.01
Authorization and Action.
(a)
Each Lender hereby irrevocably appoints Citibank, N.A. to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
(b)
Each Lender hereby further irrevocably appoints Citibank, N.A. to act on its behalf as
Collateral Agent hereunder and under the other Loan Documents and authorizes the Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The Collateral Agent shall act
on behalf of the Lenders and shall have all of the benefits and immunities (i) provided to the Collateral Agent in this
Article VIII with respect to any acts taken or omissions suffered by the Collateral Agent in connection with its activities in such capacity as fully as if the term “Agent” as used in this Article VIII included the Collateral Agent with
respect to such acts or omissions, and (ii) as additionally provided herein with respect to the Collateral Agent.
(c)
The provisions of this Article (except Sections 8.07 and 8.11) are solely for the benefit of
the Agents, the Issuing Banks and the Lenders, and neither Holdings nor any other Loan Party shall have rights as a
third party beneficiary of any of such provisions (except Sections 8.07 and 8.11).
SECTION 8.02
Agent Individually.
(a)
The Person serving as an Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include
the Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in
any kind of business with Holdings or any of its Subsidiaries or other Affiliate thereof as if such person were not an
Agent hereunder and without any duty to account therefor to the Lenders.
(b)
Each Lender understands that the Person serving as an Agent, acting in its individual capacity, and its Affiliates (collectively, an “Agent’s Group”) are engaged in a wide range of financial services and
businesses (including investment management, financing, securities trading, corporate and investment banking and
research) (such services and businesses are collectively referred to in this Section 8.02 as “Activities”) and may engage in the Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates. Furthermore, each Agent’s Group may, in undertaking the Activities, engage in trading in financial products or undertake
other investment businesses for its own account or on behalf of others (including the Loan Parties and their Affiliates and including holding, for its own account or on behalf of others, equity, debt and similar positions in Holdings
or another Loan Party or their respective Affiliates), including trading in or holding long, short or derivative positions in securities, loans or other financial products of one or more of the Loan Parties or their Affiliates. Each
Lender understands and agrees that in engaging in the Activities, each Agent’s Group may receive or otherwise obtain information concerning the Loan Parties or their Affiliates (including information concerning the ability of the
Loan Parties to perform their respective Obligations hereunder and under the other Loan Documents) which information may not be available to any of the Lenders that are not members of such Agent’s Group. None of the Agents
nor any member of any Agent’s Group shall have any duty to disclose to any Lender or use on behalf of the Lenders,
and shall not be liable for the failure to so disclose or use, any information whatsoever about or derived from the
Activities or otherwise (including any information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to account for any
revenue or profits obtained in connection with the Activities, except that the Administrative Agent shall deliver or
otherwise make available to each Lender such documents as are expressly required by any Loan Document to be
transmitted by the Administrative Agent to the Lenders.
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(c)
Each Lender further understands that there may be situations where members of an
Agent’s Group or their respective customers (including the Loan Parties and their Affiliates) either now have or may
in the future have interests or take actions that may conflict with the interests of any one or more of the Lenders (including the interests of the Lenders hereunder and under the other Loan Documents). Each Lender agrees that no
member of an Agent’s Group is or shall be required to restrict its activities as a result of the person serving as Agent
being a member of such Agent’s Group, and that each member of an Agent’s Group may undertake any Activities
without further consultation with or notification to any Lender. None of (i) this Agreement nor any other Loan
Document, (ii) the receipt by any Agent’s Group of information (including Borrower Information) concerning the
Loan Parties or their Affiliates (including information concerning the ability of the Loan Parties to perform their
respective Obligations hereunder and under the other Loan Documents) nor (iii) any other matter shall give rise to
any fiduciary, equitable or contractual duties (including without limitation any duty of trust or confidence) owing by
any Agent or any member of any Agent’s Group to any Lender including any such duty that would prevent or restrict any Agent’s Group from acting on behalf of customers (including the Loan Parties or their Affiliates) or for its
own account.
SECTION 8.03
Duties of Agents; Exculpatory Provisions.
(a)
The Agents’ duties hereunder and under the other Loan Documents are solely ministerial
and administrative in nature and an Agent shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. Without limiting the generality of the foregoing, (i) an Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii)
an Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that an Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders
as shall be expressly provided for herein or in the other Loan Documents), provided that an Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose any Agent or any of its Affiliates to liability or that is contrary to any Loan Document or applicable law and (iii) an Agent shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of their Affiliates that is communicated to or
obtained by the Person serving as an Agent or any of its Affiliates in any capacity.
(b)
An Agent shall not be liable for any action taken or not taken by it (i) with the consent or
at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or
as such Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 9.09) or
(ii) in the absence of its own gross negligence or willful misconduct. An Agent shall be deemed not to have
knowledge of any Default or the event or events that give or may give rise to any Default unless and until the Borrower or any Lender shall have given notice to such Agent describing such Default and such event or events.
(c)
Neither any Agent nor any member of an Agent’s Group shall be responsible for or have
any duty to ascertain or inquire into (i) any statement, warranty, representation or other information made or supplied in or in connection with this Agreement, any other Loan Document or the information presented to the other
Lenders by the Borrower, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith or the adequacy, accuracy and/or completeness of the information contained therein, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or the perfection or priority of any Lien or security interest created or purported to be created by the Collateral Documents or (v)
the satisfaction of any condition set forth in Article IV or elsewhere herein, other than (but subject to the foregoing
clause (ii)) to confirm receipt of items expressly required to be delivered to the Agents.
(d)
Nothing in this Agreement or any other Loan Document shall require any Agent or any of
its Related Parties to carry out any “know your customer” or other checks in relation to any Person on behalf of any
Lender and each Lender confirms to an Agent that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made by an Agent or any of its Related Parties.
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SECTION 8.04
Reliance by Agents. The Agents shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other distribution) believed by it to be
genuine and to have been signed, sent or otherwise authenticated by the proper person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to have been made by the proper person, and
shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a
Lender, an Agent may presume that such condition is satisfactory to such Lender unless an officer of such Agent
responsible for the transactions contemplated hereby shall have received notice to the contrary from such Lender
prior to the making of such Loan or the issuance of such Letter of Credit, and in the case of a Borrowing, such
Lender shall not have made available to such Agent such Lender’s ratable portion of such Borrowing. Each Agent
may consult with legal counsel (who may be counsel for the Borrower or any other Loan Party), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.05
Indemnification.
(a)
Each Lender severally agrees to indemnify the Agents (to the extent not promptly reimbursed by the Borrower (and without limiting their obligation to do so)) from and against such Lender’s pro rata
share (based on the Loans and unused Commitments held by such Lender relative to the total Loans and unused
Commitments then outstanding) of any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against any Agent in any way relating to or arising out of this Agreement or any action taken or omitted by
any Agent under this Agreement (collectively, the “Indemnified Costs”), provided that no Lender shall be liable for
any portion of the Indemnified Costs resulting from such Agent’s gross negligence or willful misconduct as found in
a non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Lender
agrees to reimburse each Agent promptly upon demand for its ratable share of any reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that such
Agent is not promptly reimbursed for such expenses by the Borrower (and without limiting their obligation to do
so). In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.05
applies whether any such investigation, litigation or proceeding is brought by any Agent, any Lender or a third party.
(b)
Each Revolving Credit Lender severally agrees to indemnify the Issuing Banks (to the
extent not promptly reimbursed by the Borrower (and without limiting their obligation to do so)) from and against
such Lender’s Pro Rata Percentage of any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against any such Issuing Bank in any way relating to or arising out of the issuance of the Letters of
Credit or any action taken or omitted by such Issuing Bank hereunder or in connection herewith; provided, however,
that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from such Issuing Bank’s gross negligence or willful
misconduct as found in a non-appealable judgment by a court of competent jurisdiction. Without limitation of the
foregoing, each Revolving Credit Lender agrees to reimburse any such Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and expenses of counsel) payable by the
Borrower under Section 9.05, to the extent that such Issuing Bank is not promptly reimbursed for such costs and
expenses by the Borrower (and without limiting their obligation to do so).
(c)
The failure of any Lender to reimburse any Agent or any Issuing Bank promptly upon
demand for its ratable share of any amount required to be paid by the Lenders to such Agent as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse such Agent or any Issuing Bank for its ratable
share of such amount, but no Lender shall be responsible for the failure of any other Lender to reimburse any Agent
or any Issuing Bank for such other Lender’s Pro Rata Percentage of such amount. Without prejudice to the survival
of any other agreement of any Lender hereunder, the agreement and obligations of each Lender contained in this
Section 8.05 shall survive the payment in full of principal, interest and all other amounts payable hereunder and under the promissory notes, if any. Each of the Agents and each Issuing Bank agrees to return to the Lenders their
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respective ratable shares of any amounts paid under this Section 8.05 that are subsequently reimbursed by the Borrower.
SECTION 8.06
Delegation of Duties. Each Agent may perform any and all of its duties and exercise
its rights and powers hereunder or under any other Loan Document by or through any one or more co-agents or subagents appointed by such Agent. Any Agent and any such co-agent or sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. Each such co-agent and subagent and the Related Parties of an Agent and each such co-agent and sub-agent (including their respective Affiliates
in connection with the syndication of this Agreement) shall be entitled to the benefits of all provisions of this Article
VIII and Article IX (as though such co-agents and sub-agents were such `Agent’ under the Loan Documents) as if
set forth in full herein with respect thereto.
SECTION 8.07
Resignation of Agent.
(a)
Any Agent may at any time give notice to the Lenders and the Borrower of its resignation. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed), to appoint a successor, which shall
be a bank with an office in New York, New York, or an Affiliate of any such bank with an office in New York, New
York; provided, that the consent of the Borrower shall not be required after the occurrence and during the continuance of any Event of Default. If no such successor shall have been so appointed by the Required Lenders and, to the
extent required, consented to by the Borrower, and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation (such 30-day period, the “Lender Appointment Period”), then the retiring Agent may on behalf of the applicable Lenders, appoint a successor Agent meeting the qualifications set forth
above. In addition and without any obligation on the part of the retiring Agent to appoint, on behalf of the Lenders,
a successor Agent, the retiring Agent may at any time upon or after the end of the Lender Appointment Period notify
the Borrower and the Lenders that no qualifying person has accepted appointment as successor Agent and the effective date of such retiring Agent’s resignation. Upon the resignation effective date established in such notice and
regardless of whether a successor Agent has been appointed and accepted such appointment, the retiring Agent’s
resignation shall nonetheless become effective and (i) the retiring Agent shall be discharged from its duties and obligations as Agent hereunder and under the other Loan Documents as to which it has resigned and (ii) all payments,
communications and determinations provided to be made by, to or through the retiring Agent shall instead be made
by or to each applicable Lender directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties as Agent of the retiring (or retired) Agent as to which it has resigned, and the retiring Agent shall be discharged from all of its duties and
obligations as Agent hereunder or under the other Loan Documents in respect of the Facilities as to which it has resigned (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Borrower
to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Article and Section 8.05 and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring Agent was acting as Agent.
(b)
Any resignation pursuant to this Section by a Person acting as Agent shall, unless such
Person shall notify the Borrower and the Lenders otherwise, also act to relieve such Person and its Affiliates of any
obligation to issue new, or extend existing, Letters of Credit where such issuance or extension is to occur on or after
the effective date of such resignation. Upon the acceptance of a successor’s appointment as Agent hereunder, (i)
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring
Issuing Bank, (ii) the retiring Issuing Bank shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents arising on or after the effective date of such successor’s appointment,
and (iii) the successor Issuing Bank shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangement satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with respect to such Letters of Credit.
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SECTION 8.08
Non-Reliance on Agent and Other Lenders.
(a)
Each Lender confirms to the Agents, each other Lender and each of their respective Related Parties that it (i) possesses (individually or through its Related Parties) such knowledge and experience in financial and business matters that it is capable, without reliance on any Agent, any other Lender or any of their respective Related Parties, of evaluating the merits and risks (including tax, legal, regulatory, credit, accounting and
other financial matters) of (x) entering into this Agreement, (y) making Loans and other extensions of credit hereunder and under the other Loan Documents and (z) in taking or not taking actions hereunder and thereunder, (ii) is
financially able to bear such risks and (iii) has determined that entering into this Agreement and making Loans and
other extensions of credit hereunder and under the other Loan Documents is suitable and appropriate for it.
(b)
Each Lender acknowledges that (i) it is solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with this Agreement and the other Loan
Documents, (ii) that it has, independently and without reliance upon any Agent, any other Lender or any of their
respective Related Parties, made its own appraisal and investigation of all risks associated with, and its own credit
analysis and decision to enter into, this Agreement based on such documents and information, as it has deemed appropriate and (iii) it will, independently and without reliance upon any Agent, any other Lender or any of their respective Related Parties, continue to be solely responsible for making its own appraisal and investigation of all risks
arising under or in connection with, and its own credit analysis and decision to take or not take action under, this
Agreement and the other Loan Documents based on such documents and information as it shall from time to time
deem appropriate, which may include, in each case:
(A)
Loan Party;
the financial condition, status and capitalization of the Borrower and each other
(B)
the legality, validity, effectiveness, adequacy or enforceability of this Agreement
and each other Loan Document and any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Loan Document;
(C)
determining compliance or non-compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit and the form and substance of all evidence
delivered in connection with establishing the satisfaction of each such condition;
(D)
the adequacy, accuracy and/or completeness of any information delivered by
any Agent, any other Lender or by any of their respective Related Parties under or in connection
with this Agreement or any other Loan Document, the transactions contemplated hereby and
thereby or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Loan Document.
SECTION 8.09
No Other Duties, etc. Anything herein to the contrary notwithstanding, none of the
Persons acting as, Arrangers listed on the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative
Agent, the Collateral Agent or as a Lender hereunder.
SECTION 8.10
Agent May File Proofs of Claim. In case of the pendency of any proceeding under
any Bankruptcy Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or obligation in respect of any Letter of Credit shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall
have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(a)
to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, obligations in respect of Letters of Credit 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 for the reason-
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able compensation, expenses, disbursements and advances of the Lenders, the Issuing Banks and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the Issuing Banks and the Administrative Agent hereunder) 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, interim receiver, monitor, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Lender and Issuing Bank to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and Issuing Banks, to pay
to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder.
SECTION 8.11
Other Secured Agreements.
(a)
The Borrower and any Other Secured Party may from time to time designate an agreement that otherwise would qualify as an Other Secured Agreement as an Other Secured Agreement upon written
notice to the Administrative Agent from the Borrower and such Other Secured Party, in form reasonably acceptable
to the Administrative Agent, which form shall include a description of such Other Secured Agreement, the maximum amount of obligations thereunder which are to constitute Other Secured Obligations (each, a “Designated
Amount”) and the maximum amount of obligations thereunder which are to constitute Other Pari Passu Secured
Obligations (each, a “Designated Pari Passu Amount”); provided that no overadvance would result if a Bank Product Reserve were taken on the date of such designation equal to the Designated Pari Passu Amount.
(b)
The Borrower and each applicable Other Secured Party may increase, decrease or terminate any Designated Amount and Designated Pari Passu Amount in respect of each applicable Other Secured
Agreement upon written notice to the Administrative Agent; provided that any increase in a Designated Amount or
Designated Pari Passu Amount shall be deemed to be a new designation of a Designated Amount or Designated Pari
Passu Amount, as the case may be, and shall be subject to the limitations set forth in Section 8.11(a). No obligations
under any Other Secured Agreement in excess of the applicable Designated Amount shall constitute Obligations
hereunder or the other Loan Documents.
(c)
No counterparty to an Other Secured Agreement that obtains the benefits of the Waterfall, the Security Agreement or any Collateral by virtue of the provisions hereof or of the Security Agreement or any
Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided
in the Loan Documents. Notwithstanding any other provision of this Article VIII to the contrary, no Agent shall be
required to verify the payment of, or that other satisfactory arrangements have been made with respect to, any Obligations arising under any Other Secured Agreement unless the Administrative Agent has received written notice of
such Obligations, together with such supporting documentation as such Agent may request, from each applicable
counterparty to such Other Secured Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01
Notices.
(a)
All notices and other communications provided for hereunder shall be either (x) in writing (including telegraphic, telecopy or electronic communication) and mailed, telecopied or delivered or (y) as and
to the extent set forth in Section 9.01(b) and in the proviso to this Section 9.01(a), in an electronic medium and delivered as set forth in Section 9.01(b), if to Holdings or to the Borrower, to the attention of Kenneth Carson, General
Counsel, Cengage Learning Acquisition, Inc., 20 Channel Center Street, Boston, MA 02210, Tel: 203-965-8500,
Fax: 203-965-8509, Email: [email protected]; if to any Lender who has executed this Agreement on the
Closing Date, at its domestic Lending Office specified opposite its name on the Register; if to any other Lender, at
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its domestic Lending Office specified in the Assignment and Acceptance pursuant to which it became a Lender; if to
the Administrative Agent, (i) in the case of any Borrowing Request and notice of conversion or continuation regarding the Type of any Loan, at the following address: Citibank, N.A., 1615 Brett Road, New Castle, DE 19720, Attn:
ABTF Global Loans, Email: [email protected] and (ii) in other cases, at the following address: Citibank,
N.A., 15 Brett Road, New Castle, DE 19720, Attn: Kimberly Shelton, Email: [email protected] with a
copy to [email protected]; or, as to the Borrower or any Agent, at such other address as shall be designated
by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Borrower and the Administrative Agent; provided, however, that materials and information described in Section 9.01(b) shall be delivered to the Administrative Agent in accordance
with the provisions thereof or as otherwise specified to the Borrower by the Administrative Agent. All such notices
and other communications shall, when mailed, telecopied, or emailed, be effective when deposited in the mails,
transmitted by telecopier or sent by electronic communication, respectively, except that notices and communications
to any Agent pursuant to Article II, III or VII shall not be effective until received by such Agent and, in the case of
notice sent by email, until replied to by such Agent confirming expressly receipt thereof. Delivery by telecopier of
an executed counterpart of a signature page to any amendment or waiver of any provision of this Agreement or any
Loan Document shall be effective as delivery of an original executed counterpart thereof.
(b)
The Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the
Loan Documents, including, without limitation, all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request
for a new, or a conversion of an existing, Borrowing or other Credit Event (including any election of an interest rate
or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this
Agreement prior to the scheduled date therefor, (iii) provides notice of any Default under this Agreement or (iv) is
required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Credit Event hereunder (all such non excluded communications being referred to herein collectively
as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to
the Administrative Agent to an electronic mail address specified by the Administrative Agent to the Borrower. In
addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner
specified in the Loan Documents but only to the extent requested by the Administrative Agent. The Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the
Communications on IntraLinks or a substantially similar electronic transmission system (the “Platform”).
(c)
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT OF THIRD
PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENT
PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT OR ANY OF THEIR RESPECTIVE
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO
THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND,
INCLUDING, WITHOUT LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR
OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S
TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE
LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON APPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT
PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(d)
The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its email address set forth above shall constitute effective delivery of the Communications to the
Administrative Agent for purposes of the Loan Documents. Each Lender agrees that notice to it (as provided in the
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next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the
Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s email
address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be
sent to such email address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to
give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan
Document.
SECTION 9.02
Survival of Agreement. All covenants, agreements, representations and warranties
made by the Borrower or Holdings herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the Lenders and the Issuing Banks and shall survive the making by the Lenders of the Loans and the issuance
of Letters of Credit by the Issuing Banks, regardless of any investigation made by the Lenders or the Issuing Banks
or on their behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is outstanding and
unpaid or any Letter of Credit is outstanding and as long as all Commitments have not been terminated. The provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of
any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by
or on behalf of the Administrative Agent, the Collateral Agent, any Lender or the Issuing Banks.
SECTION 9.03
Binding Effect. This Agreement shall become effective when it shall have been executed by the Loan Parties and the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto.
SECTION 9.04
Successors and Assigns.
(a)
Whenever in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the permitted successors and assigns of such party; and all covenants, promises and agreements by or on behalf of the Loan Parties, the Administrative Agent, the Collateral Agent, the Issuing Banks or the
Lenders that are contained in this Agreement shall bind and inure to the benefit of their respective successors and
assigns.
(b)
Each Lender may assign to one or more Eligible Assignees (provided, that for the purpose of this provision, Disqualified Lenders shall be deemed to be Eligible Assignees unless a lest of Disqualified
Lenders has been made available to all Lenders by the Borrower) all or a portion of its interests, rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it), with
the prior written consent of the Administrative Agent (not to be unreasonably withheld or delayed); provided, however, that (i) the Borrower, the Issuing Banks and the Swingline Lender must also give its prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed); provided, that (A) the consent of
the Borrower shall not be required to any such assignment (x) made to another Lender or an Affiliate or a Related
Fund of a Lender, or (y) after the occurrence and during the continuance of any Event of Default under Section
7.01(a), (f) or (g) and (B) the Borrower shall be deemed to have consented to any such assignment unless it shall
have objected thereto by written notice to the Administrative Agent within 10 Business Days after having received
written notice thereof from the Administrative Agent, (ii) the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall be in an integral multiple of, and not less than,
$5,000,000 (or, if less, the entire remaining amount of such Lender’s Commitment or Loans of the relevant Class)
without the prior written consent of the Administrative Agent; provided that (A) such minimum amount shall be
aggregated for two or more simultaneous assignments to or by two or more Related Funds and (B) this clause (ii)
shall not apply to assignments to a Lender, an Affiliate of a Lender or a Related Fund, (iii) each such assignment of
Commitments and/or Loans shall be of a constant, and not varying, percentage of all the assigning Lender’s rights
and obligations under this Agreement in respect of such Lender’s Commitments and/or Loans so assigned, (iv) the
parties to each such assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent or (B) if previously agreed to
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by the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Acceptance, together, in each case, with a processing and recording fee of $3,500 (which fee may be waived or reduced
in the sole discretion of the Administrative Agent), and (v) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire and all applicable tax forms. Subject to acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all
or the remaining portion of an 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, 2.16, 2.20 and 9.05, as
well as to any Fees accrued for its account and not yet paid).
(c)
By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties
hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and that its Revolving Credit Commitment, and the outstanding
balances of its Revolving Credit Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument
or document furnished pursuant hereto, or the financial condition of Holdings or any Subsidiary or the performance
or observance by Holdings or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that
it is an Eligible Assignee (other than with respect to its status as a Disqualified Lender), legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 5.01, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative
Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral
Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
(d)
The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive and the Borrower, the Administrative Agent, the Issuing Banks, the Collateral Agent and the
Lenders shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available
for inspection, but not for making copies, by the Borrower, the Issuing Banks, the Collateral Agent and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.
(e)
Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the assignee
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above, if applicable, and the written consent of the Administrative Agent and, if required, the Borrower, the
Swingline Lender and the Issuing Banks to such assignment and any applicable tax forms, the Administrative Agent
shall promptly (i) accept such Assignment and Acceptance and (ii) record the information contained therein in the
Register. No assignment shall be effective unless it has been recorded in the Register as provided in this paragraph
(e).
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(f)
Each Lender may without the consent of the Loan Parties, the Swingline Lender, the Issuing Banks or the Administrative Agent sell participations to one or more banks or other persons in all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the
participating banks or other persons shall be entitled to the benefit of the cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with respect to any particular participant, to
no greater extent than the Lender that sold the participation to such participant unless the sale of the participant to
such participant was made with the Borrower’s prior written consent) and provided such participant complies with
Sections 2.20(e), (f) and (g) and Section 9.18 as if it were a Lender and (iv) the Loan Parties, the Administrative
Agent, the Issuing Banks and the Lenders shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole right to enforce the obligations of the Borrower relating to the Loans or L/C Disbursements and to approve any amendment,
modification or waiver of any provision of this Agreement (other than amendments, modifications or waivers decreasing any fees payable to such participating bank or person hereunder or the amount of principal of or the rate at
which interest is payable on the Loans in which such participating bank or person has an interest, extending any
scheduled principal payment date or date fixed for the payment of interest on the Loans in which such participating
bank or person has an interest, increasing or extending the Commitments in which such participating bank or person
has an interest or releasing or all or substantially all of the value of the Guarantees under the Collateral Documents
or all or substantially all of the Collateral). Each Lender that sells a participation shall, acting solely for this purpose
as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations
under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan
Document) to any person except to the extent that such disclosure is necessary to establish that such commitment,
loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury
Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall
treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(g)
Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or participant or proposed assignee or participant any information relating to Holdings and the Subsidiaries furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of information designated by the Borrower
as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section
9.16.
(h)
Any Lender may, without the consent of the Borrower or the Administrative Agent, at
any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure extensions of credit to such Lender or in support of obligations owed by such Lender; provided that no such pledge or
assignment shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto.
(i)
Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time
by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or
any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to
this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and
(ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made
by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar
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payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in
this Section 9.04, any SPC may (i) with notice to, but without the prior written consent of, the Borrower and the
Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any
Loans to the Granting Lender or to any financial institutions (consented to by the Borrower and Administrative
Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any nonpublic information relating to its Loans to any rating
agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.
(j)
No Loan Party shall assign or delegate any of its rights or duties hereunder without the
prior written consent of the Administrative Agent, the Issuing Banks and each Lender, and any attempted assignment without such consent shall be null and void.
SECTION 9.05
Expenses; Indemnity.
(a)
The Borrower shall pay all reasonable and documented or invoiced out of pocket expenses incurred by the Administrative Agent, the Collateral Agent, the Issuing Banks and the Arrangers in connection
with the syndication of the Commitments and Loans and the preparation, execution, delivery and administration of
this Agreement and the other Loan Documents or in connection with any amendments, modifications, or waivers of
the provisions hereof or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or incurred by the Administrative Agent, the Collateral Agent, any Arranger or any Lender in connection
with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made hereunder, including without limitation, the reasonable fees, charges and disbursements of Cahill Gordon & Reindel LLP, as counsel to the Administrative Agent and the Collateral Agent and
one local and foreign counsel in each relevant jurisdiction for the Administrative Agent or the Collateral Agent, and,
in connection with any such enforcement or protection, the fees, charges and disbursements of any other counsel for
the Administrative Agent, the Collateral Agent or any Lender. Expenses payable under this clause shall include,
without limitation, as expenses incurred in connection with the protection of the rights of the Administrative Agent,
the Collateral Agent, any Arranger or any Lender, the fees, charges and disbursements of Cahill Gordon & Reindel
LLP, as counsel to the Administrative Agent. Notwithstanding the foregoing, the Borrower’s obligation to reimburse
the fees and expenses of outside counsel under this Section 9.05(a) shall be limited to one firm of counsel for the
Arrangers, the Administrative Agent and the Lenders, taken as a whole and, if necessary, of a single local counsel in
each appropriate jurisdiction and, in the case of an actual or perceived conflict of interest where the party affected by
such conflict informs the Borrower of such conflict and thereafter retains its own counsel for such affected party,
each such additional retained counsel.
(b)
The Borrower shall indemnify each Arranger, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent, each Lender, the Issuing Banks, the Swingline Lender and
each Related Party of any of the foregoing persons (each such person being called an “Indemnitee”) against, and to
hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including
reasonable fees, charges and disbursements of counsel (which shall be limited to one counsel in each relevant jurisdiction and, in the case of an actual or perceived conflict of interest where the party affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel for such affected party, each such additional retained counsel), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or
as a result of (i) the execution or delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated thereby, the performance by the parties thereto of their respective obligations thereunder or
the consummation of the Transactions and the other transactions contemplated thereby (including the syndication of
the Credit Facilities), (ii) the use of the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto
(and regardless of whether such matter is initiated by a third party or by the Borrower, Holdings or any other Loan
Party or any of their respective Affiliates), or (iv) any actual or alleged presence or Release of Hazardous Materials
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on any property currently or formerly owned or operated by Holdings or any of the Subsidiaries, or any Environmental Liability related in any way to Holdings or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted primarily from the
gross negligence, willful misconduct, bad faith or a material breach in bad faith under the Loan Documents of such
Indemnitee or Hazardous Materials first Released at any property after such property is transferred to any Indemnitee or its successors or assigns by foreclosure, deed-in-lieu of foreclosure or similar transfer where such Release is
not attributable to a condition existing on or prior to the date of such foreclosure or other transfer or (y) relate to
claims between the Lenders that do not involve an act or omission of any Loan Party or any of their Affiliates (other
than claims against any Arranger, the Administrative Agent or the Collateral Agent or any of their Affiliates in their
capacities, or in fulfilling roles, as such (or any similar roles) in connection with the credit facilities provided for
herein).
(c)
[Reserved].
(d)
The provisions of this Section 9.05 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the transactions contemplated hereby,
the repayment of any of the Loans, the expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of either Arranger, the Administrative Agent, the Collateral Agent, any Lender or the
Issuing Banks. All amounts due under this Section 9.05 shall be payable within ten (10) Business Days of written
demand therefor.
(e)
Notwithstanding the foregoing, this Section 9.05 shall not entitle any Indemnitee to indemnification for any taxes (other than taxes arising with respect to a non-tax claim).
(f)
To the fullest extent permitted by applicable requirements of law, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof.
SECTION 9.06
Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender is hereby authorized at any time and from time to time, except to the extent prohibited by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or final), other than any deposits in Excluded Accounts, at any time held and other indebtedness at any time owing by such Lender to or for the credit or
the account of the Borrower or Holdings against any of and all the obligations of the Borrower or Holdings now or
hereafter existing under this Agreement and the other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other Loan Document and although
such obligations may be unmatured. The rights of each Lender under this Section 9.06 are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.07
Withholding Tax. To the extent required by any applicable laws, the Administrative
Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax.
Without limiting or expanding the provisions of Section 2.20, each Lender shall indemnify and hold harmless the
Administrative Agent against any and all Taxes (including any related interest, penalties or additions to tax) and any
and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for
the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts
paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form
was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a
change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). Indemnification payments in respect of any of the foregoing shall be made to the Administrative Agent within 30 days after demand therefor. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to
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set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan
Document against any amount due to the Administrative Agent under this Section 9.07. The agreements in this Section 9.07 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by,
or the replacement of, a Lender, and the repayment, satisfaction or discharge of any Loans and all other amounts
payable hereunder.
SECTION 9.08
Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS)
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO
SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH
LETTER OF CREDIT WAS ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE
“UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 9.09
Waivers; Amendment.
(a)
No failure or delay of the Administrative Agent, the Collateral Agent, any Lender or any
Issuing Bank in exercising any power or right hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing Banks and
the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this Agreement or any other Loan Document or consent to any departure by the Borrower, or any other Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand on the Borrower or Holdings in any
case shall entitle the Borrower or Holdings to any other or further notice or demand in similar or other circumstances.
(b)
Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Borrower, Holdings and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan
Party (to the extent such Loan Party is a party thereto), in each case with the consent of the Required Lenders; provided, however, that no such agreement shall (i) decrease or forgive the principal amount of, or extend the maturity
of or any scheduled principal payment date or date for the payment of any interest on any Loan or any date for reimbursement of an L/C Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of each Lender directly adversely affected thereby, (ii) except as provided in Section 2.24, increase or extend the Commitment or decrease or extend the
date for payment of any Fees of any Lender without the prior written consent of such Lender, (iii) amend or modify
the pro rata requirements of Section 2.17 or the sharing of payments provisions of Section 2.18 or the provisions of
this Section or release of Parent or Holdings or release or subordinate all or substantially all of the value of the
Guarantees under the Collateral Documents or all or substantially all of the Collateral, without the prior written consent of each Lender, (iv) change the provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of one Class differently from the rights of
Lenders holding Loans of any other Class without the prior written consent of Lenders holding a majority in interest
of the outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written consent of such SPC, (vi) reduce
the percentage contained in the definition of the term “Required Lenders” or the term “Supermajority Lenders”
without the prior written consent of each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the determination of the Required
Lenders on substantially the same basis as the Revolving Credit Commitments on the date hereof) , (vii) amend the
term “Borrowing Base” or any definition related thereto to increase the advance rates set forth therein or amend any
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other provision of the Loan Documents (excluding any modifications effected pursuant to the exercise of the Administrative Agent’s Permitted Discretion permitted under the Loan Documents) that causes the Borrowing Base or
Availability under this Agreement to be increased, without the consent of the Supermajority Lenders, (viii) amend or
modify the provisions of this Section 9.09(b) without the prior written consent of each Lender directly adversely
affected thereby or (ix) amend or modify any provision of Section 7.04 of this Agreement that alters the priority of
payments under the Waterfall without the prior written consent of each Lender directly adversely affected thereby;
provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Collateral Agent, the Issuing Banks or the Swingline Lender hereunder or under any other Loan
Document without the prior written consent of the Administrative Agent, the Collateral Agent, the Issuing Banks or
the Swingline Lender, as applicable. Notwithstanding the foregoing, any Loan Document may be amended or modified pursuant to an agreement or agreements in writing entered into by the Administrative Agent and the Borrower
and each other Loan Party that is a party thereto, without the consent of any of the Lenders, if such amendment or
modification is beneficial to the Lenders (or the Lenders holding Loans or Commitments of any Class) and does not
adversely affect the rights or obligations of any Lender under any Loan Document.
Notwithstanding anything to the contrary contained in Section 9.01, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended, supplemented and
waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the
consent of any other Lender if such amendment, supplement or waiver is delivered in order (i) to comply with local
Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
SECTION 9.10
Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any
time the interest rate applicable to any Loan or participation in any L/C Disbursement, together with all fees, charges
and other amounts which are treated as interest on such Loan or participation in such L/C Disbursement under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan or participation in accordance
with applicable law, the rate of interest payable in respect of such Loan or participation hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan or participation but were not payable as a result of the
operation of this Section 9.09 shall be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or participations or periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall
have been received by such Lender.
SECTION 9.11
Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject matter hereof. Any other previous agreement
among the parties with respect to the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed or implied, is intended to confer
upon any person (other than the parties hereto and thereto, their respective successors and assigns permitted hereunder (including any Affiliate of an Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent, the Issuing Banks and
the Lenders) any rights, remedies, obligations or liabilities under or by reason of this Agreement or the other Loan
Documents.
SECTION 9.12
WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
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INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.13
Severability. In the event any one or more of the provisions contained in this Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected
or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.14
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, and shall become effective as provided in Section 9.03. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually
signed counterpart of this Agreement.
SECTION 9.15
Headings. Article and Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.16
Jurisdiction; Consent to Service of Process.
(a)
Each Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing
in this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, the Issuing Banks or
any Lender may otherwise have to bring any action or proceeding relating to this Agreement or the other Loan Documents against any of the Loan Parties or their respective properties in the courts of any jurisdiction.
(b)
Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it
may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the other Loan Documents in any New York
State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(c)
Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.17
Confidentiality. Each of the Administrative Agent, the Collateral Agent, the Issuing
Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ officers, directors, trustees, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the persons to whom such disclosure is made
will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority or quasi regulatory authority (such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena
or similar legal process, (d) in connection with the exercise of any remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or thereunder, (e) subject
to an agreement containing provisions substantially the same as those of this Section 9.17, to (i) any actual or prospective assignee of or participant in any of its rights or obligations under this Agreement and the other Loan Docu-116-
ments (including any actual or prospective pledgee or assignee of a pledge or assignment effected pursuant to Section 9.04(h)) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower or any Subsidiary or any of their respective obligations, (f) with the consent of Holdings or
the Borrower, or (g) to the extent such Information becomes publicly available other than as a result of a breach of
this Section 9.17. For the purposes of this Section, “Information” shall mean all information received from the Borrower or Holdings and related to the Borrower or Holdings, their Subsidiaries or their or their Subsidiaries’ business,
other than any such information that was available to the Administrative Agent, the Collateral Agent, the Issuing
Banks or any Lender on a nonconfidential basis prior to its disclosure by the Borrower or Holdings; provided that, in
the case of Information received from the Borrower or Holdings after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any person required to maintain the confidentiality of Information
as provided in this Section 9.17 shall be considered to have complied with its obligation to do so if such person has
exercised the same degree of care to maintain the confidentiality of such Information as such person would accord
its own confidential information.
SECTION 9.18
Tax Forms.
(a)
(i) Each Lender and Agent that is a Foreign Lender shall, to the extent it may lawfully do
so, deliver to the Borrower and the Administrative Agent, on or prior to the date which is ten (10) Business Days
after the Closing Date (or upon accepting an assignment of an interest herein), two duly signed, properly completed
copies of either IRS Form W-8BEN or any successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, United States federal withholding tax on all payments to be made to such Foreign
Lender by the Borrower or any other Loan Party pursuant to this Agreement or any other Loan Document) or IRS
Form W-8ECI or any successor thereto (relating to all payments to be made to such Foreign Lender by the Borrower
or any other Loan Party pursuant to this Agreement or any other Loan Document) or such other evidence reasonably
satisfactory to the Borrower and the Administrative Agent that such Foreign Lender is entitled to an exemption
from, or reduction of, United States federal withholding tax, including (x) any exemption pursuant to Section 871(h)
or 881(c) of the Code, and in the case of a Foreign Lender claiming such an exemption under Section 881(c) of the
Code, a certificate substantially in the Form of Exhibit H that establishes in writing to the Borrower and the Administrative Agent that such Foreign Lender is not (i) a “bank” as defined in Section 881(c)(3)(A) of the Code, (ii) a 10percent stockholder within the meaning of Section 871(h)(3)(B) of the Code, or (iii) a controlled foreign corporation
related to the Borrower with the meaning of Section 864(d) of the Code and (y) any applicable exemption from
withholding pursuant to FATCA. Thereafter and from time to time, each such Foreign Lender shall, to the extent it
may lawfully do so, (A) promptly submit to the Borrower and the Administrative Agent such additional duly completed and signed copies of one or more of such forms or certificates (or such successor forms or certificates as shall
be adopted from time to time by the relevant United States taxing authorities) as may then be available under thencurrent United States Laws and regulations to avoid, or such evidence as is reasonably satisfactory to the Borrower
and the Administrative Agent of any available exemption from, or reduction of, United States federal withholding
taxes in respect of all payments to be made to such Foreign Lender by the Borrower or other Loan Party pursuant to
this Agreement, or any other Loan Document, in each case, (1) on or before the date that any such form, certificate
or other evidence expires or becomes obsolete or invalid, (2) after the occurrence of a change in the Lender’s circumstances requiring a change in the most recent form, certificate or evidence previously delivered by it to the Borrower and the Administrative Agent and (3) from time to time thereafter if reasonably requested by the Borrower or
the Administrative Agent, and (B) promptly notify the Borrower and the Administrative Agent of any change in the
Lender’s circumstances which would modify or render invalid any claimed exemption or reduction.
(ii)
Each Foreign Lender, to the extent it does not act or ceases to act for its own account
with respect to any portion of any sums paid or payable to such Foreign Lender under any of the Loan Documents,
shall, to the extent it may lawfully do so, deliver to the Borrower and the Administrative Agent on the date when
such Foreign Lender ceases to act for its own account with respect to any portion of any such sums paid or payable,
and at such other times as may be necessary in the determination of the Borrower or the Administrative Agent (in
either case, in the reasonable exercise of its discretion), (A) two duly signed completed copies of the forms or statements required to be provided by such Foreign Lender as set forth above, to establish the portion of any such sums
paid or payable with respect to which such Foreign Lender acts for its own account that is not subject to United
States federal withholding tax, and (B) two duly signed completed copies of IRS Form W-8IMY (or any successor
thereto), together with any information such Foreign Lender is required to transmit with such form, and any other
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certificate or statement of exemption required under the Code, to establish that such Foreign Lender is not acting for
its own account with respect to a portion of any such sums payable to such Foreign Lender.
(iii)
The Borrower shall not be required to pay any additional amount or any indemnity payment under Section 2.20 to (A) any Foreign Lender to the extent the Tax causing the additional amount or indemnity
payment results from such Foreign Lender’s failure to comply with the foregoing provisions of this Section 9.18(a),
or (B) any U.S. Lender to the extent the Tax causing the additional amount or indemnity payment results from such
U.S. Lender’s failure to comply with the provisions of Section 9.18(b); provided that nothing in this Section 9.18(a)
shall relieve the Borrower of its obligation to pay any amounts pursuant to Section 2.20 in the event that the requirements of Section 9.18(a)(ii) have not been satisfied if the Borrower is entitled, under applicable Law, to rely on
any applicable forms and statements required to be provided under this Section 9.18 by the Foreign Lender that does
not act or has ceased to act for its own account under any of the Loan Documents.
(iv)
The Administrative Agent may deduct and withhold any taxes required by any Laws to
be deducted and withheld from any payment under any of the Loan Documents.
(b)
Each Lender and Agent that is a “United States person” within the meaning of Section
7701(a)(30) of the Code (each, a “U.S. Lender”) shall deliver to the Administrative Agent and the Borrower two
duly signed, properly completed copies of IRS Form W-9, or any successor thereto, certifying that such U.S. Lender
is entitled to an exemption from United States federal backup withholding tax (i) on or prior to the Closing Date (or
on or prior to the date it becomes a party to this Agreement), (ii) on or before the date that such form expires or becomes obsolete or invalid, (iii) after the occurrence of a change in the Lender’s circumstances requiring a change in
the most recent form previously delivered by it to the Borrower and the Administrative Agent and (iv) from time to
time thereafter if reasonably requested by the Borrower or the Administrative Agent. If such U.S. Lender fails to
deliver such forms, then the Administrative Agent may withhold from any payment to such U.S. Lender an amount
equivalent to the applicable backup withholding tax imposed by the Code.
SECTION 9.19
USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Holdings and the Borrower that pursuant to the requirements of the
USA PATRIOT Act, it is required to obtain, verify and record information that identifies Holdings and the Borrower, which information includes the name and address of Holdings and the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify Holdings and the Borrower in accordance
with the USA PATRIOT Act.
SECTION 9.20
[Reserved]
SECTION 9.21
No Fiduciary Duty. The Administrative Agent, Collateral Agent, the Documentation
Agent, the Syndication Agent, each Arranger, each Lender and their Affiliates (collectively, solely for purposes of
this paragraph, the “Lenders”), may have economic interests that conflict with those of the Borrower. The Borrower
agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency
relationship or fiduciary or other implied duty between the Lenders and the Borrower, its stockholders or its Affiliates. The Borrower acknowledges and agrees that (i) the transactions contemplated by the Loan Documents are
arm’s length commercial transactions between the Lenders, on the one hand, and the Borrower, on the other, (ii) in
connection therewith and with the process leading to such transaction each of the Lenders is acting solely as a principal and not the agent or fiduciary of the Borrower, its management, stockholders, creditors or any other person,
(iii) no Lender has assumed an advisory or fiduciary responsibility in favor of the Borrower with respect to the
transactions contemplated hereby or the process leading thereto (irrespective of whether any Lender or any of its
affiliates has advised or is currently advising the Borrower on other matters) or any other obligation to the Borrower
except the obligations expressly set forth in the Loan Documents and (iv) the Borrower has consulted its own legal
and financial advisors to the extent deemed appropriate. The Borrower further acknowledges and agrees that it is
responsible for making its own independent judgment with respect to such transactions and the process leading
thereto. The Borrower agrees that it will not claim that any Lender has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Borrower, in connection with such transaction or the process leading thereto.
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SECTION 9.22
Release of Liens and Guarantees. In the event that any Loan Party conveys, sells,
leases, assigns, transfers or otherwise disposes of all or any portion of any of the Equity Interests of any Loan Party
or any assets to a person that is not (and is not required to become) a Loan Party in a transaction not prohibited by
Section 6.04, any Liens created by any Loan Document in respect of such Equity Interests or assets shall be automatically released and the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative Agent and/or the Collateral Agent to) take such action and execute any such documents as may be reasonably
requested by the Borrower and at the Borrower’s expense to release any Liens created by any Loan Document in
respect of such Equity Interests or assets, and, in the case of a disposition of the Equity Interests of any Loan Party
in a transaction permitted by Section 6.04, and as a result of which such Subsidiary would cease to be a Loan Party,
such Loan Party’s obligations under each of the Guaranty and the Security Agreement shall be automatically terminated and the Administrative Agent and/or the Collateral Agent shall promptly (and the Lenders hereby authorize
the Administrative Agent and/or the Collateral Agent to) take such action and execute any such documents as may
be reasonably requested by the Borrower to terminate such Loan Party’s obligations under each of the Guaranty and
the Security Agreement. In addition, the Administrative Agent and/or the Collateral Agent agrees to take such actions as are reasonably requested by the Borrower and at the Borrower’s expense to terminate the Liens and security
interests created by the Loan Documents when all Commitments have been terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts (other than contingent indemnification liabilities to
the extent no claim giving rise thereto has been asserted or any Cash Management Obligations or Secured Hedge
Agreements except as to amounts that are due and payable thereunder for which the Administrative Agent has received a written notice from the applicable Secured Parties) payable under any Loan Document have been paid in
full, all Letters of Credit have been cancelled or have expired and all amounts drawn thereunder have been reimbursed in full or, with the consent of the Issuing Bank in its sole discretion, such Letters of Credit shall have been
Cash Collateralized pursuant to arrangements satisfactory to the Issuing Bank (which arrangements result in the release of the Revolving Credit Lenders from their obligation to make payments in respect of L/C Disbursements pursuant to Section 2.23(d)) and the Administrative Agent and/or Collateral Agent shall have received satisfactory evidence that all Other Secured Obligations either are not due or shall have been paid in full or arrangements with respect thereto reasonably satisfactory to the applicable Other Secured Parties shall have been made (and the applicable Other Secured Parties have notified the Collateral Agent of their consent to terminating such Liens and security
interests).
SECTION 9.23
Intercreditor Agreements. The Administrative Agent and the Collateral Agent are
authorized to enter into each Intercreditor Agreement and the parties hereto acknowledge that each Intercreditor
Agreement is binding upon them. Each Lender (a) hereby consents to the provisions of the Term Loan/Revolving
Facility Intercreditor Agreement and each other Intercreditor Agreement, (b) hereby agrees that it will be bound by
and will take no actions contrary to the provisions of any Intercreditor Agreement and (c) hereby authorizes and
instructs the Administrative Agent and Collateral Agent to enter into the Term Loan/Revolving Facility Intercreditor
Agreement and, if applicable, any other Intercreditor Agreement and to subject the Liens on the Collateral securing
the Obligations to the provisions thereof. Notwithstanding anything to the contrary herein, the Administrative Agent
and the Collateral Agent, without the consent of any Lender, may enter into one or more written amendments, supplements or modifications, in each case, pursuant to procedures and documentation reasonably required by the Administrative Agent or Collateral Agent, to any Intercreditor Agreement as may be required or permitted under the
Loan Documents (i) to add other parties (or any authorized agent or representative thereof or trustee therefor) holding Indebtedness that is incurred in compliance with this Agreement that (A) is secured by Liens on the Collateral
permitted under this Agreement, (ii) establish the relative priority of the Liens on the Collateral securing such Indebtedness as specified in this Agreement and (iii) to amend, supplement or modify other provisions of any Intercreditor Agreement to implement any of the foregoing as reasonably acceptable to the Administrative Agent or Collateral Agent. The authority provided to the Administrative Agent and Collateral Agent under this Section 9.23 shall
be deemed to constitute the approval and consent of the Lenders with respect to the amendments, supplements and
modifications described in this Section 9.23 for purposes of any Intercreditor Agreement.
[Signature Pages Follow]
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and Issuing Bank