Exhibit 10.1

 

FOURTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY AGREEMENT

 

THIS FOURTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO SECURITY AGREEMENT (this “Amendment”), dated as of April 28, 2017, is by and among CH2M HILL COMPANIES, LTD., a Delaware corporation (the “Parent”), CH2M HILL, INC., a Florida corporation (“CH2M Inc.”), OPERATIONS MANAGEMENT INTERNATIONAL, INC., a California corporation (“OMI”), CH2M HILL ENGINEERS, INC., a Delaware corporation (“CH2M Engineers”), CH2M HILL GLOBAL, INC., a Delaware corporation (“CH2M Global”), CH2M HILL CONSTRUCTORS, INC., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC, a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, each a “Borrower,” and, collectively, the “Borrowers”), certain subsidiaries of the Borrowers party hereto (the “Subsidiary Guarantors”), the Lenders (as defined below) party hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent on behalf of the Lenders (in such capacity, the “Administrative Agent”).  Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement and/or the Security Agreement (each as defined below), as applicable.

 

W I T N E S S E T H

 

WHEREAS, the Borrowers, the Subsidiary Guarantors, certain banks and financial institutions from time to time party thereto (the “Lenders”) and the Administrative Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of March 28, 2014 (the “Second A/R Credit Agreement,” and as amended by the First Amendment to Credit Agreement dated as of September 26, 2014 (the “First Amendment”), the Second Amendment to Credit Agreement dated as of March 30, 2015 (the “Second Amendment”), the Consent dated as of April 25, 2016 (the “April 2016 Consent”), the Third Amendment to Credit Agreement dated as of September 30, 2016 (the “Third Amendment”), the Consent dated as of December 28, 2016 (the “December 2016 Consent”), and the Consent dated as of January 10, 2017 (the “January 2017 Consent”), the “Original Credit Agreement,” and as further amended, modified, extended, restated, replaced, or supplemented from time to time, the “Credit Agreement”);

 

WHEREAS, the Borrowers, the other Grantors party thereto and the Administrative Agent are parties to that certain Security Agreement dated as of September 30, 2016 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “Security Agreement”);

 

WHEREAS, the amendments to the Original Credit Agreement under Section 1.1 of this Amendment are set forth on pages of a version of the Credit Agreement, excluding the Schedules and Exhibits thereto, which consolidates the Second A/R Credit Agreement with the First Amendment, the Second Amendment, the April 2016 Consent, the Third Amendment, the December 2016 Consent, and the January 2017 Consent (the “Consolidated Original Credit Agreement”) attached as Exhibit A to this Amendment and, in accordance with Section 10.01 of the Original Credit Agreement, the Loan Parties have requested that the Required Lenders approve the amendments to the Original Credit Agreement under Section 1.1 of this Amendment; and

 

WHEREAS, the amendments to the Security Agreement under Section 1.3 of this Amendment are set forth on pages of a version of the Security Agreement, excluding the Schedules and Exhibits thereto, attached as Exhibit D to this Amendment and, in accordance with Section 18 of the Security Agreement, the Loan Parties have requested that the Required Lenders approve the amendments to the Security Agreement under Section 1.3 of this Amendment and direct the Administrative Agent to enter into such amendments; and

 











 

WHEREAS, the amendments to the Original Credit Agreement and the Security Agreement under this Amendment shall only be made in accordance with and subject to the terms and conditions set forth herein.

 

NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I
 AMENDMENTS TO CREDIT AGREEMENT AND SECURITY AGREEMENT

 

1.1          Amendment to Original Credit Agreement.   If the conditions in Section 2.1 of this Amendment shall have been satisfied, then, from and after the Amendment Effective Date (as defined below), (a) the Original Credit Agreement is amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text) as set forth in the pages of the Consolidated Original Credit Agreement attached as Exhibit A to this Amendment and (b) Schedules 2.02 and 2.03 to the Original Credit Agreement are amended and restated as set forth on Exhibit B attached to this Amendment.

 

1.2          Clean Version.  For convenience of reference only, Exhibit C sets forth all pages of the Credit Agreement after giving effect to Section 1.1 of this Amendment.  Exhibit C is provided for convenience of reference only and is not intended to, and does not, supersede the Second A/R Credit Agreement, the First Amendment, the Second Amendment, the April 2016 Consent, the Third Amendment, the December 2016 Consent, the January 2017 Consent, or this Amendment.

 

1.3          Amendment to Security Agreement.   If the conditions in Section 2.1 of this Amendment shall have been satisfied, then, from and after the Amendment Effective Date (as defined below), the Security Agreement is amended to delete the stricken text (indicated textually in the same manner as the following example:  stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example:  double-underlined text) as set forth in the pages of the Security Agreement attached as Exhibit D to this Amendment.  The Required Lenders hereby direct the Administrative Agent to enter into the amendments to the Security Agreement set forth in this Section 1.3.

 

1.4          Clean Version.  For convenience of reference only, Exhibit E sets forth all pages of the Security Agreement after giving effect to Section 1.3 of this Amendment.  Exhibit E is provided for convenience of reference only and is not intended to, and does not, supersede the Security Agreement or this Amendment.

 

ARTICLE II
 CONDITIONS TO EFFECTIVENESS

 

2.1          Closing Conditions.  This Amendment shall become effective as of the day and year set forth above (the “Amendment Effective Date”) upon satisfaction of the following conditions (in each case, in form and substance reasonably acceptable to the Administrative Agent):

 

(a)           Executed Documents.  The Administrative Agent shall have received a copy of (i) this Amendment duly executed by each of the Loan Parties, the Required Lenders and the Administrative Agent and (ii) an intercreditor agreement on terms and conditions reasonably

 

2











 

satisfactory to the Administrative Agent and the Required Lenders, as evidenced by the Administrative Agent’s execution thereof, duly executed by the Administrative Agent, the noteholders or the administrative agent for the lenders under the Second Lien Facility, as applicable, and the Loan Parties.

 

(b)           Secretary’s Certificates.  The Administrative Agent shall have received, certificates, executed by the secretary or assistant secretary of each Loan Party on behalf of such Loan Party, certifying, among other things, (A) that attached to such certificate are (1) true and complete copies of the Organizational Documents of such Loan Party then in full force and effect (or a certification that the Organizational Documents delivered to the Administrative Agent in connection with the Third Amendment remain in full force and effect), (2) true and complete copies of the resolutions then in full force and effect adopted by the board of directors of such Loan Party authorizing and ratifying the execution, delivery and performance by such Loan Party of this Amendment, (3) a certificate of good standing from the secretary of state of the state under whose laws such Loan Party was incorporated or organized, (B) the name(s) of the Responsible Officers of such Loan Party authorized to execute Loan Documents on behalf of such Loan Party, together with incumbency samples of the true signatures of such Responsible Officers (or a certification that the Responsible Officers and incumbency samples delivered to the Administrative Agent in connection with the Third Amendment remain in full force and effect), and (C) that Administrative Agent and the Lending Parties may conclusively rely on such certificate.

 

(c)           Legal Opinion.  The Administrative Agent shall have received an opinion or opinions of counsel to the Parent, dated the Amendment Effective Date and addressed to the Administrative Agent and the Lenders (including, without limitation, an opinion that none of (i) the execution and delivery of this Amendment, the Intercreditor Agreement and the documents governing the Second Lien Facility, (ii) the borrowing and repayment of Indebtedness and the Guaranteeing of Indebtedness and providing of security for such borrowing and such Guaranty pursuant to the documents governing the Second Lien Facility and (iii) the repayment of Indebtedness pursuant to this Amendment, in each case, will violate or cause a breach of the Apollo Documents (as defined below).

 

(d)           Default.  Both before and after giving effect to this Amendment, no Default or Event of Default shall exist.

 

(e)           Apollo Documents. The Administrative Agent shall have received a certificate or certificates executed by an officer of the Administrative Borrower as of the Amendment Effective Date (i) stating that no default exists and is continuing under the terms of the documents governing the investment by AP VIII CH2 Holdings, L.P. and its affiliates in the preferred stock of the Parent (collectively, the “Apollo Documents”), (ii) attaching any consents to such documents executed in connection with the transactions contemplated hereby and (iii) certifying as true and complete copies of the Apollo Documents then in full force and effect.

 

(f)            Fees and Expenses.

 

(i)            The Administrative Agent shall have received from the Borrowers, for the account of each Lender that executes and delivers a signature page to the Administrative Agent by 5 p.m. (EST) on or before March 17, 2017  and has not waived its right to payment thereof (each such Lender, a “Consenting Lender”), a consent fee in an amount equal to fifteen (15) basis points on the aggregate Revolving Credit Commitments of such Consenting Lender after giving effect to this Amendment.

 

3











 

(ii)           (A) The Administrative Agent shall have received from the Borrowers such  expenses that are payable to it pursuant to that certain Engagement Letter dated as of February 24, 2017 by and among the Borrowers, the Administrative Agent and Wells Fargo Securities, LLC (“WFS”) (the “Engagement Letter”), (B) WFS shall have received from the Borrowers such fees and expenses that are payable to it pursuant to the Engagement Letter and (C) King & Spalding LLP shall have received from the Borrowers payment of all outstanding fees and expenses previously incurred and all outstanding fees and expenses incurred in connection with this Amendment.

 

(g)           Second Lien Facility.  The Borrowers shall have entered into a second-lien term loan or notes facility (the “Second Lien Facility”) on terms and conditions reasonably satisfactory to the Administrative Agent and the Required Lenders, as evidenced by the Administrative Agent’s execution of the Intercreditor Agreement.

 

(h)           Second Lien Facility Proceeds and Repayment.  The Loan Parties shall have received $200,000,000 in gross proceeds (calculated before giving effect to the payment or “netting” (including, without limitation, issuance with original issue discount) of fees incurred in connection therewith) under the Second Lien Facility (excluding fees and expenses incurred in connection therewith) and the Parent shall have used the Net Cash Proceeds (as defined below) to voluntarily repay in whole or in part the outstanding principal of Revolving Credit Loans and to pay the accrued and unpaid interest thereon; provided that the Parent will not be required to (i) repay any Revolving Credit Loan that is a Eurodollar Rate Loan until the last day of the Interest Period therefor if such Interest Period ends within 1 month of the Amendment Effective Date (and in any event, the net cash proceeds from the Second Lien Facility shall be used to repay the Revolving Credit Loans within 1 month of the Amendment Effective Date) or (ii) pay accrued and unpaid interest on any Base Rate Loans and Swingline Loans repaid until the applicable Interest Payment Date therefor.  For purposes of the foregoing, “Net Cash Proceeds” means the gross cash proceeds received by the Loan Parties from the Second Lien Facility net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and expenses incurred in connection therewith and net of Taxes paid or payable as a result thereof.

 

(i)            Miscellaneous.  All other documents and legal matters in connection with the transactions contemplated by this Amendment shall be reasonably satisfactory in form and substance to the Administrative Agent and its counsel.

 

ARTICLE III

RELEASES

 

Each Loan Party hereby waives, releases, relinquishes and forever discharges the Administrative Agent and each Lending Party, and all past and present directors, officers, agents, employees, parents, subsidiaries, affiliates, insurers, attorneys, representatives and assigns of any Lending Party, and each and all thereof (collectively, the “Released Parties”), of and from any and all manner of action or causes of action, suits, claims, demands, judgments, damages, levies, and the execution of whatsoever kind, nature and/or description arising on or before the date hereof, including, without limitation, any claims, losses, costs or damages, including compensatory and punitive damages, in each case whether known or unknown, liquidated or unliquidated, fixed or contingent, direct or indirect, which any Loan Party ever had or now has or may claim to have against any of the Released Parties arising out of or in any way related to the Credit Agreement, the other Loan Documents, any related document or the transactions contemplated by any of the foregoing.

 

4











 

ARTICLE IV

MISCELLANEOUS

 

4.1          Amended Terms.  On and after the Amendment Effective Date, all references to the Credit Agreement in each of the Loan Documents shall hereafter mean the Original Credit Agreement including the Exhibits and Schedules thereto as amended by this Amendment.  Except as specifically amended hereby or otherwise agreed, the Original Credit Agreement including such Exhibits and Schedules is hereby ratified and confirmed and shall remain in full force and effect according to its terms.  On and after the Amendment Effective Date, all references to the Security Agreement in each of the Loan Documents shall hereafter mean the Security Agreement including the Exhibits and Schedules thereto as amended by this Amendment.  Except as specifically amended hereby or otherwise agreed, the Security Agreement including such Exhibits and Schedules is hereby ratified and confirmed and shall remain in full force and effect according to its terms.

 

4.2          Representations and Warranties of Loan Parties.  Each of the Loan Parties represents and warrants as follows:

 

(a)           Such Person has taken all necessary corporate and other organizational action to authorize such Person’s execution, delivery and performance of this Amendment.

 

(b)           This Amendment has been duly executed and delivered by such Person and constitutes such Person’s legal, valid and binding obligation, enforceable in accordance with its terms, except as enforcement thereof may be limited by Bankruptcy Laws or other applicable Laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

(c)           No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority (other than the filing of a Form 8-K with the SEC after the date hereof and the approvals, consents, exemptions, authorizations, actions, notices and filings set forth in the Collateral Agreement) or any other Person is required in connection with the execution, delivery or performance by such Person of this Amendment.

 

(d)           Such Person’s representations and warranties set forth in Article V of the Original Credit Agreement as amended by this Amendment are true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of such representation and warranty that is already qualified or modified by materiality in the text thereof) as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of such representation and warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date, and except the representations and warranties contained in Section 5.10 of the Original Credit Agreement as amended by this Amendment will be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Original Credit Agreement as amended by this Amendment.

 

(e)           Both before and after giving effect to this Amendment, no Default or Event of Default exists.

 

(f)            Except as amended by this Amendment, the Obligations are not reduced or modified by this Amendment and are not subject to any offsets, defenses or counterclaims.

 

5











 

4.3          Reaffirmation of Obligations.  Each Loan Party hereby ratifies the Original Credit Agreement as amended by this Amendment and acknowledges and reaffirms (a) that it is bound by all terms of the Original Credit Agreement as so amended applicable to it and (b) that it is responsible for the observance and full performance of its respective Obligations.

 

4.4          Loan Document.  This Amendment shall constitute a Loan Document under the terms of the Original Credit Agreement as amended by this Amendment.

 

4.5          Further Assurances.  The Loan Parties agree to promptly take such action, upon the request of the Administrative Agent, as is necessary to carry out the intent of this Amendment.

 

4.6          Entirety.  This Amendment and the other Loan Documents embody the entire agreement among the parties hereto relating to the subject matter hereof and thereof and supersede all previous documents, agreements and understandings, oral or written, relating to the subject matter hereof and thereof.

 

4.7          Counterparts; Telecopy.  This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which when so executed and delivered will constitute an original, but all of which when taken together will constitute a single contract.  Delivery of an executed counterpart to this Amendment by telecopy or other electronic means shall be effective as an original and shall constitute a representation that an original will be delivered.

 

4.8          No Actions, Claims, Etc.  As of the date hereof, each of the Loan Parties hereby acknowledges and confirms that it has no knowledge of any actions, causes of action, claims, demands, damages and liabilities of whatever kind or nature, in law or in equity, against the Administrative Agent, the Lenders, or the Administrative Agent’s or the Lenders’ respective officers, employees, representatives, agents, counsel or directors arising from any action by such Persons, or failure of such Persons to act under the Original Credit Agreement on or prior to the date hereof.

 

4.9          GOVERNING LAW.  THIS AMENDMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402.

 

4.10        Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

 

4.11        Consent to Jurisdiction; Service of Process; Waiver of Jury Trial.  The jurisdiction, service of process and waiver of jury trial provisions set forth in Sections 10.18 and 10.20 of the Original Credit Agreement are hereby incorporated by reference, mutatis mutandis.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

6











 

CH2M HILL, INC.

FOURTH AMENDMENT TO CREDIT AGREEMENT

 

IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed on the date first above written.

 

BORROWERS:

 

	
CH2M HILL   COMPANIES, LTD.
    	
 
    	
CH2M HILL, INC.
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Steven Mathews
    	
 
    	
By:
    	
/s/ Steven Mathews
    
	
Name:
    	
Steven Mathews
    	
 
    	
Name:
    	
Steven Mathews
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
OPERATIONS   MANAGEMENT INTERNATIONAL, INC.
    	
 
    	
CH2M HILL   ENGINEERS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
/s/ Allan Chow
    	
 
    	
By:
    	
/s/ Steven Mathews
    
	
Name:
    	
Allan Chow
    	
 
    	
Name:
    	
Steven Mathews
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CH2M   HILL GLOBAL, INC.
    	
 
    	
CH2M HILL   CONSTRUCTORS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
/s/ Steven Mathews
    	
 
    	
By:
    	
/s/ Allan Chow
    
	
Name:
    	
Steven Mathews
    	
 
    	
Name:
    	
Allan Chow
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CHVENG,   LLC
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
/s/ Steven Mathews
    	
 
    	
 
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    	
 
    	
 
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
 
    	
 
    


 











 

CH2M HILL, INC.

FOURTH AMENDMENT TO CREDIT AGREEMENT

 

SUBSIDIARY GUARANTORS:

 

	
CH2M   HILL ALASKA, INC.
    
	
 
    	
 
    
	
By:
    	
/s/ Steven Mathews
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
CH2M   HILL PLATEAU REMEDIATION COMPANY
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Steven Mathews
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    


 











 

CH2M HILL, INC.

FOURTH AMENDMENT TO CREDIT AGREEMENT

 

	
ADMINISTRATIVE AGENT:
    	
 
    
	
 
    	
 
    
	
WELLS FARGO BANK,   NATIONAL ASSOCIATION,
    	
 
    
	
in its capacity as   Administrative Agent and a Lender
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Mark B. Felker
    	
 
    
	
Name:
    	
Mark B. Felker
    	
 
    
	
Title:
    	
Managing Director
    	
 
    


 











 

CH2M HILL, INC.

FOURTH AMENDMENT TO CREDIT AGREEMENT

 

	
LENDERS:
    	
 
    
	
 
    	
 
    
	
BNP PARIBAS
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Jamie Dillon
    	
 
    
	
Name:
    	
Jamie Dillon
    	
 
    
	
Title:
    	
Managing Director
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Mary-Ann Wong
    	
 
    
	
Name:
    	
Mary-Ann Wong
    	
 
    
	
Title:
    	
Vice President
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BANK OF THE WEST
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Robert J. Likos
    	
 
    
	
Name:
    	
Robert J. Likos
    	
 
    
	
Title:
    	
Director
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
JPMORGAN CHASE BANK, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Laura Woodward
    	
 
    
	
Name:
    	
Laura Woodward
    	
 
    
	
Title:
    	
Vice President
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Mark Maloney
    	
 
    
	
Name:
    	
Mark Maloney
    	
 
    
	
Title:
    	
Authorized Signatory
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BANK OF AMERICA, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Patrick Martin
    	
 
    
	
Name:
    	
Patrick Martin
    	
 
    
	
Title:
    	
Managing Director
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BMO HARRIS BANK N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Michael Gift
    	
 
    
	
Name:
    	
Michael Gift
    	
 
    
	
Title:
    	
Director
    	
 
    


 











 

CH2M HILL, INC.

FOURTH AMENDMENT TO CREDIT AGREEMENT

 

	
CITIZENS BANK N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ David W. Stack
    	
 
    
	
Name:
    	
David W. Stack
    	
 
    
	
Title:
    	
Senior Vice President
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE NORTHERN TRUST COMPANY
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ Robert P. Veltman
    	
 
    
	
Name:
    	
Robert P. Veltman
    	
 
    
	
Title:
    	
Vice President
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
HSBC BANK USA N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
/s/ Christian Sumulong
    	
 
    
	
Name:
    	
Christian Sumulong
    	
 
    
	
Title:
    	
Vice President
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
U.S. BANK NATIONAL ASSOCIATION
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
/s/ David C. Heyson
    	
 
    
	
Name:
    	
David C. Heyson
    	
 
    
	
Title:
    	
Senior Vice President
    	
 
    


 












 

EXHIBIT A

 

Pages of Consolidated Original Credit Agreement

 

(as amended by Section 1.1 of this Amendment)

 

See attached.

 











 

Exhibit A

 



 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of March 28, 2014

 

among

 

CH2M HILL COMPANIES, LTD.,

CH2M HILL, INC.

OPERATIONS MANAGEMENT INTERNATIONAL, INC.

CH2M HILL ENGINEERS, INC.

CH2M HILL GLOBAL, INC.

CH2M HILL CONSTRUCTORS, INC.

CHVENG, LLC

as Borrowers,

 

THE SUBSIDIARIES OF THE BORROWERS PARTY HERETO,

as Subsidiary Guarantors,

 

and

 

THE FINANCIAL INSTITUTIONS PARTY HERETO,

as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent

and Swing Line Lender,

 

BNP PARIBAS

JPMORGAN CHASE BANK, N.A.,

and

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as Co-Syndication Agents

and

 

WELLS FARGO SECURITIES, LLC

BNP PARIBAS SECURITIES CORPORATION

JPMORGAN BANK, N.A.

THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as Joint Lead Arrangers and Joint Book Runners

 

i











 

TABLE OF CONTENTS

 

	
ARTICLE I CERTAIN DEFINED TERMS; CERTAIN RULES OF   CONSTRUCTION
    	
 
    	
2
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 1.01.
    	
 
    	
CERTAIN   DEFINED TERMS
    	
 
    	
2
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 1.02.
    	
 
    	
CERTAIN   RULES OF CONSTRUCTION
    	
 
    	
3738
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE II CREDIT EXTENSIONS
    	
 
    	
4243
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.01.
    	
 
    	
THE   ORIGINAL CREDIT AGREEMENT
    	
 
    	
4243
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.02.
    	
 
    	
REVOLVING   CREDIT LOANS; TERM LOANS
    	
 
    	
4344
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.03.
    	
 
    	
PROCEDURES   FOR BORROWING
    	
 
    	
4445
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.04.
    	
 
    	
LETTERS   OF CREDIT
    	
 
    	
4647
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.05.
    	
 
    	
SWING   LINE LOANS
    	
 
    	
5354
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.06.
    	
 
    	
PAYMENTS   AND PREPAYMENTS
    	
 
    	
5658
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.07.
    	
 
    	
TERMINATION   OR REDUCTION OF AGGREGATE REVOLVING CREDIT COMMITMENTS
    	
 
    	
5859
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.08.
    	
 
    	
FINAL   REPAYMENT OF REVOLVING CREDIT LOANS AND SWING LOANS
    	
 
    	
5860
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.09.
    	
 
    	
INTEREST;   APPLICABLE RATES
    	
 
    	
5860
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.10.
    	
 
    	
FEES
    	
 
    	
6061
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.11.
    	
 
    	
COMPUTATIONS   OF INTEREST AND FEES
    	
 
    	
6062
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.12.
    	
 
    	
EVIDENCE   OF INDEBTEDNESS
    	
 
    	
6162
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.13.
    	
 
    	
PAYMENTS   GENERALLY; RIGHT OF ADMINISTRATIVE AGENT TO MAKE DEDUCTIONS AUTOMATICALLY
    	
 
    	
6162
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.14.
    	
 
    	
SHARING   OF PAYMENTS
    	
 
    	
6364
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.15.
    	
 
    	
INCREASE   IN AGGREGATE COMMITMENTS AND INCREMENTAL TERM LOANS
    	
 
    	
6465
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.16.
    	
 
    	
CASH   COLLATERAL
    	
 
    	
6667
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
    	
 
    	
6768
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.01.
    	
 
    	
TAXES
    	
 
    	
6768
    


 

i











 

	
SECTION 3.02.
    	
 
    	
ILLEGALITY
    	
 
    	
7172
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.03.
    	
 
    	
INABILITY   TO DETERMINE RATES
    	
 
    	
7172
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.04.
    	
 
    	
INCREASED   COSTS
    	
 
    	
7273
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.05.
    	
 
    	
COMPENSATION   FOR LOSSES
    	
 
    	
7374
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.06.
    	
 
    	
MITIGATION   OBLIGATIONS
    	
 
    	
7375
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.07.
    	
 
    	
DEFAULTING   LENDERS
    	
 
    	
7475
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.08.
    	
 
    	
REPLACEMENT   OF LENDERS
    	
 
    	
7577
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.09.
    	
 
    	
SURVIVAL
    	
 
    	
7678
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE IV CONDITIONS PRECEDENT
    	
 
    	
7678
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 4.01.
    	
 
    	
CONDITIONS   TO EFFECTIVENESS AND TO INITIAL CREDIT EXTENSION
    	
 
    	
7678
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 4.02.
    	
 
    	
CONDITIONS   TO ALL CREDIT EXTENSIONS
    	
 
    	
7880
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE V REPRESENTATIONS AND WARRANTIES
    	
 
    	
7981
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.01.
    	
 
    	
CORPORATE   EXISTENCE AND POWER
    	
 
    	
7981
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.02.
    	
 
    	
CORPORATE   AUTHORIZATION; NO CONTRAVENTION
    	
 
    	
8081
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.03.
    	
 
    	
GOVERNMENTAL   AUTHORIZATION; COMPLIANCE WITH LAWS
    	
 
    	
8082
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.04.
    	
 
    	
BINDING   EFFECT
    	
 
    	
8182
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.05.
    	
 
    	
LITIGATION
    	
 
    	
8182
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.06.
    	
 
    	
ERISA   COMPLIANCE
    	
 
    	
8182
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.07.
    	
 
    	
USE OF   PROCEEDS
    	
 
    	
8283
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.08.
    	
 
    	
ENVIRONMENTAL   COMPLIANCE
    	
 
    	
8284
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.09.
    	
 
    	
TAXES
    	
 
    	
8384
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.10.
    	
 
    	
FINANCIAL   CONDITION
    	
 
    	
8385
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.11.
    	
 
    	
MARGIN   REGULATIONS; REGULATED ENTITIES
    	
 
    	
8485
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.12.
    	
 
    	
INTELLECTUAL   PROPERTY
    	
 
    	
8485
    


 

ii











 

	
SECTION 5.13.
    	
 
    	
SOLVENCY
    	
 
    	
8485
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.14.
    	
 
    	
ANTI-TERRORISM   LAWS
    	
 
    	
8485
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.15.
    	
 
    	
FULL   DISCLOSURE
    	
 
    	
8586
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.16.
    	
 
    	
CLASSIFICATION   AS SENIOR INDEBTEDNESS
    	
 
    	
8586
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VI AFFIRMATIVE COVENANTS
    	
 
    	
8586
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.01.
    	
 
    	
FINANCIAL   STATEMENTS
    	
 
    	
8586
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.02.
    	
 
    	
OTHER   INFORMATION
    	
 
    	
8788
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.03.
    	
 
    	
NOTICES
    	
 
    	
8889
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.04.
    	
 
    	
PRESERVATION   OF EXISTENCE, ETC.
    	
 
    	
8890
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.05.
    	
 
    	
MAINTENANCE   OF PROPERTIES
    	
 
    	
8990
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.06.
    	
 
    	
MAINTENANCE   OF INSURANCE
    	
 
    	
8990
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.07.
    	
 
    	
COMPLIANCE   WITH LAWS
    	
 
    	
8990
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.08.
    	
 
    	
BOOKS   AND RECORDS
    	
 
    	
8991
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.09.
    	
 
    	
INSPECTION   RIGHTS
    	
 
    	
9091
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.10.
    	
 
    	
[RESERVED]
    	
 
    	
9091
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.11.
    	
 
    	
PAYMENT   OF OBLIGATIONS
    	
 
    	
9091
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.12.
    	
 
    	
COVENANT   TO GUARANTEE OBLIGATIONS AND GRANT SECURITY
    	
 
    	
9092
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.13.
    	
 
    	
PARI   PASSU
    	
 
    	
9192
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.14.
    	
 
    	
FURTHER   ASSURANCES
    	
 
    	
9192
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VII NEGATIVE COVENANTS
    	
 
    	
9193
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.01.
    	
 
    	
LIENS
    	
 
    	
9293
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.02.
    	
 
    	
INVESTMENTS
    	
 
    	
9495
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.03.
    	
 
    	
INDEBTEDNESS
    	
 
    	
9496
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.04.
    	
 
    	
FUNDAMENTAL   CHANGES
    	
 
    	
9799
    


 

iii











 

	
SECTION 7.05.
    	
 
    	
DISPOSITIONS
    	
 
    	
98100
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.06.
    	
 
    	
RESTRICTED   PAYMENTS
    	
 
    	
99101
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.07.
    	
 
    	
TRANSACTIONS   WITH AFFILIATES
    	
 
    	
101103
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.08.
    	
 
    	
BURDENSOME   AGREEMENTS
    	
 
    	
101104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.09.
    	
 
    	
USE OF   PROCEEDS
    	
 
    	
102104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.10.
    	
 
    	
MAINTENANCE   OF BUSINESS
    	
 
    	
102104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.11.
    	
 
    	
AMENDMENTS   OF ORGANIZATION DOCUMENTS
    	
 
    	
102104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.12.
    	
 
    	
ACCOUNTING   CHANGES
    	
 
    	
102105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.13.
    	
 
    	
PREPAYMENTS   OF INDEBTEDNESS
    	
 
    	
102105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.14.
    	
 
    	
FINANCIAL   COVENANTS
    	
 
    	
103105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.15.
    	
 
    	
AMENDMENTS   OF CERTAIN DEBT
    	
 
    	
103106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES
    	
 
    	
103106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.01.
    	
 
    	
EVENTS   OF DEFAULT
    	
 
    	
103106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.02.
    	
 
    	
WAIVERS   OF EVENTS OF DEFAULTS
    	
 
    	
105108
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.03.
    	
 
    	
REMEDIES   UPON EVENT OF DEFAULT
    	
 
    	
105108
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.04.
    	
 
    	
APPLICATION   OF FUNDS
    	
 
    	
106109
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE IX ADMINISTRATIVE AGENT
    	
 
    	
107110
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.01.
    	
 
    	
APPOINTMENT   AND AUTHORIZATION
    	
 
    	
107110
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.02.
    	
 
    	
RIGHTS   AS A LENDER
    	
 
    	
108111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.03.
    	
 
    	
EXCULPATORY   PROVISIONS
    	
 
    	
108111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.04.
    	
 
    	
RELIANCE   BY ADMINISTRATIVE AGENT
    	
 
    	
109112
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.05.
    	
 
    	
DELEGATION   OF DUTIES
    	
 
    	
109112
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.06.
    	
 
    	
RESIGNATION   OF ADMINISTRATIVE AGENT
    	
 
    	
110112
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.07.
    	
 
    	
NON-RELIANCE   ON ADMINISTRATIVE AGENT AND OTHER LENDERS
    	
 
    	
110113
    


 

iv











 

	
SECTION 9.08.
    	
 
    	
NO   OTHER DUTIES, ETC.
    	
 
    	
111113
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.09.
    	
 
    	
ADMINISTRATIVE   AGENT MAY FILE PROOFS OF CLAIM
    	
 
    	
111114
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.10.
    	
 
    	
GUARANTY   MATTERS
    	
 
    	
111114
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.11.
    	
 
    	
LEGAL   REPRESENTATION OF ADMINISTRATIVE AGENT
    	
 
    	
112115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.12.
    	
 
    	
SECURED   HEDGE AGREEMENTS AND SECURED CASH MANAGEMENT AGREEMENTS
    	
 
    	
112115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.13.
    	
 
    	
CREDIT   BIDDING
    	
 
    	
112115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE X GENERAL PROVISIONS
    	
 
    	
112116
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.01.
    	
 
    	
AMENDMENTS,   ETC.
    	
 
    	
113116
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.02.
    	
 
    	
NOTICES;   EFFECTIVENESS; ELECTRONIC COMMUNICATIONS
    	
 
    	
114117
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.03.
    	
 
    	
NO   WAIVER; CUMULATIVE REMEDIES; ENFORCEMENT
    	
 
    	
117120
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.04.
    	
 
    	
EXPENSES;   INDEMNITY; DAMAGE WAIVER
    	
 
    	
117120
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.05.
    	
 
    	
MARSHALLING;   PAYMENTS SET ASIDE
    	
 
    	
119122
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.06.
    	
 
    	
SUCCESSORS   AND ASSIGNS
    	
 
    	
119122
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.07.
    	
 
    	
TREATMENT   OF CERTAIN INFORMATION; CONFIDENTIALITY
    	
 
    	
122125
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.08.
    	
 
    	
RIGHT   OF SETOFF
    	
 
    	
123126
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.09.
    	
 
    	
INTEREST   RATE LIMITATION
    	
 
    	
123126
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.10.
    	
 
    	
COUNTERPARTS;   INTEGRATION; EFFECTIVENESS
    	
 
    	
124127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.11.
    	
 
    	
SURVIVAL   OF REPRESENTATIONS AND WARRANTIES
    	
 
    	
124127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.12.
    	
 
    	
SEVERABILITY
    	
 
    	
124127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.13.
    	
 
    	
LENDER-CREDITOR   RELATIONSHIP
    	
 
    	
124127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.14.
    	
 
    	
USA   PATRIOT ACT NOTICE
    	
 
    	
125128
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.15.
    	
 
    	
GUARANTY   BY SUBSIDIARIES
    	
 
    	
125128
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.16.
    	
 
    	
JOINT   AND SEVERAL LIABILITY OF THE BORROWERS
    	
 
    	
132135
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.17.
    	
 
    	
ADMINISTRATIVE   BORROWER
    	
 
    	
136139
    


 

v











 

	
SECTION 10.18.
    	
 
    	
GOVERNING   LAW; JURISDICTION; ETC.
    	
 
    	
136139
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.19.
    	
 
    	
JUDGMENT   CURRENCY
    	
 
    	
137140
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.20.
    	
 
    	
WAIVER   OF RIGHT TO JURY TRIAL
    	
 
    	
137140
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.21
    	
 
    	
ACKNOWLEDGEMENT   AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS
    	
 
    	
138141
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.22
    	
 
    	
INTERCREDITOR AGREEMENT
    	
 
    	
141
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.23
    	
 
    	
CONFLICTS
    	
 
    	
141
    


 

vi












 

“Administrative Borrower” has the meaning given such term in Section 10.17.

 

“Administrative Detail Form” means an administrative detail form in a form supplied by, or otherwise acceptable to, Administrative Agent.

 

“AED” means the lawful currency of the United Arab Emirates.

 

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified (excluding any trustee under, or any committee with responsibility for administering, any Employee Benefit Plan).

 

“Aggregate Commitments” means Aggregate Revolving Credit Commitments.

 

“Aggregate Outstanding Principal Amount” has the meaning given such term in Section 2.01.

 

“Aggregate Revolving Credit Commitments” means, at any time, the combined Revolving Credit Commitments of all Lenders. The Aggregate Revolving Credit Commitments as of the ThirdFourth Amendment Effective Date are $925,000,000.875,000,000.

 

“Agreement” means this Second Amended and Restated Credit Agreement.

 

“Alternative Currency” means (a) Sterling, Euros, Canadian Dollars, Australian Dollars, Hong Kong Dollars, Yen, Singapore Dollars, (b) solely with respect to Letters of Credit, to the extent approved by the applicable L/C Issuer, AED, BHD, BRL, CLP, KWD, INR, NOK, OMR, PEN, PLN, QAR, RON, SAR, TND and TTD and (c) each Additional Alternative Currency (other than Dollars) that is approved from time to time in accordance with Section 1.02(l).

 

“Alternative Currency Available Credit” means, as of any date of determination, the lesser of (a) $300,000,000 less (i) the Dollar Equivalent of the aggregate of all Loans then outstanding denominated in an Alternative Currency and (ii) the Dollar Equivalent of the aggregate of all L/C Obligations then outstanding in respect of Credits denominated in an Alternative Currency, and (b) the Available Credit.

 

“Anti-Terrorism Laws” means any applicable Laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the applicable Laws comprising or implementing the Bank Secrecy Act, and the applicable Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Applicable Laws may from time to time be amended, renewed, extended, or replaced).

 

“Applicable Rate” means, at all times, and as included in the computation of the rate of interest for Eurodollar Rate Loans or Base Rate Loans or in the computation of Revolving Credit Commitment Fees, as the context requires and as otherwise provided in this Agreement, the applicable rate percentage per annum set forth in the grid below, each such percentage being based, subject to Section 2.09(d), upon the corresponding Consolidated Leverage Ratio maintained by the Parent, as determined by Administrative Agent, in its Reasonable Discretion, as of the end of the most recent Fiscal Period for which the Borrowers have furnished a Compliance Certificate to Administrative Agent and the Lenders pursuant to Section 6.01(c):

 

3











 

	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
APPLICABLE
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
RATE FOR
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
APPLICABLE
    	
 
    	
APPLICABLE
    	
 
    	
REVOLVING
    	
 
    
	
PRICING
    	
 
    	
CONSOLIDATED
    	
 
    	
RATE FOR
    	
 
    	
RATE FOR
    	
 
    	
CREDIT
    	
 
    
	
LEVEL
    	
 
    	
LEVERAGE
    	
 
    	
EURODOLLAR
    	
 
    	
BASE RATE
    	
 
    	
COMMITMENT
    	
 
    
	
(TIER)
    	
 
    	
RATIO
    	
 
    	
RATE LOANS
    	
 
    	
LOANS
    	
 
    	
FEES
    	
 
    
	
I
    	
 
    	
>2.503 50
    	
 
    	
3.0004.000
    	
%
    	
1.5002.500
    	
%
    	
0.500
    	
%
    
	
II
    	
 
    	
>  2.252.75 but <2.503.50
    	
 
    	
2.7503.500
    	
%
    	
1.2502.000
    	
%
    	
0.4500.500
    	
%
    
	
III
    	
 
    	
>2.25 but < 2.75
    	
 
    	
3.250
    	
%
    	
1.750
    	
%
    	
0.500
    	
%
    
	
IIIIV
    	
 
    	
>   1.75 but < 2.25
    	
 
    	
2.5003.000
    	
%
    	
1.0001.500
    	
%
    	
0.3500.450
    	
%
    
	
IVV
    	
 
    	
>   1.25 but < 1.75
    	
 
    	
2.2502.500
    	
%
    	
0.7501.000
    	
%
    	
0.300
    	
%
    
	
VVI
    	
 
    	
>   0.75 but < 1.25
    	
 
    	
2.0002.250
    	
%
    	
0.5000.750
    	
%
    	
0.250
    	
%
    
	
VI
    	
 
    	
< 0.75
    	
 
    	
1.750
    	
%
    	
0.250
    	
%
    	
0.200
    	
%
    


 

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period and at any time will be subject to the provisions of Section 2.09(d).

 

“Applicable Time” means, with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be reasonably determined by Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Arrangers” means, individually and collectively, Wells Fargo Securities, LLC, BNP Paribas Securities Corporation, JPMorgan Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. as the joint lead arrangers, syndication agents and joint book runners for the transactions contemplated by the Loan Documents.

 

“Asset Disposition” means any Disposition permitted pursuant to Section 7.05(i) of this Agreement.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lending Party and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.

 

“Attributable Debt” means, on any date of determination, (a) in respect of any Capitalized Lease 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 and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease.

 

“Australian Dollars” means the lawful currency of Australia.

 

“Automatic Extension Letter of Credit” means a Letter of Credit that has automatic extension provisions.

 

4











 

“Cash Equivalents” means, as to any Person, any of the following: (a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (but only so long as the full faith and credit of the United States is pledged in support thereof) having maturities of not more than 360 days from the date of acquisition; (b) domestic and Eurodollar certificates of deposit, time or demand deposits or bankers’ acceptances maturing within 180 days after the date of acquisition issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any Lender or by any nationally or state chartered commercial bank or any branch or agency of a foreign bank licensed to conduct business in the United States having combined capital and surplus of not less than $250,000,000 whose short-term securities are rated at least A 1 or the equivalent thereof by S&P or at least P 1 or the equivalent thereof by Moody’s; (c) fully collateralized repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) of this definition entered into with any bank meeting the qualifications specified in clause (d) of this definition; (d) commercial paper issued by the parent corporation of any Lender or any commercial bank (provided that the parent corporation and the bank are both incorporated in the United States) having capital and surplus in excess of $250,000,000 and commercial paper issued by any Person incorporated in the United States, which commercial paper is rated at least A 1 or the equivalent thereof by S&P or at least P 1 or the equivalent thereof by Moody’s, and in each case maturing not more than 180 days after the date of acquisition by such Person; and (e) investments made in accordance with the Parent’s investment policy as such policy is approved by the Parent’s chief financial officer from time to time and delivered to Administrative Agent on or prior to the Closing Date and promptly following any material revision to such policy, so long as such investments constitute cash or cash equivalents in accordance with GAAP.

 

“Change in Law” means (a) any change arising from the enactment or enforcement of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or any rules, regulations, interpretations, guidelines or directives promulgated thereunder by any Governmental Authority, (b) any change arising from any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, and (c) the occurrence, after the date of this Agreement, of any of the following: (i) the adoption or taking effect of any law, rule, regulation or treaty; (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

“Cash Management Services” means any services provided in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automatic clearinghouse, controlled disbursement, depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft and/or wire transfer services and all other treasury and cash management services.

 

“CFC” means a controlled foreign corporation under Section 957 of the Code.

 

“CFC Debt” means intercompany loans, Indebtedness or receivables owed or treated as owed by one or more Foreign Subsidiaries.

 

“Change of Control” means any of the following occurs: (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding the Trustees of the CH2M HILL Retirement and Tax Deferred Savings Plan, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), except that a person or group will be deemed to have “beneficial ownership” of all securities that such person or group has the

 

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right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 30.0% or more of the issued and outstanding Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body of any Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); (b) any Person, or two or more Persons acting in concert, acquires (by contract or otherwise), or will have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Parent, or control over the Equity Interests of the Parent representing greater than 30.0% of the combined voting power of all Equity Interests of the Parent entitled to vote in the election of members of the board of directors of the Parent on a fully diluted basis (taking into account all Equity Interests that such Person or Persons have the right to acquire pursuant to any option right, or have the right to convert or convert into pursuant to any other Equity Interest or other right or interest); or (c) the failure of a majority of the seats (other than vacant seats) on the board of directors of the Parent to be occupied by persons who were approved by the board of directors of the Parent or appointed by directors so approved; or (d) any “change of control” or similar provision under any Second Lien Loan Documents or any other documents governing Second Lien Debt.

 

“CLP” means the lawful currency of the Republic of Chile.

 

“Closing Date” means the first date on which all of the conditions precedent to the initial Credit Extension set forth in Section 4.01 and Section 4.02 are satisfied (or waived in accordance with Section 10.01).

 

“Code” means the Internal Revenue Code of 1986.

 

“Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant to the Security Documents.

 

“Collateral Agreement” means the Security Agreement, dated as of the Third Amendment Effective Date, executed by the Loan Parties in favor of the Administrative Agent, for the ratable benefit of the Credit Group, which shall be in form and substance acceptable to the Administrative Agent.

 

“Commitment” means, as to any Lender, such Lender’s Revolving Credit Commitment and, as to Swing Line Lender, Swing Line Lender’s Swing Line Commitment.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit B.

 

“Consolidated” refers, with respect to any Person, to the consolidation of accounts of such Person and its Subsidiaries in accordance with GAAP.

 

“Consolidated Adjusted EBITDA” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income (without duplication), in each case calculated for such period: (i) Consolidated Interest Expense, (ii) all amounts treated as expenses for such period for depreciation and the amortization of intangibles of any kind, (iii) all Federal, state, local and foreign taxes on or measured by income accrued by the Parent and its Consolidated Subsidiaries during such period (but net of any Federal, state, local and foreign tax credits claimed by the Parent and its Consolidated Subsidiaries for such period), (iv) all expenses associated with the non-cash portion of all

 

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share-based compensation, (v) non-cash charges related to (A) restructuring, (B) asset impairment or (C) estimated project losses (including non-extraordinary items), provided, that, the amount of non-cash project losses incurred after June 24, 2016 that are attributable to Inpex and MoPac and added back pursuant to this clause (v) shall not exceed $50,000,000 in the aggregate during all Fiscal Periods beginning on or after June 25, 2016, (vi) (A) cash restructuring charges incurred during the Fiscal Year ended December 31, 2014 or the Fiscal Year ended December 25, 2015 in an aggregate amount not to exceed (1) with respect to the Fiscal Year ended December 31, 2014, $80,000,000 and (2) with respect to the Fiscal Year ended December 25, 2015, $40,000,000 plus an amount equal to the amount, if any, by which such cash restructuring charges in the Fiscal Year ended December 31, 2014 were less than $80,000,000 and (B) cash restructuring charges incurred after June 24, 2016 in an aggregate amount not to exceed $70,000,000 in the aggregate during all Fiscal Periods beginning on or after June 25, 2016, and (vii) other (A) extraordinary expenses or (B) non-recurring expenses actually paid in cash during such period in an aggregate amount not to exceed $10,000,000 in any Fiscal Year, and (viii) 50% of annual projected cost savings originating from restructuring efforts made after June 24, 2016, in an amount not to exceed (A) for the period consisting of the four consecutive Fiscal Periods ending on March 31, 2017, $35,100,000, (B) for the period consisting of the four consecutive Fiscal Periods ending on June 30, 2017, $21,000,000, (C) for the period consisting of the four consecutive Fiscal Periods ending on September 29, 2017, $7,000,000 and (D) for each period consisting of four consecutive Fiscal Periods ending thereafter, $0; minus (b)(i) cash payments related to (A) restructuring, (B) asset impairment and (C) non-cash estimate project losses (including non-extraordinary items) for any period to the extent included in the computation of Consolidated Adjusted EBITDA pursuant to clause (a)(v) above and (ii) to the extent included in calculating Consolidated Net Income, all amounts recorded related to (A) extraordinary gains or (B) non-recurring gains; plus (c) the amount, not to exceed $178,000,000 in the aggregate, of cash payments deducted from Consolidated Net Income pursuant to clause (b)(i) above and other amounts deducted from Consolidated Net Income pursuant to clause (b)(ii) above, in each case attributable to Inpex and MoPac, for any Fiscal Period ending before April 1, 2017 in which such payments or other amounts are deducted from Consolidated Net Income pursuant to such clauses (b)(i) and (b)(ii), except that $78,000,000 of such payments or other amounts added back to Consolidated Net Income pursuant to this clause (c) shall be treated as having been added back during the Fiscal Period ended June 24, 2016. Notwithstanding the foregoing, Consolidated Adjusted EBITDA shall be calculated to exclude the impact of up to $19,000,000 of the net settlement related to the West Deptford Development.

 

“Consolidated Adjusted EBITDAR” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, Consolidated Adjusted EBITDA for such period; plus, in computing Consolidated Adjusted EBITDA pursuant to clause (a) of such definition, Consolidated Lease Expense for such period.

 

“Consolidated First Lien Debt” means, as of any date of determination, calculated for the Parent and its Subsidiaries on a Consolidated basis, the aggregate principal amount of Consolidated Total Funded Debt (other than Subordinated Debt) outstanding on such date that is secured by a Lien that is not expressly subordinated to the Liens securing the Secured Obligations granted pursuant to the Security Documents.

 

“Consolidated First Lien Leverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated First Lien Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date of determination; provided, that if at any time the Consolidated First Lien Leverage Ratio calculated under the Second Lien Indenture is higher than the ratio calculated pursuant to the preceding

 

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calculation, then the “Consolidated First Lien Leverage Ratio” hereunder shall mean the “Consolidated First Lien Leverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Fixed Charge Coverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis for the period consisting of the four consecutive Fiscal Periods ending on such date of determination (except as otherwise expressly noted in clause (iii) below), the ratio of (a) Consolidated Adjusted EBITDAR to (b) the sum, without duplication, of (i) Consolidated Interest Expense, (ii) Consolidated Lease Expense, (iii) the Current Portion of Consolidated Long Term Debt as of such date of determination, and (iv) cash dividends paid or accrued on (A) preferred stock and (B) at all times on or prior to December 31, 2015, any other Equity Interests; provided, that if at any time the Consolidated Fixed Charge Coverage Ratio calculated under the Second Lien Indenture is lower than the ratio calculated pursuant to the preceding calculation, then the “Consolidated Fixed Charge Coverage Ratio” hereunder shall mean the “Consolidated Fixed Charge Coverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Interest Expense” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, the sum of (without duplication) (a) all interest, prepayment premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including all commissions, discounts, fees and other charges under letters of credit and similar instruments and all capitalized interest) or in connection with the deferred purchase price of assets during such period, plus (b) the portion of rent expense with respect to such period under Capitalized Leases that is treated as interest in accordance with GAAP, plus (c) dividends accrued on preferred stock, to the extent that such preferred stock is treated as a liability pursuant to GAAP, plus (d) all accrued losses under interest rate Swap Contracts during such period to the extent not included in clause (a) of this definition, minus (e) all accrued gains under interest rate Swap Contracts during such period.

 

“Consolidated Lease Expense” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, total lease expense under all operating leases, determined in accordance with GAAP.

 

“Consolidated Leverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated Total Funded Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date of determination; provided, that if at any time the Consolidated Leverage Ratio calculated under the Second Lien Indenture is higher than the ratio calculated pursuant to the preceding calculation, then the “Consolidated Leverage Ratio” hereunder shall mean the “Consolidated Leverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Net Income” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, the sum of net income (or loss) for such period, but excluding (a) any income of any Person if such Person is not a Subsidiary, except that the Parent’s direct or indirect equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or any Subsidiary as a dividend or other distribution and (b) the income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by the Subsidiary of that income is prohibited by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary; provided, however, that this clause (b) solely as it relates to the Payment Prohibition will not apply in determining whether the income of Halcrow Group Limited and its consolidated Subsidiaries may be included in the calculation of

 

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therefor and states that such position is based on such Lender’s determination that a condition precedent to funding such Loan (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot been satisfied and (ii) such condition precedent cannot be satisfied), (c) has failed, within three Business Days after request by Administrative Agent, to confirm in a manner satisfactory to Administrative Agent that it will comply with its funding obligations, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any applicable Bankruptcy Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; or (iv) become the subject of a Bail-In Action; provided that a Lender will 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.

 

“Disposition” means the sale, assignment, transfer, conveyance, license (other than on a non-exclusive basis), lease or other disposition (including any sale and leaseback transaction) of any property by any Person (other than such person’s own Equity Interests), including any sale, assignment, transfer, conveyance or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. The term “Dispose” has a meaning correlative thereto. For purposes of clarification, none of the issuance by any Person of Equity Interests in itself (or rights with respect thereto), the granting of a Lien or the assignment of cash or other property or assets to a trustee for a pension scheme or benefit plan shall be deemed a Disposition by such Person.

 

“Disqualified Equity Interest” means any Equity Interest of any Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof) or upon the happening of any event (a) matures or is mandatorily redeemable in cash pursuant to a sinking fund obligation or otherwise, (b) is redeemable in cash at the option of the holder thereof, or (c) requires or mandates the purchase, redemption, retirement, defeasance or other similar payment (other than dividends) for cash, in each case on or prior to the last to occur of the Revolving Credit Maturity Date and 91 days after the maturity date of the Second Lien Facility. The term “Disqualified Equity Interest” will also include any options, warrants or other rights that are convertible into any Disqualified Equity Interest or that are redeemable at the option of the holder, or required to be redeemed, prior to the last to occur of the Revolving Credit Maturity Date and 91 days after the maturity date of the Second Lien Facility.

 

“Dollar” and “$” mean lawful money of the United States.

 

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward) in Dollars as determined by Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

“Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of the United States, any State thereof or the District of Columbia.

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a

 

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permitted hereunder, (f) any Subsidiary that is prohibited by such Subsidiary’s Organizational Documents or contract from guaranteeing the Obligations to the extent (i) such restriction was existing on the ThirdFourth Amendment Effective Date or on the date on which the applicable Person becomes a direct or indirect Subsidiary of the Parent (and not created in contemplation of such Person becoming a Subsidiary of the Parent) or (ii) solely with respect to non-wholly owned Subsidiaries, such restriction was added or incorporated in the Organizational Documents of such Subsidiary or contract as a result of good faith negotiations concerning such Subsidiary among the Parent (or any Affiliate of the Parent), the joint venture partners or Equity Interest holders or clients and (g) in the case of any obligation under any hedging arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity Exchange Act, any Subsidiary of the Parent that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act.

 

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such 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 Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

 

“Excluded Taxes” means, with respect to Administrative Agent, any Lending Party or any other recipient of any payment to be made by or on account of any obligation of any Borrower or any other Loan Party hereunder or under any Loan Document, (a) any taxes imposed on or measured by its overall net income (however denominated) and any franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lending Party, in which its applicable Lending Office is located; (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which any Borrower or any other Loan Party is located; (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lending Party that has failed to comply with Section 3.01(e); (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 3.08, any withholding tax that is (i) imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrowers or such other Loan Party with respect to such withholding tax pursuant to Section 3.01(a); and (e) any U.S. federal withholding Taxes imposed under FATCA.

 

“Existing Lenders” has the meaning given such term in Recital A.

 

“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the

 

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Business Day next succeeding such day; provided that (a) if such day is not a Business Day, then the Federal Funds Rate for such day will be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, then the Federal Funds Rate for such day will be the average rate (rounded, if necessary, to a whole multiple of one one-hundredth of one percent (0.01%)) charged to Wells Fargo on such day on such transactions as determined by Administrative Agent.

 

“Fee Letters” means, collectively, (i) the letter agreement, dated March 4, 2014, between the Borrowers, the Administrative Agent and Wells Fargo Securities, LLC, in its capacity as the “left lead” Arranger and (ii) the letter agreement, dated March 4, 2014, between the Borrowers and each Arranger (other than Wells Fargo Securities, LLC), in each case regarding certain fees to be paid by the Borrowers in connection with the transactions contemplated by the Loan Documents.

 

“Fiscal Period” means, as of any date of determination with respect to the Parent or any Subsidiary thereof, each fiscal quarter of the Parent ending (i) on March 31, June 30, September 30 and December 31 of each applicable Fiscal Year through and including the Fiscal Year ended on December 31, 2014, and (ii) on the last Friday of March, June, September and December of each applicable Fiscal Year thereafter.

 

“Fiscal Year” means each fiscal year of the Parent ending (i) on December 31 of each calendar year through and including December 31, 2014, and (ii) on the last Friday of December of each calendar year thereafter.

 

“Foreign Holding Company” means a Domestic Subsidiary all or substantially all of the assets of which are comprised of Equity Interests in one or more Foreign Subsidiaries or CFC Debt.

 

“Foreign Indebtedness” has the meaning given such term in Section 7.03(n).

 

“Foreign Lender” means any Lending Party that is organized under the laws of a jurisdiction other than that in which any Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia will be deemed to constitute a single jurisdiction.

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“Fourth Amendment Effective Date” means April 28, 2017.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to L/C Issuer, such Defaulting Lender’s Percentage Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to Swing Line Lender, such Defaulting Lender’s Percentage Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business.

 

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being undertaken by Parent through a consolidated joint venture partnership with an Australian construction contractor.

 

“INR” means the lawful currency of the Republic of India.

 

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each of case (a) and (b) undertaken under Federal, state or foreign Law, including the Bankruptcy Code.

 

“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Fourth Amendment Effective Date, between the Administrative Agent and Wilmington Trust, National Association, as trustee and secured notes collateral agent under the Second Lien Indenture and acknowledged and agreed to by the Loan Parties.

 

“Interest Payment Date” means (a) with respect to (i) a Eurodollar Rate Loan, the last day of each Interest Period applicable thereto and, in the case of a Eurodollar Rate Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (ii) a Base Rate Loan (other than a Swing Line Loan), the last Business Day of each calendar quarter, and (iii) a Swing Line Loan, the last Business Day of each calendar month; and (b) in the case of Revolving Credit Loans and Swing Line Loans, the Revolving Credit Maturity Date.

 

“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrowers in their related Loan Notice; provided that (a) any Interest Period that would otherwise end on a day that is not a Business Day will be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period will end on the next preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) will end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period for any Revolving Credit Loan will extend beyond the Revolving Credit Stated Maturity Date.

 

“Investigation” means a formal investigation or a formal inquiry by a Governmental Authority in respect of which any Loan Party has received an official written notice or similar communication that such Governmental Authority has sufficient cause to institute, and has instituted, such an investigation or inquiry into the acts or business practices of such Loan Party or any of its Subsidiaries in order to determine (a) whether such acts or business practices constitute a violation of applicable Law and (b) if so, whether civil or criminal proceedings should be instituted against such Loan Party or any such Subsidiary as a result of such violation, which civil or criminal proceedings, if adversely determined and viewed in light of all relevant circumstances, would cause a Material Adverse Change.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person in another Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or limited liability company interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person or (c) the purchase or other

 

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acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit, or all or a substantial part of the business of, such Person. For purposes of covenant compliance hereunder, the amount of any Investment will be the original principal or capital amount thereof without adjustment for subsequent increases or decreases in the value of such Investment, and will, if made by the transfer or exchange of Property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value (as reasonably determined in good faith by the Administrative Borrower) of such Property. For purposes of determining the amount of additional Investments made after the Third Amendment Effective Date under Section 7.02(i), the amount of additional Investments made thereunder will equal (i) the amount of such Investments determined according to the immediately preceding sentence minus (ii) any reductions in such Investments resulting from (A) repurchases, redemptions or other acquisitions or retirements of such Investments, proceeds realized upon the sale or other disposition to a Person other than the Borrowers and any of their respective Subsidiaries of such Investment, repayments of loans or advances or other transfers of assets (including by way of dividend, distribution, interest payments or returns of capital) to any of the Borrowers and their respective Subsidiaries, or (B) the subsequent reclassification of such Investment to an Investment under Section 7.02(b) as a result of a Permitted Acquisition.

 

“IRS” means the United States Internal Revenue Service.

 

“ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” (exclusive of Rule 3.14 thereof) published by the Institute of International Banking Law & Practice (or, if L/C Issuer agrees at the time of issuance, such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

“Issuer Documents” means, with respect to any Credit, the L/C Application relating thereto and any other document entered into by L/C Issuer and any Borrower as applicant or its permitted designee or otherwise delivered by such Borrower or its permitted designee to or for the benefit of L/C Issuer, in each case relating to such Credit.

 

“Issuer Sublimit” means with respect to each L/C Issuer on the ThirdFourth Amendment Effective Date, an amount equal to the amount set forth opposite the name of such L/C Issuer on Schedule 2.03, as such amount may be changed after the ThirdFourth Amendment Effective Date in a written agreement between the Administrative Borrower and such L/C Issuer (which such agreement shall be promptly delivered to the Administrative Agent upon execution) and (b) with respect to any Lender becoming a L/C Issuer after the ThirdFourth Amendment Effective Date, such amount as may be separately agreed in writing between such L/C Issuer and the Administrative Borrower from time to time (which such agreement shall be promptly delivered to the Administrative Agent upon execution), provided that the Issuer Sublimit with respect to any Person that ceases to be an L/C Issuer for any reason pursuant to the terms hereof shall be $0 (subject to the Letters of Credit of such Person remaining outstanding in accordance with the provisions hereof).

 

“Joinder Agreement” means an agreement entered into by a Subsidiary of the Parent following the date hereof to join in the Guaranty set forth in Section 10.15, in substantially the form of Exhibit C or any other form approved by Administrative Agent.

 

“Joint Venture” of a Person means a joint venture, partnership, alliance, consortium or similar arrangement formed for the purpose of performing a single Project or series of related Projects, whether in corporate, partnership or other legal form in which, such Person directly, or indirectly through one or more intermediaries, or both, participates; provided that, as to any such arrangement in corporate form, such corporation shall not be considered to be a Joint Venture of such Person if such corporation is a Subsidiary of such Person.

 

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“JV Letter of Credit” has the meaning given such term in Section 2.04(k).

 

“JV Letter of Credit Face Amount” has the meaning given such term in Section 2.04(k).

 

“KWD” means the lawful currency of the State of Kuwait.

 

“Laws” means, 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, concessions, grants, franchises, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

“L/C Advance” means a Lender’s funding of its participation in an L/C Borrowing in accordance with its Percentage Share.

 

“L/C Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by L/C Issuer.

 

“L/C Borrowing” means an extension of credit resulting from a drawing under any Credit that has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

 

“L/C Credit Extension” means, with respect to any Credit, the issuance thereof, the extension of the expiry date thereof or the increase of the amount thereof.

 

“L/C Expiration Date” means the day that is five Business Days prior to the Revolving Credit Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“L/C Fee” has the meaning given such term in Section 2.04(h).

 

“L/C Issuer” means, Wells Fargo or any other Lender designated from time to time by the Administrative Borrower (and agreed to by such Lender), on behalf of the Borrower, in such Lender’s separate capacity as the issuer of Credits hereunder, or any successor issuer of Credits hereunder.

 

“L/C Obligations” means, at any time, the sum of (a) the aggregate amount available to be drawn under all outstanding Credits and (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Credit, the amount of such Credit will be determined in accordance with Section 1.02(j).

 

“L/C Sublimit” means an amount equal to $500,000,000450,000,000; provided that not more than $250,000,000 of such L/C Sublimit may be used for the issuance of financial letters of credit. The L/C Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

“Legally Required Restricted Payments” means the repurchases of the Parent’s common stock to the extent such repurchase is required by Law or the Parent’s benefits plans as in effect on the ClosingFourth Amendment Effective Date.

 

“Lender” means, collectively, (a) as of the ThirdFourth Amendment Effective Date, each Lender designated on Schedule 2.02 as a “Lender” and (b) each Lender that assumes a Revolving Credit Commitment pursuant to an Assignment and Assumption or pursuant to the applicable Additional

 

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Commitment Documentation or which otherwise holds a Revolving Credit Commitment, a Revolving Credit Loan, a risk participation in a Swing Line Loan or a participation in a Credit or a L/C Borrowing. In the event that any Lender, pursuant to Section 2.03(h), utilizes a branch or Affiliate to make a Loan, the term “Lender” shall include any such branch or Affiliate with respect to such Loan.

 

“Lending Office” means, as to any Lender, the office or offices, branches or Affiliates of such Lender described as such in such Lender’s Administrative Detail Form, or such other office or offices as a Lender may from time to time notify the Borrowers, Administrative Agent and Lending Parties.

 

“Lending Parties” means, collectively, Lenders, Swing Line Lender and L/C Issuer.

 

“Letter of Credit” means any standby and commercial letter of credit issued hereunder (and will include financial letters of credit and Performance Credits if issued as a standby letter of credit and JV Letters of Credit).

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any easement, right of way or other encumbrance on title to real property); provided that, a “Lien” shall not include the assignment of cash or other property or assets to a trustee for a pension scheme or benefit plan.

 

“Loan” means any Revolving Credit Loan or Swing Line Loan.

 

“Loan Documents” means this Agreement, the Credits and related Issuer Documents, the Security Documents, the Intercreditor Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16, the Fee Letters, any Note and any and all other agreements, documents and instruments executed and/or delivered (and, if not executed and only delivered, identified as a Loan Document) by any Loan Party to Administrative Agent or any Lending Party or their respective authorized designee evidencing or otherwise relating to the Loans or the L/C Borrowings made or issued hereunder. Notwithstanding anything to the contrary herein, a Loan Document shall not include any Bank Product Agreement.

 

“Loan Notice” means a notice, pursuant to Section 2.03(a), of (a) a borrowing of Loans, (b) a conversion of Loans from one Type to the other or (c) a continuation of Eurodollar Rate Loans, which notice, if in writing, will be substantially in the form of Exhibit D.

 

“Loan Parties” means, collectively, all Borrowers and all Guarantors.

 

“Material Adverse Change” means any of the following: (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise), operations, performance or properties of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Parent and its Subsidiaries taken as a whole to perform their respective obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document to which any Loan Party is a party against the Parent and its Subsidiaries taken as a whole, or the rights and remedies of Administrative Agent or any Lending Party under or in respect of any Loan Document.

 

“Material Adverse Effect” means any of the following: (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise), operations, performance, properties or prospects of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of

 

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the ability of the Parent and its Subsidiaries taken as a whole to perform their respective obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document to which any Loan Party is a party against the Parent and its Subsidiaries taken as a whole or the rights and remedies of Administrative Agent or any Lending Party under or in respect of any Loan Document.

 

“Material Subsidiary” means, as of any date, each Subsidiary of the Parent whose gross revenue, taken on a Consolidated basis with its Subsidiaries, for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) was more than the greater of (a) $200,000,000 and (b) 3.75% of the Consolidated gross revenue of the Parent and its Subsidiaries for such Fiscal Year.

 

“Middle East” means one or more of countries or states commonly known as Bahrain, Cyprus, Egypt, Iraq, Israel, Jordan, Kuwait, Lebanon, Northern Cyprus, Oman, Qatar, Saudi Arabia, Turkey, and United Arab Emirates.

 

“Middle East Letters of Credit” means any letters of credit or bank undertakings issued by any bank or other issuer of letters of credit or bank undertakings to support operations and projects of the Loan Parties or their Subsidiaries in the Middle East.

 

“Minimum Liquidity” means, as of any date of determination, an amount equal to the sum of (a) the aggregate unrestricted cash and Cash Equivalents held in the United States by the Parent and its Domestic Subsidiaries as of such date (excluding any cash and Cash Equivalents held in joint ventures) plus (b) the aggregate Available Credit as of such date to the extent available to the Borrowers.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“MoPac” means the fixed-price contract to design and construct roadway improvements on the MoPac Expressway in Austin, Texas.

 

“Mortgages” means the collective reference to each mortgage, deed of trust or other real property security document, encumbering any real property constituting Collateral now or hereafter owned by any Loan Party, in each case, in form and substance reasonably satisfactory to Administrative Agent and executed by such Loan Party in favor of Administrative Agent, for the benefit of each of the Secured Parties.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Parent or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Parent or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

“National Currency Unit” means a fraction or multiple of one Euro expressed in units of the former national currency of a Participating Member State.

 

“NOK” means the lawful currency of the Kingdom of Norway.

 

“Note” means any promissory note executed by the Borrowers in favor of a Lender pursuant to Section 2.12 in substantially the form of Exhibit E.

 

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Aggregate Revolving Credit Commitments have expired, then the Percentage Share of each Lender will be determined based upon such Lender’s Percentage Share most recently in effect, giving effect to any subsequent assignments. The Percentage Share of each Lender as of the ThirdFourth Amendment Effective Date is set forth opposite the name of such Lender on Schedule 2.02 or in the Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation pursuant to which such Lender became a party hereto, as applicable.

 

“Performance Credit” means a standby letter of credit or Bank Undertaking used directly or indirectly to cover bid, performance, advance and retention obligations in support of the Borrowers’ work program.

 

“Permitted Acquisition” means any Acquisition that meets the following conditions:

 

(a)           such proposed Acquisition only involves assets or businesses comprising a business, or those assets of a business, substantially of the type engaged in by the Borrowers as of the date of this Agreement (or reasonably related thereto);

 

(b)           such proposed Acquisition will be consensual and be approved by (i) the Target’s board of directors (or by the Target’s board or members of managers or other applicable managing body if Target is not a corporation) and (ii) to the extent required by applicable Law, the holders of the Equity Interests in the Target;

 

(c)           no Default or Event of Default will have occurred and be continuing or result from the consummation of such proposed Acquisition;

 

(d)           prior to the closing and consummation of such proposed Acquisition for which cash consideration exceeds $50,000,000, (i) the Parent will deliver to Administrative Agent pro forma Consolidated financial statements for the Parent and its Subsidiaries, including the Target, in form satisfactory to Administrative Agent, in its Reasonable Discretion, (ii) after giving effect to such proposed Acquisition, the Borrowers will be in compliance with the financial covenants set forth in Section 7.14 on a pro forma basis, (iii) the Consolidated Leverage Ratio, as calculated as of the last day of the most recently ended Fiscal Period of the Parent for which the Parent has delivered to Administrative Agent a Compliance Certificate pursuant to Section 6.01(c) along with the accompanying audited Consolidated financial statements pursuant to Section 6.01(a) or unaudited Consolidated financial statements pursuant to Section 6.01(b), as applicable, but after giving pro forma effect to such proposed Acquisition, will not exceed 2.75 to 1.00; provided; however, such threshold shall be increased to 3.00 to 1.00 in connection with any Qualified Acquisition,:1.00, (iv) any secured Indebtedness to be assumed by any Loan Party or any Subsidiary thereof upon the consummation of such proposed Acquisition shall be permitted pursuant to Section 7.03 (and the Liens related thereto shall be Permitted Liens), and (v(v) the Loan Parties shall have Minimum Liquidity of not less than $300,000,000 after giving pro forma effect to such proposed Acquisition, and (vi) Administrative Borrower will deliver to Administrative Agent a certificate of a Responsible Officer certifying as to the matters set forth in clause (d) above of this definition and in subclauses (ii) through (ivv) of this clause (e);

 

(e)           the business and assets of the Target will be free and clear of Liens, except Liens permitted pursuant to Section 7.01; and

 

(f)            the proposed Acquisition will be undertaken and consummated in accordance and in compliance in all material respects with all applicable Laws and, to the extent applicable, all necessary and appropriate authorizations, permits, consents and approvals, including Hart-Scott-Rodino antitrust

 

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“Project” means each contractual arrangement between a client and the Parent or a Subsidiary for the performance of services (including design, engineering, procurement, construction program management and any other services that the Parent or a Subsidiary provides to its clients in the ordinary course of business).

 

“QAR” means the lawful currency of the State of Qatar.

 

“Qualified Acquisition” means any acquisition that meets the following conditions:

 

(b)           the aggregate consideration (including Cash, equity, earn-out obligations, deferred compensation, non-competition arrangements and the amount of Indebtedness and other liabilities incurred or assumed by the Loan Parties and their Subsidiaries) paid by the Loan Parties and their Subsidiaries in connection therewith is equal to or greater than $75,000,000;

 

(c)           the Consolidated Leverage Ratio shall be less than or equal to 3.00 to 1.00 as of the closing of such acquisition after giving pro forma effect to such acquisition; and

 

(d)           the Loan Parties shall have Minimum Liquidity of not less than $100,000,000 after giving pro forma effect to such acquisition.

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Subsidiary Guarantor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an ECP under the Commodity Exchange Act or any regulations promulgated thereunder.

 

“Reasonable Discretion” means, as to any Person, a determination or judgment made by such Person in good faith in the exercise of reasonable (from the perspective of a secured lender) business judgment.

 

“Record” means information that is inscribed on a tangible medium or which is stored on an electronic or other medium and is retrievable in perceived form.

 

“Register” means a register for the recordation of the names and addresses of Lenders and, as applicable, the Commitments of, and Outstanding Amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, members, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates, and specifically includes, in the case of(a) Wells Fargo, Wells Fargo in its separate capacities as Administrative Agent, as Swing Line Lender and as a L/C Issuer, and (b) Wells Fargo Securities, LLC, in its capacity as the “left lead” Arranger.

 

“Replacement Lender” has the meaning given such term in Section 3.08(a)(ii).

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, an L/C Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

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“Revolving Credit Commitment” means, as to each Lender at any time, its obligation to do the following pursuant to the terms hereof: (a) make Revolving Credit Loans to the Borrowers; (b) purchase participations in L/C Obligations; and (c) purchase participations in Swing Line Loans; all in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.02 or in the Assignment and Assumption pursuant to which such Lender became a party hereto or pursuant to the applicable Additional Commitment Documentation, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“Revolving Credit Commitment Fee” has the meaning given such term in Section 2.10(a).

 

“Revolving Credit Loan” has the meaning given such term in Section 2.02(a).

 

“Revolving Credit Maturity Date” means the earliest of (a) the Revolving Credit Stated Maturity Date, (b) the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07 and (c) the date of the termination of the Aggregate Revolving Credit Commitments and of the obligation of L/C Issuer to make L/C Credit Extensions and the acceleration of the Revolving Credit Loans pursuant to Section 8.03.

 

“Revolving Credit Stated Maturity Date” means March 28, 2019.

 

“RON” means the lawful currency of Romania.

 

“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its government, or (d) a person or entity resident in or determined to be resident in a country, that is subject to a country sanctions program administered and enforced by OFAC.

 

“Sanctioned Person” means a person named on the list of Specially Designated Nationals maintained by OFAC.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

“SAR” means the lawful currency of the Kingdom of Saudi Arabia.

 

“SEC” means the Securities Exchange Commission and any successor thereto.

 

“Second Lien Indenture” means the Indenture dated as of April 28, 2017 by and among the Parent, as issuer, the guarantors party thereto, as guarantors, and Wilmington Trust, National Association, as trustee and secured notes collateral agent.

 

“Second Lien Debt” means the Indebtedness incurred pursuant to Section 7.03(r).

 

“Second Lien Facility” means (a) the second-lien facilities governed by the Second Lien Documents and (b) any debt facilities or other financing arrangements (including indentures) providing for loans or other Indebtedness permitted under Section 7.03(r)(ii).

 

“Second Lien Documents” means the “Second Lien Documents” (as defined in the Second Lien Indenture).

 

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“Second Lien Refinancing Indebtedness” has the meaning given such term in Section 7.03(r).

 

“Secured Obligations” means, collectively, (a) the Obligations, (b) the Guaranteed Obligations and (c) for purposes of the Guaranty set forth in Section 10.15(a), the liability set forth in Section 10.16(a), the Security Documents and all provisions under the other Loan Documents relating to the Collateral, the sharing thereof or the payments from proceeds of the Collateral, all Bank Product Debt; provided, however, in no event shall the term Secured Obligations include (i) any Excluded Swap Obligations or (ii) any Bank Product Debt that is excluded from definition of Obligations pursuant to clause (a)(ii) of the proviso thereto.

 

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, and the Bank Product Providers.

 

“Security Documents” means the collective reference to the Collateral Agreement, the Control Agreements, the Mortgages, and each other agreement or writing pursuant to which any Loan Party pledges or grants a security interest in any property or assets securing the Secured Obligations.

 

“Second Amendment Effective Date” means March 30, 2015.

 

“Significant Subsidiary” has the meaning given such term in Article VII.

 

“Singapore Dollars” means the lawful currency of Republic of Singapore.

 

“Solvent” means, as to any Person at any time, that (a) the fair value of the property of such Person on a going concern basis is greater than the amount of such Person’s liabilities (including contingent liabilities), as such value is established and such liabilities are evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent Transfer Act or any similar state statute applicable to the Parent or any Subsidiary thereof; (b) the present fair salable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including contingent liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) 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 unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage.

 

“Specified EBITDA Add-backs” means, as calculated for any period, the aggregate amount added to Consolidated Net Income in determining Consolidated Adjusted EBITDA for such period pursuant to clauses (a)(v)(C) (to the extent arising from non-cash project losses attributable to Inpex and MoPac), (a)(vi)(B), (a)(viii) and (c) of the definition of “Consolidated Adjusted EBITDA”.

 

“Specified Lender” means, at any time, any Lender (a) that has requested compensation under Section 3.04 and has not rescinded such request within five Business Days of the making thereof; (b) to whom any Borrower must pay an additional amount (or on whose behalf any Borrower must pay an additional amount to a Governmental Authority) pursuant to Section 3.01; (c) that gives a notice pursuant to Section 3.02; (d) that is a Defaulting Lender; or (e) that is the sole Lender that has refused or failed, within a reasonable period of time (as determined by Administrative Agent in its Reasonable Discretion) from first receiving a written request therefor from Administrative Agent, to provide its written approval of any amendment, consent or waiver in respect of any matter related to this Agreement or the other Loan

 

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Documents requiring that all Lenders will have given written approval of such requested amendment, consent or waiver consent pursuant to Section 10.01 and in such instance Lenders sufficient to constitute Required Lenders have already provided such written approval pursuant to Section 10.01.

 

“Specified Materials” means, collectively, all materials or information provided by or on behalf of the Borrowers or any other Loan Party or any of their respective Subsidiaries or Affiliates, as well as documents and other written materials relating to the Borrowers or any other Loan Party or any of their respective Subsidiaries or Affiliates or any other materials or matters relating to the Loan Documents (including any amendments or waivers of the terms thereof or supplements thereto).

 

“Spot Rate” for a currency means the rate determined by Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., London time, on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided, further, that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Credit denominated in an Alternative Currency.

 

“Sterling” and “£” mean the lawful currency of the United Kingdom.

 

“Subordinated Debt” means any third-party Indebtedness incurred by any Loan Party or any Significant Subsidiary, from a Person other than a Loan Party or any Subsidiary thereof, which by its terms is specifically subordinated in right of payment to the prior payment of the Obligations and contains subordination and other terms acceptable to the Administrative Agent.

 

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Equity Interests having ordinary voting power for the election of directors or other governing body (other than Equity 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” will refer to a Subsidiary or Subsidiaries of the Parent or any Borrower (other than the Parent), as the context will require.

 

“Subsidiary Guarantor” has the meaning given such term in Section 10.15(a).

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement; and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master

 

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accounting in the financial statements required to be furnished to the Administrative Agent hereunder or in the calculation of financial covenants, standards or terms contained in this Agreement, and either the Borrowers or Required Lenders will so request, Administrative Agent, the Lending Parties and the Borrowers will negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders); provided that, until so amended: (i) such ratio or requirement will continue to be computed in accordance with GAAP prior to such change therein; and (ii) the Borrowers will provide to Administrative Agent and the Lending Parties financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

(h)           Rounding. Any financial ratios required to be maintained by the Loan Parties or any of them pursuant to the Loan Documents will be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number using the common - or symmetric arithmetic - method of rounding (in other words, rounding-up if there is no nearest number).

 

(i)            Computations of Certain Financial Covenants. For purposes of computing the Consolidated Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio as of any date, all components of such ratios will include or exclude, as the case may be, for the period consisting of the four Fiscal Periods ending on such date all financial results (without duplication of amounts) attributable to any business or assets that are the subject of any Acquisition or Disposition by the Parent or any Subsidiary thereof effected during such period, as determined by Administrative Borrower in its Reasonable Discretion and consented to by the Administrative Agent (such consent not to be unreasonably withheld) on a pro forma basis for such period as if such Acquisition or Disposition had occurred (and any Indebtedness incurred or repaid in connection therewith had been incurred and repaid, as the case may be) on (in the case of any balance sheet item) the last day of such period or on (in the case of any other item) the first day of such period. Furthermore, for the purposes of computing the Consolidated Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio as of any date, to the extent that any Joint Venture is included in the Parent’s Consolidated financial statements, such calculations will disregard the ratable portion of such Joint Venture attributable to the ownership of any Joint Venture by any Person who is not a Loan Party or a Subsidiary of a Loan Party. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries will be deemed to be carried at 100% of the outstanding principal amount thereof.

 

(j)            Calculations with Respect to Credit. Unless otherwise specified herein, the amount of a Credit at any time will be deemed to be the stated amount of such Credit in effect at such time; provided that, with respect to any Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Credit will be deemed to be the maximum stated amount of such Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

(k)           Documents Executed by Responsible Officers. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate or other organizational action on the part of such Loan Party and such Responsible Officer will be conclusively presumed to have acted on behalf of such Loan Party.

 

(l) Additional Alternative Currencies. The Borrowers may from time to time request that Loans be made and Credits be issued in a currency other than those specifically listed in the definition of

 

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(q)           Classifications. For purposes of determining compliance with the covenants under this Agreement, in the event that an item to be classified meets the criteria of more than one of the categories described, the Parent will be entitled to classify such item (or portion thereof) and later reclassify such item (or portion thereof) in any manner otherwise consistent with this Agreement; provided that the Indebtedness incurred on or about the Fourth Amendment Effective Date under the Second Lien Indenture will be treated as incurred on the Fourth Amendment Effective Date under Section 7.03(r) and such amounts outstanding under Section 7.03(r) may not be later reclassified.

 

ARTICLE II

CREDIT EXTENSIONS

 

SECTION 2.01.   THE ORIGINAL CREDIT AGREEMENT.

 

(a)           Schedule 2.01 sets forth all outstanding amounts of principal Indebtedness in respect of Base Rate Loans and Eurodollar Rate Loans (each as defined in the Original Credit Agreement) and all issued and undrawn, or drawn and unreimbursed, Letters of Credit (as defined in the Original Credit Agreement) for each Existing Lender (the “Aggregate Outstanding Principal Amount”). There are no Swing Line Loans (as defined in the Original Credit Agreement) outstanding under the Original Credit Agreement as of the date of this Agreement. Notwithstanding anything to the contrary contained in the Original Credit Agreement, in order to effect the restructuring of the credit facility provided thereunder as contemplated by this Agreement, (a) all Loans (as defined in the Original Credit Agreement), whether Base Rate Loans or Eurodollar Rate Loans (each as defined in the Original Credit Agreement), will be deemed Base Rate Loans or Eurodollar Rate Loans, respectively (as applicable), on the Closing Date in accordance with this Agreement, including this Section 2.01, (b) all “Letters of Credit” under and as defined in the Original Credit Agreement will be deemed Letters of Credit in accordance with this Agreement, including this Section 2.01, and (iii) all accrued and unpaid interest, including all accrued and unpaid interest on the Aggregate Outstanding Principal Amount, and all accrued and incurred and unpaid fees, costs and expenses payable under the Original Credit Agreement, including all accrued and unpaid unused line fees under Section 2.10(a) of the Original Credit Agreement and letter of credit fees under Section 2.04(h) of the Original Credit Agreement, all applicable breakage fees under Section 3.05 of the Original Credit Agreement incurred in connection with the termination of the Interest Periods (as defined in the Original Credit Agreement) in respect of all outstanding Eurodollar Rate Loans (as defined in the Original Credit Agreement) on the Closing Date, regardless of whether such date is the last day of the applicable Interest Period (as defined in the Original Credit Agreement), and all fees and expenses outstanding under Section 10.04 of the Original Credit Agreement and other similar costs and expenses, will be due and payable on the Closing Date. The rates of interest chargeable on Loans (as defined in the Original Credit Agreement) outstanding as of the Closing Date will remain in effect through the day immediately preceding the Closing Date. The Borrowers covenant and agree that they will not, and represent and warrant that they have not, between the date of this Agreement and the Closing Date, requested any further Loans (including any Swing Line Loans) or requested the issuance of any additional Letters of Credit under (and as such terms are defined in) the Original Credit Agreement.

 

(b)           On the Closing Date and the satisfaction of all conditions as set forth in Section 4.01, each Existing Lender’s portion of the Aggregate Outstanding Principal Amount will be deemed to continue hereunder as a Base Rate Loan and will be applied to such Lender’s Revolving Credit Commitment, comprising the applicable portion of such Lender’s Revolving Credit Commitment to be funded on the Closing Date. Such continuing Base Rate Loans will be subject to the same terms and conditions as if advanced initially as Base Rate Loans comprising Loans hereunder. Commencing with the Closing Date, the rates of interest chargeable on Loans (as defined in the Original Credit Agreement) outstanding as of the Closing Date will be chargeable at the respective rates and will be payable in the

 

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this Section 2.09(b), the entire principal amount of the Obligations (except for undrawn Credits) will thereafter, from the date such Event of Default occurred and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01 of this Agreement, without any required notice from Lenders or Administrative Agent, bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(ii)           If any Event of Default occurs, then, without limitation of and in addition to clause (i) of this Section 2.09(b), upon written notice to the Borrowers from Required Lenders (or from Administrative Agent at the direction of Required Lenders), the outstanding Obligations under this Agreement and the other Loan Documents will, effective as of the date of delivery of such written notice to the Administrative Borrower, on behalf of the Borrowers, and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01, will bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(iii)          Accrued and unpaid interest on past due amounts (including interest on past due interest) will be due and payable upon demand.

 

(c)           Payment Dates; Accrual of Interest. Interest on each Loan will be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder will be due and payable in accordance with the terms hereof both before and after judgment, and both before and after the commencement of any proceeding under any Bankruptcy Law.

 

(d)           Increases and Decreases of Applicable Rates. Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period. Notwithstanding the foregoing, the Applicable Rates in effect from the ThirdFourth Amendment Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending June 30,March 31, 2017 (the “Initial Applicable Rates”) shall be the greater of (a) the applicable pricing level based on the Compliance Certificate delivered in accordance with Section 6.01(c) for any applicable period or (b) Tier III as indicated on the grid set forth in the definition of “Applicable Rate”. If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent.

 

Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period. The

 

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foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

 

SECTION 2.10.   FEES.

 

In addition to certain fees described in subsections (h) and (i) of Section 2.04:

 

(a)           Revolving Credit Facility Commitment Fee. The Borrowers will pay to Administrative Agent for the account of each Lender in accordance with its Percentage Share, a commitment fee (the “Revolving Credit Commitment Fee”) equal to the Applicable Rate multiplied by the actual daily amount by which the Aggregate Revolving Credit Commitments exceed the sum of the Total Revolving Credit Outstandings (less the Outstanding Amount of Swing Line Loans) for each such day, subject to adjustment as provided in Section 3.07; provided that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier 1I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent. The Revolving Credit Commitment Fee will accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and will be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Revolving Credit Maturity Date. The Revolving Credit Commitment Fee will be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount will be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained in this clause (a), the determination of the Applicable Rate for any period and at any time will be subject to the provisions of Section 2.09(d).

 

(b)           Administrative Agent’s, L/C Issuer’s and Arranger’s Fees. The Borrowers will pay such fees as are specified as owing to such Persons in the Fee Letters.

 

SECTION 2.11.   COMPUTATIONS OF INTEREST AND FEES.

 

All computations of interest for Base Rate Loans based on the Prime Rate will be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of interest and fees hereunder will be made on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a year of 365 or 366 days, as applicable), or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice. Interest will accrue on each Loan for the day on which the Loan is made, and will not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made will, subject to Section 2.13(a), bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder will be conclusive and binding for all purposes, absent manifest error. Without limitation of the foregoing, in computing the interest on any Eurodollar Rate Loan denominated in an Alternative Currency, such Loan will have added to it the U.K. Regulatory Cost, if any, associated with such Loan.

 

SECTION 2.12.   EVIDENCE OF INDEBTEDNESS.

 

(a)           Evidence of Payments. The Credit Extensions made by each Lender will be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the

 

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(a)           Increase in Aggregate Commitments and Incremental Term Loans Generally. So long as the Aggregate Commitments have not previously been voluntarily reduced pursuant to Section 2.07, and subject to the further conditions set forth in Section 2.15(c), upon notice to Administrative Agent by the Administrative Borrower, on behalf of the Borrowers, at any time after the Closing Date but not less than thirty days prior to the Revolving Credit Maturity Date, the Borrowers may (i) incur additional Indebtedness under this Agreement in the form of one or more new term loan facilities under this Agreement (each, an “Incremental Term Loan”) and/or (ii) request one or more Additional Revolving Credit Commitments; provided that (A) after giving effect thereto, the aggregate amount of Additional Revolving Credit Commitments and Incremental Term Loans that have been added pursuant to this Section 2.15 will not exceed $200,000,0000; (B) any such addition will be in a minimum aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Revolving Credit Commitments and Incremental Term Loans set forth in clause (A) of this proviso); and (C) the Borrowers may request a maximum of three such Additional Revolving Credit Commitments and/or Incremental Term Loans.

 

(b)           Certain Provisions Regarding Increase of Aggregate Commitments. If any Additional Revolving Credit Commitments and/or Incremental Term Loans are added in accordance with this Section 2.15, the Administrative Agent and the Administrative Borrower, on behalf of the Borrowers, will determine the effective date (the “Additional Commitments Effective Date”) of such addition and the amount of, and the Persons who will provide, such Additional Revolving Credit Commitments and/or Incremental Term Loans; provided that no Person who is not at the time a Lender will be selected to provide Additional Revolving Credit Commitments and/or Incremental Term Loans until each existing Lender has been provided with a reasonable opportunity to provide all or a portion of such Additional Revolving Credit Commitments and/or Incremental Term Loans in an amount not less than its Percentage Share thereof and has either accepted, declined or failed to respond to such opportunity to provide such percentage share of such Additional Revolving Credit Commitments and/or Incremental Term Loans; provided, further, that no existing Lender will have any obligation to provide all or any portion of such Additional Revolving Credit Commitments and/or Incremental Term Loans. The Administrative Agent will promptly notify the Administrative Borrower, on behalf of the Borrowers, and Lending Parties of the final amount of such Additional Revolving Credit Commitments and/or Incremental Term Loans and the Additional Commitments Effective Date, as well as in the case of each notice to any Lender, the respective interests in such Lender’s Revolving Credit Loans and/or Incremental Term Loans, as applicable, in each case subject to the assignments contemplated by this Section 2.15. As conditions precedent to each such Additional Revolving Credit Commitments and/or Incremental Term Loans: (i) the representations and warranties contained in Article V and the other Loan Documents (including all documents required pursuant to Section 2.15(c)) will be true and correct on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they will have been true and correct as of such earlier date, and except that, for purposes of this Section 2.15(b), the representations and warranties contained in Section 5.10 will be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a) and Section 6.01(b), respectively; (ii) no Default or Event of Default will exist immediately before or immediately after giving effect to such addition; (iii) the Borrowers will be in compliance with the financial covenants set forth in Section 7.14 after giving pro forma effect to the making of Additional Revolving Credit Commitments and/or Incremental Term Loans and the Loans made in connection therewith; (iv) the Borrowers, Administrative Agent and Lending Parties (including any new Lending Parties being added in connection with such addition) will have entered into all documents required pursuant to Section 2.15(c), and the Borrowers will have complied with all of the conditions precedent to the effectiveness of such addition as provided in such documents (including any requirement to pay fees and expenses to any or all of Administrative Agent, the Arrangers and the Lending Parties, including any

 

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new Lending Parties); and (v) the Borrowers will have delivered to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Administrative Borrower, on behalf of the Borrowers, certifying as to the truth, accuracy and correctness of the matters set forth in the immediately preceding clauses (i), (ii) and (iii). On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person who is providing an Additional Revolving Credit Commitment and/or Incremental Term Loan will become a “Lender” for all purposes of this Agreement and the other Loan Documents. Any Additional Revolving Credit Loan will be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents. In furtherance of the foregoing, in connection with any Additional Revolving Credit Commitments, on any Additional Commitments Effective Date on which Additional Revolving Credit Commitments are made, subject to the satisfaction of the other terms and conditions contained in this Section 2.15, (1) each of the existing Lenders will assign to each Person providing an Additional Revolving Credit Commitment, and each such Person will purchase from each of the existing Lenders, in an amount equal to the Outstanding Amount thereof (together with accrued but unpaid interest thereon), such interests in the Revolving Credit Loans outstanding on such date as will be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Lenders and the Person making the Additional Revolving Credit Commitments ratably in accordance with their Percentage Shares after giving effect to the addition of such Additional Revolving Credit Commitments to the existing Revolving Credit Commitments; and (2) each Person making an Additional Revolving Credit Commitment will be deemed for all purposes to have made a Revolving Credit Commitment and each Additional Revolving Credit Loan will be deemed, for all purposes, a Revolving Credit Loan.

 

(c)           Terms and Documentation. Any other terms of and documentation entered into in respect of any Additional Revolving Credit Commitments and/or Incremental Term Loans made pursuant to this Section 2.15 (collectively, the “Additional Commitment Documentation”) will be (i) with respect to Additional Revolving Credit Commitments, consistent with the Revolving Credit Commitments or (ii) with respect to any Incremental Term Loans, reasonably satisfactory to the Administrative Agent; provided that (A) the Borrowers and the Additional Lenders providing an Additional Revolving Credit Commitment may agree to additional fees payable to such Additional Lenders in consideration of such Additional Lender’s agreement to provide such Additional Revolving Credit Commitment and/or Incremental Term Loan, (B) the Borrowers and the Additional Lenders providing an Incremental Term Loan may agree to the pricing (including the interest rate margins, any upfront fees, any arrangement fees, any underwriting fees and any original issue discount) applicable to such Incremental Term Loan, and (C) no Incremental Term Loan shall have a maturity date earlier than the Revolving Credit Maturity Date. Any Additional Revolving Credit Commitments and/or Incremental Term Loans made or provided pursuant to this Section 2.15 will be (i) entitled, on a pari passu basis, to the same benefit of the Guaranties as the Revolving Credit Commitments and (ii) evidenced by one or more entries in the Register maintained by Administrative Agent in accordance with the provisions set forth in Section 10.06(c).

 

(d)           Amendment to Credit Agreement. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms of any new Incremental Term Loan therein.

 

(e)           Availability. Notwithstanding anything to the contrary contained herein, no Additional Revolving Credit Commitments or Incremental Term Loans will be available after the Fourth Amendment Effective Date.

 

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SECTION 2.16.   CASH COLLATERAL.

 

standing) under the laws of the jurisdiction of its incorporation, organization or formation, except as could not reasonably be expected to cause a Material Adverse Change; (b) has the power and authority and all governmental licenses, authorizations, consents and approvals (i)(A) in the case of any Loan Party or a Significant Subsidiary, to own its assets and carry on its business substantially as currently conducted by it and such business as contemplated to be conducted by it upon and following the consummation of the transactions contemplated by the Loan Documents, and (B) in the case of any Subsidiary that is not a Loan Party or a Significant Subsidiary, to own its assets and carry on its business substantially as currently conducted by it and such business as contemplated to be conducted by it upon and following the consummation of the transactions contemplated by the Loan Documents, except as could not reasonably be expected to cause a Material Adverse Change and (ii) to execute, deliver, and perform its obligations under the Loan Documents to which each is a party; and (c) is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is licensed and in good standing (except in jurisdictions that do not recognize good standing) under the laws of each jurisdiction where its ownership, leasing or operation of property or the conduct of its business requires such qualification or license, except to the extent that the failure to do so could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.02.   CORPORATE AUTHORIZATION; NO CONTRAVENTION.

 

The execution and delivery by each Loan Party, and the performance by each Loan Party of its obligations under each Loan Document to which such Person is party, 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 Organizational Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material contract or agreement to which such Person is a party or such Person’s properties are subject or (ii) any 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 Law applicable to any Loan Party or any of its Subsidiaries or any of their respective properties. Each Loan Party is in compliance with all Contractual Obligations referred to in the foregoing clause (b)(i), except to the extent that any failure to be in compliance could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.03.   GOVERNMENTAL AUTHORIZATION; COMPLIANCE WITH LAWS.

 

(a) Governmental Authorizations. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority (other than the filing of a Form 8-K with the SEC after the Closing Date and the approvals, consents, exemptions, authorizations, actions, notices and filings required by the Collateral Agreement) or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, as applicable, any Loan Party or any Significant Subsidiary of this Agreement or any other Loan Document.

 

(b) Compliance with Laws. Each Loan Party and each of their respective Subsidiaries is in compliance in all material respects with the requirements of all Laws applicable to such Person or any of its properties and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to cause a Material Adverse Change.

 

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SECTION 5.04. BINDING EFFECT.

 

financial statements has been made in accordance with generally accepted auditing standards and (ii) together with the certificate referred to in clause (c) below, an internally prepared list of each Borrower, each Guarantor and each other Subsidiary of the Parent as listed in the Parent’s most recent Annual Report on Form 10-K filed with the SEC (or, if the Parent is no longer a reporting company under the Exchange Act, a list of Subsidiaries approved by Administrative Agent), along with each such Person’s gross revenue for the four Fiscal Periods then ended;

 

(b)           Fiscal Period Financial Statements. As soon as available and in any event no later than fifty-five days after the end of the first three Fiscal Periods of each Fiscal Year, an internally prepared Consolidated balance sheet of the Parent as at the end of such period and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries prepared for such Fiscal Period and for such Fiscal Year to date, setting forth in each case in comparative form the figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified by a Responsible Officer of the Parent having responsibility for financial matters that they (i) present fairly in all material respects the financial condition of the Parent and its Subsidiaries as at the dates indicated and the results of its operations and changes in their cash flow for the periods indicated, (ii) disclose all liabilities of the Parent and its Subsidiaries that are required to be reflected or reserved against under GAAP, whether liquidated or unliquidated, fixed or contingent, and (iii) have been prepared in accordance with GAAP, subject to the absence of footnotes and changes resulting from audit and year-end adjustments;

 

(c)           Compliance Certificate. Concurrently with the delivery of the materials required in clauses (a) and (b) above, a Compliance Certificate dated as of the last day of such Fiscal Period, certified by a Responsible Officer of the Parent having responsibility for financial matters, with appropriate insertions satisfactory to Administrative Agent (which delivery may, unless Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and will be deemed to be an original authentic counterpart thereof for all purposes), including that such Responsible Officer has no knowledge of any Default or Event of Default, or if such Responsible Officer has such knowledge, specifying such Default or Event of Default and the nature thereof, and what action the Borrowers have taken, are taking or proposed to take with respect thereto, together with a schedule in form satisfactory to Administrative Agent, of the computations used by the Parent in determining compliance with the financial covenants contained in Section 7.14;

 

(d)           Financial Forecasts. As soon as available, but in any event no later than one-hundred-five days after the end of each Fiscal Year, a one year (prepared on a Fiscal Period basis) budget of the Parent on a Consolidated basis for the then-commenced Fiscal Year, including a pro forma balance sheet and statements of income and showing projected operating revenues and expenses of the Parent on a Consolidated basis, in form and sufficient detail acceptable to Administrative Agent, in its Reasonable Discretion;

 

(e)           Accountants’ Statement. Together with each delivery of audited financial statements pursuant to Section 6.01(a), a written statement by the independent public accountants giving the report thereon stating (i) whether, in connection with their audit examination, any condition or event which constitutes a Default or an Event of Default arising from a breach of Section 7.14 as they relate to accounting matters has come to their attention, and if such a condition or event has come to their attention, specifying the nature and period of existence thereof; provided, that such accountants will not be responsible for any failure to obtain knowledge of a Default or Event of Default that would not be disclosed in the course of their audit examination, and (ii) that based on their audit examination nothing has come to their attention which causes them to believe that the information contained in the certificates as they relate to accounting matters delivered therewith pursuant to Section 6.01(a), is not correct or that the matters set forth in the Compliance Certificates delivered therewith for the applicable Fiscal Year are not stated in accordance with the terms of this Agreement;

 

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(f)            Current Reports. As soon as available and in any event no later than 10 Business Days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act (or such later time period provided for in Form 8-K promulgated by the SEC), the information that would have been required to be disclosed in such Current Report on Form 8-K (other than the information required under items 3.01, 3.02, 3.03, 5.02, 5.03, 5.04 and 5.05 of Form 8-K promulgated by the SEC); provided, that no such information will be required to be furnished if the Issuer determines in its good faith judgment that such information is not material to a Holder or the business, assets, operations, financial position or prospects of the Parent and its Subsidiaries, taken as a whole; and

 

(g)           (f) Other Reports. Promptly upon any request by Administrative Agent (on behalf of each Lender), a copy of any detailed audit reports by independent public accountants in connection with the accounts or books of the Parent or any Subsidiary thereof.

 

SECTION 6.02.   OTHER INFORMATION.

 

The Administrative Borrower (on behalf of each Borrower) will deliver to Administrative Agent (on behalf of each Lender), in form and detail satisfactory to Administrative Agent:

 

(a)           Equity Interest Holder Reports and Certain Public Filings. Promptly after the same are available, copies of each annual report, proxy or financial statement or other material report or communication sent to the holders of Equity Interests of the Parent in their capacity as stockholders and copies of all annual, regular, periodic and special reports and registration statements that the Parent or any of its Subsidiaries may file or be required to file with the SEC under Section 13 or Section 15(d) of the Exchange Act, and, in each case, not otherwise required to be delivered to Administrative Agent pursuant hereto;

 

(b)           Insurance Reports. Promptly upon Administrative Agent’s request, a copy of Loan Parties’ e-cert memorandum of insurance evidencing the Loan Parties’ insurance policies and limits.

 

(c)           Foreign Indebtedness. Within five days after the execution of any documents evidencing Foreign Indebtedness involving commitments to incur Indebtedness in excess of an aggregate amount of the Dollar Equivalent of $25,000,000, the Parent will deliver a complete, fully executed copy of such documents to Administrative Agent; and

 

(d)           Additional Information. Promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary thereof or compliance with the terms of the Loan Documents, as Administrative Agent may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, will be deemed to have been delivered on the date (i) on which the Parent posts such documents, or provides a link thereto on the Parent’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Parent’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided that: (i) the Parent will deliver paper copies of such documents to Administrative Agent upon its request to the Parent to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent and (ii) the Parent will notify Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to Administrative Agent by

 

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Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, maintain proper books of record and account, in which full, true and correct (in all material respects) entries in conformity with GAAP consistently applied are made of all financial transactions and matters involving their respective properties and businesses.

 

SECTION 6.09.   INSPECTION RIGHTS.

 

Each Borrower will, and will cause Loan Party and each Subsidiary thereof to, permit representatives and independent contractors of Administrative Agent and each Lender (which will be subject to confidentiality obligations of Administrative Agent and the Lenders pursuant to Section 10.07) to visit and inspect any of their respective properties, to examine their corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Administrative Borrower, on behalf of the Borrowers; provided that, unless an Event of Default has occurred and is continuing, the reasonable costs of only two such visits and related inspections during any calendar year, among all members of the Credit Group, will be borne by the Borrowers; provided, however, that, notwithstanding the foregoing, if and for so long as an Event of Default has occurred and is continuing, 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 Borrowers at any time and without advance notice and as many times as Administrative Agent or any Lender may require. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Borrower, Loan Party or 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 (a) 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, arm’s-length agreement with a third party or (b) is subject to attorney-client or similar privilege or constitutes attorney work product.

 

SECTION 6.10.   [RESERVED].

 

SECTION 6.11.   PAYMENT OF OBLIGATIONS.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, pay and discharge as the same will become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets the failure of which to pay could reasonably be expected to cause a Material Adverse Change, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such Person; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property (other than a Permitted Lien), except as could not reasonably be expected to cause a Material Adverse Change; and (c) all Indebtedness, as and when due and payable (but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness), except as could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 6.12.   COVENANT TO GUARANTEE OBLIGATIONS AND GRANT SECURITY.

 

Upon the formation or acquisition by any Loan Party of any new direct or indirect Domestic Subsidiary that constitutes a Material Subsidiary, or upon any Domestic Subsidiary becoming a Material Subsidiary as determined based on the most recent audited Consolidated financial statements or unaudited Consolidated financial statements, as the case may be, of the Parent and its Subsidiaries delivered to Administrative Agent pursuant to Sections 6.01(a) or (b), or upon any Subsidiary (other than a

 

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Subsidiary that is a Loan Party) providing a Guaranty of any Second Lien Debt, then the Borrowers will, in each case, at the Borrowers’ expense within thirty days (or such later time as may be agreed to by Administrative Agent in writing) after such formation or acquisition or, the delivery of such Consolidated financial statements or such Guaranty is entered into (as applicable), notify Administrative Agent in writing of any Domestic Subsidiary constituting a Material Subsidiary or any Subsidiary (other than a Subsidiary that is a Loan Party) providing a Guaranty of any Second Lien Debt (as applicable) and cause such Person (and in the case of a Subsidiary, cause each direct and indirect parent of such Subsidiary, if such parent is not already a Loan Party), to (i) duly execute and deliver to Administrative Agent a Joinder Agreement in the form attached to this Agreement as Exhibit C, satisfactory to Administrative Agent in its Reasonable Discretion, pursuant to which such Person is joined to this Agreement and becomes a Subsidiary Guarantor hereunder for all purposes of this Agreement, including Section 10.15, and the other Loan Documents, guaranteeing the other Loan Parties’ Obligations under the Loan Documents, (ii) grant a security interest in all personal property pursuant to the applicable Security Documents (subject to the exceptions specified in such Security Documents) owned by such Subsidiary and in such priority as may be required pursuant to the Intercreditor Agreement, (iii) deliver to the Administrative Agent such opinions, documents and certificates as may be reasonably requested by the Administrative Agent and (iv) deliver to the Administrative Agent such original certificated Equity Interests or other certificates and stock or other transfer powers evidencing the Equity Interests of such Person. Unless Administrative Agent and the Borrowers otherwise expressly agree in advance in writing that a particular Excluded Subsidiary will continue as or become a Guarantor, no Subsidiary that is an Excluded Subsidiary will be required to continue as or become a Guarantor under this Section 6.12. Any Person that ceases to constitute a Material Subsidiary (other than a Subsidiary providing a Guaranty of any Second Lien Debt) or that is or becomes an Excluded Subsidiary or, with respect to any Subsidiary that is not a Material Subsidiary, that ceases to provide a Guaranty of Second Lien Debt will be released from its obligations as a Subsidiary Guarantor as provided in Section 10.15(a). If as of the last day of the most recently ended Fiscal Year for which the Parent has delivered financial statements pursuant to Section 6.01(a) the aggregate gross revenue of the Subsidiaries that are Loan Parties was less than 90% of the Consolidated gross revenue of the Parent and its Subsidiaries (excluding that portion of revenues attributable to any Subsidiary that is an Excluded Subsidiary) for such Fiscal Year, then the Administrative Borrower shall promptly designate one or more additional Subsidiaries as Guarantors and the Borrowers shall cause any such designated Subsidiaries to comply with the provisions of Section 6.12 such that, after such designated Subsidiaries become Guarantors hereunder, the aggregate gross revenue of the Subsidiaries that are Loan Parties is 90% or more of the Consolidated gross revenue of the Parent and its Subsidiaries (excluding that portion of revenues attributable to any Subsidiary that is an Excluded Subsidiary) for such Fiscal Year, determined on a pro forma basis after giving effect to such designations.

 

SECTION 6.13.   PARI PASSU.

 

The Borrowers covenant and agree that the Obligations of the Borrowers will at all times rank at least pari passu with all other Indebtedness of the Borrowers, except to the extent permitted by Section 7.01.

 

SECTION 6.14.   FURTHER ASSURANCES.

 

In addition to the obligations and documents which this Agreement expressly requires any Borrower or any of its Subsidiaries (including any Loan Party) execute, acknowledge, deliver and perform, each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, execute and acknowledge (or cause to be executed and acknowledged) and deliver to Administrative Agent all documents, and take all actions, that may be reasonably requested by Administrative Agent or the Required Lenders from time to time hereunder to confirm the rights created or now or hereafter intended

 

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(h)           any interest or title of a lessor or sublessor under an operating lease;

 

(i)            any Lien securing a judgment for the payment of money not constituting an Event of Default under Section 8.01(h) or securing an appeal or other surety bond related to any such judgment;

 

(j)            any Lien existing on any property of any Target prior to the acquisition thereof pursuant to a Permitted Acquisition consummated after the ClosingFourth Amendment Effective Date; provided that (A) such Lien is not created in contemplation of or in connection with such Permitted Acquisition and (B) such Lien will secure only those obligations which it secures on the date when such Permitted Acquisition closes and is consummated, and any refinancing of such Indebtedness secured by such Liens to the extent permitted by Section 7.03; provided further that the principal amount of Indebtedness secured by all such Liens pursuant to this clause (j) (other than Liens that (1) attach to or otherwise encumber only specified real property, improvements and/or fixed assets of such Target, or are in the nature of a purchase money security interest or a Capital Lease, and (2) are not in the nature of a floating Liens) does not exceed $25,000,000 in the aggregate;

 

(k)           Liens in effect on the Third Amendment Effective Date and described on Schedule 7.01; provided that no such Lien will extend to any property other than: (i) property subject to such Lien on the date of this Agreement; (ii) after-acquired property to the extent such Lien includes a grant of a security interest in such after-acquired property; and (iii) products, proceeds, rents and profits of such property to the extent such Lien includes a grant of a security interest in such products, proceeds rents and profits;

 

(l)            Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost or fair market value (as reasonably determined in good faith by the Administrative Borrower), whichever is lower, of the property being acquired on the date of acquisition, and (iii) such security interests and the Indebtedness secured thereby are incurred prior to or within ninety days after such acquisition or the completion of such construction or improvement;

 

(m)          any Lien arising by virtue of any contractual, statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution or securities accounts; provided that such deposit account is not a dedicated cash collateral account in favor of such depository institution and is not otherwise intended to provide collateral security (other than for customary account commissions, fees and reimbursable expenses relating solely to such deposit account, and for returned items);

 

(n)           Liens in the form of cash collateral securing reimbursement obligations under letters of credit and Bank Undertakings not issued by a L/C Issuer hereunder but permitted by Section 7.03(o);

 

(o)           any right of a licensee under any license agreement for the use of intellectual property or other intangible assets of any Borrower or any Subsidiary thereof as to which such Borrower or Subsidiary is the licensor permitted under Section 7.05;

 

(p)           any right of a licensor under any license agreement for the use of intellectual property or other intangible assets as to which any Borrower or any Subsidiary thereof is the licensee;

 

(q)           any Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Loan Party or Significant Subsidiary in the ordinary course of business not materially interfering with the conduct of the business of the Parent and its Subsidiaries taken as a whole;

 

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(r)            any leases granted to others in the ordinary course of business not interfering, alone or in the aggregate, with the conduct of the business of the Parent and its Subsidiaries taken as a whole;

 

(s)            real estate security deposits with respect to leaseholds in the ordinary course of business;

 

(t)            Permitted Encumbrances;

 

(u)           customary Liens securing obligations under Permitted Receivables Financings;

 

(v)           Liens securing Indebtedness permitted by Section 7.03(r), which Liens shall be subject to, (i) with respect to the Indebtedness permitted under Section 7.03(r)(i), the Intercreditor Agreement or, (ii) with respect to any Indebtedness permitted under Section 7.03(r)(ii), the Intercreditor Agreement or an intercreditor agreement in form and substance substantially the same as the Intercreditor Agreement with such changes as the Administrative Agent may reasonably approve; and

 

(w)          (v) other Liens securing outstanding Indebtedness not to exceed an aggregate amount when incurred equal to the greater of (i) 2% of Consolidated Tangible Assets as of the last day of the immediately preceding fiscal quarter for which financial statements are available and (ii) $50,000,000.

 

SECTION 7.02.   INVESTMENTS.

 

Make any Acquisition or enter into any agreement to make any Acquisition, or make, purchase or acquire any Investment, except in each case as may be permitted by unless such action is (1) permitted under the Second Lien Indenture at such time and (2) permitted under one or more of the following clauses of this Section 7.04 or except for:

 

(a)           Investments in Cash and Cash Equivalents in the ordinary course of business pursuant to the Borrowers’ usual and customary cash management policies and procedures;

 

(b)           any Permitted Acquisition; provided that, at the time such Permitted Acquisition is completed, the Additional Transaction Condition is met and the Administrative Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer confirming the satisfaction of the condition set forth in this proviso;

 

(c)           Guarantees constituting Indebtedness to the extent permitted by Section 7.03(c);

 

(d)           Investments in any Loan Party and any Subsidiary that is not a Joint Venture;

 

(e)           Investments in the form of any Swap Contracts which are entered into not for speculative purposes but to hedge or mitigate risks to which a Borrower or any Subsidiary has perceived exposure (other than those in respect of the capital stock of a Borrower or any of its Subsidiaries); provided, that at the time any such Swap Contract is entered into, the Swap Termination Value of all outstanding Swap Contracts of the Loan Parties and their respective Subsidiaries, as determined on a Consolidated basis as of the last day of the Fiscal Period most recently ended for which the Issuer has delivered financial statements pursuant to Section 6.01(a) or 6.01(b), is $30,000,000 or less;

 

(f)            Investments existing on the Third Amendment Effective Date and set forth on Schedule 7.02;

 

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(g)           Investments in Joint Ventures arising in the ordinary course of business consistent with past practice;

 

(h)           Investments permitted by Section 7.03; and

 

(i)                            additional Investments by the Borrowers and Significant Subsidiaries in the aggregate amount invested after the Closing Date of $100,000,000; provided that (A) such Investments will be in Targets or other Persons engaged in one or more business activities that are of a type substantially similar, or reasonably related, to those engaged in by the Borrowers and their Subsidiaries as of the date of this Agreement and (B) such $100,000,000 cap shall be reduced to $25,000,000 to the extent the Additional Transaction Condition is not met at the time of any such Investment; provided, however, no Default or Event of Default shall occur as a result of the Borrowers and Significant Subsidiaries exceeding the cap contained in this clause (i) solely as a result of a reduction in the cap pursuant to this clause (B) (to the extent such Investment was permitted at the time made).

 

SECTION 7.03.   INDEBTEDNESS.

 

Create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except unless (1) such Indebtedness would be permitted under the Second Lien Indenture at the time of such incurrence and (2) such Indebtedness is permitted under one or more of the following clauses of this Section:

 

(a)           Indebtedness under this Agreement and the other Loan Documents or relating to any Bank Product;

 

(b)           Indebtedness outstanding on the Third Amendment Effective Date and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the amount paid, and fees and expenses incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;

 

(c)           contingent obligations with respect to (i) performance guarantees and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Borrowers and their Subsidiaries and (ii) the sale of accounts receivable as permitted under Section 7.05(j);

 

(d)           Swap Contracts permitted pursuant to Section 7.02(e);

 

(e)           Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations incurred to finance the acquisition, construction or improvement of fixed or capital assets (excluding real property) within the limitations set forth in Section 7.01(l); provided, however, that (i) such Indebtedness is incurred prior to or within ninety days after such acquisition or the completion of such construction or improvement and (ii) the aggregate amount of all such Indebtedness at any one time outstanding will not exceed $100,000,000;

 

(f)            endorsements for collection or deposit and Indebtedness of the Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums, in each case in the ordinary course of business;

 

(g)           unsecured Indebtedness in the form of intercompany loans made by and between the Parent and its Subsidiaries and by and between Subsidiaries in connection with the internal cash

 

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management system maintained the Borrowers and their Subsidiaries substantially as in effect on the Closing Date, or Guarantees by the Loan Parties or their Significant Subsidiaries of Indebtedness of any of their Subsidiaries to the extent necessary to support the normal operating activities of such Subsidiaries;

 

(h)           unsecured Indebtedness in respect of (i) notes issued to former employees for the purchase price of stock redeemed by the Parent in accordance with the stock repurchase requirements set forth in the Parent’s bylaws in effect as of the Closing Date, (ii) notes issued in the purchase by the Parent of shares of its common stock under the repurchase rights set forth in the Parent’s bylaws in effect as of the Closing Date, (iii) notes issued in the purchase by the Parent of shares of its common stock on the internal market to balance the supply and demand for common stock between sellers and buyers, and (iv) notes issued to employees or former employees upon the exercise of (or in satisfaction of) stock appreciation rights or to pay or satisfy rights under a phantom stock plan;

 

(i)            Indebtedness

 

A.            of the Parent resulting from the private placement of long-term senior unsecured notes; provided, however, the Parent will be required to provide evidence satisfactory to Required Lenders that (i) the obligations arising under such long-term senior unsecured notes rank pari passu or junior in right of payment to the Obligations under this Agreement and the other Loan Documents and (ii) on a pro forma basis, after giving effect to the issuance of the long-term senior unsecured notes, (I) no Default or Event of Default will exist and that, (II) the Borrowers will remain in compliance with each of the financial covenants set forth in Section 7.14 upon the occurrence of an additional $1.00 of Indebtedness and (III) the Consolidated Leverage Ratio will be no greater than 3.75:1.00; and

 

B. of any Loan Party consisting of senior notes (including Guarantees by any Loan Party of such Indebtedness incurred by a subsidiary of such Loan Party); provided that in the case of Indebtedness incurred pursuant to this clause (B), (i) such Indebtedness shall be unsecured, (ii) on a pro forma basis, after giving effect to such Indebtedness, (I) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.14,7.14 and (II) the Consolidated Leverage Ratio will be no greater than 3.75:1.00, (iii) the representations, covenants and events of default in respect of such Indebtedness (other than interest rate and fees) are no more restrictive on the applicable obligor than the representations, covenants and Events of Default hereof and (iv) the maturity date of such Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date and such Indebtedness shall not be subject to amortization or mandatory prepayment prior to such date;

 

(j)            Indebtedness in respect of accounts payable and accrued expenses incurred in the ordinary course of business which in the aggregate could not reasonably be expected to cause a Material Adverse Change;

 

(k)           Indebtedness arising from judgments not constituting an Event of Default under Section 8.01(h);

 

(l)            (i) unsecured Indebtedness assumed in connection with Permitted Acquisitions and (ii) secured Indebtedness assumed in connection with Permitted Acquisitions to the extent the Liens securing such Indebtedness (if any) are permitted under Section 7.01;

 

(m)          Earnouts incurred in connection with Permitted Acquisitions;

 

(n)           Indebtedness and all commitments to incur Indebtedness incurred by Significant Subsidiaries that are Foreign Subsidiaries in currencies other than Dollars in an aggregate amount not to

 

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exceed the Dollar Equivalent of $50,000,000 at any one time outstanding or committed (“Foreign Indebtedness”), including Guarantees by any Loan Party or Significant Subsidiary of Foreign Indebtedness, in each case so long as (i) no Event of Default has occurred and is continuing or will occur as a result of the incurrence or Guarantee of such Foreign Indebtedness and (ii) within five days after the closing of any financing transaction involving the incurrence or commitments to incur Foreign Indebtedness in excess of an aggregate amount of the Dollar Equivalent of $25,000,000, the Administrative Borrower will deliver to Administrative Agent drafts of the material loan documentation related to such Foreign Indebtedness in substantially final form;

 

(o)           to the extent the Administrative Borrower, on behalf of the Borrowers, requests the issuance of a Credit pursuant to Section 2.04 and no L/C Issuer is able or willing to issue such Credit under this Agreement, whether because the issuance of such Credit cannot be made in accordance with the conditions of Section 2.04 or otherwise, the Borrowers may request banks and other issuers of letters of credit or independent undertakings within the meaning of, and complying with the requirements of, 12 C.F.R. §7.1016 as to which the issuer’s obligation to honor depends upon the presentation of specified documents and not upon non-documentary conditions or resolution of any questions of fact or law (such undertakings referred to in this clause (o) and the definition of Middle East Letters of Credit as “bank undertakings”) to issue standby and commercial letters of credit and bank undertakings instead of such requested Credit up to an aggregate amount available and undrawn or drawn and unreimbursed at any time for all such letters of credit and bank undertakings issued other than under this Agreement of up to a Dollar Equivalent of $150,000,000 (exclusive of fluctuations in foreign exchange rates after the date of issuance); provided, that, notwithstanding the foregoing, without requesting the issuance of a Credit pursuant to Section 2.04 and whether or not any L/C Issuer is able or willing to issue such Credit under this Agreement, the Administrative Borrower may request the issuance of Middle East Letters of Credit from banks or other issuers of letters of credit or bank undertakings that are not L/C Issuers (for the avoidance of doubt, the other restriction set forth in this clause (o) shall apply (including such $150,000,000 aggregate limit) to such Middle East Letters of Credit);

 

(p)           Indebtedness of any Loan Party or any Significant Subsidiary secured only by a mortgage or deed of trust on real property owned by such Loan Party or Subsidiary in the aggregate principal amount for all such mortgage financings of the Loan Parties and their Subsidiaries not to exceed $50,000,000 outstanding at any time;

 

(q)           Subordinated Debt of any Loan Party or any Significant Subsidiary; provided that (i) such Indebtedness shall be unsecured, (ii) such Indebtedness shall be subordinated to the Obligations, (iii) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.14, after giving effect to such Indebtedness on a pro forma basis, (iv) the representations, covenants and events of default in respect of such Indebtedness (other than interest rate and fees) are no more restrictive on the applicable obligor than the representations, covenants and Events of Default hereof and (v) the maturity date of such Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date and such Indebtedness shall not be subject to amortization or mandatory prepayment prior to such date;

 

(r)           (i) Indebtedness incurred on the Fourth Amendment Effective Date pursuant to the Second Lien Indenture in an aggregate principal or face amount of up to $250,000,000 and (ii) additional Indebtedness and Indebtedness that replaces, refunds or refinances the Second Lien Indenture or such additional Indebtedness (“Second Lien Refinancing Indebtedness”), in each case secured by Liens on the Collateral, which Liens are expressly subordinated to the Liens on the Collateral securing the Secured Obligations pursuant to Section 7.01(v)(ii), including any amendment, supplement, modification, extension, renewal, restatement or amendment and restatement of the Second Lien Indenture, such additional Indebtedness or Second Lien

 

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Refinancing Indebtedness, provided, however, (A) the representations, covenants and events of default in respect of such additional Indebtedness or Second Lien Refinancing Indebtedness (in each case other than (1) pricing, interest rate, fees, premiums, rate floors, optional prepayment or redemption terms and security and (2) any representations, covenants and events of default applicable only to periods after the Revolving Credit Maturity Date) are, taken as a whole and in the good faith judgment of the Administrative Borrower, no more restrictive on the applicable obligors than the representations, covenants and events of default, taken as a whole, of the Second Lien Indenture or Indebtedness being replaced, refunded or refinanced, as applicable, (B) the final maturity date of such additional Indebtedness or Second Lien Refinancing Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date, (C) as of the date of incurrence of such additional Indebtedness or Second Lien Refinancing Indebtedness, as applicable, no Default or Event of Default will exist and (D) (x) in the case of any such additional Indebtedness, the Borrowers shall demonstrate, on a pro forma basis after giving effect to the issuance of such additional Indebtedness or Second Lien Refinancing Indebtedness, as applicable, and the use of proceeds therefrom, that the Consolidated Leverage Ratio will be no greater than 3.50:1.00 and (y) in the case of any Indebtedness that replaces, refunds or refinances the Second Lien Indenture or such additional Indebtedness, such replacement, refunding or refinancing does not result in an increase in the principal amount of the Indebtedness so replaced, refunded or refinanced other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto; and

 

(s)            (r) in addition to the other Indebtedness permitted under this Section 7.03, Indebtedness of the Parent and any of its Subsidiaries, taken together, in the aggregate principal amount outstanding at any time not to exceed $150,000,000 and, in the case of any Loan Party, ranking pari passu or junior in right of payment to the Obligations under this Agreement and the other Loan Documents; provided, however, no more than $50,000,000 of such Indebtedness may be secured by Permitted Liens.

 

SECTION 7.04.   Fundamental Changes.

 

Merge, dissolve, liquidate, recapitalize, consolidate with or into another Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:

 

(a)           any Loan Party may merge or consolidate with any Domestic Subsidiary; provided that (i) such Loan Party will be the continuing or surviving Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (A) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (B) concurrently with the effectiveness of such merger or consolidation, the continuing or surviving Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation;

 

(b)           any Significant Subsidiary may merge or consolidate with (i) any Loan Party, provided that (A) such Loan Party will be the continuing or surviving Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic

 

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(f)            licenses for the use of intellectual property or other intangible assets; provided that, (i) in the case of any such license granted on an non-exclusive basis, such license will be in the ordinary course of such licensor’s business, and (ii) in the case of any such license granted on an exclusive basis, such licensor has determined in its reasonable business judgment that such intellectual property or other intangible assets are not likely to be otherwise monetized by the Borrowers and Significant Subsidiaries in the ordinary course of their respective businesses;

 

(g)           Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;

 

(h)           Dispositions of Cash and Cash Equivalents in the ordinary course of business and Dispositions in respect of any Bank Products;

 

(i)            Dispositions of assets for cash or other property if all of the following conditions are met: (i) such assets (valued at book value) do not constitute a “substantial part” (as defined below) of the assets of the Parent and its Subsidiaries taken as a whole; and (ii) with respect to such disposition of assets that in the aggregate, exceed $100,000,000 (valued at book value), a Responsible Officer of the applicable transferor will certify to Administrative Agent that: (A) the sale is for reasonably equivalent value, (B) is in the best interests of such transferor and (C) immediately after the consummation of the transaction and after giving effect thereto, no Default or Event of Default would exist. For purposes of this Section 7.05(i), a sale of assets will be deemed to involve a “substantial part” of the assets of the Parent and its Subsidiaries taken as a whole if the book value of such assets, together with all other assets sold in reliance upon this Section 7.05(i) during the same Fiscal Year (except those assets sold pursuant to clauses (a) through (h) of this Section 7.05), equals 10.00% or more of the Consolidated total assets of the Parent and its Subsidiaries taken as a whole determined as of the end of the immediately preceding Fiscal Year; and

 

(j)            Eligible Receivables sold in any Permitted Receivable Financing; provided that the face amount of Program Receivables proposed to be sold plus the aggregate face amount of Eligible Receivables previously sold in all other Permitted Receivables Financings made since the Closing Date may not exceed 5% of Eligible Receivables determined as of the last day of the Fiscal Period most recently ended before such proposed sale for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b).

 

SECTION 7.06.   RESTRICTED PAYMENTS.

 

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except thatunless (1) such Restricted Payment would be permitted to be made under the Second Lien Indenture at the time of such proposed Restricted Payment and (2) such Restricted Payment would be permitted under one or more of the following clauses of this Section:

 

(a)           in the case of any Loan Party (other than the Parent) or any Significant Subsidiary, such Loan Party or Significant Subsidiary may declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, in respect of Restricted Payments to any Loan Party and to wholly-owned Subsidiaries of any Loan Party (and, in the case of a Restricted Payment by a non-wholly-owned Significant Subsidiary, to the owners of Equity Interests of such Significant Subsidiary, in respect of which such Restricted Payment is declared, made and/or incurred, on a pro rata basis based on their relative ownership interests);

 

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Enter into any transaction, directly or indirectly, with or for any Affiliate of a Borrower (other than another Borrower or any Subsidiary) except (a) on a basis no more favorable to such Affiliate than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Borrower, (b) any transaction involving assets that are not material to the business and operations of the Borrowers or the Subsidiaries involved in such transaction or (c) any transaction related to any Bank Products.

 

SECTION 7.08.   BURDENSOME AGREEMENTS.

 

Except as provided in this Agreement or another Loan Document, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on such Loan Party’s or Significant Subsidiary’s ability to (a) pay dividends or make any other distributions on any of its Equity Interests, (b) repay or prepay any Indebtedness owed by such Loan Party or Significant Subsidiary to any Borrower or any other Subsidiary of the Borrowers, (c) make loans or advances to any Borrower or any other Subsidiary of the Borrowers or (d) transfer any of its property or assets to any Borrower or any other Subsidiary of the Borrowers, in each case other than (i) customary non-assignment provisions of leases, subleases and sublicenses and similar agreements and in other contracts (and applicable solely to the rights and obligations under such contracts), (ii) with respect to the specific property to be sold pursuant to an executed agreement in connection with a Disposition permitted under Section 7.05, (iii) encumbrances or restrictions under documents with respect to Indebtedness permitted under (A) Section 7.03(b) (provided that the encumbrances or restrictions under documents with respect to any refinancing, refunding, renewal or extension of such Indebtedness are not materially more restrictive than the encumbrances or restrictions under the Indebtedness being refinanced, refunded, renewed or extended) or (B) Section 7.03(e), (iv) pursuant to any Permitted Lien, (v) pursuant to terms subordinating intercompany Indebtedness to claims of pension trustees and, (vi) pursuant to the terms of any Bank Products, and (vii) encumbrances or restrictions contained in the Second Lien Documents, the Intercreditor Agreement or any other documents governing Second Lien Debt, any Incremental Term Loans or any Hedging Agreements.

 

SECTION 7.09.   USE OF PROCEEDS.

 

Use any portion of the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) if and to the extent doing so would result in a violation of Regulation T, U or X of the FRB by any Lender or to extend credit to others for the purpose of purchasing or carrying margin stock if and to the extent doing so would result in a violation of Regulation T, U or X of the FRB by any Lender or to refund indebtedness originally incurred for such purpose or (b) for any other purpose other than (i) to refinance all of the Indebtedness under the Original Credit Agreement, (ii) to fund the Transaction Costs and (iii) to fund the ongoing working capital and general corporate needs of the Borrowers and their Subsidiaries (including Permitted Acquisitions), to the extent permitted by the Loan Documents and in all material respects by applicable Law.

 

SECTION 7.10.   MAINTENANCE OF BUSINESS

 

From and after the Closing Date, engage in any business other than the types of business activities in which the Parent and its Subsidiaries engage as of the date of this Agreement and business activities reasonably related or complementary thereto.

 

SECTION 7.11.   AMENDMENTS OF ORGANIZATION DOCUMENTS.

 

Amend or modify any Organizational Document of any Loan Party in any way could reasonably be expected to cause a Material Adverse Change (including the ability of the Loan Parties to pay the

 

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Obligations in full when and as payable under the Loan Documents). Each Borrower will give Administrative Agent written notice of any rescission or modification of its resolutions delivered to the Administrative Agent pursuant to Section 4.01(a). For the avoidance of doubt, this Section 7.11 will not restrict or effect any transaction permitted by Section 7.04.

 

SECTION 7.12.   ACCOUNTING CHANGES.

 

Make any change in (a) accounting policies or financial reporting practices or (b) the Fiscal Year, in each case except as required by GAAP, as contemplated by the definitions of “Fiscal Period” and “Fiscal Year” or as required to implement any such change.

 

SECTION 7.13.   PREPAYMENTS OF INDEBTEDNESS.

 

Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any(i) any Second Lien Debt and (ii) any other Indebtedness, if (A) such prepayment would, on a pro forma basis, cause a Default or Event of Default hereunder or (B) such prepayment is prohibited by the Second Lien Indenture; provided that the provisions of this Section 7.13 will not apply to (i) the prepayment of the Loans in accordance with the terms of this Agreement or (ii) the prepayment of obligations under the Borrowers’ internal cash management system substantially similar to the system in effect on the Closing Date; provided further that any redemptions and repayments of Second Lien Debt shall be permitted:

 

(a)           in an aggregate principal amount not to exceed $25,000,000 so long as (i) the Borrowers shall be in compliance with the financial covenants set forth in Section 7.14 after giving pro forma effect to the making of any such redemption or prepayment; (ii) the Loan Parties shall have Minimum Liquidity of not less than $300,000,000 after giving pro forma effect to any such redemption or prepayment and (iii) immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing;

 

(b)           if made (i) solely with any Second Lien Debt, Subordinated Debt or any Indebtedness permitted under Section 7.03 not secured by any Collateral (“Permitted Unsecured Debt”), (ii) in an aggregate amount equal to the amount of net proceeds received by any Borrower or Guarantor from the incurrence or issuance of such Second Lien Debt, such Subordinated Debt or Permitted Unsecured Indebtedness or (iii) a combination of such Second Lien Debt, such Subordinated Debt, Permitted Unsecured Indebtedness and net proceeds, so long as the Borrowers shall demonstrate pro forma compliance (after giving effect to any such redemption or prepayment) with the financial covenants set forth in Section 7.14 and immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing; and

 

(c)           if made (i) solely in Equity Interests (other than Disqualified Equity Interests) of the Parent, (ii) in an aggregate amount equal to the amount of proceeds received by the Parent from the issue of new Equity Interests (other than Disqualified Equity Interests) of the Parent or (iii) a combination of such Equity Interests (other than Disqualified Equity Interests) and proceeds, so long as the Borrowers shall demonstrate pro forma compliance (after giving effect to any such redemption or prepayment) with the financial covenants set forth in Section 7.14 and immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing.

 

41











 

SECTION 7.14.   FINANCIAL COVENANTS.

 

(c)   (a) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio, as determined as of the last day of each Fiscal Period, to be less than 1.50:1.00.

 

(d)   (b) Maximum Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio to exceed 3.00:1.00, as determined as of the last day of each Fiscal Period; provided that, following the date on which the aggregate amount of all Qualified Acquisitions consummated during the prior twelve month period is equal to or greater than $150,000,000, the Consolidated Leverage Ratio at the end of each of the four (4) Fiscal Periods following such date, shall be no greater than 3.25:1.00.4.00:1.00, as determined as of the last day of each Fiscal Period ended on or after March 31, 2017.

 

(e)   Maximum Consolidated First Lien Leverage Ratio. Permit the Consolidated First Lien Leverage Ratio to exceed 3.00:1.00, as determined as of the last day of each Fiscal Period.

 

For purposes of calculating compliance with the financial covenants in this Section 7.14, the Fourth Amendment to Credit Agreement, dated as of the Fourth Amendment Effective Date, by and among the Loan Parties, the Lenders party thereto, the Administrative Agent and the Collateral Agent, and the incurrence of the initial borrowing by the Loan Parties under the Second Lien Indenture on the Fourth Amendment Effective Date shall be deemed to have occurred on March 31, 2017.

 

SECTION 7.15.   AMENDMENTS OF CERTAIN DEBT

 

The Loan Parties will not, nor will they permit any Subsidiary to, without the prior written consent of the Required Lenders, amend, modify, waive or extend or permit the amendment, modification, waiver or extension of any term of any document governing or relating to any Indebtedness incurred pursuant to Sections 7.03(i) or (q) unless the criteria for such Indebtedness set forth in Sections 7.03(i) or (q) (as applicable) continue to be met after such amendment, modification, waiver or extension. The Loan Parties will not, nor will they permit any Subsidiary to, without the prior written consent of the Required Lenders, amend, modify, waive or extend or permit the amendment, modification, waiver or extension of any term of any Second Lien Document or other document governing or relating to any Second Lien Debt to which they are parties, except (a) as permitted by the Intercreditor Agreement or other intercreditor agreement relating to such Indebtedness or (b) in connection with any replacement, refinancing, amendment, supplement, modification, extension, renewal, restatement or refunding of any Second Lien Debt, in each case, that is permitted under Section 7.03.

 

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES

 

SECTION 8.01.   EVENTS OF DEFAULT.

 

Each of the following will constitute an event of default hereunder (each, an “Event of Default’):

 

(a)           Non-Payment. The Borrowers fail to pay on the date and in the manner required to be paid hereunder or under any of the Loan Documents, (i) any amount of principal of any Loan or any L/C Obligation or deposit of funds as Cash Collateral in respect of L/C Obligations, (ii) any interest on any Loan or on any L/C Obligation, or any fee due hereunder or under any other Loan Document, or (iii) any other Obligation or amount payable hereunder or under any other Loan Document (in each case other than any Bank Product Debt), and in each case under the foregoing clauses (ii) or (iii) of this Section 8.01(a) such failure continues for three Business Days; or

 

42











 

(b)           Specific Covenants. Any Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a), Section 6.04, Section 6.06, Section 6.12, or Article VII; or any Guarantor fails to perform or observe any term, covenant or agreement contained in its Guaranty (including any failure of any Subsidiary Guarantor to perform or observe any term, covenant or agreement contained in Section 10.15) except in relation to any Bank Product Debt; or the Parent or any other Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01 or Section 6.02 and such failure continues for five Business Days; or

 

(c)           Representations and Warranties. Any representation, warranty, statement or certification made by any Loan Party or any of its Subsidiaries herein or in any other Loan Document or in any other document, instrument or Record delivered or made available to Administrative Agent or any other Lending Party in connection with any Loan Document proves to be untrue, incorrect or misleading in any material respect (except that such materiality qualifier will not be applicable to any representation, warranty, statement or certification that is already qualified or modified by materiality in the text thereof) as of the date when made or deemed to have been made or repeated; or

 

(d)           Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a), Section 8.01(b) or Section 8.01(c)) contained in this Agreement or any other Loan Document (in each case other than any covenant or agreement made by a Loan Party in favor of a Bank Product Provider in respect of Bank Products) on its part to be performed or observed and such failure continues for thirty days after an Responsible Officer of any Borrower becomes aware, or reasonably should have become aware thereof, whether by notice thereof by Administrative Agent or any Lending Party or otherwise; or

 

(e)           Cross-Default. (i) Any Loan Party or Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise and after giving effect to any grace period) in respect of anyIndebtedness under any Second Lien Facility or any other Indebtedness (other than Indebtedness hereunder, Bank Product Debt and Indebtedness under Swap Contracts having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount; or (B) fails to observe or perform any other agreement or condition relating anyto such Indebtedness under any Second Lien Facility or such other Indebtedness or contained in any document evidencing, securing or relating to any of the foregoing, or any other default or event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders), as the case may be, to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity (including the foreclosure or similar action on any Lien securing such Indebtedness); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (1) any event of default under such Swap Contract as to which any Borrower or any of its Subsidiaries is the Defaulting Party (as defined in such Swap Contract) or (2) any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or

 

(f)            Insolvency; Voluntary Proceedings. Any Loan Party or any Material Subsidiary thereof (i) ceases or fails to be Solvent (for purposes of this Section 8.01(f), determined without regard to any intercompany payables), or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) except as permitted under Section 7.04, voluntarily liquidates, dissolves or ceases to conduct its business

 

43











 

Each Lending Party and Bank Product Provider hereby (a) irrevocably authorizes Administrative Agent to execute and deliver all documentation reasonably requested to evidence the release of any Guarantor from its obligations under a Guaranty if such Person ceases to be a Material Subsidiary, whether as a result of a transaction permitted hereunder or otherwise by operation of the definition of “Material Subsidiary” or is or becomes an Excluded Subsidiary, (b) irrevocably authorizes Administrative Agent to release any Lien on any Collateral granted to or held by the Administrative Agent under any Credit Document (i) upon termination of the Commitments and payment in full of all Secured Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent (to the extent the Administrative Agent is a party to such arrangements) and the applicable L/C Issuers shall have been made), (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, (iii) that is property of a Guarantor released from its obligations under a Guaranty in accordance with the Loan Documents, or (iv) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders, (c) irrevocably authorizes Administrative Agent to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(l) and (d) agrees that, upon request by Administrative Agent at any time, it will confirm in writing Administrative Agent’s authority to execute and deliver such documentation pursuant to this Section 9.10. Without limiting the generality of the foregoing, each Lending Party and Bank Product Provider hereby (x) agrees that with respect to the Liens on any Collateral referenced in clause (b)(ii) above, such Liens shall be automatically released at the time of a Disposition of such Collateral permitted under any Loan Document, and (y) irrevocably authorizes Administrative Agent to execute and deliver all documentation reasonably requested to effect the release of any such Liens granted to or held by the Administrative Agent under any Loan Document.

 

SECTION 9.11.   LEGAL REPRESENTATION OF ADMINISTRATIVE AGENT.

 

In connection with the negotiation, drafting, and execution of this Agreement and the other Loan Documents, or in connection with future legal representation relating to loan administration, amendments, modifications, waivers, or enforcement of remedies, King & Spalding, LLP (“K&S”) only has represented and only will represent Wells Fargo in its capacity as Administrative Agent and as a Lending Party and Wells Fargo Securities, LLC in its capacity as the “left lead” Arranger. Each other Lending Party hereby acknowledges that K&S does not represent it in connection with any such matters

 

SECTION 9.12.   SECURED HEDGEHEDGING AGREEMENTS AND SECURED CASH MANAGEMENT

 

AGREEMENTS.

 

Notwithstanding anything to the contrary herein or in any other Loan Document, no Bank Product Provider that obtains the benefits of Section 8.04 or any Collateral by virtue of the provisions hereof or of any Security 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 IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Bank Products unless the Administrative Agent has received written notice of such Bank Product, together with such supporting documentation as the Administrative Agent may request, from the applicable Bank Product Provider.

 

SECTION 9.13.   CREDIT BIDDING.

 

44











 

SECTION 10.14.     USA PATRIOT ACT NOTICE.

 

Each Lending Party that is subject to the PATRIOT Act and Administrative Agent (for itself and not on behalf of any Lending Party) hereby notifies the Borrowers that, pursuant to the requirements of the PATRIOT Act, they are each required to obtain, verify and record information that identifies the Borrowers and each other Loan Party, which information includes the name and address of the Borrowers and each other Loan Party and other information that will allow such Lending Party or Administrative Agent, as applicable, to identify the Borrowers and each other Loan Party in accordance with the PATRIOT Act.

 

SECTION 10.15.     GUARANTY BY SUBSIDIARIES.

 

(a)           Guaranty. Each Domestic Subsidiary of the Borrowers that is a Material Subsidiary party hereto (each, a “Subsidiary Guarantor”) jointly and severally, unconditionally and irrevocably guarantees to Administrative Agent, Lending Parties and the Bank Product Providers the full and prompt payment when due (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of the Obligations and all Bank Product Debt (the “Guaranteed Obligations”); provided, however, that no Excluded Subsidiary shall become a Subsidiary Guarantor unless Administrative Agent and the Borrowers expressly agree in advance in writing and no Subsidiary that is a Borrower shall be a Subsidiary Guarantor. The Guaranteed Obligations include interest that, but for a proceeding under any Bankruptcy Law, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against the Borrowers for such interest in any such proceeding. Notwithstanding the foregoing, (i) if (A) any Subsidiary Guarantor that has been a Material Subsidiary ceases to be a Material Subsidiary for a period of twelve consecutive months, and (B) no Event of Default has occurred and is continuing as of the end of such twelve consecutive month period, or (ii) if any Subsidiary Guarantor is or becomes an Excluded Subsidiary, then in either case under the preceding clauses (i) and (ii), upon the Administrative Borrower’s written notification to Administrative Agent of the satisfaction of the conditions necessary to release such Subsidiary Guarantor, such Subsidiary Guarantor will be released as a Subsidiary Guarantor hereunder upon Administrative Agent’s subsequent written acknowledgement of such release (such acknowledgement not to be unreasonably withheld); provided that no such release shall occur if such Subsidiary Guarantor, following such release, will continue to Guarantee any Second Lien Debt. Any Subsidiary required to become a Subsidiary Guarantor hereunder solely because such Subsidiary provides a Guaranty with respect to any Second Lien Debt will be released as a Subsidiary Guarantor hereunder if such Subsidiary Guarantor ceases to provide a Guaranty with respect to any Second Lien Debt upon Administrative Agent’s subsequent written acknowledgement of such release (such acknowledgement not to be unreasonably withheld).

 

(b)           Separate Obligation. Each Subsidiary Guarantor acknowledges and agrees that (i) the Guaranteed Obligations are separate and distinct from any Indebtedness arising under or in connection with any other document, including under any provision of this Agreement other than this Section 10.15 or any Bank Product, executed at any time by such Subsidiary Guarantor in favor of Administrative Agent, any Lending Party or any Bank Product Provider; and (ii) such Subsidiary Guarantor will pay and perform all of the Guaranteed Obligations as required under this Section 10.15, and Administrative Agent, Lending Parties and Bank Product Providers may enforce any and all of their respective rights and remedies hereunder, without regard to any other document, including any provision of this Agreement other than this Section 10.15 and Section 10.03, at any time executed by such Subsidiary Guarantor in favor of Administrative Agent, any Lending Party or any Bank Product Provider, irrespective of whether any such other document, or any provision thereof or hereof, will for any reason become unenforceable or any of the Indebtedness thereunder will have been discharged, whether by performance, avoidance or otherwise. Each Subsidiary Guarantor acknowledges that, in providing benefits to the Borrowers, Administrative Agent, Lending Parties and Bank Product Providers are relying upon the enforceability of

 

45











 

unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)           the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b)           the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)            a reduction in full or in part or cancellation of any such liability;

 

(ii)           a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)          the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

 

SECTION 10.22. INTERCREDITOR AGREEMENT.

 

REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER, SWING LINE LENDER AND ISSUING BANK HEREUNDER (a) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (b) AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN AGENT” AND ON BEHALF OF SUCH LENDER, SWING LINE LENDER AND ISSUING BANK. THE PROVISIONS OF THIS SECTION 10.22 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER, SWING LINE LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER, SWING LINE LENDER AND ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.

 

SECTION 10.23. CONFLICTS.

 

Notwithstanding anything to the contrary contained herein and in any other Loan Document (but excluding the Intercreditor Agreement), in the event of any conflict or inconsistency between the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control, except to the extent that the conflict or inconsistency relates to any provision of this Agreement or any other Loan Document the amendment or waiver of, or consent to the departure from, which would require the approval of any Lender other than the Required Lenders (and their respective successors and assigns)

 

[SIGNATURE PAGES FOLLOW.]

 

46












 

EXHIBIT B

 

Schedules 2.02 and 2.03

 

(as amended and restated by Section 1.1 of this Amendment)

 

Schedule 2.02

Lenders; Commitments; Percentage Shares

(as of the Fourth Amendment Effective Date)

 

	
Lender
    	
 
    	
Revolving Credit
   Commitment
    	
 
    	
Percentage Share of
   Aggregate
   Commitments
    	
 
    
	
Wells Fargo   Bank, National Association
    	
 
    	
$
    	
120,113,636.38
    	
 
    	
13.727272727
    	
%
    
	
JPMorgan Chase   Bank, N.A.
    	
 
    	
$
    	
120,113,636.36
    	
 
    	
13.727272727
    	
%
    
	
The Bank of Tokyo-Mitsubishi   UFJ, Ltd.
    	
 
    	
$
    	
120,113,636.36
    	
 
    	
13.727272727
    	
%
    
	
BNP Paribas
    	
 
    	
$
    	
96,250,000.00
    	
 
    	
11.000000000
    	
%
    
	
Bank of America,   N.A.
    	
 
    	
$
    	
79,545,454.54
    	
 
    	
9.090909091
    	
%
    
	
HSBC Bank USA,   N.A.
    	
 
    	
$
    	
79,545,454.54
    	
 
    	
9.090909091
    	
%
    
	
Citizens Bank,   N.A.
    	
 
    	
$
    	
79,545,454.54
    	
 
    	
9.090909091
    	
%
    
	
U.S. Bank   National Association
    	
 
    	
$
    	
79,545,454.54
    	
 
    	
9.090909091
    	
%
    
	
BMO Harris N.A.
    	
 
    	
$
    	
38,181,818.19
    	
 
    	
4.363636364
    	
%
    
	
The Northern   Trust Company
    	
 
    	
$
    	
38,181,818.19
    	
 
    	
4.363636364
    	
%
    
	
Bank of the West
    	
 
    	
$
    	
23,863,636.36
    	
 
    	
2.727272727
    	
%
    
	
Total
    	
 
    	
$
    	
875,000,000.00
    	
 
    	
100.000000000
    	
%
    


 

Schedule 2.03

Issuer Sublimits

(as of the Fourth Amendment Effective Date)

 

	
Lender
    	
 
    	
Sublimit
    	
 
    
	
Wells Fargo   Bank, National Association
    	
 
    	
$
    	
86,400,000.00
    	
 
    
	
JPMorgan Chase   Bank, N.A.
    	
 
    	
$
    	
86,400,000.00
    	
 
    
	
The Bank of Tokyo-Mitsubishi   UFJ, Ltd.
    	
 
    	
$
    	
86,400,000.00
    	
 
    
	
BNP Paribas
    	
 
    	
$
    	
86,400,000.00
    	
 
    
	
Bank of America,   N.A.
    	
 
    	
$
    	
58,500,000.00
    	
 
    
	
BMO Harris, N.A.
    	
 
    	
$
    	
18,000,000.00
    	
 
    
	
The Northern   Trust Company
    	
 
    	
$
    	
27,900,000.00
    	
 
    
	
Total
    	
 
    	
$
    	
450,000,000.00
    	
 
    


 












 

EXHIBIT C

 

Consolidated Original Credit Agreement

 

(after giving effect to Section 1.1 of this Amendment)

 

See attached.

 

Exhibit C is provided for convenience of reference only and is not intended to, and does not, supersede the Second A/R Credit Agreement, the First Amendment, the Second Amendment, the April 2016 Consent, the Third Amendment, the December 2016 Consent, the January 2017 Consent, or this Amendment.

 











 



 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

dated as of March 28, 2014

 

among

 

CH2M HILL COMPANIES, LTD.,
 CH2M HILL, INC.
 OPERATIONS MANAGEMENT INTERNATIONAL, INC.
 CH2M HILL ENGINEERS, INC.
 CH2M HILL GLOBAL, INC.
 CH2M HILL CONSTRUCTORS, INC.
 CHVENG, LLC

 

as Borrowers,

 

THE SUBSIDIARIES OF THE BORROWERS PARTY HERETO,
  as Subsidiary Guarantors,

 

and

 

THE FINANCIAL INSTITUTIONS PARTY HERETO,
 as Lenders,

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,
  as Administrative Agent
 and Swing Line Lender,

 

BNP PARIBAS
 JPMORGAN CHASE BANK, N.A.,
 and
  THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
 as Co-Syndication Agents

 

and

 

WELLS FARGO SECURITIES, LLC
 BNP PARIBAS SECURITIES CORPORATION
 JPMORGAN BANK, N.A.
 THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
 as Joint Lead Arrangers and Joint Book Runners

 

i











 

TABLE OF CONTENTS

 

	
ARTICLE I
    	
 
    	
CERTAIN DEFINED TERMS; CERTAIN   RULES OF CONSTRUCTION
    	
 
    	
2
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 1.01.
    	
 
    	
CERTAIN DEFINED TERMS
    	
 
    	
2
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 1.02.
    	
 
    	
CERTAIN RULES OF CONSTRUCTION
    	
 
    	
38
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE II
    	
 
    	
CREDIT EXTENSIONS
    	
 
    	
43
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.01.
    	
 
    	
THE ORIGINAL CREDIT AGREEMENT
    	
 
    	
43
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.02.
    	
 
    	
REVOLVING CREDIT LOANS; TERM   LOANS
    	
 
    	
44
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.03.
    	
 
    	
PROCEDURES FOR BORROWING
    	
 
    	
45
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.04.
    	
 
    	
LETTERS OF CREDIT
    	
 
    	
47
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.05.
    	
 
    	
SWING LINE LOANS
    	
 
    	
55
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.06.
    	
 
    	
PAYMENTS AND PREPAYMENTS
    	
 
    	
58
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.07.
    	
 
    	
TERMINATION OR REDUCTION OF AGGREGATE REVOLVING CREDIT COMMITMENTS
    	
 
    	
59
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.08.
    	
 
    	
FINAL REPAYMENT OF REVOLVING   CREDIT LOANS AND SWING LOANS
    	
 
    	
60
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.09.
    	
 
    	
INTEREST; APPLICABLE RATES
    	
 
    	
60
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.10.
    	
 
    	
FEES
    	
 
    	
61
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.11.
    	
 
    	
COMPUTATIONS OF INTEREST AND   FEES
    	
 
    	
62
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.12.
    	
 
    	
EVIDENCE OF INDEBTEDNESS
    	
 
    	
62
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.13.
    	
 
    	
PAYMENTS GENERALLY; RIGHT OF ADMINISTRATIVE AGENT TO MAKE DEDUCTIONS   AUTOMATICALLY
    	
 
    	
62
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.14.
    	
 
    	
SHARING OF PAYMENTS
    	
 
    	
64
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.15.
    	
 
    	
INCREASE IN AGGREGATE   COMMITMENTS AND INCREMENTAL TERM LOANS
    	
 
    	
65
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 2.16.
    	
 
    	
CASH COLLATERAL
    	
 
    	
67
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE III
    	
 
    	
TAXES, YIELD PROTECTION AND   ILLEGALITY
    	
 
    	
68
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.01.
    	
 
    	
TAXES
    	
 
    	
68
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.02.
    	
 
    	
ILLEGALITY
    	
 
    	
72
    


 

i











 

	
SECTION 3.03.
    	
 
    	
INABILITY TO DETERMINE RATES
    	
 
    	
73
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.04.
    	
 
    	
INCREASED COSTS
    	
 
    	
73
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.05.
    	
 
    	
COMPENSATION FOR LOSSES
    	
 
    	
74
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.06.
    	
 
    	
MITIGATION OBLIGATIONS
    	
 
    	
75
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.07.
    	
 
    	
DEFAULTING LENDERS
    	
 
    	
75
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.08.
    	
 
    	
REPLACEMENT OF LENDERS
    	
 
    	
77
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 3.09.
    	
 
    	
SURVIVAL
    	
 
    	
78
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE IV
    	
 
    	
CONDITIONS PRECEDENT
    	
 
    	
78
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 4.01.
    	
 
    	
CONDITIONS TO EFFECTIVENESS AND   TO INITIAL CREDIT EXTENSION
    	
 
    	
78
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 4.02.
    	
 
    	
CONDITIONS TO ALL CREDIT   EXTENSIONS
    	
 
    	
80
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE V
    	
 
    	
REPRESENTATIONS AND WARRANTIES
    	
 
    	
81
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.01.
    	
 
    	
CORPORATE EXISTENCE AND POWER
    	
 
    	
81
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.02.
    	
 
    	
CORPORATE AUTHORIZATION; NO   CONTRAVENTION
    	
 
    	
81
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.03.
    	
 
    	
GOVERNMENTAL AUTHORIZATION; COMPLIANCE   WITH LAWS
    	
 
    	
82
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.04.
    	
 
    	
BINDING EFFECT
    	
 
    	
82
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.05.
    	
 
    	
LITIGATION
    	
 
    	
82
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.06.
    	
 
    	
ERISA COMPLIANCE
    	
 
    	
82
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.07.
    	
 
    	
USE OF PROCEEDS
    	
 
    	
83
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.08.
    	
 
    	
ENVIRONMENTAL COMPLIANCE
    	
 
    	
84
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.09.
    	
 
    	
TAXES
    	
 
    	
84
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.10.
    	
 
    	
FINANCIAL CONDITION
    	
 
    	
85
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.11.
    	
 
    	
MARGIN REGULATIONS; REGULATED   ENTITIES
    	
 
    	
85
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.12.
    	
 
    	
INTELLECTUAL PROPERTY
    	
 
    	
85
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.13.
    	
 
    	
SOLVENCY
    	
 
    	
85
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.14.
    	
 
    	
ANTI-TERRORISM LAWS
    	
 
    	
85
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 5.15.
    	
 
    	
FULL DISCLOSURE
    	
 
    	
86
    


 

ii











 

	
SECTION 5.16.
    	
 
    	
CLASSIFICATION AS SENIOR   INDEBTEDNESS
    	
 
    	
86
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VI
    	
 
    	
AFFIRMATIVE COVENANTS
    	
 
    	
86
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.01.
    	
 
    	
FINANCIAL STATEMENTS
    	
 
    	
86
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.02.
    	
 
    	
OTHER INFORMATION
    	
 
    	
88
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.03.
    	
 
    	
NOTICES
    	
 
    	
89
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.04.
    	
 
    	
PRESERVATION OF EXISTENCE, ETC.
    	
 
    	
90
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.05.
    	
 
    	
MAINTENANCE OF PROPERTIES
    	
 
    	
90
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.06.
    	
 
    	
MAINTENANCE OF INSURANCE
    	
 
    	
90
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.07.
    	
 
    	
COMPLIANCE WITH LAWS
    	
 
    	
91
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.08.
    	
 
    	
BOOKS AND RECORDS
    	
 
    	
91
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.09.
    	
 
    	
INSPECTION RIGHTS
    	
 
    	
91
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.10.
    	
 
    	
[RESERVED]
    	
 
    	
91
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.11.
    	
 
    	
PAYMENT OF OBLIGATIONS
    	
 
    	
91
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.12.
    	
 
    	
COVENANT TO GUARANTEE   OBLIGATIONS AND GRANT SECURITY
    	
 
    	
92
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.13.
    	
 
    	
PARI PASSU
    	
 
    	
93
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 6.14.
    	
 
    	
FURTHER ASSURANCES
    	
 
    	
93
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VII
    	
 
    	
NEGATIVE COVENANTS
    	
 
    	
93
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.01.
    	
 
    	
LIENS
    	
 
    	
93
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.02.
    	
 
    	
INVESTMENTS
    	
 
    	
95
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.03.
    	
 
    	
INDEBTEDNESS
    	
 
    	
96
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.04.
    	
 
    	
FUNDAMENTAL CHANGES
    	
 
    	
99
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.05.
    	
 
    	
DISPOSITIONS
    	
 
    	
100
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.06.
    	
 
    	
RESTRICTED PAYMENTS
    	
 
    	
101
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.07.
    	
 
    	
TRANSACTIONS WITH AFFILIATES
    	
 
    	
104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.08.
    	
 
    	
BURDENSOME AGREEMENTS
    	
 
    	
104
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.09.
    	
 
    	
USE OF PROCEEDS
    	
 
    	
104
    


 

iii











 

	
SECTION 7.10.
    	
 
    	
MAINTENANCE OF BUSINESS
    	
 
    	
105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.11.
    	
 
    	
AMENDMENTS OF ORGANIZATION   DOCUMENTS
    	
 
    	
105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.12.
    	
 
    	
ACCOUNTING CHANGES
    	
 
    	
105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.13.
    	
 
    	
PREPAYMENTS OF INDEBTEDNESS
    	
 
    	
105
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.14.
    	
 
    	
FINANCIAL COVENANTS
    	
 
    	
106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 7.15.
    	
 
    	
AMENDMENTS OF CERTAIN DEBT
    	
 
    	
106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE VIII
    	
 
    	
EVENTS OF DEFAULT AND REMEDIES
    	
 
    	
106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.01.
    	
 
    	
EVENTS OF DEFAULT
    	
 
    	
106
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.02.
    	
 
    	
WAIVERS OF EVENTS OF DEFAULTS
    	
 
    	
109
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.03.
    	
 
    	
REMEDIES UPON EVENT OF DEFAULT
    	
 
    	
109
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 8.04.
    	
 
    	
APPLICATION OF FUNDS
    	
 
    	
110
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
ARTICLE IX
    	
 
    	
ADMINISTRATIVE AGENT
    	
 
    	
111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.01.
    	
 
    	
APPOINTMENT AND AUTHORIZATION
    	
 
    	
111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.02.
    	
 
    	
RIGHTS AS A LENDER
    	
 
    	
111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.03.
    	
 
    	
EXCULPATORY PROVISIONS
    	
 
    	
111
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.04.
    	
 
    	
RELIANCE BY ADMINISTRATIVE   AGENT
    	
 
    	
112
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.05.
    	
 
    	
DELEGATION OF DUTIES
    	
 
    	
113
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.06.
    	
 
    	
RESIGNATION OF ADMINISTRATIVE   AGENT
    	
 
    	
113
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.07.
    	
 
    	
NON-RELIANCE ON ADMINISTRATIVE   AGENT AND OTHER LENDERS
    	
 
    	
114
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.08.
    	
 
    	
NO OTHER DUTIES, ETC.
    	
 
    	
114
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.09.
    	
 
    	
ADMINISTRATIVE AGENT   MAY FILE PROOFS OF CLAIM
    	
 
    	
114
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.10.
    	
 
    	
GUARANTY MATTERS
    	
 
    	
115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.11.
    	
 
    	
LEGAL REPRESENTATION OF   ADMINISTRATIVE AGENT
    	
 
    	
115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.12.
    	
 
    	
SECURED HEDGE AGREEMENTS AND SECURED CASH MANAGEMENT AGREEMENTS
    	
 
    	
115
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 9.13.
    	
 
    	
CREDIT BIDDING
    	
 
    	
115
    


 

iv











 

	
ARTICLE X
    	
 
    	
GENERAL PROVISIONS
    	
 
    	
116
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.01.
    	
 
    	
AMENDMENTS, ETC.
    	
 
    	
116
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.02.
    	
 
    	
NOTICES; EFFECTIVENESS;   ELECTRONIC COMMUNICATIONS
    	
 
    	
117
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.03.
    	
 
    	
NO WAIVER; CUMULATIVE REMEDIES;   ENFORCEMENT
    	
 
    	
120
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.04.
    	
 
    	
EXPENSES; INDEMNITY; DAMAGE   WAIVER
    	
 
    	
120
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.05.
    	
 
    	
MARSHALLING; PAYMENTS SET ASIDE
    	
 
    	
122
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.06.
    	
 
    	
SUCCESSORS AND ASSIGNS
    	
 
    	
122
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.07.
    	
 
    	
TREATMENT OF CERTAIN   INFORMATION; CONFIDENTIALITY
    	
 
    	
126
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.08.
    	
 
    	
RIGHT OF SETOFF
    	
 
    	
126
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.09.
    	
 
    	
INTEREST RATE LIMITATION
    	
 
    	
127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.10.
    	
 
    	
COUNTERPARTS; INTEGRATION;   EFFECTIVENESS
    	
 
    	
127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.11.
    	
 
    	
SURVIVAL OF REPRESENTATIONS AND   WARRANTIES
    	
 
    	
127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.12.
    	
 
    	
SEVERABILITY
    	
 
    	
127
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.13.
    	
 
    	
LENDER-CREDITOR RELATIONSHIP
    	
 
    	
128
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.14.
    	
 
    	
USA PATRIOT ACT NOTICE
    	
 
    	
128
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.15.
    	
 
    	
GUARANTY BY SUBSIDIARIES
    	
 
    	
128
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.16.
    	
 
    	
JOINT AND SEVERAL LIABILITY OF   THE BORROWERS
    	
 
    	
135
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.17.
    	
 
    	
ADMINISTRATIVE BORROWER
    	
 
    	
139
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.18.
    	
 
    	
GOVERNING LAW; JURISDICTION;   ETC.
    	
 
    	
139
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.19.
    	
 
    	
JUDGMENT CURRENCY
    	
 
    	
140
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.20.
    	
 
    	
WAIVER OF RIGHT TO JURY TRIAL
    	
 
    	
140
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.21
    	
 
    	
ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS
    	
 
    	
141
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.22
    	
 
    	
INTERCREDITOR AGREEMENT
    	
 
    	
141
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
SECTION 10.23
    	
 
    	
CONFLICTS
    	
 
    	
142
    


 

v











 

SCHEDULES

 

	
2.01
    	
 
    	
Aggregate Outstanding   Principal Amounts as of the Closing Date
    
	
2.02
    	
 
    	
Lenders; Commitments;   Percentage Shares
    
	
2.03
    	
 
    	
Issuer Sublimits
    
	
5.05
    	
 
    	
Litigation
    
	
5.06(a)
    	
 
    	
Pension Plans
    
	
5.06(c)
    	
 
    	
Departures from Pension   Funding Rules
    
	
5.06(d)
    	
 
    	
Pension Plans and   Multiemployer Plans
    
	
5.08
    	
 
    	
Environmental
    
	
7.01
    	
 
    	
Existing Liens
    
	
7.02
    	
 
    	
Existing Investments
    
	
7.03
    	
 
    	
Existing Indebtedness
    
	
10.02
    	
 
    	
Administrative Agent’s   Office; Certain Addresses for Notices
    


 

EXHIBITS

 

	
A
    	
 
    	
Form of Assignment   and Assumption
    
	
B
    	
 
    	
Form of Compliance   Certificate
    
	
C
    	
 
    	
Form of Joinder   Agreement
    
	
D
    	
 
    	
Form of Loan   Notice
    
	
E-1
    	
 
    	
Form of Revolving   Loan Note
    
	
E-2
    	
 
    	
Form of Swing Line   Loan Note
    
	
F
    	
 
    	
Form of Swing Line   Loan Notice
    
	
G
    	
 
    	
Form of Bank   Product Provider Notice
    


 

vi












 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 28, 2014, is entered among CH2M HILL COMPANIES, LTD., a Delaware corporation (the “Parent”), CH2M HILL, INC., a Florida corporation (“CH2M Inc.”), OPERATIONS MANAGEMENT INTERNATIONAL, INC., a California corporation (“OMI”), CH2M HILL ENGINEERS, INC., a Delaware corporation (“CH2M Engineers”), CH2M HILL GLOBAL, INC., a Delaware corporation (“CH2M Global”), CH2M HILL CONSTRUCTORS, INC., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL ENERGY, LTD.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, each a “Borrower,” and, collectively, the “Borrowers”), the Subsidiary Guarantors party hereto (for purposes of Section 10.15), the several financial institutions party to this Agreement as Lenders, and WELLS FARGO BANK, NATIONAL ASSOCIATION, in its separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group.  This Agreement amends, restates, supersedes and replaces in its entirety the Original Credit Agreement (as defined herein) and each Subsidiary Guaranty (as defined in the Original Credit Agreement), and is not intended to, and will not, act as a novation of the indebtedness, liabilities and other obligations (including any obligations under each Subsidiary Guaranty) thereunder.

 

RECITALS

 

A.            The Borrowers, as borrowers, have entered into the Original Credit Agreement with the lenders party thereto (collectively, the “Existing Lenders”), and Wells Fargo in its separate capacities as the Swing Line Lender and an L/C Issuer and as the Administrative Agent on behalf and for the benefit of the other Lenders (as such terms are defined in the Original Credit Agreement) pursuant to which the Existing Lenders have extended and made available to the Borrowers a revolving credit facility in the aggregate principal amount of up to $900,000,000 outstanding at any one time, including a $300,000,000 sub-limit for alternative currency borrowings, a $50,000,000 sub-limit for swing line advances and a $500,000,000 sub-limit for letters of credit.

 

B.            The Borrowers desire to increase and restructure the credit facility provided under the Original Credit Agreement and to amend the Original Credit Agreement in certain other respects, and, as so amended, to restate the Original Credit Agreement in its entirety along with the other Loan Documents (as such term is defined in the Original Credit Agreement, and referred to herein for purposes of this Agreement as the “Original Credit Documents”) executed or delivered pursuant to or otherwise existing in support of the Original Credit Agreement.

 

C.            The Lending Parties have agreed to so increase and restructure the credit facility provided under the Original Credit Agreement and to make such Loans and other Credit Extensions available to the Borrowers, for the Borrowers’ benefit and on behalf and for the benefit of the Guarantors, each of which is a direct or indirect wholly owned Subsidiary of the Borrowers, and to amend and restate the Original Credit Agreement and the other Original Credit Documents, but only on the terms and provisions herein, and subject to the conditions and in reliance on, the representations and warranties set forth below.

 

D.            It is the intent of the Borrowers, the Lenders and Wells Fargo, not in its individual capacity as a Lender but in its separate capacities as L/C Issuer, as Agent for itself and the other Lenders that, except as hereinafter expressly provided, the extensions of credit outstanding under the Original Credit Agreement will not be deemed to be repaid or terminated upon the effectiveness of this Agreement, but will continue to remain outstanding and will be due and payable at the time and in the manner provided by this Agreement, including Section 2.01.

 











 

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties agree as follows:

 

AGREEMENT

 

ARTICLE I
 CERTAIN DEFINED TERMS; CERTAIN RULES OF CONSTRUCTION

 

SECTION 1.01.  CERTAIN DEFINED TERMS.

 

As used in this Agreement, the following terms will mean the following:

 

“Acquisition” means any transaction or series of related transactions resulting, directly or indirectly, in (a) the acquisition by any Person of (i) all or substantially all of the assets of another Person or (ii) any business unit or division of another Person, (b) the acquisition by any Person of Equity Interests of any other Person resulting in the acquiring Person having the ability to Control the acquired Person, or otherwise causing any other Person to become a Subsidiary of such Person or (c) a merger or consolidation, or any other combination, of any Person with another Person (other than a Person that is a wholly-owned Subsidiary) in which any Borrower or a Subsidiary of any Borrower is the surviving Person.  For the avoidance of doubt, the formation of any Joint Venture, or the acquisition of any interest in any Joint Venture, shall not be deemed to constitute an “Acquisition”.

 

“Additional Alternative Currency” has the meaning given such term in Section 1.02(l).

 

“Additional Commitment Documentation” has the meaning given such term in Section 2.15(c).

 

“Additional Commitments Effective Date” has the meaning given such term in Section 2.15(b).

 

“Additional Revolving Credit Commitment” means the commitment of an Additional Lender to make Additional Revolving Credit Loans pursuant to Section 2.15.

 

“Additional Lender” means, at any time, each applicable Lender, Eligible Assignee or other Person who is providing an Additional Revolving Credit Commitment and/or an Incremental Term Loan, as applicable.

 

“Additional Revolving Credit Loans” means any loans made in respect of Additional Revolving Credit Commitments.

 

“Additional Transaction Condition” means, with respect to any applicable Investment or Restricted Payment, the ability of the Borrowers to demonstrate that the aggregate amount of Specified EBITDA Add-backs during the four (4) Fiscal Periods most recently ended prior to such transaction for which the Parent has delivered financial statements pursuant to Section 6.01(a) or 6.01(b) did not exceed 10% of Consolidated Adjusted EBITDA during such period.

 

“Administrative Agent” means, at any time, the administrative agent for the Lending Parties under the Loan Documents as appointed pursuant to Article IX (which, initially, will be Wells Fargo).

 

“Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02, or such other address or account as Administrative Agent may from time to time notify the Borrowers and each Lending Party.

 

2











 

“Administrative Borrower” has the meaning given such term in Section 10.17.

 

“Administrative Detail Form” means an administrative detail form in a form supplied by, or otherwise acceptable to, Administrative Agent.

 

“AED” means the lawful currency of the United Arab Emirates.

 

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified (excluding any trustee under, or any committee with responsibility for administering, any Employee Benefit Plan).

 

“Aggregate Commitments” means Aggregate Revolving Credit Commitments.

 

“Aggregate Outstanding Principal Amount” has the meaning given such term in Section 2.01.

 

“Aggregate Revolving Credit Commitments” means, at any time, the combined Revolving Credit Commitments of all Lenders.  The Aggregate Revolving Credit Commitments as of the Fourth Amendment Effective Date are $875,000,000.

 

“Agreement” means this Second Amended and Restated Credit Agreement.

 

“Alternative Currency” means (a) Sterling, Euros, Canadian Dollars, Australian Dollars, Hong Kong Dollars, Yen, Singapore Dollars, (b) solely with respect to Letters of Credit, to the extent approved by the applicable L/C Issuer, AED, BHD, BRL, CLP, KWD, INR, NOK, OMR, PEN, PLN, QAR, RON, SAR, TND and TTD and (c) each Additional Alternative Currency (other than Dollars) that is approved from time to time in accordance with Section 1.02(l).

 

“Alternative Currency Available Credit” means, as of any date of determination, the lesser of (a) $300,000,000 less (i) the Dollar Equivalent of the aggregate of all Loans then outstanding denominated in an Alternative Currency and (ii) the Dollar Equivalent of the aggregate of all L/C Obligations then outstanding in respect of Credits denominated in an Alternative Currency, and (b) the Available Credit.

 

“Anti-Terrorism Laws” means any applicable Laws relating to terrorism or money laundering, including Executive Order No. 13224, the PATRIOT Act, the applicable Laws comprising or implementing the Bank Secrecy Act, and the applicable Laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing Applicable Laws may from time to time be amended, renewed, extended, or replaced).

 

“Applicable Rate” means, at all times, and as included in the computation of the rate of interest for Eurodollar Rate Loans or Base Rate Loans or in the computation of Revolving Credit Commitment Fees, as the context requires and as otherwise provided in this Agreement, the applicable rate percentage per annum set forth in the grid below, each such percentage being based, subject to Section 2.09(d), upon the corresponding Consolidated Leverage Ratio maintained by the Parent, as determined by Administrative Agent, in its Reasonable Discretion, as of the end of the most recent Fiscal Period for which the Borrowers have furnished a Compliance Certificate to Administrative Agent and the Lenders pursuant to Section 6.01(c):

 

3











 

	
PRICING
   LEVEL
   (TIER)
    	
 
    	
CONSOLIDATED
   LEVERAGE
   RATIO
    	
 
    	
APPLICABLE
   RATE FOR
   EURODOLLAR
   RATE LOANS
    	
 
    	
APPLICABLE
   RATE FOR
   BASE RATE
   LOANS
    	
 
    	
APPLICABLE
   RATE FOR
   REVOLVING
   CREDIT
   COMMITMENT
   FEES
    	
 
    
	
I
    	
 
    	
>3.50
    	
 
    	
4.000
    	
%
    	
2.500
    	
%
    	
0.500
    	
%
    
	
II
    	
 
    	
>   2.75 but < 3.50
    	
 
    	
3.500
    	
%
    	
2.000
    	
%
    	
0.500
    	
%
    
	
III
    	
 
    	
>2.25   but < 2.75
    	
 
    	
3.250
    	
%
    	
1.750
    	
%
    	
0.500
    	
%
    
	
IV
    	
 
    	
>   1.75 but < 2.25
    	
 
    	
3.000
    	
%
    	
1.500
    	
%
    	
0.450
    	
%
    
	
V
    	
 
    	
>   1.25 but < 1.75
    	
 
    	
2.500
    	
%
    	
1.000
    	
%
    	
0.300
    	
%
    
	
VI
    	
 
    	
< 1.25
    	
 
    	
2.250
    	
%
    	
0.750
    	
%
    	
0.250
    	
%
    


 

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period and at any time will be subject to the provisions of Section 2.09(d).

 

“Applicable Time” means, with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be reasonably determined by Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

 

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Arrangers” means, individually and collectively, Wells Fargo Securities, LLC, BNP Paribas Securities Corporation, JPMorgan Bank, N.A. and The Bank of Tokyo-Mitsubishi UFJ, Ltd. as the joint lead arrangers, syndication agents and joint book runners for the transactions contemplated by the Loan Documents.

 

“Asset Disposition” means any Disposition permitted pursuant to Section 7.05(i) of this Agreement.

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lending Party and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by Administrative Agent, in substantially the form of Exhibit A or any other form approved by Administrative Agent.

 

“Attributable Debt” means, on any date of determination, (a) in respect of any Capitalized Lease 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 and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a Capitalized Lease.

 

“Australian Dollars” means the lawful currency of Australia.

 

“Automatic Extension Letter of Credit” means a Letter of Credit that has automatic extension provisions.

 

“Available Credit” means, as of any date of determination, the amount by which (a) the Aggregate Revolving Credit Commitments then in effect exceeds (b) the Total Revolving Credit Outstandings as of such date.

 

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“Available Restricted Payment Amount” means, as of any date of determination, $100,000,000 minus (i) any Legally Required Restricted Payments, minus (ii) any Restricted Payments made pursuant to Section 7.06(b)(i) minus (iii) any Restricted Payments made pursuant to Section 7.06(b)(iii), in the case of each of the clauses (i) through (iii), made during four Fiscal Periods ending as of the end of the Fiscal Period in which such date occurs. Notwithstanding the foregoing, through the Fiscal Period ending March 31, 2017, the “Available Restricted Payment Amount” shall be equal to $75,000,000 minus (x) any Legally Required Restricted Payments minus (y) any Restricted Payments made pursuant to Section 7.06(b)(i) minus (z) any Restricted Payments made pursuant to Section 7.06(b)(iii), in the case of each of clauses (x) through (z), made after June 24, 2016 and prior to the end of the Fiscal Period ending March 31, 2017.

 

“Availability Period” means the period from the Closing Date to the date which is five Business Days prior to the Revolving Credit Maturity Date.

 

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

 

“Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

 

“Bank Product” means any of the following products, services or facilities extended by any Bank Product Provider: (a) Cash Management Services extended to any Borrower (either for itself or, with the Administrative Borrower’s prior consent, for one or more of its Subsidiaries); (b) products under any Hedging Agreement entered into with any Borrower (either for itself or, with the Administrative Borrower’s prior consent, for one or more of its Subsidiaries); (c) up to $50,000,000 of letters of credit and bank guarantees (other than any Credit issued hereunder) the account party of which is any Borrower or a Subsidiary (provided that any Borrower has guaranteed or is a primary obligor with respect to such Subsidiary’s letters of credit or bank guarantees), and (d) commercial credit card, purchase card and merchant card services extended to any Borrower (either for itself or, with the Administrative Borrower’s prior consent, for one or more of its Subsidiaries); provided, however, that for any of the foregoing to be included in the term Bank Products, the applicable Bank Product Provider (other than Wells Fargo Bank, National Association) must have previously provided a Bank Product Provider Notice to Administrative Agent and the Administrative Borrower setting forth the information required clause (a)(i)(A) of the proviso to the definition of Obligations and if the applicable Bank Product Provider is Wells Fargo Bank, National Association, it must have previously provided a Bank Product Provider Notice to the Administrative Borrower setting forth the information required under clause (a)(i)(B) of the proviso to the definition of Obligations.

 

“Bank Product Agreement” means any agreement governing or related to any Bank Product other than this Agreement, the Collateral Agreement or any other Loan Document.

 

“Bank Product Amount” has the meaning set forth in the definition of Obligations.

 

“Bank Product Debt” means the Indebtedness and other payment obligations of any Borrower relating to Bank Products.

 

“Bank Product Provider” means any Person that provides Bank Products to a Borrower or any Subsidiary to the extent that (a) such Person is a Lender, an Affiliate of a Lender or any other Person that was a Lender (or an Affiliate of a Lender) at the time it entered into the Bank Product but has ceased to be

 

5











 

a Lender (or whose Affiliate has ceased to be a Lender) under this Agreement or (b) such Person is a Lender or an Affiliate of a Lender on the Third Amendment Effective Date and the Bank Product was entered into on or prior to the Third Amendment Effective Date (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender).

 

“Bank Product Provider Notice” means a notice substantially in the form of Exhibit G.

 

“Bank Undertaking” means any independent undertaking of the L/C Issuer within the meaning of, and complying with the requirements of, 12 C.F.R. §7.1016 as to which the issuer’s obligation to honor depends upon the presentation of specified documents and not upon non-documentary conditions or resolution of any questions of fact or law, issued hereunder pursuant to Section 2.04.  Bank Undertakings may be issued in Dollars or an Alternative Currency as permitted by this Agreement.

 

“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101 et seq.), and the Bankruptcy Rules promulgated thereunder.

 

“Bankruptcy Laws” means, collectively, (a) the Bankruptcy Code and (b) 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.

 

“Base Rate” means, for any day, the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate for such day plus one-half of one percent (0.50%) and (c) the One Month LIBOR Rate for such day (determined on a daily basis as set forth below) plus one percent (1.00%).  As used in this definition of “Base Rate”, “One Month LIBOR Rate” means, with respect to any interest rate calculation for a Loan or other Obligation bearing interest at the Base Rate, a rate per annum equal to the quotient (rounded, if necessary to the nearest 1/100th of one percent (0.01%)) of (i) the rate per annum referred to as the LIBOR RATE as administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) on Reuters LIBOR page 1, or if not reported by Reuters, as reported by any service selected by Administrative Agent on the applicable day (provided that if such day is not a Business Day for which a LIBOR Rate is quoted, the next preceding Business Day for which a LIBOR Rate is quoted) at approximately 11:00 a.m., London time (or as soon thereafter as practicable), for Dollar deposits being delivered in the London interbank eurodollar currency market for a term of one month commencing on such date of determination, divided by (ii) one minus the Reserve Requirement in effect on such day.  If for any reason rates are not available as provided in clause (i) of the preceding sentence, the rate to be used in clause (i) will be, at Administrative Agent’s discretion (in each case, rounded, if necessary, to the nearest 1/100th of one percent (0.01%)), (1) the rate per annum at which Dollar deposits are offered to Administrative Agent in the London interbank eurodollar currency market or (2) the rate at which Dollar deposits are offered to Administrative Agent in, or by Wells Fargo to major banks in, any offshore interbank eurodollar market selected by Administrative Agent, in each case on the applicable day (provided that if such day is not a Business Day for which Dollar deposits are offered to Administrative Agent in the London interbank eurodollar currency market, the next preceding Business Day for which Dollar deposits are offered to Administrative Agent in the London interbank eurodollar currency market) at approximately 11:00 a.m., London time (or as soon thereafter as practicable) (for delivery on such date of determination) for a one month term.  Each determination by Administrative Agent pursuant to this definition will be conclusive absent manifest error.

 

“Base Rate Loan” means a Loan that bears interest based upon the Base Rate.

 

“BHD” means the lawful currency of the Kingdom of Bahrain.

 

6











 

“Borrowing” means a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.

 

“BRL” means the lawful currency of the Federative Republic of Brazil.

 

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York, New York or the city and state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

 

(a)           if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated in Dollars or as to any Base Rate Loan, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurodollar Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means any such day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market;

 

(b)           if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such Eurodollar Rate Loan or Bid Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan, means a TARGET Day;

 

(c)           if such day relates to any interest rate settings as to a Eurodollar Rate Loan denominated in a currency other than Dollars or Euro, means any such day on which dealings in deposits in the relevant currency are conducted by and between banks in the London or other applicable offshore interbank market for such currency; and

 

(d)           if such day relates to any fundings, disbursements, settlements and payments in a currency other than Dollars or Euro in respect of a Eurodollar Rate Loan denominated in a currency other than Dollars or Euro, or any other dealings in any currency other than Dollars or Euro to be carried out pursuant to this Agreement in respect of any such Eurodollar Rate Loan (other than any interest rate settings), means any such day on which banks are open for foreign exchange business in the principal financial center of the country of such currency.

 

“Canadian Dollars” means the lawful currency of Canada.

 

“Capitalized Leases” means all leases that have been or should be, in accordance with GAAP, recorded as capitalized leases.

 

“Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of Administrative Agent, L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), Cash or, if L/C Issuer or Swing Line Lender benefitting from such collateral will agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) Administrative Agent and (b) L/C Issuer or Swing Line Lender (as applicable).  “Cash Collateral” will have a meaning correlative to the foregoing and will include the proceeds of such cash collateral and other credit support.

 

“Cash” means money, currency or a credit balance in a deposit account.

 

“Cash Equivalents” means, as to any Person, any of the following: (a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or

 

7











 

instrumentality thereof (but only so long as the full faith and credit of the United States is pledged in support thereof) having maturities of not more than 360 days from the date of acquisition; (b) domestic and Eurodollar certificates of deposit, time or demand deposits or bankers’ acceptances maturing within 180 days after the date of acquisition issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any Lender or by any nationally or state chartered commercial bank or any branch or agency of a foreign bank licensed to conduct business in the United States having combined capital and surplus of not less than $250,000,000 whose short-term securities are rated at least A 1 or the equivalent thereof by S&P or at least P 1 or the equivalent thereof by Moody’s; (c) fully collateralized repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) of this definition entered into with any bank meeting the qualifications specified in clause (d) of this definition; (d) commercial paper issued by the parent corporation of any Lender or any commercial bank (provided that the parent corporation and the bank are both incorporated in the United States) having capital and surplus in excess of $250,000,000 and commercial paper issued by any Person incorporated in the United States, which commercial paper is rated at least A 1 or the equivalent thereof by S&P or at least P 1 or the equivalent thereof by Moody’s, and in each case maturing not more than 180 days after the date of acquisition by such Person; and (e) investments made in accordance with the Parent’s investment policy as such policy is approved by the Parent’s chief financial officer from time to time and delivered to Administrative Agent on or prior to the Closing Date and promptly following any material revision to such policy, so long as such investments constitute cash or cash equivalents in accordance with GAAP.

 

“Change in Law” means (a) any change arising from the enactment or enforcement of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or any rules, regulations, interpretations, guidelines or directives promulgated thereunder by any Governmental Authority, (b) any change arising from any requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, and (c) the occurrence, after the date of this Agreement, of any of the following:  (i) the adoption or taking effect of any law, rule, regulation or treaty; (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority; or (iii) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

 

“Cash Management Services” means any services provided in connection with operating, collections, payroll, trust, or other depository or disbursement accounts, including automatic clearinghouse, controlled disbursement, depository, electronic funds transfer, information reporting, lockbox, stop payment, overdraft and/or wire transfer services and all other treasury and cash management services.

 

“CFC” means a controlled foreign corporation under Section 957 of the Code.

 

“CFC Debt” means intercompany loans, Indebtedness or receivables owed or treated as owed by one or more Foreign Subsidiaries.

 

“Change of Control” means any of the following occurs: (a) an event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding the Trustees of the CH2M HILL Retirement and Tax Deferred Savings Plan, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), except that a person or group will be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 30.0% or more of the issued and outstanding Equity Interests of the Parent entitled to vote for members of the board of directors or equivalent governing body

 

8











 

of any Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right); (b) any Person, or two or more Persons acting in concert, acquires (by contract or otherwise), or will have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Parent, or control over the Equity Interests of the Parent representing greater than 30.0% of the combined voting power of all Equity Interests of the Parent entitled to vote in the election of members of the board of directors of the Parent on a fully diluted basis (taking into account all Equity Interests that such Person or Persons have the right to acquire pursuant to any option right, or have the right to convert or convert into pursuant to any other Equity Interest or other right or interest); (c) the failure of a majority of the seats (other than vacant seats) on the board of directors of the Parent to be occupied by persons who were approved by the board of directors of the Parent or appointed by directors so approved; or (d) any “change of control”  or similar provision under any Second Lien Loan Documents or any other documents governing Second Lien Debt.

 

“CLP” means the lawful currency of the Republic of Chile.

 

“Closing Date” means the first date on which all of the conditions precedent to the initial Credit Extension set forth in Section 4.01 and Section 4.02 are satisfied (or waived in accordance with Section 10.01).

 

“Code” means the Internal Revenue Code of 1986.

 

“Collateral” means the collateral security for the Secured Obligations pledged or granted pursuant to the Security Documents.

 

“Collateral Agreement” means the Security Agreement, dated as of the Third Amendment Effective Date, executed by the Loan Parties in favor of the Administrative Agent, for the ratable benefit of the Credit Group, which shall be in form and substance acceptable to the Administrative Agent.

 

“Commitment” means, as to any Lender, such Lender’s Revolving Credit Commitment and, as to Swing Line Lender, Swing Line Lender’s Swing Line Commitment.

 

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).

 

“Compliance Certificate” means a certificate substantially in the form of Exhibit B.

 

“Consolidated” refers, with respect to any Person, to the consolidation of accounts of such Person and its Subsidiaries in accordance with GAAP.

 

“Consolidated Adjusted EBITDA” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income (without duplication), in each case calculated for such period: (i) Consolidated Interest Expense, (ii) all amounts treated as expenses for such period for depreciation and the amortization of intangibles of any kind, (iii) all Federal, state, local and foreign taxes on or measured by income accrued by the Parent and its Consolidated Subsidiaries during such period (but net of any Federal, state, local and foreign tax credits claimed by the Parent and its Consolidated Subsidiaries for such period), (iv) all expenses associated with the non-cash portion of all share-based compensation, (v) non-cash charges related to (A) restructuring, (B) asset impairment or (C) estimated project losses (including non-extraordinary items), provided, that, the amount of non-cash project losses incurred after June 24, 2016 that are attributable to Inpex and MoPac and added back pursuant to this clause (v) shall not exceed $50,000,000 in the aggregate during all Fiscal Periods

 

9











 

beginning on or after June 25, 2016, (vi) (A) cash restructuring charges incurred during the Fiscal Year ended December 31, 2014 or the Fiscal Year ended December 25, 2015 in an aggregate amount not to exceed (1) with respect to the Fiscal Year ended December 31, 2014, $80,000,000 and (2) with respect to the Fiscal Year ended December 25, 2015, $40,000,000 plus an amount equal to the amount, if any, by which such cash restructuring charges in the Fiscal Year ended December 31, 2014 were less than $80,000,000 and (B) cash restructuring charges incurred after June 24, 2016 in an aggregate amount not to exceed $70,000,000 in the aggregate during all Fiscal Periods beginning on or after June 25, 2016, (vii) other (A) extraordinary expenses or (B) non-recurring expenses actually paid in cash during such period in an aggregate amount not to exceed $10,000,000 in any Fiscal Year, and (viii) 50% of annual projected cost savings originating from restructuring efforts made after June 24, 2016, in an amount not to exceed (A) for the period consisting of the four consecutive Fiscal Periods ending on March 31, 2017, $35,100,000, (B) for the period consisting of the four consecutive Fiscal Periods ending on June 30, 2017, $21,000,000, (C) for the period consisting of the four consecutive Fiscal Periods ending on September 29, 2017, $7,000,000 and (D) for each period consisting of four consecutive Fiscal Periods ending thereafter, $0; minus (b)(i) cash payments related to (A) restructuring, (B) asset impairment and (C) non-cash estimate project losses (including non-extraordinary items) for any period to the extent included in the computation of Consolidated Adjusted EBITDA pursuant to clause (a)(v) above and (ii) to the extent included in calculating Consolidated Net Income, all amounts recorded related to (A) extraordinary gains or (B) non-recurring gains; plus (c) the amount, not to exceed $178,000,000 in the aggregate, of cash payments deducted from Consolidated Net Income pursuant to clause (b)(i) above and other amounts deducted from Consolidated Net Income pursuant to clause (b)(ii) above, in each case attributable to Inpex and MoPac, for any Fiscal Period ending before April 1, 2017 in which such payments or other amounts are deducted from Consolidated Net Income pursuant to such clauses (b)(i) and (b)(ii), except that $78,000,000 of such payments or other amounts added back to Consolidated Net Income pursuant to this clause (c) shall be treated as having been added back during the Fiscal Period ended June 24, 2016.  Notwithstanding the foregoing, Consolidated Adjusted EBITDA shall be calculated to exclude the impact of up to $19,000,000 of the net settlement related to the West Deptford Development.

 

“Consolidated Adjusted EBITDAR” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, Consolidated Adjusted EBITDA for such period; plus, in computing Consolidated Adjusted EBITDA pursuant to clause (a) of such definition, Consolidated Lease Expense for such period.

 

“Consolidated First Lien Debt” means, as of any date of determination, calculated for the Parent and its Subsidiaries on a Consolidated basis, the aggregate principal amount of Consolidated Total Funded Debt (other than Subordinated Debt) outstanding on such date that is secured by a Lien that is not expressly subordinated to the Liens securing the Secured Obligations granted pursuant to the Security Documents.

 

“Consolidated First Lien Leverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated First Lien Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date of determination; provided, that if at any time the Consolidated First Lien Leverage Ratio calculated under the Second Lien Indenture is higher than the ratio calculated pursuant to the preceding calculation, then the “Consolidated First Lien Leverage Ratio” hereunder shall mean the “Consolidated First Lien Leverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Fixed Charge Coverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis for the period consisting of the four consecutive Fiscal Periods ending on such date of determination (except as

 

10











 

otherwise expressly noted in clause (iii) below), the ratio of (a) Consolidated Adjusted EBITDAR to (b) the sum, without duplication, of (i) Consolidated Interest Expense, (ii) Consolidated Lease Expense, (iii) the Current Portion of Consolidated Long Term Debt as of such date of determination, and (iv) cash dividends paid or accrued on (A) preferred stock and (B) at all times on or prior to December 31, 2015, any other Equity Interests; provided, that if at any time the Consolidated Fixed Charge Coverage Ratio calculated under the Second Lien Indenture is lower than the ratio calculated pursuant to the preceding calculation, then the “Consolidated Fixed Charge Coverage Ratio” hereunder shall mean the “Consolidated Fixed Charge Coverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Interest Expense” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, the sum of (without duplication) (a) all interest, prepayment premium payments, debt discount, fees, charges and related expenses in connection with borrowed money (including all commissions, discounts, fees and other charges under letters of credit and similar instruments and all capitalized interest) or in connection with the deferred purchase price of assets during such period, plus (b) the portion of rent expense with respect to such period under Capitalized Leases that is treated as interest in accordance with GAAP, plus (c) dividends accrued on preferred stock, to the extent that such preferred stock is treated as a liability pursuant to GAAP, plus (d) all accrued losses under interest rate Swap Contracts during such period to the extent not included in clause (a) of this definition, minus (e) all accrued gains under interest rate Swap Contracts during such period.

 

“Consolidated Lease Expense” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, total lease expense under all operating leases, determined in accordance with GAAP.

 

“Consolidated Leverage Ratio” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis, the ratio of (a) Consolidated Total Funded Debt as of such date of determination to (b) Consolidated Adjusted EBITDA for the period consisting of the four consecutive Fiscal Periods ending on such date of determination; provided, that if at any time the Consolidated Leverage Ratio calculated under the Second Lien Indenture is higher than the ratio calculated pursuant to the preceding calculation, then the “Consolidated Leverage Ratio” hereunder shall mean the “Consolidated Leverage Ratio” as defined in the Second Lien Indenture at such time.

 

“Consolidated Net Income” means, as calculated for the Parent and its Subsidiaries on a Consolidated basis for any period, the sum of net income (or loss) for such period, but excluding (a) any income of any Person if such Person is not a Subsidiary, except that the Parent’s direct or indirect equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Parent or any Subsidiary as a dividend or other distribution and (b) the income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by the Subsidiary of that income is prohibited by operation of the terms of its charter or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable to such Subsidiary; provided, however, that this clause (b) solely as it relates to the Payment Prohibition will not apply in determining whether the income of Halcrow Group Limited and its consolidated Subsidiaries may be included in the calculation of Consolidated Net Income, provided that, as of any date of determination while the Payment Prohibition is in effect, no more than $50,000,000 of the income of Halcrow Group Limited and its consolidated Subsidiaries may be included in the calculation of Consolidated Net Income for any period consisting of the four consecutive Fiscal Periods ending on such date of determination.  For purposes of this definition, “Payment Prohibition” means the terms of the restructure of certain pension schemes of one or more of Halcrow Holdings Limited and its Subsidiaries that prohibit one or more of Halcrow Holdings Limited and its Subsidiaries from (i) paying any dividends, making other distributions, or repaying or prepaying any Indebtedness provided to one or more of the Halcrow Entities from time to time by any Borrower or

 

11











 

any subsidiary of a Borrower and (ii) making loans or advances or transferring any property or assets to any Borrower or any subsidiary of a Borrower for a period of time.

 

“Consolidated Subsidiary” of a Person means a Subsidiary of such Person, the results of operations and the financial position of which Subsidiary are included in the financial statements of such Person as if such Person and all of its Consolidated Subsidiaries were a single economic entity in accordance with GAAP.

 

“Consolidated Tangible Assets” means, as of any date of determination, the total tangible assets of the Parent and its Subsidiaries on a Consolidated basis, as determined in accordance with GAAP.

 

“Consolidated Total Funded Debt” means, as of any date of determination, calculated for the Parent and its Subsidiaries on a Consolidated basis, the sum of (without duplication):  (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including all Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, plus (b) all direct obligations arising under letters of credit (whether standby or commercial), bankers’ acceptances, bank guaranties and other financial guarantees, plus (c) all Attributable Debt in respect of all Capitalized Leases, plus (d) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (c) of this definition of Persons other than the Parent or any of its Consolidated Subsidiaries, plus (e) all obligations of such Person to purchase, redeem, retire, defease or make other similar principal payments (other than dividends) in respect of Disqualified Equity Interests in cash valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends that are past due, plus (f) all Indebtedness of the types referred to in clause (a) through (e) of this definition of any partnership or Joint Venture (other than a Joint Venture that is itself a corporation or limited liability company) in which the Parent or any of its Consolidated Subsidiaries is a general partner or joint venturer, unless such Indebtedness is expressly made nonrecourse to the Parent or such Subsidiaries; provided that Consolidated Total Funded Debt will not include (without duplication) (1) Indebtedness in respect of Swap Contracts, including the Swap Termination Value thereof, (2) obligations to the extent that such obligations are indirect, contingent obligations (other than L/C Obligations and contingent obligations with respect to the undrawn face amount of any Credit) or (3) any Performance Credit, but only to the extent that the face amount of such Performance Credit is less than $20,000,000; and provided further that, with respect to each outstanding JV Letter of Credit, only the portion of the JV Letter of Credit Face Amount thereof that is recourse to the Borrowers, determined in accordance with Section 2.04(k), shall be included in the calculation of Consolidated Total Funded Debt.  For the avoidance of doubt, any amount of the face amount of each issued and outstanding Performance Credit that equals or exceeds $20,000,000 will be included in Consolidated Total Funded Debt (including the first dollar of such face amount of such Performance Credit in excess of $20,000,000).

 

“Contractual Obligation” means, as to any Person, any document or other agreement or undertaking to which such Person is a party or by which it or any of its property is bound.

 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.

 

“Control Agreement” shall mean an agreement, among a Loan Party, a depository institution or securities intermediary, and Administrative Agent, which agreement is in a form reasonably acceptable to Administrative Agent and the Administrative Borrower and which provides Administrative Agent with “control” (as such term is used in Article 8 and 9 of the UCC (as applicable)) over any deposit account or securities accounts described therein.

 

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“Credit” means any Letter of Credit or Bank Undertaking, including any Performance Credit.

 

“Credit Extension” means each of the following: (a) a Borrowing, (b) a continuation of any Eurodollar Rate Loan (or portion thereof) into a new Eurodollar Rate Loan of a new Interest Period, (c) a conversion of any Base Rate Loan (or portion thereof) into a Eurodollar Rate Loan of a new Interest Period or the conversion of any Eurodollar Rate Loan (or portion thereof) into a Base Rate Loan or (d) an L/C Credit Extension.

 

“Credit Group” means, collectively, Administrative Agent and the Lending Parties.

 

“Current Portion of Consolidated Long Term Debt” means, as determined as of the last day of any Fiscal Period, calculated for the Parent and its Subsidiaries on a Consolidated basis, the aggregate principal amount of all Consolidated Total Funded Debt (other than the Obligations hereunder and other than amounts under any bank guarantees, other financial guarantees, and issued and outstanding letters of credit (whether standby or commercial), except to the extent of any drawn or funded amounts under such bank guarantees, other financial guarantees or letters of credit that have not been paid or cash-collateralized) that became due and payable during the period consisting of the four consecutive Fiscal Periods ending on such date of determination.

 

“Default” means any event or condition that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.

 

“Default Rate” means (a) when used with respect to Obligations other than L/C Fees, a per annum interest rate equal to the sum of (i) the Base Rate, plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans and plus (iii) 2.0% per annum; provided that, with respect to a Eurodollar Rate Loan, the Default Rate will be a per annum interest rate equal to the sum of (A) the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus (B) 2.0%; and (b) when used with respect to L/C Fees, a per annum interest rate equal to the sum of (1) the Applicable Rate plus (2) 2.0% per annum.

 

“Defaulting Lender” means, subject to Section 3.07(b), any Lender that, as determined by Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Letters of Credit or Swing Line Loans, within three Business Days of the date required to be funded by it hereunder unless (i) such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to its performance of such funding obligations (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied and (ii) such conditions precedent shall not have been satisfied, (b) has notified the Borrowers or Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations hereunder or under other agreements in which it commits to extend credit (unless (i) such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder, promptly follows the Loan Notice therefor and states that such position is based on such Lender’s determination that a condition precedent to funding such Loan (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot been satisfied and (ii) such condition precedent cannot be satisfied), (c) has failed, within three Business Days after request by Administrative Agent, to confirm in a manner satisfactory to Administrative Agent that it will comply with its funding obligations, or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any applicable Bankruptcy Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; or (iv) become the subject of a Bail-

 

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In Action; provided that a Lender will 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.

 

“Disposition” means the sale, assignment, transfer, conveyance, license (other than on a non-exclusive basis), lease or other disposition (including any sale and leaseback transaction) of any property by any Person (other than such person’s own Equity Interests), including any sale, assignment, transfer, conveyance or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.  The term “Dispose” has a meaning correlative thereto.  For purposes of clarification, none of the issuance by any Person of Equity Interests in itself (or rights with respect thereto), the granting of a Lien or the assignment of cash or other property or assets to a trustee for a pension scheme or benefit plan shall be deemed a Disposition by such Person.

 

“Disqualified Equity Interest” means any Equity Interest of any Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof) or upon the happening of any event (a) matures or is mandatorily redeemable in cash pursuant to a sinking fund obligation or otherwise, (b) is redeemable in cash at the option of the holder thereof, or (c) requires or mandates the purchase, redemption, retirement, defeasance or other similar payment (other than dividends) for cash, in each case on or prior to the last to occur of the Revolving Credit Maturity Date and 91 days after the maturity date of the Second Lien Facility.  The term “Disqualified Equity Interest” will also include any options, warrants or other rights that are convertible into any Disqualified Equity Interest or that are redeemable at the option of the holder, or required to be redeemed, prior to the last to occur of the Revolving Credit Maturity Date and 91 days after the maturity date of the Second Lien Facility.

 

“Dollar” and “$” mean lawful money of the United States.

 

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward) in Dollars as determined by Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.

 

“Domestic Subsidiary” means a Subsidiary incorporated or organized under the laws of the United States, any State thereof or the District of Columbia.

 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

 

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

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“Electronic Platform” means an electronic system for the delivery of information (including documents), such as DXSyndicateTM, SyndTrak Online TM or Intralinks on Demand WorkspacesTM that may or may not be provided or administered by Administrative Agent or an Affiliate thereof.

 

“Eligible Assignee” means any of the following: (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund and (d) any other Person (other than a natural person) approved by (i) Administrative Agent, (ii) in the case of an assignment of a Revolving Credit Commitment, Swing Line Lender and L/C Issuer and (iii) unless an Event of Default has occurred and is continuing (in which event the Administrative Borrower’s approval will not be required), the Administrative Borrower (each of which approvals shall not be unreasonably withheld or delayed; provided, however, that the approval of the Administrative Borrower shall be deemed to have been granted unless the Administrative Borrower objects thereto by written notice to Administrative Agent within five Business Days after having received notice thereof); provided that, notwithstanding the foregoing, “Eligible Assignee” will not include (1) any Loan Party or any Subsidiary or other Affiliate of any Loan Party or (2) any Defaulting Lender.

 

“Eligible Receivables” means all trade receivables and related contract rights originated and owned by the Parent and its Subsidiaries on a Consolidated basis.

 

“Employee Benefit Plan” means any Pension Plan and any employee welfare benefit plan, as defined in Section 3(1) of ERISA, that is maintained for the employees of any Person or any ERISA Affiliate of such Person.

 

“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

 

“Environmental Claims” means all claims, complaints, notices or inquiries, however asserted, by any Governmental Authority or other Person alleging Environmental Liabilities.

 

“Environmental Laws” means any and all Laws relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

 

“Environmental Liability” means 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 based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the actual or alleged presence of or release or threatened release of any Hazardous Materials into the environment on or from any property owned or operated by any Borrower, any Subsidiary thereof or any other Loan Party or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

 

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“ERISA” means the Employee Retirement Income Security Act of 1974.

 

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Parent or any Subsidiary thereof within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Parent or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such Person was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Parent or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any 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; (g) the determination that any Pension Plan is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Parent or any ERISA Affiliate.

 

“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

 

“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

 

“Eurodollar Rate” means for any Interest Period, with respect to a Eurodollar Rate Loan, a rate per annum (rounded, as necessary, to the nearest 1/100th of one percent (0.01%) obtained by dividing (a):

 

(i)            with respect to a Eurodollar Rate Loan denominated in Dollars, the rate per annum determined by Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the beginning of such Interest Period by reference to the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) “Interest Settlement Rates” for deposits in Dollars as set forth by any service (including Bloomberg, Reuters and Thomson Financial) selected by Administrative Agent that has been nominated by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) as an authorized information vendor for the purpose of displaying such rates, in each case in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided that, if an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, then “Eurodollar Rate” will be the interest rate per annum determined by Administrative Agent to be the average of the rates per annum at which deposits in Dollars in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period are offered for such Interest Period by Wells Fargo to major banks in the London interbank offered market in London, England at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the beginning of such Interest Period;

 

(ii)           with respect to a Eurodollar Rate Loan in Canadian Dollars, the rate per annum equal to the Canadian Dealer Offered Rate (“CDOR”) as published by Reuters (or other commercially available source providing such interest rate quotations as designated by the Administrative Agent from

 

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time to time) at approximately 10:15 a.m., Toronto time, two Business Days prior to the commencement of such Interest Period, for Canadian Dollars bankers’ acceptances with a term equivalent to such Interest Period, or if such rate is not available at such time for any reason, then “CDOR” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the arithmetic mean of the rates per annum quoted at approximately 10:15 a.m., Toronto time, two Business Days prior to the commencement of such Interest Period, by The Bank of Nova Scotia, Royal Bank of Canada and Canadian Imperial Bank of Commerce in respect of Canadian Dollar bankers’ acceptances with a term equivalent to such Interest Period (it being understood that no adjustment shall be made to account for the difference between the number of days in a year on which the rates referred to in this clause (ii) are based and the number of days in a year on the basis of which interest is calculated in the Agreement);

 

(iii)          with respect to a Eurodollar Rate Loan in Australian Dollars, the rate per annum equal to the Bank Bill Swap Reference Rate or the successor thereto as approved by the Administrative Agent (“BBSY”) as published by Reuters (or other commercially available source providing BBSY quotations as may be designated by the Administrative Agent from time to time) at approximately 10:30 a.m., Sydney time, two Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent), for deposits in Australian Dollars with a term equivalent to such Interest Period (or if such Interest Period is not equal to a number of months, with a term equivalent to the number of months closest to such Interest Period), or if such rate is not available at such time for any reason, then “BBSY” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the arithmetic mean of the rates per annum quoted at approximately 10:30 a.m., Sydney time, two Business Days prior to the commencement of such Interest Period (or such other day as is generally treated as the rate fixing day by market practice in such interbank market, as determined by the Administrative Agent) by at least two reference banks that are leading banks in the Australian interbank market as the rates at which they are offering deposits in Australian Dollars with a term equivalent to such Interest Period in the Australian interbank market;

 

(iv)          with respect to a Eurodollar Rate Loan in Hong Kong Dollars, the rate per annum equal to the Hong Kong Interbank Offered Rate (“HIBOR”) as published by Reuters (or other commercially available source providing such interest rate quotations as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., Hong Kong time, two Business Days prior to the commencement of such Interest Period, for deposits in Hong Kong Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or if such rate is not available at such time for any reason, then “HIBOR” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the arithmetic mean of the rates per annum quoted at approximately 11:00 a.m., Hong Kong time, two Business Days prior to the commencement of such Interest Period by at least three leading banks in the Hong Kong interbank market as the rate at which they are offering deposits in Hong Kong Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in the Hong Kong interbank market;

 

(v)          with respect to a Eurodollar Rate Loan in Singapore Dollars, the rate per annum equal to the Singapore Interbank Offered Rate (“SIBOR”) as published by Reuters (or other commercially available source providing such interest rate quotations as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., Singapore time, two Business Days prior to the commencement of such Interest Period, for deposits in Singapore Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, or if such rate is not available at such time for any reason, then “SIBOR” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the arithmetic mean of the rates per annum the rates quoted at approximately 11:00 a.m., Singapore time, two Business Days prior to the commencement of such Interest Period by at least three leading banks in the Singapore interbank market, for the offering of deposits in Singapore

 

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Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period in the Singapore interbank market;

 

(vi)          with respect to a Eurodollar Rate Loan denominated in an Alternative Currency (other than Canadian Dollars, Australian Dollars, Hong Kong Dollars, Singapore Dollars), the rate per annum determined by Administrative Agent at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the beginning of such Interest Period by reference to the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) “Interest Settlement Rates” for deposits in the applicable Alternative Currency as set forth by any service (including Bloomberg, Reuters and Thomson Financial) selected by Administrative Agent that has been nominated by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate) as an authorized information vendor for the purpose of displaying such rates, in each case in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided that, if an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, then “Eurodollar Rate” will be the interest rate per annum determined by Administrative Agent to be the average of the rates per annum at which deposits in the applicable Alternative Currency in an amount approximately equal to the principal amount to which such Interest Period applies (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period are offered for such Interest Period by Wells Fargo to major banks in the London interbank offered market in London, England at approximately 11:00 a.m., London time, on the date that is two Business Days prior to the beginning of such Interest Period;

 

by (b) one minus the Reserve Requirement in effect on such date.

 

Each determination by Administrative Agent pursuant to this definition will be conclusive absent manifest error.  Notwithstanding the foregoing, if the Eurodollar Rate for any Interest Period shall be less than zero, the Eurodollar Rate for such Interest Period shall be deemed to be zero for purposes of this Agreement.

 

“Eurodollar Rate Loan” means a Loan that bears interest based upon the Eurodollar Rate.

 

“Event of Default” has the meaning given such term in Section 8.01.

 

“Exchange Act” means the Securities Exchange Act of 1934.

 

“Excluded Subsidiary” means (a) any Foreign Holding Company, (b) any Domestic Subsidiary of a Foreign Subsidiary, (c) any Foreign Subsidiary, (d) any Subsidiary that is prohibited by applicable Law 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), (e) any bankruptcy remote special purpose receivables entity designated by Parent and permitted hereunder, (f) any Subsidiary that is prohibited by such Subsidiary’s Organizational Documents or contract from guaranteeing the Obligations to the extent (i) such restriction was existing on the Fourth Amendment Effective Date or on the date on which the applicable Person becomes a direct or indirect Subsidiary of the Parent (and not created in contemplation of such Person becoming a Subsidiary of the Parent) or (ii) solely with respect to non-wholly owned Subsidiaries, such restriction was added or incorporated in the Organizational Documents of such Subsidiary or contract as a result of good faith negotiations concerning such Subsidiary among the Parent (or any Affiliate of the Parent), the joint venture partners or Equity Interest holders or clients and (g) in the case of any obligation under any hedging arrangement that constitutes a “swap” within the meaning of section 1(a)(947) of the Commodity

 

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Exchange Act, any Subsidiary of the Parent that is not an “Eligible Contract Participant” as defined under the Commodity Exchange Act.

 

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such 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 Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.

 

“Excluded Taxes” means, with respect to Administrative Agent, any Lending Party or any other recipient of any payment to be made by or on account of any obligation of any Borrower or any other Loan Party hereunder or under any Loan Document, (a) any taxes imposed on or measured by its overall net income (however denominated) and any franchise taxes imposed on it (in lieu of net income taxes) by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lending Party, in which its applicable Lending Office is located; (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which any Borrower or any other Loan Party is located; (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lending Party that has failed to comply with Section 3.01(e); (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 3.08, any withholding tax that is (i) imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrowers or such other Loan Party with respect to such withholding tax pursuant to Section 3.01(a); and (e) any U.S. federal withholding Taxes imposed under FATCA.

 

“Existing Lenders” has the meaning given such term in Recital A.

 

“FATCA” means Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

 

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, then the Federal Funds Rate for such day will be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, then the Federal Funds Rate for such day will be the average rate (rounded, if necessary, to a whole multiple of one one-hundredth of one percent (0.01%)) charged to Wells Fargo on such day on such transactions as determined by Administrative Agent.

 

“Fee Letters” means, collectively, (i) the letter agreement, dated March 4, 2014, between the Borrowers, the Administrative Agent and Wells Fargo Securities, LLC, in its capacity as the “left lead”

 

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Arranger and (ii) the letter agreement, dated March 4, 2014, between the Borrowers and each Arranger (other than Wells Fargo Securities, LLC), in each case regarding certain fees to be paid by the Borrowers in connection with the transactions contemplated by the Loan Documents.

 

“Fiscal Period” means, as of any date of determination with respect to the Parent or any Subsidiary thereof, each fiscal quarter of the Parent ending (i) on March 31, June 30, September 30 and December 31 of each applicable Fiscal Year through and including the Fiscal Year ended on December 31, 2014, and (ii) on the last Friday of March, June, September and December of each applicable Fiscal Year thereafter.

 

“Fiscal Year” means each fiscal year of the Parent ending (i) on December 31 of each calendar year through and including December 31, 2014, and (ii) on the last Friday of December of each calendar year thereafter.

 

“Foreign Holding Company” means a Domestic Subsidiary all or substantially all of the assets of which are comprised of Equity Interests in one or more Foreign Subsidiaries or CFC Debt.

 

“Foreign Indebtedness” has the meaning given such term in Section 7.03(n).

 

“Foreign Lender” means any Lending Party that is organized under the laws of a jurisdiction other than that in which any Borrower is resident for tax purposes.  For purposes of this definition, the United States, each State thereof and the District of Columbia will be deemed to constitute a single jurisdiction.

 

“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

“Fourth Amendment Effective Date” means April 28, 2017.

 

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to L/C Issuer, such Defaulting Lender’s Percentage Share of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to Swing Line Lender, such Defaulting Lender’s Percentage Share of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

 

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business.

 

“FY2015” means the Fiscal Year ending on the last Friday in December 2015.

 

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.

 

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“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

 

“Guaranteed Obligations” has the meaning given such term in Section 10.15(a).

 

“Guarantor Subordinated Indebtedness” has the meaning given such term in Section 10.15(j).

 

“Guarantor Subordinated Indebtedness Payments” has the meaning given such term in Section 10.15(j).

 

“Guarantors” means, collectively, (a) each Subsidiary Guarantor that is a party to this Agreement for purposes of Section 10.15 (including each Domestic Subsidiary that at a date subsequent to the Closing Date executes a Joinder Agreement pursuant to Section 6.12 in order to become a Subsidiary Guarantor hereunder for purposes of Section 10.15 following the date hereof) and (b) each other Person who, at a date subsequent to the Closing Date, becomes a guarantor of all or any portion of the Obligations hereunder and under the other Loan Documents.

 

“Guaranty” means, as to any Person, any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect: (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other financial obligation; (b) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other financial obligation of the payment or performance of such Indebtedness or other financial obligation; (c) 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 financial obligation; or (d) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other financial obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), and will include the guaranty set forth in Section 10.15.  The amount of any Guaranty will be deemed to be the amount recognized as a guaranty and shown on the guaranteeing Person’s financial statements in accordance with GAAP provided that if such financial statements of the guaranteeing Person are not reasonably available to Administrative Agent at its reasonable request, the amount of such Guaranty will be deemed to be the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a corresponding meaning.

 

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

“Hedging Agreements” means, with respect to any Person, any agreement entered into to protect such Person against fluctuations in interest rates, or currency or raw materials values, including, without limitation, any interest rate swap, cap or collar agreement or similar arrangement between such Person and one or more counterparties, any foreign currency exchange agreement, currency protection agreements, commodity purchase or option agreements or other interest or exchange rate hedging

 

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agreements. For the purposes of this Agreement and the other Loan Documents, references to Swap Contracts shall include Hedging Agreements.

 

“Hong Kong Dollars” means the lawful currency of Hong Kong, a special administrative region of the People’s Republic of China.

 

“Honor Date” means, with respect to any Letter of Credit, the date of any payment by L/C Issuer in respect of any draw thereunder.

 

“Incremental Term Loan” has the meaning given such term in Section 2.15.

 

“Indebtedness” means, as to any Person as of any date of determination, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:  (a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial letters of credit), bankers’ acceptances, bank guaranties and other similar financial guarantees; (c) the Swap Termination Value under all Swap Contracts to which such Person is a party; (d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business); (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness (i) will have been assumed by such Person or (ii) unless such indebtedness is nonrecourse as described in clause (i) below, is limited in recourse; (f) all Attributable Debt in respect of all Capitalized Leases and Synthetic Lease Obligations of such Person; (g) all obligations of such Person to purchase, redeem, retire, defease or make other similar principal payments (other than dividends) in respect of Disqualified Equity Interests in cash valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends that are past due; (h) all Guarantees of such Person in respect of any of the foregoing; and (i) the Indebtedness of any Person will include the Indebtedness of any partnership or Joint Venture (other than a Joint Venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  Notwithstanding the foregoing, for all purposes hereof, the Indebtedness of any Person will not include obligations in respect of operating leases, as determined by GAAP.

 

“Indemnified Taxes” means Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document.

 

“Indemnitees” means, collectively, Administrative Agent (and any sub-agent thereof), each Arranger, each Lending Party and each Related Party of any of the foregoing Persons.

 

“Inpex” means the fixed-price EPC project to engineer, procure, construct and start-up a combined cycle power plant in Australia, which will supply power to a large liquefied natural gas facility, being undertaken by Parent through a consolidated joint venture partnership with an Australian construction contractor.

 

“INR” means the lawful currency of the Republic of India.

 

“Insolvency Proceeding” means (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshalling of assets for creditors or other, similar arrangement in respect of its creditors

 

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generally or any substantial portion of its creditors, in each of case (a) and (b) undertaken under Federal, state or foreign Law, including the Bankruptcy Code.

 

“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Fourth Amendment Effective Date, between the Administrative Agent and Wilmington Trust, National Association, as trustee and secured notes collateral agent under the Second Lien Indenture and acknowledged and agreed to by the Loan Parties.

 

“Interest Payment Date” means (a) with respect to (i) a Eurodollar Rate Loan, the last day of each Interest Period applicable thereto and, in the case of a Eurodollar Rate Loan with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period, (ii) a Base Rate Loan (other than a Swing Line Loan), the last Business Day of each calendar quarter, and (iii) a Swing Line Loan, the last Business Day of each calendar month; and (b) in the case of Revolving Credit Loans and Swing Line Loans, the Revolving Credit Maturity Date.

 

“Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrowers in their related Loan Notice; provided that (a) any Interest Period that would otherwise end on a day that is not a Business Day will be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period will end on the next preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) will end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period for any Revolving Credit Loan will extend beyond the Revolving Credit Stated Maturity Date.

 

“Investigation” means a formal investigation or a formal inquiry by a Governmental Authority in respect of which any Loan Party has received an official written notice or similar communication that such Governmental Authority has sufficient cause to institute, and has instituted, such an investigation or inquiry into the acts or business practices of such Loan Party or any of its Subsidiaries in order to determine (a) whether such acts or business practices constitute a violation of applicable Law and (b) if so, whether civil or criminal proceedings should be instituted against such Loan Party or any such Subsidiary as a result of such violation, which civil or criminal proceedings, if adversely determined and viewed in light of all relevant circumstances, would cause a Material Adverse Change.

 

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person in another Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or limited liability company interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit, or all or a substantial part of the business of, such Person.  For purposes of covenant compliance hereunder, the amount of any Investment will be the original principal or capital amount thereof without adjustment for subsequent increases or decreases in the value of such Investment, and will, if made by the transfer or exchange of Property other than cash, be deemed to have been made in an original principal or capital amount equal to the fair market value (as reasonably determined in good faith by the Administrative Borrower) of such Property.  For purposes of determining the amount of additional Investments made after the Third Amendment Effective Date under Section 7.02(i), the amount of additional Investments made thereunder will equal (i) the amount of such Investments determined

 

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according to the immediately preceding sentence minus (ii) any reductions in such Investments resulting from (A) repurchases, redemptions or other acquisitions or retirements of such Investments, proceeds realized upon the sale or other disposition to a Person other than the Borrowers and any of their respective Subsidiaries of such Investment, repayments of loans or advances or other transfers of assets (including by way of dividend, distribution, interest payments or returns of capital) to any of the Borrowers and their respective Subsidiaries, or (B) the subsequent reclassification of such Investment to an Investment under Section 7.02(b) as a result of a Permitted Acquisition.

 

“IRS” means the United States Internal Revenue Service.

 

“ISP” means, with respect to any standby Letter of Credit, the “International Standby Practices 1998” (exclusive of Rule 3.14 thereof) published by the Institute of International Banking Law & Practice (or, if L/C Issuer agrees at the time of issuance, such later version thereof as may be in effect at the time of issuance of such Letter of Credit).

 

“Issuer Documents” means, with respect to any Credit, the L/C Application relating thereto and any other document entered into by L/C Issuer and any Borrower as applicant or its permitted designee or otherwise delivered by such Borrower or its permitted designee to or for the benefit of L/C Issuer, in each case relating to such Credit.

 

“Issuer Sublimit” means with respect to each L/C Issuer on the Fourth Amendment Effective Date, an amount equal to the amount set forth opposite the name of such L/C Issuer on Schedule 2.03, as such amount may be changed after the Fourth Amendment Effective Date in a written agreement between the Administrative Borrower and such L/C Issuer (which such agreement shall be promptly delivered to the Administrative Agent upon execution) and (b) with respect to any Lender becoming a L/C Issuer after the Fourth Amendment Effective Date, such amount as may be separately agreed in writing between such L/C Issuer and the Administrative Borrower from time to time (which such agreement shall be promptly delivered to the Administrative Agent upon execution), provided that the Issuer Sublimit with respect to any Person that ceases to be an L/C Issuer for any reason pursuant to the terms hereof shall be $0 (subject to the Letters of Credit of such Person remaining outstanding in accordance with the provisions hereof).

 

“Joinder Agreement” means an agreement entered into by a Subsidiary of the Parent following the date hereof to join in the Guaranty set forth in Section 10.15, in substantially the form of Exhibit C or any other form approved by Administrative Agent.

 

“Joint Venture” of a Person means a joint venture, partnership, alliance, consortium or similar arrangement formed for the purpose of performing a single Project or series of related Projects, whether in corporate, partnership or other legal form in which, such Person directly, or indirectly through one or more intermediaries, or both, participates; provided that, as to any such arrangement in corporate form, such corporation shall not be considered to be a Joint Venture of such Person if such corporation is a Subsidiary of such Person.

 

“JV Letter of Credit” has the meaning given such term in Section 2.04(k).

 

“JV Letter of Credit Face Amount” has the meaning given such term in Section 2.04(k).

 

“KWD” means the lawful currency of the State of Kuwait.

 

“Laws” means, 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

 

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enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, concessions, grants, franchises, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

 

“L/C Advance” means a Lender’s funding of its participation in an L/C Borrowing in accordance with its Percentage Share.

 

“L/C Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by L/C Issuer.

 

“L/C Borrowing” means an extension of credit resulting from a drawing under any Credit that has not been reimbursed on the date when made or refinanced as a Revolving Credit Borrowing.

 

“L/C Credit Extension” means, with respect to any Credit, the issuance thereof, the extension of the expiry date thereof or the increase of the amount thereof.

 

“L/C Expiration Date” means the day that is five Business Days prior to the Revolving Credit Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

“L/C Fee” has the meaning given such term in Section 2.04(h).

 

“L/C Issuer” means, Wells Fargo or any other Lender designated from time to time by the Administrative Borrower (and agreed to by such Lender), on behalf of the Borrower, in such Lender’s separate capacity as the issuer of Credits hereunder, or any successor issuer of Credits hereunder.

 

“L/C Obligations” means, at any time, the sum of (a) the aggregate amount available to be drawn under all outstanding Credits and (b) the aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount available to be drawn under any Credit, the amount of such Credit will be determined in accordance with Section 1.02(j).

 

“L/C Sublimit” means an amount equal to $450,000,000; provided that not more than $250,000,000 of such L/C Sublimit may be used for the issuance of financial letters of credit.  The L/C Sublimit is part of, and not in addition to, the Aggregate Revolving Credit Commitments.

 

“Legally Required Restricted Payments” means the repurchases of the Parent’s common stock to the extent such repurchase is required by Law or the Parent’s benefits plans as in effect on the Fourth Amendment Effective Date.

 

“Lender” means, collectively, (a) as of the Fourth Amendment Effective Date, each Lender designated on Schedule 2.02 as a “Lender” and (b) each Lender that assumes a Revolving Credit Commitment pursuant to an Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation or which otherwise holds a Revolving Credit Commitment, a Revolving Credit Loan, a risk participation in a Swing Line Loan or a participation in a Credit or a L/C Borrowing.  In the event that any Lender, pursuant to Section 2.03(h), utilizes a branch or Affiliate to make a Loan, the term “Lender” shall include any such branch or Affiliate with respect to such Loan.

 

“Lending Office” means, as to any Lender, the office or offices, branches or Affiliates of such Lender described as such in such Lender’s Administrative Detail Form, or such other office or offices as a Lender may from time to time notify the Borrowers, Administrative Agent and Lending Parties.

 

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“Lending Parties” means, collectively, Lenders, Swing Line Lender and L/C Issuer.

 

“Letter of Credit” means any standby and commercial letter of credit issued hereunder (and will include financial letters of credit and Performance Credits if issued as a standby letter of credit and JV Letters of Credit).

 

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any easement, right of way or other encumbrance on title to real property); provided that, a “Lien” shall not include the assignment of cash or other property or assets to a trustee for a pension scheme or benefit plan.

 

“Loan” means any Revolving Credit Loan or Swing Line Loan.

 

“Loan Documents” means this Agreement, the Credits and related Issuer Documents, the Security Documents, the Intercreditor Agreement, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.16, the Fee Letters, any Note and any and all other agreements, documents and instruments executed and/or delivered (and, if not executed and only delivered, identified as a Loan Document) by any Loan Party to Administrative Agent or any Lending Party or their respective authorized designee evidencing or otherwise relating to the Loans or the L/C Borrowings made or issued hereunder. Notwithstanding anything to the contrary herein, a Loan Document shall not include any Bank Product Agreement.

 

“Loan Notice” means a notice, pursuant to Section 2.03(a), of (a) a borrowing of Loans, (b) a conversion of Loans from one Type to the other or (c) a continuation of Eurodollar Rate Loans, which notice, if in writing, will be substantially in the form of Exhibit D.

 

“Loan Parties” means, collectively, all Borrowers and all Guarantors.

 

“Material Adverse Change” means any of the following:  (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise), operations, performance or properties of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Parent and its Subsidiaries taken as a whole to perform their respective obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document to which any Loan Party is a party against the Parent and its Subsidiaries taken as a whole, or the rights and remedies of Administrative Agent or any Lending Party under or in respect of any Loan Document.

 

“Material Adverse Effect” means any of the following:  (a) a material adverse change in, or material adverse effect upon, the business, condition (financial or otherwise), operations, performance, properties or prospects of the Parent and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Parent and its Subsidiaries taken as a whole to perform their respective obligations under the Loan Documents; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Loan Document to which any Loan Party is a party against the Parent and its Subsidiaries taken as a whole or the rights and remedies of Administrative Agent or any Lending Party under or in respect of any Loan Document.

 

“Material Subsidiary” means, as of any date, each Subsidiary of the Parent whose gross revenue, taken on a Consolidated basis with its Subsidiaries, for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) was more than the greater of (a)

 

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$200,000,000 and (b) 3.75% of the Consolidated gross revenue of the Parent and its Subsidiaries for such Fiscal Year.

 

“Middle East” means one or more of countries or states commonly known as Bahrain, Cyprus, Egypt, Iraq, Israel, Jordan, Kuwait, Lebanon, Northern Cyprus, Oman, Qatar, Saudi Arabia, Turkey, and United Arab Emirates.

 

“Middle East Letters of Credit” means any letters of credit or bank undertakings issued by any bank or other issuer of letters of credit or bank undertakings to support operations and projects of the Loan Parties or their Subsidiaries in the Middle East.

 

“Minimum Liquidity” means, as of any date of determination, an amount equal to the sum of (a) the aggregate unrestricted cash and Cash Equivalents held in the United States by the Parent and its Domestic Subsidiaries as of such date (excluding any cash and Cash Equivalents held in joint ventures) plus (b) the aggregate Available Credit as of such date to the extent available to the Borrowers.

 

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.

 

“MoPac” means the fixed-price contract to design and construct roadway improvements on the MoPac Expressway in Austin, Texas.

 

“Mortgages” means the collective reference to each mortgage, deed of trust or other real property security document, encumbering any real property constituting Collateral now or hereafter owned by any Loan Party, in each case, in form and substance reasonably satisfactory to Administrative Agent and executed by such Loan Party in favor of Administrative Agent, for the benefit of each of the Secured Parties.

 

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Parent or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

 

“Multiple Employer Plan” means a Plan which has two or more contributing sponsors (including the Parent or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

“National Currency Unit” means a fraction or multiple of one Euro expressed in units of the former national currency of a Participating Member State.

 

“NOK” means the lawful currency of the Kingdom of Norway.

 

“Note” means any promissory note executed by the Borrowers in favor of a Lender pursuant to Section 2.12 in substantially the form of Exhibit E.

 

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Credits, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Bankruptcy Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided, however, that: (a) solely for purposes of a distribution under Section 8.04 with respect to the Collateral, the sharing thereof or the payments

 

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from proceeds of the Collateral, the term Obligations shall (i) include all Bank Product Debt (with fees, premiums and scheduled periodic payments under Bank Products being equated to accrued and unpaid interest on the Loans, and any breakage or termination payments due under Bank Products being equated to unpaid principal of the Loans) in respect of which (A) the applicable Bank Product Provider (other than Wells Fargo Bank, National Association) before such distribution provides a Bank Product Provider Notice to the Administrative Agent and the Administrative Borrower which sets forth the following information: (1) the existence of such Bank Product and (2) the maximum Dollar amount (if reasonably capable of being determined) of obligations arising thereunder (the “Bank Product Amount”) and (B) Wells Fargo Bank, National Association, if it is the applicable Bank Product Provider, before such distribution provides a Bank Product Provider Notice to the Administrative Borrower which sets forth the Bank Product Amount and (ii) exclude any Bank Product Debt established from and after the time that the Lenders have received written notice from the Administrative Borrower or the Administrative Agent that an Event of Default exists, until such Event of Default has been waived in accordance with Section 8.01, and (b) in no event shall the term Obligations include any (i) Excluded Swap Obligations or (ii) Bank Product Debt that is excluded from definition of Obligations pursuant to clause (a)(ii) of this proviso.  The Bank Product Amount may be changed from time to time upon written notice to the Administrative Agent (which notice to the Administrative Agent shall not be required if Wells Fargo Bank, National Association is the Bank Product Provider giving the notice) and the Administrative Borrower by the Bank Product Provider.  The Administrative Agent shall use the last Bank Product Amount reported to it before a distribution under Section 8.04 to determine the amount of the related Bank Product Debt for purposes of clause (a) above.  The Administrative Agent shall have no obligation to verify any Bank Product Amount reported to it and may rely solely upon written notice of such amount (setting forth a reasonably detailed calculation thereof) from the applicable Bank Product Provider.  In the absence of such notice, the Administrative Agent may assume the amount to be distributed is the Bank Product Amount last reported to the Administrative Agent under the terms of this definition.

 

“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.

 

“OMR” means the lawful currency of the Sultanate of Oman.

 

“Organizational Documents” means (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-United States jurisdiction) of such Person; (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement of such Person; 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 of such Person and any agreement, instrument, filing or notice with respect thereto filed in connection with such Person’s 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 Person.

 

“Original Credit Agreement” means the Amended and Restated Credit Agreement dated as of April 19, 2012, as amended, modified or supplemented from time to time, among the Borrowers, Subsidiary Guarantors party thereto, the Existing Lenders and Wells Fargo as an issuing bank, as the swing line lender and as administrative agent on behalf of the Existing Lenders.

 

“Original Credit Documents” has the meaning given such term in Recital B.

 

“Other Taxes” means all present or future stamp, intangible or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

 

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“Outstanding Amount” means (a) with respect to any Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any Borrowings and prepayments or repayments of such Loans, as the case may be, occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrowers of Unreimbursed Amounts; provided, that the Outstanding Amount of JV Letters of Credit shall be calculated based on the JV Letter of Credit Face Amount.

 

“Parent” has the meaning given such term in the preamble.

 

“Participant” means any Person other than a natural person, any Borrower or any of any Borrower’s Affiliates.

 

“Participating Member State” means each country so described in any EMU Legislation.

 

“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)).

 

“PBGC” means the Pension Benefit Guaranty Corporation.

 

“PEN” means the lawful currency of the Republic of Peru.

 

“Pension Act” means the Pension Protection Act of 2006.

 

“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by the Parent and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.

 

“Percentage Share” means as to any Lender at any time, the percentage (expressed as a decimal carried out to the ninth decimal place) of the Aggregate Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment at such time, subject to adjustment as provided in Section 3.07; provided that, if the commitment of each Lender to make Revolving Credit Loans and the obligation of any L/C Issuer to issue L/C Credit Extensions have been terminated pursuant to Section 8.03 or if the Aggregate Revolving Credit Commitments have expired, then the Percentage Share of each Lender will be determined based upon such Lender’s Percentage Share most recently in effect, giving effect to any subsequent assignments.  The Percentage Share of each Lender as of the Fourth Amendment Effective Date is set forth opposite the name of such Lender on Schedule 2.02 or in the Assignment and Assumption or pursuant to the applicable Additional Commitment Documentation pursuant to which such Lender became a party hereto, as applicable.

 

“Performance Credit” means a standby letter of credit or Bank Undertaking used directly or indirectly to cover bid, performance, advance and retention obligations in support of the Borrowers’ work program.

 

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“Permitted Acquisition” means any Acquisition that meets the following conditions:

 

(a)           such proposed Acquisition only involves assets or businesses comprising a business, or those assets of a business, substantially of the type engaged in by the Borrowers as of the date of this Agreement (or reasonably related thereto);

 

(b)           such proposed Acquisition will be consensual and be approved by (i) the Target’s board of directors (or by the Target’s board or members of managers or other applicable managing body if Target is not a corporation) and (ii) to the extent required by applicable Law, the holders of the Equity Interests in the Target;

 

(c)           no Default or Event of Default will have occurred and be continuing or result from the consummation of such proposed Acquisition;

 

(d)           prior to the closing and consummation of such proposed Acquisition for which cash consideration exceeds $50,000,000, (i) the Parent will deliver to Administrative Agent pro forma Consolidated financial statements for the Parent and its Subsidiaries, including the Target, in form satisfactory to Administrative Agent, in its Reasonable Discretion, (ii) after giving effect to such proposed Acquisition, the Borrowers will be in compliance with the financial covenants set forth in Section 7.14 on a pro forma basis, (iii) the Consolidated Leverage Ratio, as calculated as of the last day of the most recently ended Fiscal Period of the Parent for which the Parent has delivered to Administrative Agent a Compliance Certificate pursuant to Section 6.01(c) along with the accompanying audited Consolidated financial statements pursuant to Section 6.01(a) or unaudited Consolidated financial statements pursuant to Section 6.01(b), as applicable, but after giving pro forma effect to such proposed Acquisition, will not exceed 2.75:1.00, (iv) any secured Indebtedness to be assumed by any Loan Party or any Subsidiary thereof upon the consummation of such proposed Acquisition shall be permitted pursuant to Section 7.03 (and the Liens related thereto shall be Permitted Liens), (v) the Loan Parties shall have Minimum Liquidity of not less than $300,000,000 after giving pro forma effect to such proposed Acquisition, and (vi) Administrative Borrower will deliver to Administrative Agent a certificate of a Responsible Officer certifying as to the matters set forth in clause (d) above of this definition and in subclauses (ii) through (v) of this clause (e);

 

(e)           the business and assets of the Target will be free and clear of Liens, except Liens permitted pursuant to Section 7.01; and

 

(f)            the proposed Acquisition will be undertaken and consummated in accordance and in compliance in all material respects with all applicable Laws and, to the extent applicable, all necessary and appropriate authorizations, permits, consents and approvals, including Hart-Scott-Rodino antitrust notification and clearance, will have been received from Governmental Authorities and third parties (including in respect of material agreements to be assumed under relevant purchase document).

 

“Permitted Encumbrances” means (a) any cash collateral or other credit support provided to L/C Issuer in respect of a Defaulting Lender pursuant to clauses (D) or (E) of Section 2.04(a)(iv) and (b) any cash collateral or other credit support provided to Swing Line Lender in respect of a Defaulting Lender pursuant to clause (C) of Section 2.05(b).

 

“Permitted Liens” has the meaning set forth in Section 7.01.

 

“Permitted Receivables Financing” means the sale of, or transfer of interests in, Eligible Receivables to special purpose trusts or corporations which are not Affiliates of the Loan Parties in exchange for consideration equal to the fair market value (as reasonably determined in good faith by the

 

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Administrative Borrower) of such Eligible Receivables (i.e., a “true sale”) (provided that not less than 95% of such consideration will be in the form of cash); provided that (a) such transaction does not constitute and could not reasonably be expected to result in a Default or Event of Default and (b) such transaction will not contain terms and conditions providing for recourse to any Loan Party or any of their Subsidiaries in the event of any failure to collect on any Program Receivables (other than customary indemnities and expense reimbursement provisions and recourse for falsity of representations and warranties or breach of covenants).

 

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

“Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Parent or any ERISA Affiliate or any such Plan to which the Parent or any ERISA Affiliate is required to contribute on behalf of any of its employees.

 

“PLN” means the lawful currency of the Republic of Poland.

 

“preferred stock” means, with respect to any Person, an Equity Interest of any class or classes (however designated) of such Person that is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of capital stock (or ownership or profits interest in) of such Person of any other class.

 

“Prime Rate” means the per annum rate of interest in effect for such day as publicly announced from time to time by Wells Fargo as its “Prime Rate,” such rate being the rate of interest most recently announced within Wells Fargo at its principal office in San Francisco, California as its “Prime Rate,” with the understanding that Wells Fargo’s “Prime Rate” is one of Wells Fargo’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as Wells Fargo may designate. Wells Fargo’s “Prime Rate” is not intended to be the lowest rate of interest charged by Wells Fargo in connection with extensions of credit to borrowers. Any change in Wells Fargo’s “Prime Rate” as announced by Wells Fargo will take effect at the opening of business on the day specified in the public announcement of such change.

 

“Program Receivables” means all Eligible Receivables sold pursuant to a Permitted Receivables Financing.

 

“Project” means each contractual arrangement between a client and the Parent or a Subsidiary for the performance of services (including design, engineering, procurement, construction program management and any other services that the Parent or a Subsidiary provides to its clients in the ordinary course of business).

 

“QAR” means the lawful currency of the State of Qatar.

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Subsidiary Guarantor that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an ECP under the Commodity Exchange Act or any regulations promulgated thereunder.

 

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“Reasonable Discretion” means, as to any Person, a determination or judgment made by such Person in good faith in the exercise of reasonable (from the perspective of a secured lender) business judgment.

 

“Record” means information that is inscribed on a tangible medium or which is stored on an electronic or other medium and is retrievable in perceived form.

 

“Register” means a register for the recordation of the names and addresses of Lenders and, as applicable, the Commitments of, and Outstanding Amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time.

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, members, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates, and specifically includes, in the case of(a) Wells Fargo, Wells Fargo in its separate capacities as Administrative Agent, as Swing Line Lender and as a L/C Issuer, and (b) Wells Fargo Securities, LLC, in its capacity as the “left lead” Arranger.

 

“Replacement Lender” has the meaning given such term in Section 3.08(a)(ii).

 

“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty-day notice period has been waived.

 

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Loan Notice, (b) with respect to an L/C Credit Extension, an L/C Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

 

“Required Lenders” means (a) at any time that the Aggregate Revolving Credit Commitments are in effect, Lenders holding in excess of 50.0% of the Aggregate Revolving Credit Commitments; (b) at any time that any Loans are outstanding but the Aggregate Revolving Credit Commitments have been terminated, Lenders holding in excess of 50.0% of the aggregate Outstanding Amount of the Loans; and (c) at any time on or prior to the Closing Date and the funding or issuance of the initial Credit Extension hereunder, Lenders holding in excess of 50.0% of the Aggregate Revolving Credit Commitments; provided that without limiting the foregoing, in the event there are two or more Lenders, “Required Lenders” must be comprised of at least two Lenders; and provided, further, that the Revolving Credit Commitment held or deemed held by any Lender determined by Administrative Agent to be a Defaulting Lender will be excluded for purposes of making a determination of Required Lenders; and provided, further, that the Loans held or deemed held by any Lender determined by Administrative Agent to be a Defaulting Lender pursuant to clauses (b) or (c) of the definition of “Defaulting Lender” will be excluded for purposes of making a determination of Required Lenders.

 

“Reserve Requirement” means the stated maximum rate (rounded, as necessary, to the nearest 1/100th of one percent (0.01%)), as in effect on any date of determination of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such date to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D) of the FRB as in effect on such day, whether or not applicable to any Lending Party.

 

“Responsible Officer” means (a) in connection with any Request for Credit Extension to be delivered hereunder, the chief executive officer, president, chief financial officer, treasurer or controller of the Administrative Borrower; (b) with respect to the Parent in connection with any Compliance Certificate or any other certificate or notice pertaining to any financial information required to be delivery

 

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by any Borrower hereunder or under any other Loan Document, the chief financial officer, treasurer, controller or other officer having primary responsibility for the financial affairs of such Person; and (c) otherwise, with respect to any Borrower or any other Loan Party, the chief executive officer, president, chief operating officer, chief financial officer, treasurer or controller of such Person.

 

“Restricted Payment” means, as to any Person, (a) any dividend or other distribution by such Person (whether in cash, securities or other property) with respect to any Equity Interest of such Person, (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of such Equity Interest or on account of any return of capital to any holder of any such Person’s Equity Interests, (c) the acquisition for value by such Person of any Equity Interests issued by such Person or any other Person that Controls such Person, and (d) with respect to the foregoing clauses (a) through (c) of this definition, any transaction that has a substantially similar effect.

 

“Revaluation Date” means with respect to any Loan, each of the following: (a) each date of the funding of a Eurodollar Rate Loan hereunder denominated in an Alternative Currency, (b) each date of an amendment or modification of any such Loan having the effect of increasing the amount thereof (solely with respect to the increased amount), (c) each date of any prepayment or repayment of any Loan denominated in an Alternative Currency, (d) the first Business Day of each calendar month and (e) such additional dates as Administrative Agent or the Required Lenders will reasonably determine in accordance with the provisions of this Agreement.

 

“Revolving Credit Borrowing” means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each Lender pursuant to Section 2.02(a).

 

“Revolving Credit Commitment” means, as to each Lender at any time, its obligation to do the following pursuant to the terms hereof:  (a) make Revolving Credit Loans to the Borrowers; (b) purchase participations in L/C Obligations; and (c) purchase participations in Swing Line Loans; all in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule 2.02 or in the Assignment and Assumption pursuant to which such Lender became a party hereto or pursuant to the applicable Additional Commitment Documentation, as such amount may be adjusted from time to time in accordance with this Agreement.

 

“Revolving Credit Commitment Fee” has the meaning given such term in Section 2.10(a).

 

“Revolving Credit Loan” has the meaning given such term in Section 2.02(a).

 

“Revolving Credit Maturity Date” means the earliest of (a) the Revolving Credit Stated Maturity Date, (b) the date of the termination of the Aggregate Revolving Credit Commitments pursuant to Section 2.07 and (c) the date of the termination of the Aggregate Revolving Credit Commitments and of the obligation of L/C Issuer to make L/C Credit Extensions and the acceleration of the Revolving Credit Loans pursuant to Section 8.03.

 

“Revolving Credit Stated Maturity Date” means March 28, 2019.

 

“RON” means the lawful currency of Romania.

 

“Sanctioned Entity” means (a) a country or a government of a country, (b) an agency of the government of a country, (c) an organization directly or indirectly controlled by a country or its 

 

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government, or (d) a person or entity resident in or determined to be resident in a country, that is subject to a country sanctions program administered and enforced by OFAC.

 

“Sanctioned Person” means a person named on the list of Specially Designated Nationals maintained by OFAC.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor thereto.

 

“SAR” means the lawful currency of the Kingdom of Saudi Arabia.

 

“SEC” means the Securities Exchange Commission and any successor thereto.

 

“Second Lien Indenture” means the Indenture dated as of April 28, 2017 by and among the Parent, as issuer, the guarantors party thereto, as guarantors, and Wilmington Trust, National Association, as trustee and secured notes collateral agent.

 

“Second Lien Debt” means the Indebtedness incurred pursuant to Section 7.03(r).

 

“Second Lien Facility” means (a) the second-lien facilities governed by the Second Lien Documents and (b) any debt facilities or other financing arrangements (including indentures) providing for loans or other Indebtedness permitted under Section 7.03(r)(ii).

 

“Second Lien Documents” means the “Second Lien Documents” (as defined in the Second Lien Indenture).

 

“Second Lien Refinancing Indebtedness” has the meaning given such term in Section 7.03(r).

 

“Secured Obligations” means, collectively, (a) the Obligations, (b) the Guaranteed Obligations and (c) for purposes of the Guaranty set forth in Section 10.15(a), the liability set forth in Section 10.16(a), the Security Documents and all provisions under the other Loan Documents relating to the Collateral, the sharing thereof or the payments from proceeds of the Collateral, all Bank Product Debt; provided, however, in no event shall the term Secured Obligations include (i) any Excluded Swap Obligations or (ii) any Bank Product Debt that is excluded from definition of Obligations pursuant to clause (a)(ii) of the proviso thereto.

 

“Secured Parties” means, collectively, the Administrative Agent, the Lenders, and the Bank Product Providers.

 

“Security Documents” means the collective reference to the Collateral Agreement, the Control Agreements, the Mortgages, and each other agreement or writing pursuant to which any Loan Party pledges or grants a security interest in any property or assets securing the Secured Obligations.

 

“Second Amendment Effective Date” means March 30, 2015.

 

“Significant Subsidiary” has the meaning given such term in Article VII.

 

“Singapore Dollars” means the lawful currency of Republic of Singapore.

 

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“Solvent” means, as to any Person at any time, that (a) the fair value of the property of such Person on a going concern basis is greater than the amount of such Person’s liabilities (including contingent liabilities), as such value is established and such liabilities are evaluated for purposes of Section 101(32) of the Bankruptcy Code and, in the alternative, for purposes of the Uniform Fraudulent Transfer Act or any similar state statute applicable to the Parent or any Subsidiary thereof; (b) the present fair salable value of the property of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including contingent liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) 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 unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage.

 

“Specified EBITDA Add-backs” means, as calculated for any period, the aggregate amount added to Consolidated Net Income in determining Consolidated Adjusted EBITDA for such period pursuant to clauses (a)(v)(C) (to the extent arising from non-cash project losses attributable to Inpex and MoPac), (a)(vi)(B), (a)(viii) and (c) of the definition of “Consolidated Adjusted EBITDA”.

 

“Specified Lender” means, at any time, any Lender (a) that has requested compensation under Section 3.04 and has not rescinded such request within five Business Days of the making thereof; (b) to whom any Borrower must pay an additional amount (or on whose behalf any Borrower must pay an additional amount to a Governmental Authority) pursuant to Section 3.01; (c) that gives a notice pursuant to Section 3.02; (d) that is a Defaulting Lender; or (e) that is the sole Lender that has refused or failed, within a reasonable period of time (as determined by Administrative Agent in its Reasonable Discretion) from first receiving a written request therefor from Administrative Agent, to provide its written approval of any amendment, consent or waiver in respect of any matter related to this Agreement or the other Loan Documents requiring that all Lenders will have given written approval of such requested amendment, consent or waiver consent pursuant to Section 10.01 and in such instance Lenders sufficient to constitute Required Lenders have already provided such written approval pursuant to Section 10.01.

 

“Specified Materials” means, collectively, all materials or information provided by or on behalf of the Borrowers or any other Loan Party or any of their respective Subsidiaries or Affiliates, as well as documents and other written materials relating to the Borrowers or any other Loan Party or any of their respective Subsidiaries or Affiliates or any other materials or matters relating to the Loan Documents (including any amendments or waivers of the terms thereof or supplements thereto).

 

“Spot Rate” for a currency means the rate determined by Administrative Agent or the L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m., London time, on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that Administrative Agent or the L/C Issuer may obtain such spot rate from another financial institution designated by Administrative Agent or the L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided, further, that the L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Credit denominated in an Alternative Currency.

 

“Sterling” and “£” mean the lawful currency of the United Kingdom.

 

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“Subordinated Debt” means any Indebtedness incurred by any Loan Party or any Significant Subsidiary, from a Person other than a Loan Party or any Subsidiary thereof,  which by its terms is specifically subordinated in right of payment to the prior payment of the Obligations and contains subordination and other terms acceptable to the Administrative Agent.

 

“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Equity Interests having ordinary voting power for the election of directors or other governing body (other than Equity 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” will refer to a Subsidiary or Subsidiaries of the Parent or any Borrower (other than the Parent), as the context will require.

 

“Subsidiary Guarantor” has the meaning given such term in Section 10.15(a).

 

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement; and (b) any and all transactions of any kind, and the related confirmations, that are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement including any such obligations or liabilities under any such master agreement (in each case, together with any related schedules).

 

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a) of this definition, the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

 

“Swing Line” means the revolving credit facility made available by Swing Line Lender pursuant to Section 2.05.

 

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.05.

 

“Swing Line Lender” means, at any time, the provider of the Swing Line hereunder (which, initially, will be Wells Fargo).

 

“Swing Line Loan” has the meaning given such term in Section 2.05(a).

 

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.05(b), which, if in writing, will be substantially in the form of Exhibit F.

 

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“Swing Line Sublimit” means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Credit Commitments.  The Swing Line Sublimit is a part of, but is not in addition to, the Aggregate Revolving Credit Commitments.

 

“Synthetic Lease Obligation” means the principal balance outstanding under any lease, funding agreement or other arrangement with respect to any real or personal property pursuant to which the lessor is treated as the owner of such property for accounting purposes and the lessee is treated as the owner of such property for federal income tax purposes, or any tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an operating lease in accordance with GAAP.

 

“Target” means any Person that the Parent or a Subsidiary thereof proposes to acquire by merger, stock purchase or by the purchase of all or substantially all of its assets.

 

“TARGET Day” means any day on which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

 

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Threshold Amount” means $35,000,000.

 

“Third Amendment Effective Date” means September 30, 2016.

 

“Total Revolving Credit Outstandings” means, at any time, the sum of (a) the aggregate Outstanding Amount of all Revolving Credit Loans, plus (b) the Outstanding Amount of all L/C Obligations and plus (c) the Outstanding Amount of all Swing Line Loans.

 

“Trading with the Enemy Act” means the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any enabling legislation or executive order relating thereto.

 

“Transaction Costs” means the fees, costs, commissions and expenses paid or payable by the Loan Parties in connection with the consummation of the transactions contemplated by the Loan Documents, including the refinancing of the Indebtedness under the Original Credit Agreement, the initial funding of the Credit Extensions under this Agreement on the Closing Date and the funding of other Credit Extensions under this Agreement.

 

“TTD” means the lawful currency of the Republic of Trinidad and Tobago.

 

“TND” means the lawful currency of the Tunisian Republic.

 

“Type” means, with respect to any Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

 

“UCP” means, with respect to any commercial Letter of Credit, the Uniform Customs and Practice for Documentary Credits 2007 Revision, UCP 600, published by the International Chamber of

 

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Commerce (or, if L/C Issuer will agree at the time of issuance, such later version thereof as may be in effect immediately prior to the issuance of such Letter of Credit, the extension of the expiry date thereof or any increase of the amount thereof).

 

“U.K. Regulatory Cost” means an addition to the interest rate on a Eurodollar Rate Loan denominated in an Alternative Currency to compensate a Lender for the cost imputed to such Lender in respect of any such Eurodollar Rate Loan denominated in an Alternative Currency made by such Lender hereunder resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 or by the Bank of England or the Financial Services Authority (the “FSA”) (or other United Kingdom governmental authorities or agencies) of a requirement to place non-interest-bearing deposits or special deposits (whether interest-bearing or not) with the Bank of England to meet cash ratio requirements and/or pay fees to the FSA calculated by reference to liabilities used to fund such Eurodollar Rate Loan; provided that the Borrowers will only be liable for amounts in respect of costs (a) for the period of up to ninety days prior to the date on which such demand was made and (b) to the extent the Lender making demand therefor has required similarly situated borrowers or obligors to pay comparable amounts in respect of such increased costs or reduced returns.

 

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

 

“United Kingdom” or “U.K.” means the United Kingdom of Great Britain and Northern Ireland.

 

“United States” or “U.S.” means the United States of America.

 

“Unreimbursed Amount” means, with respect to any Credit, any amount (in Dollars, or if the applicable Credit is denominated in an Alternative Currency, the Dollar Equivalent thereof) drawn thereunder that the Borrowers have failed to reimburse to L/C Issuer by 11:00 a.m. on the related Honor Date.  The Unreimbursed Amount with respect to JV Letters of Credit shall be equal to the portion of the drawn amount that is recourse to the Borrowers.

 

“Wells Fargo” means Wells Fargo Bank, National Association, a national banking association.

 

“West Deptford Development” means the fixed-price project by CH2M Engineers pursuant to which it designed and constructed a new natural gas fired power generation facility located in West Deptford, New Jersey.

 

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

 

“Yen” and “¥” mean the lawful currency of Japan.

 

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SECTION 1.02.  CERTAIN RULES OF CONSTRUCTION.

 

(a)           General Rules.

 

(i)            Unless the context otherwise clearly requires, the meaning of a defined term is applicable equally to the singular and plural forms thereof.

 

(ii)           The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

(iii)          The word “documents” includes instruments, documents, agreements, certificates, indentures, notices and other writings, however evidenced.

 

(iv)          The words “include” and “including” are not limiting and the word “or” is not exclusive.

 

(v)           In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.”

 

(vi)          Unless the context otherwise clearly requires, the words “property,” “properties,” “asset” and “assets” refer to both personal property (whether tangible or intangible, including cash, securities, accounts and contract rights) and real property.

 

(vii)         Whenever a representation or warranty is made to any Person’s knowledge or awareness or with a similar qualification, knowledge or awareness means the actual knowledge of the Responsible Officers, after such investigation into the applicable matter as is customary for the Responsible Officers in the ordinary course of their conduct of the applicable Person’s business.

 

(viii)        Whenever this Agreement refers to any “wholly-owned” Subsidiary of any Person, such reference shall be deemed to include any Foreign Subsidiary of such Person in which a nominal amount of Equity Interests are held by residents of the jurisdiction in which such Subsidiary is organized in order to comply with requirements of local law.

 

(ix)          Any reference to a Person will be construed to include such Person’s successors and assigns.

 

(x)           Unless the context otherwise requires, terms that are used but not defined herein but are defined in Article 8 or Article 9 of the UCC will have the meaning so given to them in Article 8 or Article 9 of the UCC.

 

(xi)          Unless the context otherwise clearly requires, (A) Article, Section, subsection, clause, Schedule and Exhibit references are to this Agreement; (B) references to documents (including this Agreement) will be deemed to include all subsequent amendments, renewals, extensions, replacements, restatements and other modifications thereto, but only to the extent such amendments, renewals, extensions, replacements, restatements and other modifications are not prohibited by the terms of any Loan Document; and (C) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting the statute or regulation.

 

(b)           Time References.  Unless the context requires otherwise, all references herein to times of day will be references to Denver, Colorado time (daylight or standard, as applicable).

 

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(c)           Captions.  The captions and headings of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement.

 

(d)           Cumulative Nature of Certain Provisions.  This Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements are cumulative and will be performed in accordance with their respective terms.

 

(e)           No Construction Against Any Party.  This Agreement and the other Loan Documents are the result of negotiations among, and have been reviewed by counsel to, the Loan Parties, Administrative Agent and the Lending Parties and are the products of all parties. Accordingly, they will not be construed against Administrative Agent or any Lending Party merely because of the involvement of any or all of the preceding Persons in their preparation.

 

(f)            Paid in Full.  Any reference in this Agreement or in any other Loan Document to the satisfaction or repayment in full of the Obligations means the repayment in full in Cash (or, in the case of Credits, the Cash Collateralization or support by a standby letter of credit in accordance with the terms hereof) of all Obligations other than unasserted contingent indemnification obligations.

 

(g)           GAAP.  Unless the context otherwise clearly requires, all accounting terms not expressly defined herein will be construed, and all financial computations required under this Agreement will be made, in accordance with GAAP.  If at any time any change in GAAP or any changes in accounting principles or practices from those used in the preparation of the financial statements are hereafter occasioned by the promulgation of rules, regulations, pronouncements and opinions by or required by the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successor thereto or agencies with similar functions) or other regulatory body with jurisdiction over GAAP or any financial reporting by the Parent, which results in a material change in the method of accounting in the financial statements required to be furnished to the Administrative Agent hereunder or in the calculation of financial covenants, standards or terms contained in this Agreement, and either the Borrowers or Required Lenders will so request, Administrative Agent, the Lending Parties and the Borrowers will negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Required Lenders); provided that, until so amended:  (i) such ratio or requirement will continue to be computed in accordance with GAAP prior to such change therein; and (ii) the Borrowers will provide to Administrative Agent and the Lending Parties financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

 

(h)           Rounding.  Any financial ratios required to be maintained by the Loan Parties or any of them pursuant to the Loan Documents will be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number using the common - or symmetric arithmetic - method of rounding (in other words, rounding-up if there is no nearest number).

 

(i)            Computations of Certain Financial Covenants.  For purposes of computing the Consolidated Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio as of any date, all components of such ratios will include or exclude, as the case may be, for the period consisting of the four Fiscal Periods ending on such date all financial results (without duplication of amounts) attributable to any business or assets that are the subject of any Acquisition or Disposition by the Parent or any Subsidiary thereof effected during such period, as determined by Administrative Borrower in its Reasonable Discretion and consented to by the

 

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Administrative Agent (such consent not to be unreasonably withheld) on a pro forma basis for such period as if such Acquisition or Disposition had occurred (and any Indebtedness incurred or repaid in connection therewith had been incurred and repaid, as the case may be) on (in the case of any balance sheet item) the last day of such period or on (in the case of any other item) the first day of such period.  Furthermore, for the purposes of computing the Consolidated Leverage Ratio, the Consolidated First Lien Leverage Ratio and the Consolidated Fixed Charge Coverage Ratio as of any date, to the extent that any Joint Venture is included in the Parent’s Consolidated financial statements, such calculations will disregard the ratable portion of such Joint Venture attributable to the ownership of any Joint Venture by any Person who is not a Loan Party or a Subsidiary of a Loan Party.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Parent and its Subsidiaries will be deemed to be carried at 100% of the outstanding principal amount thereof.

 

(j)            Calculations with Respect to Credit.  Unless otherwise specified herein, the amount of a Credit at any time will be deemed to be the stated amount of such Credit in effect at such time; provided that, with respect to any Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Credit will be deemed to be the maximum stated amount of such Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

(k)           Documents Executed by Responsible Officers.  Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party will be conclusively presumed to have been authorized by all necessary corporate or other organizational action on the part of such Loan Party and such Responsible Officer will be conclusively presumed to have acted on behalf of such Loan Party.

 

(l)            Additional Alternative Currencies.  The Borrowers may from time to time request that Loans be made and Credits be issued in a currency other than those specifically listed in the definition of “Alternative Currency”; provided that such requested currency is a lawful currency (other than Dollars) that is readily available and freely transferable and convertible into Dollars. Each such request will be subject to the prior approval of all Lenders; provided, however, to the extent such request relates solely to Letters of Credit, subject only to the prior approval of the applicable L/C Issuer.  Any such request will be made to Administrative Agent not later than 11:00 a.m., ten Business Days prior to the desired date for making the requested Loan or desired issuance date of the requested Credit, as applicable.  Administrative Agent will notify the Administrative Borrower, not later than 9:00 a.m., five Business Days after receipt of such request whether the Lenders have consented, in their sole discretion, to the making of the requested Loan or the issuance of the requested Credit, as applicable, in such requested currency.  Any failure by Administrative Agent to respond to such request within the time period specified in the preceding sentence will be deemed to be a refusal by the Lenders to permit such Loan to be made or such Credit to be issued in such requested currency.  If the Lenders consent to the making of such Loan or the issuance of such Credit, as applicable, in such requested currency (an “Additional Alternative Currency”), such Additional Alternative Currency will thereupon be deemed for all purposes to be an Alternative Currency hereunder for purposes of such Loan or Credit.

 

(m)          Exchange Rates.  (i) Administrative Agent will determine the Spot Rates as of each Revaluation Date to be used for calculating the Dollar Equivalent of Loans and other Obligations and (ii) Administrative Agent or the applicable L/C Issuer will determine the Spot Rates as of each Revaluation Date to be used for calculating the Dollar Equivalent of issued and undrawn Credits, in each case outstanding hereunder denominated in Alternative Currencies.  Such Spot Rates will become effective as of such Revaluation Date and will be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.  Except for purposes of the audited and unaudited financial statements to be prepared and delivered by the Parent pursuant to Section 6.01(a) and 

 

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Section 6.01(b) or the calculation of financial covenants hereunder, including pursuant to Section 7.14 (Financial Covenants) or except as otherwise provided herein, the applicable amount of any currency for purposes of the Loan Documents will be such Dollar Equivalent as so determined by Administrative Agent.

 

(n)           Redenomination of Certain Foreign Currencies; New Currency.

 

(i)            Each obligation of the Borrowers to make a payment denominated in the National Currency Unit of any member state of the European Union that adopts the Euro as its lawful currency after the date hereof will be redenominated into Euro at the time of such adoption (in accordance with the EMU Legislation).  If, in relation to the currency of any such member state, the basis of accrual of interest expressed in this Agreement in respect of that currency will be inconsistent with any convention or practice in the London interbank market for the basis of accrual of interest in respect of the Euro, such expressed basis will be replaced by such convention or practice with effect from the date on which such member state adopts the Euro as its lawful currency; provided that if any Loan denominated in the currency of such member state is outstanding immediately prior to such date, such replacement will take effect, with respect to such Loan, at the end of the then current Interest Period.

 

(ii)           If, after the making of any Loan or the issuance of any Credit, as applicable, in any Alternative Currency, currency control or exchange regulations are imposed in the country which issues such Alternative Currency with the result that different types of such Alternative Currency (the “New Currency”) are introduced and the type of currency in which the Loan was made or the Credit was issued (the “Original Currency”) no longer exists or the Borrowers are not able to make payment to Administrative Agent for the account of the Lending Parties or Administrative Agent in such Original Currency, then all payments to be made by the Borrowers hereunder in such currency will be made to Administrative Agent in such amount and such type of the New Currency as will be equivalent to the amount of such payment otherwise due hereunder in the Original Currency, it being the intention of the parties hereto that the Borrowers take all risks of the imposition of any such currency control or exchange regulations.  In addition, notwithstanding the foregoing provisions of this Section 1.02(n), if, after the making of any Loan or the issuance of any Credit, as applicable, in any Alternative Currency, the Borrowers are not able to make payment to Administrative Agent for the account of the Lenders or Administrative Agent in the type of currency in which such Loan was made or such Credit was issued because of the imposition of any such currency control or exchange regulation, then such Loan will instead be repaid or such Credit will be reimbursed, as applicable, when due in Dollars in a principal amount equal to the Dollar Equivalent (as of the date of repayment) of such Loan or Credit reimbursement amount.

 

(o)           Currency of Account.  Dollars are the currency of account and payment for each and every sum at any time due from the Borrowers hereunder in each case except as expressly provided in this Agreement; provided that, subject to Section 1.02(n):

 

(i)            each repayment of a Loan or a part thereof will be made in the currency in which such Loan is denominated at the time of that repayment;

 

(ii)           each payment of interest will be made in the currency in which such principal or other sum in respect of which such interest is payable, is denominated;

 

(iii)          each reimbursement of a draw on a Credit will be made (A) to the extent reimbursed by a payment from the Borrowers, at the option of the L/C Issuer, in the currency in which such Credit is denominated at the time of that reimbursement or in Dollars and (B) to the extent

 

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reimbursed by Revolving Credit Loans or L/C Advances pursuant to Sections 2.04(c)(ii) or (iii) (as applicable), in Dollars;

 

(iv)          each payment of fees will be in Dollars;

 

(v)           each payment in respect of costs, expenses and indemnities will be made in the currency in which the same were incurred or the Dollar Equivalent thereof; and

 

(vi)          any amount expressed to be payable in a currency other than Dollars will be paid in that other currency.

 

No payment to Administrative Agent or any Lending Party (whether under any judgment or court order or otherwise) will discharge the obligation or liability in respect of which it was made unless and until Administrative Agent or such Lending Party will have received payment in full in the currency in which such obligation or liability was incurred, and to the extent that the amount of any such payment will, on actual conversion into such currency, fall short of such obligation or liability actual or contingent expressed in that currency, the Borrowers agree to indemnify and hold harmless Administrative Agent or such Lending Party, as applicable, with respect to the amount of the shortfall, with such indemnity surviving the termination of this Agreement and any legal proceeding, judgment or court order pursuant to which the original payment was made which resulted in the shortfall.

 

(p)           Currency Fluctuations.  If, on any Revaluation Date the Dollar Equivalent of the Total Revolving Credit Outstandings exceeds the Aggregate Revolving Credit Commitments at such time for three or more consecutive Business Days, then the Borrowers will repay or prepay the relevant Loans in accordance with this Agreement within five Business Days from such third consecutive Business Day (or on the Revolving Credit Maturity Date, as applicable) in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Credit Outstandings (expressed in Dollars) no longer exceeds the Aggregate Revolving Credit Commitments (expressed in Dollars).

 

(q)   Classifications. For purposes of determining compliance with the covenants under this Agreement, in the event that an item to be classified meets the criteria of more than one of the categories described, the Parent will be entitled to classify such item (or portion thereof) and later reclassify such item (or portion thereof) in any manner otherwise consistent with this Agreement; provided that the Indebtedness incurred on or about the Fourth Amendment Effective Date under the Second Lien Indenture will be treated as incurred on the Fourth Amendment Effective Date under Section 7.03(r) and such amounts outstanding under Section 7.03(r) may not be later reclassified.

 

ARTICLE II
 CREDIT EXTENSIONS

 

SECTION 2.01.  THE ORIGINAL CREDIT AGREEMENT.

 

(a)           Schedule 2.01 sets forth all outstanding amounts of principal Indebtedness in respect of Base Rate Loans and Eurodollar Rate Loans (each as defined in the Original Credit Agreement) and all issued and undrawn, or drawn and unreimbursed, Letters of Credit (as defined in the Original Credit Agreement) for each Existing Lender (the “Aggregate Outstanding Principal Amount”).  There are no Swing Line Loans (as defined in the Original Credit Agreement) outstanding under the Original Credit Agreement as of the date of this Agreement.  Notwithstanding anything to the contrary contained in the Original Credit Agreement, in order to effect the restructuring of the credit facility provided thereunder as contemplated by this Agreement, (a) all Loans (as defined in the Original Credit Agreement), whether Base Rate Loans or Eurodollar Rate Loans (each as defined in the Original Credit Agreement), will be

 

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deemed Base Rate Loans or Eurodollar Rate Loans, respectively (as applicable), on the Closing Date in accordance with this Agreement, including this Section 2.01, (b) all “Letters of Credit” under and as defined in the Original Credit Agreement will be deemed Letters of Credit in accordance with this Agreement, including this Section 2.01, and (iii) all accrued and unpaid interest, including all accrued and unpaid interest on the Aggregate Outstanding Principal Amount, and all accrued and incurred and unpaid fees, costs and expenses payable under the Original Credit Agreement, including all accrued and unpaid unused line fees under Section 2.10(a) of the Original Credit Agreement and letter of credit fees under Section 2.04(h) of the Original Credit Agreement, all applicable breakage fees under Section 3.05 of the Original Credit Agreement incurred in connection with the termination of the Interest Periods (as defined in the Original Credit Agreement) in respect of all outstanding Eurodollar Rate Loans (as defined in the Original Credit Agreement) on the Closing Date, regardless of whether such date is the last day of the applicable Interest Period (as defined in the Original Credit Agreement), and all fees and expenses outstanding under Section 10.04 of the Original Credit Agreement and other similar costs and expenses, will be due and payable on the Closing Date.  The rates of interest chargeable on Loans (as defined in the Original Credit Agreement) outstanding as of the Closing Date will remain in effect through the day immediately preceding the Closing Date.  The Borrowers covenant and agree that they will not, and represent and warrant that they have not, between the date of this Agreement and the Closing Date, requested any further Loans (including any Swing Line Loans) or requested the issuance of any additional Letters of Credit under (and as such terms are defined in) the Original Credit Agreement.

 

(b)           On the Closing Date and the satisfaction of all conditions as set forth in Section 4.01, each Existing Lender’s portion of the Aggregate Outstanding Principal Amount will be deemed to continue hereunder as a Base Rate Loan and will be applied to such Lender’s Revolving Credit Commitment, comprising the applicable portion of such Lender’s Revolving Credit Commitment to be funded on the Closing Date.  Such continuing Base Rate Loans will be subject to the same terms and conditions as if advanced initially as Base Rate Loans comprising Loans hereunder. Commencing with the Closing Date, the rates of interest chargeable on Loans (as defined in the Original Credit Agreement) outstanding as of the Closing Date will be chargeable at the respective rates and will be payable in the manner set forth in Section 2.09.  Issued Letters of Credit (as defined in the Original Credit Agreement) undrawn or drawn but as yet unreimbursed as of the Closing Date will be deemed to constitute Letters of Credit issued hereunder in the same manner and subject to the same terms and conditions as if issued initially as Letters of Credit pursuant to Section 2.04 and each Existing Lender’s purchase of a participation in each such Letter of Credit (as defined in the Original Credit Agreement) pursuant to Section 2.04(a)(ii), (b) and (c) of the Original Credit Agreement will be deemed automatically terminated and immediately replaced thereupon by the purchase by each Lender of a participation in each such Letter of Credit or any unreimbursed drawings on any such Letter of Credit on a pro rata basis based on such Lender’s Percentage Share, pursuant to Section 2.04(c).

 

(c)           On the Closing Date, immediately following the transactions contemplated by the foregoing Sections 2.01(a) and (b), the Original Credit Agreement and each Subsidiary Guaranty (as defined in the Original Credit Agreement) will be amended, restated, superseded and replaced in its entirety; provided that nothing herein will act as a novation of the indebtedness, liabilities and other obligations (including any obligations under each Subsidiary Guaranty) thereunder.

 

SECTION 2.02.  REVOLVING CREDIT LOANS .

 

(a)           Revolving Credit Loans.  Upon the terms, subject to the conditions and in reliance upon the representations and warranties of the Borrowers and each other Loan Party set forth in this Agreement and in the other Loan Documents, each Lender having a Revolving Credit Commitment severally (but not jointly) agrees to make loans (each such loan, a “Revolving Credit Loan”) of immediately available funds to the Borrowers, on a revolving basis from time to time on any Business Day during the Availability

 

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Period, in an aggregate principal amount outstanding not to exceed at any time such Lender’s Revolving Credit Commitment as then in effect, provided that, and notwithstanding the foregoing, after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments and (ii) the sum of (1) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender plus (2) such Lender’s Percentage Share multiplied by the Outstanding Amount of all L/C Obligations plus (3) such Lender’s Percentage Share multiplied by the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit Commitment, and so long as any such circumstance exists the Lenders will not be obligated to fund any Revolving Credit Loans.  Each Revolving Credit Loan will be denominated in Dollars or in an Alternative Currency as permitted by this Agreement and no Lender will be obligated to make any Revolving Credit Loan if the requested Revolving Credit Loan is to be denominated in a currency other than Dollars or an Alternative Currency as permitted under this Agreement.  Within the limits of each Lender’s Revolving Credit Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under this Section 2.02, prepay under Section 2.06, and reborrow under this Section 2.02.  Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.  All Revolving Credit Loans to be denominated in an Alternative Currency will be Eurodollar Rate Loans.

 

(b)           Loans Generally.  Each Loan will be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Revolving Credit Commitments; provided, however, that the failure of any Lender to make any Loan will not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender will be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender).

 

SECTION 2.03.  PROCEDURES FOR BORROWING.

 

(a)           Notices of Borrowing, Conversion and Continuation.  Each Borrowing (other than a Swing Line Borrowing), each conversion of Loans from one Type to the other and each continuation of Eurodollar Rate Loans will be made upon the Administrative Borrowers’ irrevocable notice, on behalf of the Borrowers, to Administrative Agent, which may, subject to the provisions of Section 10.02(b) and Section 10.02(d), be given by telephone or by approved electronic communication.  Each such notice must be received by Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans and (ii) one Business Day prior to the requested date of any Borrowing (other than a Swing Line Borrowing) of Base Rate Loans; provided that in the case of any requested Eurodollar Rate Loan to be denominated in an Alternative Currency, such notice, subject to Section 1.02(l), must be received by Administrative Agent not later than 11:00 a.m. (New York City time), five Business Days prior to the requested date of such Borrowing.  Notwithstanding anything to the contrary contained herein, but subject to the provisions of Section 10.02(b) and Section 10.02(d), any telephonic notice or other electronic communication by the Administrative Borrower, on behalf of the Borrowers, pursuant to this Section 2.03(a) may be given by an individual who has been authorized in writing to do so by an appropriate Responsible Officer of the Administrative Borrower.  Each such telephonic notice or other electronic communication must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed by an appropriate Responsible Officer of the Administrative Borrower.  Further, and notwithstanding anything to the contrary set forth in this Agreement, including this Section 2.03(a), the Lenders will have no obligation to make, convert or continue make any Eurodollar Rate Loan denominated in an Alternative Currency to the extent the principal amount of such requested Eurodollar Rate Loan exceeds the Alternative Currency Available Credit as of the date of the requested Borrowing, conversion or continuation.

 

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(b)           Amount of Borrowing, Conversion or Continuation.  (i) Each Borrowing (other than a Swing Line Borrowing) of, conversion to or continuation of Eurodollar Rate Loans will be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof, or, in the case of a Borrower denominated in an Alternative Currency, in a principal amount of a Dollar Equivalent of $2,000,000 or a whole multiple of a Dollar Equivalent of $500,000 in excess thereof and (ii) except as provided in Sections 2.04(c) and Section 2.05(c), each Borrowing of or conversion to Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.

 

(c)           Loan Notices Generally.  Each Loan Notice (whether telephonic or written (including by electronic communication to the extent permitted by this Agreement)) will specify:  (i) whether the Administrative Borrower, on behalf of the Borrowers, is requesting: (A) a Revolving Credit Borrowing; (B) a conversion of outstanding Loans from one Type to the other; or (C) a continuation of Eurodollar Rate Loans; (ii) the requested date (which will be a Business Day) of such Borrowing, conversion or continuation, as the case may be; (iii) the principal amount of the Loans to be borrowed, converted or continued; (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted; (v) whether such Borrowing is to be denominated in Dollars or in an Alternative Currency, and if the latter, which Alternative Currency; and (vi) if applicable, the duration of the Interest Period with respect thereto.  If the Borrowers (including through the Administrative Borrower) fail to specify a Type of Loan in a Loan Notice or fail to give a timely notice requesting a conversion or continuation, then the applicable Loans will be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans will be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans.  If the Administrative Borrower, on behalf of the Borrowers, requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

 

(d)           Procedures Concerning the Making of Loans.  Following receipt of a Loan Notice, Administrative Agent will promptly notify each applicable Lender of the amount of its applicable Percentage Share of the requested Borrowing.  If the Borrowers (including through the Administrative Borrower) do not timely provide notice of a conversion or continuation, then Administrative Agent will notify each applicable Lender of the details of any automatic conversion to Base Rate Loans described in the preceding subsection.  Each Lender will make the amount of its applicable Loan available to Administrative Agent in immediately available funds at Administrative Agent’s Office (or, at the request of Administrative Agent, in the case of a Eurodollar Rate denominated in an Alternative Currency, at such bank as Administrative Agent may designate to the Lenders, as applicable) not later than 10:00 a.m. on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), Administrative Agent will make all funds so received available to the Borrowers in like funds as received by Administrative Agent either by:  (i) crediting the account of the Borrowers on the books of Wells Fargo with the amount of such funds; or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) Administrative Agent by the Administrative Borrower on behalf of the Borrowers; provided that, if, on the date the Loan Notice with respect to such Borrowing is given by the Borrowers, there are L/C Borrowings outstanding, then the proceeds of such Borrowing will be applied, first, to the payment in full of any such L/C Borrowings and, second, to the Borrowers as provided in this Section 2.03(d).

 

(e)           Special Provisions Applicable to Continuation or Conversions of Eurodollar Rate Loans.  Subject to Section 3.05, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of an Event of Default:  (i) no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of Required Lenders; and (ii) Required Lenders may demand that any or all of the then outstanding Revolving Credit Loans that are Eurodollar Rate Loans be converted immediately to Base Rate Loans,

 

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whereupon the Borrowers will pay any amounts due under Section 3.05 in accordance with the terms thereof due to any such conversion.

 

(f)            Notification of Interest Rate.  Administrative Agent will promptly notify the Administrative Borrower, on behalf of the Borrowers, and the applicable Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate.

 

(g)           Limitation on Interest Periods.  After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there will (i) not be more than ten Interest Periods in effect with respect to all Revolving Credit Loans and (ii) of this, not be more than five Interest Periods in effect with respect to all Eurodollar Rate Loans denominated in any Alternative Currency.

 

(h)           Lender Affiliates.  Each Lender, at its option, may make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (subject to the provision by such branch or Affiliate, prior to such branch or Affiliate receiving any payments pursuant to the Loan Documents, of any documentation required pursuant to Section 3.01); provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.

 

SECTION 2.04.  LETTERS OF CREDIT.

 

(a)           Letter of Credit Subfacility.  Subject to the terms and conditions set forth herein:

 

(i)            Upon the terms, subject to the conditions and in reliance upon the representations and warranties of the Borrowers and each of the other Loan Parties set forth in this Agreement and in the other Loan Documents and upon the agreements of the Lenders set forth in this Section 2.04, (A) from time to time on any Business Day, during the period from the Closing Date until the L/C Expiration Date, L/C Issuer will issue Credits, in the form of Letters of Credit or Bank Undertakings denominated in Dollars or in an Alternative Currency in accordance with this Agreement, in each case for the account of the Borrowers for the benefit of any one or more Borrowers (or other Subsidiaries as any Borrower (through the Administrative Borrower) may designate; provided that in the case of Credits designated for a Subsidiary, such Borrower retains financial responsibility for such Credit) and amend or extend Credits previously issued by it, in accordance with subsection (b) of this Section 2.04; and (B) to honor drawings under the Credits.  All existing Credits listed on Schedule 2.01 as of the Closing Date will be deemed to have been issued pursuant hereto and, from and after the Closing Date, will be subject to and governed by the terms and conditions hereof.

 

(ii)           Each Lender severally agrees to participate in each Letter of Credit issued by an L/C Issuer and each drawing thereunder; provided that, after giving effect to any L/C Credit Extension with respect to any Credit, (A) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments; (B) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus an amount equal to such Lender’s Percentage Share multiplied by the Outstanding Amount of all L/C Obligations, plus an amount equal to such Lender’s Percentage Share multiplied by the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit Commitment; and (C) the Outstanding Amount of the L/C Obligations will not exceed the L/C Sublimit.  Each request by the Administrative Borrower, on behalf of the Borrowers, for the issuance or amendment of a Credit will be deemed to be a representation by the Borrowers that each such issuance or amendment complies with the applicable conditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject to the terms and conditions hereof, the Borrowers’ ability to obtain Credits

 

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will be fully revolving, and, accordingly, the Borrowers may, during the foregoing period, obtain Credits to replace Credits that have expired or that have been drawn upon and reimbursed.

 

(iii)          Subject to Section 2.04(b)(iv), no L/C Issuer will issue or extend any Credit if: (A) the expiry date of such requested Credit would occur after the L/C Expiration Date, unless all Lenders will have approved such expiry date; or (B) to the extent that the face amount of such requested Credit exceeds the Alternative Currency Available Credit as of the requested issuance date.

 

(iv)          No L/C Issuer will have any obligation to issue a Letter of Credit if:

 

(A)          any order, judgment or decree of any Governmental Authority or arbitrator will by its terms purport to enjoin or restrain the L/C Issuer from issuing such Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer will prohibit, or request that the L/C Issuer refrain from, the issuance of letters of credit or Bank Undertakings generally or such Credit in particular or will impose upon the L/C Issuer with respect to such Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or will impose upon the L/C Issuer any unreimbursed loss, cost or expense that was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;

 

(B)          the issuance of such Credit would violate one or more policies of the L/C Issuer;

 

(C)          such Credit is to be denominated in a currency other than Dollars or an Alternative Currency permitted in accordance with this Agreement;

 

(D)          any Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrowers or such Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 3.07(a)(iv)) with respect to the Defaulting Lender arising from either the Credit then proposed to be issued or that Credit and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion;

 

(E)           such Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

 

(F)           the issuance of such Credit would result in the aggregate L/C Obligations relating to Credits issued by such L/C Issuer exceeding such L/C Issuer’s Issuer Sublimit.

 

(v)           No L/C Issuer will have any obligation to amend any Credit if the L/C Issuer would not be obligated to issue such Credit in its amended form under the terms hereof or if the beneficiary of such Credit does not accept the proposed amendment to such Credit.

 

(vi)          Each L/C Issuer will act on behalf of all Lenders with respect to any Credits issued by it and the documents associated therewith, and the L/C Issuer will have all of the benefits and immunities (A) provided to Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Credits issued by it or proposed to be issued by it and Issuer Documents pertaining to such Credits as fully as if the term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to the L/C Issuer.

 

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(vii)         No L/C Issuer (other than Wells Fargo) will have any obligation to issue commercial Letters of Credit.

 

(b)           Procedures for Issuance and Amendment of Credits; Automatic Extensions of Letters of Credit.

 

(i)            Each Credit will be issued or amended, as the case may be, upon the request of the Administrative Borrower, on behalf of the Borrowers, delivered to the applicable designated L/C Issuer (with a copy to Administrative Agent) in the form of an L/C Application, appropriately completed and signed by a Responsible Officer of the Administrative Borrower. Such L/C Application must be received by the L/C Issuer and Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as may be agreed to by each of Administrative Agent and the L/C Issuer, each in its sole discretion) prior to the proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial issuance of a Credit, such L/C Application will specify in form and detail satisfactory to the L/C Issuer (A) the proposed issuance date of the requested Credit (which will be a Business Day), (B) the amount thereof, (C) the expiry date thereof, (D) the name and address of the beneficiary thereof, (E) the documents to be presented by such beneficiary in case of any drawing thereunder, (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder, (G) the requested Alternative Currency, if not in Dollars and (H) such other matters as the L/C Issuer may require.  In the case of a request for an amendment of any outstanding Credit, such L/C Application will specify in form and detail satisfactory to the L/C Issuer (1) the Credit to be amended, (2) the proposed date of the amendment thereof (which will be a Business Day), (3) the nature of the proposed amendment and (4) such other matters as the L/C Issuer may require.  Additionally, the Administrative Borrower, on behalf of the Borrowers, will furnish to the L/C Issuer and Administrative Agent such other documents and information pertaining to such requested Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or Administrative Agent may require.

 

(ii)           Promptly after receipt of any L/C Application at the address provided pursuant to Section 10.02 for receiving L/C Applications and related correspondence, the applicable designated L/C Issuer will confirm with Administrative Agent (by telephone or in writing) that Administrative Agent has received a copy of such L/C Application from the Administrative Borrower, on behalf of the Borrowers, and, if not, the L/C Issuer will provide Administrative Agent with a copy thereof (provided that such confirmation will not be required if the L/C Issuer and Administrative Agent are the same Person).  Unless the L/C Issuer has received written notice from any Lender, Administrative Agent or any Loan Party at least one Business Day prior to the requested date of issuance or amendment of the applicable Credit that one or more applicable conditions in Article IV will not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer will, on the requested date, issue the Credit requested by the Administrative Borrower, on behalf of the Borrowers, or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices.

 

Immediately upon the issuance of each Credit, each Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Credit equal to such Lender’s Percentage Share multiplied by the face amount of such Credit.

 

(iii)          Promptly after its delivery of any Credit or any amendment to a Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable designated L/C Issuer will also deliver to the Administrative Borrower, on behalf of the Borrowers, and Administrative Agent a true and complete copy of such Credit or amendment.

 

(iv)          If the Administrative Borrower, on behalf of the Borrowers, specifically requests in any applicable L/C Application, the applicable designated L/C Issuer may issue an Automatic

 

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Extension Letter of Credit.  Unless otherwise directed by the L/C Issuer, the Borrowers will not be required to make a specific request to the L/C Issuer for any such extension.  Once an Automatic Extension Letter of Credit has been issued, the Lenders will be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Automatic Extension Letter of Credit at any time to an expiry date not later than the L/C Expiration Date; provided that the L/C Issuer will not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Automatic Extension Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.04(a) or otherwise), or (B) the L/C Issuer has received notice (which may be by telephone or in writing) on or before the day that is thirty days before any date provided for in such Automatic Extension Letter of Credit as the last day by which notice of the non-extension thereof must be given (1) from Administrative Agent that Required Lenders have elected not to permit such extension, or (2) from Administrative Agent, any Lender or the Administrative Borrower, on behalf of the Borrowers, that one or more of the applicable conditions specified in Section 4.02 is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.

 

(c)           Drawings and Reimbursements; Funding of Participations.

 

(i)            Upon receipt from the beneficiary of any Credit of any drawing under such Credit (or any notice thereof), the applicable designated L/C Issuer will notify the Administrative Borrower, on behalf of the Borrowers, and Administrative Agent thereof.  If the L/C Issuer will make any payment in respect of a Credit, the Borrowers will reimburse the L/C Issuer the amount of such payment not later than 1:00 p.m. on the related Honor Date if the Administrative Borrower will have received notice, on behalf of the Borrowers, of such payment prior to 11:00 a.m. on the Honor Date, or, if such notice has not been received by the Administrative Borrower prior to such time on such Honor Date, then not later than 10:00 a.m. on the Business Day immediately following the day that the Administrative Borrower receives such notice.  If the Borrowers fail to so reimburse the L/C Issuer, then Administrative Agent will promptly notify each Lender of the related Honor Date, the Unreimbursed Amount and the amount of such Lender’s Percentage Share of such Unreimbursed Amount.  In such event, the Borrowers will be deemed to have requested a Revolving Credit Borrowing consisting of Base Rate Loans to be disbursed on such Honor Date in an amount equal to such Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.03 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or Administrative Agent pursuant to this Section 2.04(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation will not affect the conclusiveness or binding effect of such notice.

 

(ii)           Each Lender will, upon receipt of any notice pursuant to Section 2.04(c)(i), make funds available (and Administrative Agent may apply Cash Collateral provided for this purpose) for the account of the applicable designated L/C Issuer at Administrative Agent’s Office in an amount equal to such Lender’s Percentage Share multiplied by the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by Administrative Agent, whereupon, subject to the provisions of Section 2.04(c)(iii), each Lender that so makes funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the Borrowers in such amount on the Honor Date. Administrative Agent will remit the funds so received to the L/C Issuer.

 

(iii)          With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing pursuant to Section 2.04(c)(ii), whether because each of the conditions (other than the delivery of a Loan Notice) set forth in Section 4.02 cannot be satisfied or otherwise, the Borrowers will be deemed to have incurred from the applicable designated L/C Issuer an L/C Borrowing

 

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on the Honor Date in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing will be due and payable on demand (together with interest) and will bear interest at the Default Rate.  In such event, each Lender’s payment to Administrative Agent for the account of the L/C Issuer pursuant to Section 2.04(c)(ii) will be deemed payment in respect of its participation in such L/C Borrowing and will constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.04.

 

(iv)          Until each Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.04(c) to reimburse the applicable designated L/C Issuer for any amount drawn under any Credit, interest in respect of the amount of such Lender’s Percentage Share of such amount will be solely for the account of the L/C Issuer.

 

(v)           Each Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse each L/C Issuer for amounts drawn under all Credits issued by it, as contemplated by this Section 2.04(c), will be absolute and unconditional and will not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the L/C Issuer, the Borrowers or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or Event of Default or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Administrative Borrower, on behalf of the Borrowers, of a Loan Notice).  No such making of an L/C Advance will relieve or otherwise impair the obligation of the Borrowers to reimburse each L/C Issuer for the amount of any payment made by the L/C Issuer under any Credit, together with interest as provided herein.

 

(vi)          If any Lender fails to make available to Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer will be entitled to recover from such Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the foregoing.  A certificate of L/C Issuer submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) will be conclusive absent manifest error.

 

(d)           Repayment of Participations.

 

(i)            If, at any time after any applicable designated L/C Issuer has made a payment under any Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.04(c), Administrative Agent receives for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrowers or otherwise, including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative Agent will distribute to such Lender an amount that equals its Percentage Share thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by Administrative Agent.

 

(ii)           If any payment received by Administrative Agent for the account of any L/C Issuer pursuant to Section 2.04(c)(i) is required to be returned under any of the circumstances described

 

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in Section 10.05 (including pursuant to any settlement entered into by the L/C Issuer in its discretion), each Lender will pay to Administrative Agent for the account of the L/C Issuer an amount equal to its Percentage Share thereof on the demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.  The obligations of Lenders under this clause will survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)           Obligations Absolute.  The obligation of the Borrowers to reimburse each L/C Issuer for each drawing under each Credit issued by such L/C Issuer and to repay each L/C Borrowing is absolute, unconditional and irrevocable and will be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)            any lack of validity or enforceability of such Credit, this Agreement, or any other Loan Document;

 

(ii)           the existence of any claim, counterclaim, setoff, defense or other right that the Borrowers, or any of them, or any other Loan Party may have at any time against any beneficiary or any transferee of such Credit (or any Person for whom any such beneficiary or any such transferee may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Credit or any agreement or instrument relating thereto, or any unrelated transaction (including any underlying transaction between the Borrowers or any other Loan Party or any of their respective Subsidiaries and the beneficiary for which any Credit was procured);

 

(iii)          any draft, demand, certificate or other document presented under such Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

 

(iv)          any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Credit;

 

(v)           any payment by the L/C Issuer under such Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Credit;

 

(vi)          any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrowers, individually or taken as a whole, any other Loan Party, or any of its or their Subsidiaries;

 

(vii)         the fact that a Default or Event of Default will have occurred and be continuing;

 

(viii)        any payment made by the L/C Issuer under such Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Credit, including any arising in connection with any proceeding under any Bankruptcy Law;

 

(ix)          any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Borrowers or in the relevant currency markets generally; or

 

(x)           any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrowers, or any of them, or any other Loan Party.

 

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The Administrative Borrower will promptly examine a copy of each Credit and each amendment thereto that is delivered to it and will notify the applicable designated L/C Issuer in writing of any claim of noncompliance with the Administrative Borrower’s instructions or other irregularity.  Each Borrower will be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such Borrower (or the Administrative Borrower on behalf of such Borrower) will have given written notice thereof to the L/C Issuer within three Business Days of the L/C issuer’s delivery to Administrative Borrower of a copy of the Credit or amendment thereto, as applicable.

 

(f)            Role of L/C Issuers.  Each Lender and the Borrowers agree that, in paying any drawing under a Credit, no L/C Issuer will have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by any Credit issued, or requested to be issued, by it) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. Neither any L/C Issuer, nor Administrative Agent any of their respective Related Parties and any correspondent, participant or assignee of any L/C Issuer will be liable to any Lender for: (i) any action taken or not taken, at the request or with the approval of Lenders or Required Lenders, as applicable, in connection with a Letter of Credit or any Issuer Document; (ii) in the absence of gross negligence or willful misconduct of any L/C Issuer under the circumstances in question, as determined in a final, nonappealable judgment by a court of competent jurisdiction, any action taken or not taken in connection with a Credit or any Issuer Document; or (iii) the due execution, effectiveness, validity or enforceability of any document related to any Letter of Credit or Issuer Document. As between the Borrowers and any L/C Issuer, the Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Credit issued by such L/C Issuer; provided that this assumption is not intended to, and will not, preclude the Borrowers from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement.  Neither any L/C Issuer, nor Administrative Agent or any of their respective Related Parties or any correspondent, participant or assignee of any L/C Issuer will be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.04(e); provided that, notwithstanding anything to the contrary contained in such clauses, the Borrowers may have a claim against a L/C Issuer, and the L/C Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrowers that the Borrowers prove were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under any Credit issued by it after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Credit, as determined by a court of competent jurisdiction by final and nonappealable judgment.  In furtherance and not in limitation of the foregoing, a L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and no L/C Issuer will be responsible for the validity or sufficiency of any document transferring or assigning or purporting to transfer or assign a Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, that may prove to be invalid or ineffective for any reason.

 

(g)           Applicability of ISP and UCP.  Unless otherwise expressly agreed by the applicable designated L/C Issuer and the Administrative Borrower, on behalf of the Borrowers, when a Credit is issued (including any such agreement applicable to an existing Credit listed on Schedule 2.01), (i) the rules of the ISP and Article 5 of the UCC will apply to each Credit (other than commercial Credits); provided that in the event of a conflict between applicable provisions of the ISP and Article 5 of the UCC, the ISP will govern and (ii) the rules of the UCP and Article 5 of the UCC will apply to each commercial Credit, provided that in the event of a conflict between applicable provisions of the UCP and Article 5 of the UCC, the UCP will govern.

 

(h)           L/C Fees.  The Borrowers will pay to Administrative Agent for the account of each Lender in accordance with its Percentage Share a fee (the “L/C Fee”) equal to (i) for each Credit (other

 

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than Performance Credits and commercial Credits), the Applicable Rate corresponding to Eurodollar Rate Loans multiplied by the actual daily amount available to be drawn under such Credit, (ii) for each Performance Credit, 66% multiplied by the Applicable Rate corresponding to Eurodollar Rate Loans multiplied by the actual daily amount available to be drawn under such Credit and (iii) for each commercial Credit, 0.25% per annum multiplied by the actual daily amount available to be drawn under such commercial Credit; provided, however, any L/C Fees otherwise payable for the account of a Defaulting Lender with respect to any Credit as to which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable designated L/C Issuer pursuant to this Section 2.04 will be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward adjustments in their respective Percentage Share allocable to such Credit pursuant to Section 3.07(a)(iv), with the balance of such fee, if any, payable to the L/C Issuer for its own account.  For purposes of computing the actual daily amount available to be drawn under all Credit, the amount of each Credit will be determined in accordance with Section 1.02(j). L/C Fees will be: (i) computed on a quarterly basis in arrears; and (ii) due and payable on the last Business Day of each March, June, September and December (in each case for the calendar quarter then ending), commencing with the first such date to occur after the issuance of such Credit, on the L/C Expiration Date and thereafter on demand.  If there is any change in the Applicable Rate during any quarter, then the actual daily amount available to be drawn under all Letters of Credit will be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary contained herein, while any Event of Default exists, upon written notice to the Administrative Borrower, on behalf of the Borrowers, from Required Lenders, all L/C Fees will accrue at the Default Rate.

 

(i)            Fees of L/C Issuers.  The Borrowers will pay directly to each L/C Issuer for its own account an issuance fee equal to (i) 0.125% of the face amount of each Credit (other than commercial Credits) and (ii) 0.25% of the face amount of each commercial Credit issued by L/C Issuer under this Section 2.04, which issuance fee will be due and payable upon issuance of each applicable Letter of Credit.  In addition, the Borrowers will pay each L/C Issuer for its own account the L/C Issuer’s customary documentation fees, including in respect of any amendments, transfers, modifications, extensions, renewals and draws, as applicable, of or on each Credit issued by the L/C Issuer under this Section 2.04.

 

(j)            Conflict with Issuer Documents.  If a conflict exists between the terms hereof and the terms of any Issuer Document, the terms hereof will control.

 

(k)           Letters of Credit for the benefit of Joint Ventures.  The Borrowers may request, and any L/C Issuer may, in its sole discretion agree, that Letters of Credit be issued for the benefit of Joint Ventures of the Borrowers (each a “JV Letter of Credit”); provided, that (i) the amount of each such JV Letter of Credit for all purposes hereunder (including for purposes of calculating (A) the Outstanding Amount of L/C Obligations, (B) reimbursement obligations of the Borrowers and the Lenders, (C) L/C Fees and Revolving Credit Commitment Fees, (D) the face amount of any Performance Credit, and (E) Consolidated Total Funded Debt) shall be equal to the portion (as agreed to by the Borrowers and the applicable L/C Issuer, in its sole discretion, and reported to the Administrative Agent in accordance with the provisions of this clause (k)) of the face amount of such JV Letter of Credit that is recourse to the Borrowers (the “JV Letter of Credit Face Amount”), (ii) each such JV Letter of Credit shall be issued pursuant to, and governed by, terms and documentation that are acceptable to the applicable L/C Issuer and the Administrative Agent, in their sole discretion, (iii) the L/C Application delivered in accordance with Section 2.04(b)(i) shall include, in addition to the information required pursuant to such section, (A) the name of the Joint Venture and (B) the JV Letter of Credit Face Amount and (iv) other than as set forth in this clause (k), such JV Letter of Credit shall be in compliance with the provisions contained in this Section 2.04.

 

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SECTION 2.05.  SWING LINE LOANS.

 

(a)           The Swing Line.  Upon the terms, subject to the conditions and in reliance upon the representations and warranties of the Borrowers and each of the other Loan Parties set forth in this Agreement and in the other Loan Documents and upon the agreements of the Lenders set forth in this Section 2.05, Swing Line Lender may in its sole discretion make loans (each such loan, a “Swing Line Loan”) in immediately available funds denominated in Dollars to the Borrowers on a revolving basis from time to time on any Business Day from the Closing Date through the tenth Business Day immediately preceding the last day of the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Percentage Share of the Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided that, after giving effect to any Swing Line Loan: (i) the Total Revolving Credit Outstandings will not exceed the Aggregate Revolving Credit Commitments; and (ii) the aggregate Outstanding Amount of the Revolving Credit Loans of any Lender (other than Swing Line Lender in such capacity), plus such Lender’s Percentage Share of the Outstanding Amount of all L/C Obligations, plus such other Lender’s Percentage Share of the Outstanding Amount of all Swing Line Loans will not exceed such Lender’s Revolving Credit Commitment. Each Swing Line Loan will be a Base Rate Loan.  Immediately upon the making of a Swing Line Loan, each Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Lender’s Percentage Share multiplied by the amount of such Swing Line Loan.

 

(b)           Swing Line Borrowing Procedures.  Each Swing Line Borrowing will be made upon the Administrative Borrower’s irrevocable notice, on behalf of the Borrowers, to Swing Line Lender and Administrative Agent, which may, subject to the provisions of Section 10.02(b) and Section 10.02(d), be given by telephone or by approved electronic communication.  Each such notice must be received by Swing Line Lender and Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and must specify:  (i) the amount to be borrowed, which will be a minimum of $500,000; and (ii) the requested borrowing date, which must be a Business Day.  Each such telephonic notice or notice by electronic communication must be confirmed promptly by delivery to Swing Line Lender and Administrative Agent of a separate written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Administrative Borrower.  Promptly after receipt by Swing Line Lender of any telephonic or electronic communication Swing Line Loan Notice, Swing Line Lender will confirm with Administrative Agent (by telephone or in writing, including by electronic communication) that Administrative Agent has also received such Swing Line Loan Notice and, if not, Swing Line Lender will notify Administrative Agent (by telephone or in writing) of the contents thereof. Unless (A) the Swing Line has been terminated or suspended by Swing Line Lender as provided in this Agreement, including Section 2.05(a), (B) Swing Line Lender has received notice (by telephone or in writing, including by electronic communication) from Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (1) directing Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.05(a), or (2) that at least one of the applicable conditions specified in Article IV is not then satisfied, or (C) any Lender is then in default of its obligations to fund under Section 2.05(c)(i) or is otherwise a Defaulting Lender hereunder, unless cash collateral or other credit support satisfactory to Swing Line Lender has been pledged or otherwise provided to Swing Line Lender in respect of such Defaulting Lender’s participation in such Swing Line Borrowing or Swing Line Lender has otherwise entered into arrangements satisfactory to Swing Line Lender to eliminate Swing Line Lender’s risk with respect to such Defaulting Lender, then, subject to the terms and conditions hereof, Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in the related Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrowers at its office by crediting the account of the

 

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Borrowers on the books of Swing Line Lender in immediately available funds.  Notwithstanding the foregoing, Swing Line Lender will not be obligated to make a Swing Line Loan to refinance an outstanding Swing Line Loan. Lenders agree that Swing Line Lender may agree to modify the borrowing procedures used in connection with the Swing Line in its discretion and without affecting any of the obligations of Lenders hereunder other than notifying Administrative Agent of a Swing Line Loan Notice.

 

(c)           Refinancing of Swing Line Loans.

 

(i)            Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrowers (which hereby irrevocably authorizes Swing Line Lender to so request on its behalf), that each Lender make a Revolving Credit Loan that is a Base Rate Loan in an amount equal to such Lender’s Percentage Share of the then aggregate Outstanding Amount of Swing Line Loans.  Such request will be made in writing (which written request will be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.03, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving Credit Commitments and the conditions set forth in Section 4.02.  Swing Line Lender will furnish the Administrative Borrower, on behalf of the Borrowers, with a copy of the applicable Loan Notice promptly after delivering such notice to Administrative Agent.  Each Lender will make an amount equal to its Percentage Share multiplied by the aggregate amount of the requested Revolving Credit Loans specified in such Loan Notice available to Administrative Agent in immediately available funds (and Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of Swing Line Lender at Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so makes funds available will be deemed to have made a Revolving Credit Loan that is a Base Rate Loan to the Borrowers in such amount.  Administrative Agent will promptly remit the funds so received to Swing Line Lender.

 

(ii)           If for any reason the outstanding amount of all Swing Line Loans cannot be refinanced by such a Revolving Credit Borrowing in accordance with Section 2.05(c)(i), then the request for Revolving Credit Loans that are Base Rate Loans submitted by Swing Line Lender as set forth herein will be deemed to be a request by Swing Line Lender that each Lender fund its risk participation in the relevant Swing Line Loan and each Lender’s payment to Administrative Agent for the account of Swing Line Lender pursuant to Section 2.05(c)(i) will be deemed payment in respect of such participation.

 

(iii)          If any Lender fails to make available to Administrative Agent for the account of Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.05(c) by the time specified in Section 2.05(c)(i), Swing Line Lender will be entitled to recover from such Lender (acting through Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Swing Line Lender in connection with the foregoing.  A certificate of Swing Line Lender submitted to any Lender (through Administrative Agent) with respect to any amounts owing under this clause (iii) will be conclusive absent manifest error.

 

(iv)          Each Lender’s obligation to make Revolving Credit Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.05(c) will be absolute and unconditional and will not be affected by any circumstance, including:  (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against Swing Line Lender, any Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default or Event of

 

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Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided that each Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.05(c) is subject to the conditions set forth in Section 4.02.  No such funding of risk participations will relieve or otherwise impair the obligation of the Borrowers to repay Swing Line Loans together with interest as provided herein.

 

(d)           Repayment of Participations.

 

(i)            If, at any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, Swing Line Lender receives any payment on account of such Swing Line Loan, then Swing Line Lender will distribute to such Lender an amount equal to its Percentage Share multiplied by such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by Swing Line Lender.

 

(ii)           If any payment received by Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by Swing Line Lender in its discretion), each Lender will pay to Swing Line Lender an amount equal to its Percentage Share multiplied by the amount to be returned on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate.  Administrative Agent will make such demand upon the request of Swing Line Lender.  The obligations of Lenders under this clause will survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)           Interest for Account of Swing Line Lender.  Swing Line Lender will be responsible for invoicing the Borrowers for interest on Swing Line Loans.  Until each Lender funds its Revolving Credit Loan that is a Base Rate Loan or risk participation pursuant to this Section 2.05 to refinance such Lender’s Percentage Share of any Swing Line Loan, interest in respect of such proportionate share will be solely for the account of Swing Line Lender.

 

(f)            Payments Directly to Swing Line Lender.  The Borrowers will make all payments of principal and interest in respect of Swing Line Loans directly to Swing Line Lender.

 

(g)           Cash Sweep Agreements.  In addition to making Swing Line Loans pursuant to the foregoing provisions of this Section 2.05, without the requirement for a Swing Line Loan Notice from the Administrative Borrower, or a confirmation or a notice by the Swing Line Lender with or to the Administrative Agent regarding a Swing Line Loan Notice, pursuant to subsection 2.05(b), the Swing Line Lender may make Swing Line Loans to the Borrowers in accordance with the provisions of any agreements between the Borrowers and the Swing Line Lender relating to the Borrowers’ deposit, sweep and other accounts at the Swing Line Lender and related arrangements and agreements regarding the management and investment of the Borrowers’ cash assets as in effect from time to time (the “Cash Sweep Agreements”) to the extent by which the daily aggregate balance available for immediate withdrawal from the Borrowers’ accounts which are subject to the provisions of the Cash Sweep Agreements is less than the target for such aggregate balance agreed from time to time by the Swing Line Lender and one or more Borrowers.  Swing Line Loans made pursuant to this subsection 2.05(g) in accordance with the provisions of the Cash Sweep Agreements shall (i) be subject to the limitations as to aggregate amount set forth in subsection 2.05(a), (ii) not be subject to the limitations as to individual amount set forth in subsection 2.05(b), (iii) be payable by the applicable Borrower, both as to principal and interest, at the times set forth in the Cash Sweep Agreements (but in no event later than the Revolving Credit Maturity Date),  and (iv) except as provided in the foregoing subsections (i) through (iii) and the

 

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first and last sentences of this subsection 2.05(g), be subject to all of the terms and conditions of this Agreement applicable to Swing Line Loans (including the terms and conditions contained in this Section 2.05).  If a Swing Line Loan is made pursuant to this subsection 2.05(g) in accordance with the provisions of the Cash Sweep Agreements and such Swing Line Loan is not repaid by the applicable Borrower in accordance with such provisions, each Lender will be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to such Lender’s Percentage Share multiplied by the amount of such Swing Line Loan and the Swing Line Lender shall promptly notify the Administrative Agent (by telephone or in writing) of the details of such Swing Line Loan.

 

SECTION 2.06.  PAYMENTS AND PREPAYMENTS.

 

(a)           Payments of the Swing Line Loans.  Subject to the other terms and provisions of this Agreement, including Section 2.08 and the acceleration of the Obligations outstanding hereunder and under the other Loan Documents following the occurrence of an Event of Default pursuant to Section 8.03, the Borrowers will repay each Swing Line Loan on the tenth Business Day following the Borrowing thereof.  In addition to the repayment of Swing Line Loans pursuant to the foregoing sentence and subsection 2.13(a)(i), the Borrowers may repay a Swing Line Loan made pursuant to subsection 2.05(g) in accordance with the provisions of the Cash Sweep Agreements concerning the manner, time, application and place of payment for such Swing Line Loan.

 

(b)           Voluntary Prepayments.

 

(i)            The Borrowers may, upon notice to Administrative Agent, from the Administrative Borrower on behalf of the Borrowers, at any time or from time to time voluntarily prepay Revolving Credit Loans in whole or in part without premium or penalty; provided that:  (A) such notice must be received by Administrative Agent not later than 11:00 a.m. (1) three Business Days prior to any date of prepayment of Revolving Credit Loans that are Eurodollar Rate Loans and (2) one Business Day prior to any date of prepayment of Revolving Credit Loans that are Base Rate Loans; and (B) any prepayment of Revolving Credit Loans that are Eurodollar Rate Loans will be in a principal amount of $2,000,000 or a whole multiple of $500,000 in excess thereof, or that are Base Rate Loans will be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, or, if less, the entire principal amount thereof then outstanding.  Each such notice will specify the date and amount of such prepayment and the Type(s) of Revolving Credit Loans to be prepaid. Administrative Agent will promptly notify each Lender of its receipt of each such notice and of the amount of such Lender’s Percentage Share thereof.  If the Administrative Borrower gives such notice, then the Borrowers’ prepayment obligation will be irrevocable, and the Borrowers will make such prepayment and the payment amount specified in such notice will be due and payable on the date specified therein.  Any prepayment of a Revolving Credit Loan that is a Eurodollar Rate Loan will be accompanied by any additional amounts required pursuant to Section 3.05 (including amounts required pursuant to Section 3.05(c) and any foreign exchange losses).  Subject to Section 3.07, each such prepayment will be applied to the Revolving Credit Loans of the Lenders in accordance with their respective Percentage Shares.

 

(ii)           The Borrowers may, upon notice to Swing Line Lender from the Administrative Borrower, on behalf of the Borrowers (with a copy to Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that such notice must be received by Swing Line Lender and Administrative Agent not later than 1:00 p.m. on the date of the prepayment.  Each such notice will specify the date and amount of such prepayment.  If the Administrative Borrower gives such a notice, then the Borrowers’ prepayment obligation will be

 

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irrevocable, and the Borrowers will make such prepayment and the payment amount specified in such notice will be due and payable on the date specified therein.

 

(c)           Mandatory Prepayments.

 

(i)            If, on any date and for any reason (except for the reason set forth in Section 2.06(c)(iv)), the Outstanding Amount of L/C Obligations exceeds the L/C Sublimit, the Borrowers will immediately (and in any event within three Business Days thereof) Cash Collateralize the Outstanding Amount of such L/C Obligations in an amount equal to such excess.

 

(ii)           If, on any date the Total Revolving Credit Outstandings, less the amount of L/C Obligations Cash Collateralized, exceeds the Aggregate Revolving Credit Commitments then in effect, including after giving effect to any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.07, the Borrowers will immediately (and in any event within three Business Days thereof), and without notice or demand, prepay the outstanding principal amount of the Revolving Credit Loans and Swing Line Loans and the amount of L/C Borrowings by an amount equal to the applicable excess. Any such prepayment will be applied, first, to any L/C Borrowings, second, to prepay any outstanding Swing Line Loans and third, to prepay any outstanding Revolving Credit Loans.

 

(iii)          If, following any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.07, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit (including as reduced by such reduction), the Borrowers will prepay on the reduction date the Outstanding Amount of Swing Line Loans by an amount equal to the amount by which such Outstanding Amount exceeds the Swing Line Sublimit.

 

(iv)          If, following any reduction of the Aggregate Revolving Credit Commitments pursuant to Section 2.07, the Outstanding Amount of L/C Obligations would exceed the L/C Sublimit (including as reduced by such reduction), the Borrowers will Cash Collateralize the Outstanding Amount of such L/C Obligations in an amount equal to such excess.

 

(d)   Bank Product Obligations Unaffected.  Any repayment or prepayment made pursuant to this Section 2.06 shall not affect a Borrower’s or a Subsidiary’s obligation, if any, to continue to make payments under any Bank Product, which shall remain in full force and effect notwithstanding such repayment or prepayment, subject to the terms of such Bank Product.

 

SECTION 2.07.  TERMINATION OR REDUCTION OF AGGREGATE REVOLVING CREDIT COMMITMENTS.

 

The Borrowers may, upon notice from the Administrative Borrower, on behalf of the Borrowers, to Administrative Agent, terminate the Aggregate Revolving Credit Commitments, or from time to time permanently reduce the Aggregate Revolving Credit Commitments; provided that (a) any such notice will be irrevocable and received by Administrative Agent not later than 11:00 a.m. three Business Days prior to the requested effective date of such termination or reduction; (b) any such partial reduction will be in an aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof; (c) the Borrowers will not terminate or reduce the Aggregate Revolving Credit Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Aggregate Revolving Credit Commitments; and (d) if, after giving effect to any reduction of the Aggregate Revolving Credit Commitments, the L/C Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Revolving Credit Commitments, such sublimit(s) will be automatically reduced by the amount of such excess.  Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate Commitments.  Any reduction of 

 

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the Aggregate Revolving Credit Commitments will be applied to the commitment of each Lender according to its Percentage Share thereof.  All Revolving Credit Commitment Fees accrued until the effective date of any termination of the Aggregate Revolving Credit Commitments will be paid on the effective date of such termination.

 

SECTION 2.08.  FINAL REPAYMENT OF REVOLVING CREDIT LOANS AND SWING LOANS.

 

On the Revolving Credit Maturity Date, the Borrowers will repay (i) to Lenders in full the aggregate Outstanding Amount of all Revolving Credit Loans and (ii) to Swing Line Lender in full the aggregate Outstanding Amount of all Swing Line Loans, and in each case all accrued and unpaid interest thereon.

 

SECTION 2.09.  INTEREST; APPLICABLE RATES.

 

(a)           Interest Generally.  Subject to the provisions of Section 2.09(b), (i) each Eurodollar Rate Loan will bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate and (ii) each Base Rate Loan (including each Swing Line Loan) will bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

 

(b)           Default Rate.

 

(i)            If an Event of Default under Section 8.01(a) occurs as a result of the Borrowers’ failure to timely make any payment of the Obligations when due and payable under this Agreement or any of the other Loan Documents (after giving effect to any applicable cure period) and is continuing or under Section 8.01(f) occurs and is continuing, then, without limitation of and in addition to clause (ii) of this Section 2.09(b), the entire principal amount of the Obligations (except for undrawn Credits) will thereafter, from the date such Event of Default occurred and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01 of this Agreement, without any required notice from Lenders or Administrative Agent, bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(ii)           If any Event of Default occurs, then, without limitation of and in addition to clause (i) of this Section 2.09(b), upon written notice to the Borrowers from Required Lenders (or from Administrative Agent at the direction of Required Lenders), the outstanding Obligations under this Agreement and the other Loan Documents will, effective as of the date of delivery of such written notice to the Administrative Borrower, on behalf of the Borrowers, and continuing until the related Event of Default has been cured or waived in accordance with Section 10.01, will bear interest at a fluctuating rate per annum at all times equal to the Default Rate, to the fullest extent permitted by applicable Laws.

 

(iii)          Accrued and unpaid interest on past due amounts (including interest on past due interest) will be due and payable upon demand.

 

(c)           Payment Dates; Accrual of Interest.  Interest on each Loan will be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein.  Interest hereunder will be due and payable in accordance with the terms hereof both before and after judgment, and both before and after the commencement of any proceeding under any Bankruptcy Law.

 

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(d)           Increases and Decreases of Applicable Rates.  Any increase or decrease in any Applicable Rate resulting from a change in the Consolidated Leverage Ratio will become effective as of the date that is the earlier of (i) the last date by which the Borrowers are otherwise required to deliver a Compliance Certificate in accordance with Section 6.01(c) for given period (each such date, a “calculation date”) and (ii) the date that is two Business Days after the date on which the Administrative Borrower, on behalf of the Borrowers, actually delivers a Compliance Certificate in accordance with Section 6.01(c) for a given period.  Notwithstanding the foregoing, the Applicable Rates in effect from the Fourth Amendment Effective Date to the date that is two Business Days following receipt by Administrative Agent of a timely delivered Compliance Certificate with respect to the Fiscal Period ending March 31, 2017 (the “Initial Applicable Rates”) shall be Tier III as indicated on the grid set forth in the definition of “Applicable Rate”.  If any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent.

 

Notwithstanding the foregoing and for the avoidance of doubt, if, for any period and for any reason, the actual Consolidated Leverage Ratio, as determined by Administrative Borrower in good faith and consented to by the Administrative Agent (such consent not to be unreasonably withheld), is higher than that reported in the related Compliance Certificate delivered for such period, then the Borrowers will immediately, without the requirement of notice or demand from any Person, pay to Lending Parties an amount equal to the excess of (A) the amount of interest or fees that would have accrued had the Applicable Rates for such period been based upon the actual Consolidated Leverage Ratio for such period rather than the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period over (B) the amount of interest or fees that was actually paid by the Borrowers based upon the Consolidated Leverage Ratio reported in the Compliance Certificate delivered for such period.  The foregoing will in no way limit the rights of Administrative Agent to impose the Default Rate of interest pursuant to Section 2.09(b) or to exercise any other remedy available at law or as provided hereunder or under any of the other Loan Documents.

 

SECTION 2.10.  FEES.

 

In addition to certain fees described in subsections (h) and (i) of Section 2.04:

 

(a)           Revolving Credit Facility Commitment Fee.  The Borrowers will pay to Administrative Agent for the account of each Lender in accordance with its Percentage Share, a commitment fee (the “Revolving Credit Commitment Fee”) equal to the Applicable Rate multiplied by the actual daily amount by which the Aggregate Revolving Credit Commitments exceed the sum of the Total Revolving Credit Outstandings (less the Outstanding Amount of Swing Line Loans) for each such day, subject to adjustment as provided in Section 3.07; provided that, if any Compliance Certificate required to be delivered in accordance with Section 6.01(c) is not delivered to Administrative Agent on or before the related calculation date, then the levels corresponding to Tier I as indicated on the grid set forth in the definition of “Applicable Rate” will apply, effective on the related calculation date until two Business Days after such Compliance Certificate is actually received by Administrative Agent.  The Revolving Credit Commitment Fee will accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and will be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Revolving Credit Maturity Date.  The Revolving Credit Commitment Fee will be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount will be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

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Notwithstanding anything to the contrary contained in this clause (a), the determination of the Applicable Rate for any period and at any time will be subject to the provisions of Section 2.09(d).

 

(b)           Administrative Agent’s, L/C Issuer’s and Arranger’s Fees. The Borrowers will pay such fees as are specified as owing to such Persons in the Fee Letters.

 

SECTION 2.11.  COMPUTATIONS OF INTEREST AND FEES.

 

All computations of interest for Base Rate Loans based on the Prime Rate will be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of interest and fees hereunder will be made on the basis of a year of 360 days and actual days elapsed (which results in more interest being paid than if computed on the basis of a year of 365 or 366 days, as applicable), or, in the case of interest in respect of Loans denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such market practice.  Interest will accrue on each Loan for the day on which the Loan is made, and will not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made will, subject to Section 2.13(a), bear interest for one day.  Each determination by Administrative Agent of an interest rate or fee hereunder will be conclusive and binding for all purposes, absent manifest error.  Without limitation of the foregoing, in computing the interest on any Eurodollar Rate Loan denominated in an Alternative Currency, such Loan will have added to it the U.K. Regulatory Cost, if any, associated with such Loan.

 

SECTION 2.12.  EVIDENCE OF INDEBTEDNESS.

 

(a)           Evidence of Payments.  The Credit Extensions made by each Lender will be evidenced by one or more accounts or records maintained by such Lender and by Administrative Agent in the ordinary course of business, including the Register as described in Section 10.06(c).  The accounts or records maintained by Administrative Agent and each Lender will be conclusive absent manifest error of the amount of the Credit Extensions made by Lenders to the Borrowers and the interest and payments thereon.  Any failure to so record or any error in doing so will not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations.  If any conflict exists between the accounts and records maintained by any Lender and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent will control in the absence of manifest error.  Upon the request of any Lender made through Administrative Agent, the Borrowers will execute and deliver to such Lender (through Administrative Agent) a Note, which will evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

(b)           Evidence of Certain Participations.  In addition to the accounts and records referred to in Section 2.12(a), each Lender and Administrative Agent will maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Credits and Swing Line Loans.  If any conflict exists between the accounts and records maintained by Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of Administrative Agent will control in the absence of manifest error.

 

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SECTION 2.13.  PAYMENTS GENERALLY; RIGHT OF ADMINISTRATIVE AGENT TO MAKE DEDUCTIONS AUTOMATICALLY.

 

(a)           Payments Generally.

 

(i)            All payments to be made by the Borrowers will be made without condition or deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein or under any Cash Sweep Agreement, all payments by the Borrowers hereunder will be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in Dollars and in immediately available funds not later than (i) 12:00 noon on the date specified herein or (ii) after the Applicable Time specified by Administrative Agent in the case of payments in an Alternative Currency, will in each case be deemed received on the next succeeding Business Day and any applicable interest or fee will continue to accrue.  If, for any reason, any Borrower is prohibited by any requirement of applicable Law from making any required payment hereunder in an Alternative Currency, the Borrowers will make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount.  Administrative Agent will promptly distribute to each Lender its Percentage Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office.  All payments received by Administrative Agent after 12:00 noon will be deemed received on the next succeeding Business Day and any applicable interest or fee will continue to accrue; provided, however, that at the request of Administrative Agent, payments of interest on Eurodollar Rate Loans denominated in an Alternative Currency will be made in the applicable Alternative Currency in immediately available funds to such account at such bank as Administrative Agent may designate to any Borrower, no later than 12:00 noon (local time in the place where such bank is located) on the due date.  If any payment to be made by the Borrowers will come due on a day other than a Business Day, payment will be made on the next following Business Day, and such extension of time will be reflected in computing interest or fees, as the case may be.

 

(ii)           The Borrowers hereby authorize Administrative Agent (A) to deduct automatically all principal, interest or fees when due hereunder or under any Note from any account of the Borrowers maintained with Administrative Agent and (B) if and to the extent any payment of principal, interest or fees under this Agreement or any Note is not made when due to deduct any such amount from any or all of the accounts of the Borrowers maintained at Administrative Agent.  Administrative Agent agrees to provide written notice to the Borrowers of any automatic deduction made pursuant to this Section 2.13(a)(ii) showing in reasonable detail the amounts of such deduction.  Each Lender agrees to reimburse the Borrowers based on its applicable Percentage Share for any amounts deducted from such accounts in excess of amount due hereunder and under any other Loan Documents.

 

(b)           Fundings by the Lenders, Payments by the Borrowers and Presumptions by Administrative Agent.

 

(i)            Unless Administrative Agent will have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.03 and may, in reliance upon such assumption, make available to the Borrowers a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender, on the one hand, and the Borrowers, on the other hand, each severally agrees to pay to Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from the date such amount is made available to the Borrowers to the date of payment to Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by Administrative Agent in connection with the foregoing; and (B) in the case of a payment to be made by the Borrowers, the interest rate applicable to Revolving Credit Loans that are Base Rate Loans.  If the Borrowers and such Lender will pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent will promptly remit to the Borrowers the amount of such interest paid by

 

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the Borrowers for such period.  If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid will constitute such Lender’s Revolving Credit Loan included in such Borrowing.  Any payment by the Borrowers will be without prejudice to any claim the Borrowers may have against a Lender that will have failed to make such payment to Administrative Agent.

 

(ii)           Unless Administrative Agent will have received notice from the Borrowers prior to the date on which any payment is due hereunder to Administrative Agent for the account of the Lenders or any L/C Issuer that the Borrowers will not make such payment, Administrative Agent may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrowers have not in fact made such payment, then the Lenders and the L/C Issuer, as the case may be, each severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lenders or L/C Issuer, as the case may be, in immediately available funds with interest thereon, for each day from the date such amount is distributed to it to the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation.  A notice of Administrative Agent to any Lender or the Borrowers (including to the Administrative Borrowers on behalf of the Borrowers) with respect to any amount owing under this Section 2.13(b) will be conclusive, absent manifest error.

 

(c)           Failure to Satisfy Conditions Precedent.  Subject to Section 2.04 and Section 2.05, if any Lender makes available to Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II and such funds are not made available to the Borrowers by Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, Administrative Agent will return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d)           Obligations of the Lenders are Several and not Joint.  The obligations of the Lenders hereunder to make Loans, to fund participations in Credits and Swing Line Loans and to make payments under Section 2.13(b)(ii), Section 10.04(c) and Section 10.05 are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 2.13(b)(ii), Section 10.04(c) or Section 10.05 on any date required hereunder will not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender will be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make its payment under Section 2.13(b)(ii), Section 10.04(c) or Section 10.05.

 

(e)           Funding Sources.  Nothing herein will be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.  Without limitation of the preceding sentence, neither Administrative Agent nor any Lender will be required actually to acquire eurodollar deposits to fund or otherwise match fund any Obligation as to which interest accrues at the Eurodollar Rate.  The provisions of this Section 2.13(e) will apply as if each Lender had match funded any Obligation as to which interest is accruing at the Eurodollar Rate by acquiring eurodollar deposits for each Interest Period in the amount of the Eurodollar Rate Loans.

 

SECTION 2.14.  SHARING OF PAYMENTS.

 

If any Lender will, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it, resulting in such Lender receiving payment of a proportion

 

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of the aggregate amount of such Loans or participations and accrued interest thereon greater than its Percentage Share (or other applicable share as provided herein) thereof as provided herein, then the Lender receiving such greater proportion will:  (a) notify Administrative Agent of such fact; and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as will be equitable, so that the benefit of all such payments will be shared by Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations will be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section 2.14 will not be construed to apply to (A) any payment made by or on behalf of the Borrowers pursuant to and in accordance with the express terms of this Agreement including the application of funds arising from the existence of a Defaulting Lender, (B) the application of Cash Collateral provided for in Section 2.16, or (C) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than an assignment to the any Loan Party or any Affiliate thereof (as to which the provisions of this Section 2.14 will apply).

 

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

SECTION 2.15.  INCREASE IN AGGREGATE COMMITMENTS AND INCREMENTAL TERM LOANS.

 

(a)           Increase in Aggregate Commitments and Incremental Term Loans Generally.  So long as the Aggregate Commitments have not previously been voluntarily reduced pursuant to Section 2.07, and subject to the further conditions set forth in Section 2.15(c), upon notice to Administrative Agent by the Administrative Borrower, on behalf of the Borrowers, at any time after the Closing Date but not less than thirty days prior to the Revolving Credit Maturity Date, the Borrowers may (i) incur additional Indebtedness under this Agreement in the form of one or more new term loan facilities under this Agreement (each, an “Incremental Term Loan”) and/or (ii) request one or more Additional Revolving Credit Commitments; provided that (A) after giving effect thereto, the aggregate amount of Additional Revolving Credit Commitments and Incremental Term Loans that have been added pursuant to this Section 2.15 will not exceed $0; (B) any such addition will be in a minimum aggregate amount of $25,000,000 or any whole multiple of $5,000,000 in excess thereof (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Additional Revolving Credit Commitments and Incremental Term Loans set forth in clause (A) of this proviso); and (C) the Borrowers may request a maximum of three such Additional Revolving Credit Commitments and/or Incremental Term Loans.

 

(b)           Certain Provisions Regarding Increase of Aggregate Commitments.  If any Additional Revolving Credit Commitments and/or Incremental Term Loans are added in accordance with this Section 2.15, the Administrative Agent and the Administrative Borrower, on behalf of the Borrowers, will determine the effective date (the “Additional Commitments Effective Date”) of such addition and the amount of, and the Persons who will provide, such Additional Revolving Credit Commitments and/or Incremental Term Loans; provided that no Person who is not at the time a Lender will be selected to provide Additional Revolving Credit Commitments and/or Incremental Term Loans until each existing Lender has been provided with a reasonable opportunity to provide all or a portion of such Additional Revolving Credit Commitments and/or Incremental Term Loans in an amount not less than its Percentage Share thereof and has either accepted, declined or failed to respond to such opportunity to provide such

 

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percentage share of such Additional Revolving Credit Commitments and/or Incremental Term Loans; provided, further, that no existing Lender will have any obligation to provide all or any portion of such Additional Revolving Credit Commitments and/or Incremental Term Loans.  The Administrative Agent will promptly notify the Administrative Borrower, on behalf of the Borrowers, and Lending Parties of the final amount of such Additional Revolving Credit Commitments and/or Incremental Term Loans and the Additional Commitments Effective Date, as well as in the case of each notice to any Lender, the respective interests in such Lender’s Revolving Credit Loans and/or Incremental Term Loans, as applicable, in each case subject to the assignments contemplated by this Section 2.15.  As conditions precedent to each such Additional Revolving Credit Commitments and/or Incremental Term Loans:  (i) the representations and warranties contained in Article V and the other Loan Documents (including all documents required pursuant to Section 2.15(c)) will be true and correct on and as of the Additional Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they will have been true and correct as of such earlier date, and except that, for purposes of this Section 2.15(b), the representations and warranties contained in Section 5.10 will be deemed to refer to the most recent financial statements furnished pursuant to Section 6.01(a) and Section 6.01(b), respectively; (ii) no Default or Event of Default will exist immediately before or immediately after giving effect to such addition; (iii) the Borrowers will be in compliance with the financial covenants set forth in Section 7.14 after giving pro forma effect to the making of Additional Revolving Credit Commitments and/or Incremental Term Loans and the Loans made in connection therewith; (iv) the Borrowers, Administrative Agent and Lending Parties (including any new Lending Parties being added in connection with such addition) will have entered into all documents required pursuant to Section 2.15(c), and the Borrowers will have complied with all of the conditions precedent to the effectiveness of such addition as provided in such documents (including any requirement to pay fees and expenses to any or all of Administrative Agent, the Arrangers and the Lending Parties, including any new Lending Parties); and (v) the Borrowers will have delivered to Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Administrative Borrower, on behalf of the Borrowers, certifying as to the truth, accuracy and correctness of the matters set forth in the immediately preceding clauses (i), (ii) and (iii). On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person who is providing an Additional Revolving Credit Commitment and/or Incremental Term Loan will become a “Lender” for all purposes of this Agreement and the other Loan Documents.  Any Additional Revolving Credit Loan will be a “Revolving Credit Loan” for all purposes of this Agreement and the other Loan Documents.  In furtherance of the foregoing, in connection with any Additional Revolving Credit Commitments, on any Additional Commitments Effective Date on which Additional Revolving Credit Commitments are made, subject to the satisfaction of the other terms and conditions contained in this Section 2.15, (1) each of the existing Lenders will assign to each Person providing an Additional Revolving Credit Commitment, and each such Person will purchase from each of the existing Lenders, in an amount equal to the Outstanding Amount thereof (together with accrued but unpaid interest thereon), such interests in the Revolving Credit Loans outstanding on such date as will be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Lenders and the Person making the Additional Revolving Credit Commitments ratably in accordance with their Percentage Shares after giving effect to the addition of such Additional Revolving Credit Commitments to the existing Revolving Credit Commitments; and (2) each Person making an Additional Revolving Credit Commitment will be deemed for all purposes to have made a Revolving Credit Commitment and each Additional Revolving Credit Loan will be deemed, for all purposes, a Revolving Credit Loan.

 

(c)           Terms and Documentation.  Any other terms of and documentation entered into in respect of any Additional Revolving Credit Commitments and/or Incremental Term Loans made pursuant to this Section 2.15 (collectively, the “Additional Commitment Documentation”) will be (i) with respect to Additional Revolving Credit Commitments, consistent with the Revolving Credit Commitments or (ii)

 

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with respect to any Incremental Term Loans, reasonably satisfactory to the Administrative Agent; provided that (A) the Borrowers and the Additional Lenders providing an Additional Revolving Credit Commitment may agree to additional fees payable to such Additional Lenders in consideration of such Additional Lender’s agreement to provide such Additional Revolving Credit Commitment and/or Incremental Term Loan, (B) the Borrowers and the Additional Lenders providing an Incremental Term Loan may agree to the pricing (including the interest rate margins, any upfront fees, any arrangement fees, any underwriting fees and any original issue discount) applicable to such Incremental Term Loan, and (C) no Incremental Term Loan shall have a maturity date earlier than the Revolving Credit Maturity Date.  Any Additional Revolving Credit Commitments and/or Incremental Term Loans made or provided pursuant to this Section 2.15 will be (i) entitled, on a pari passu basis, to the same benefit of the Guaranties as the Revolving Credit Commitments and (ii) evidenced by one or more entries in the Register maintained by Administrative Agent in accordance with the provisions set forth in Section 10.06(c).

 

(d)           Amendment to Credit Agreement.  The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Agreement or any other Loan Document as may be necessary to incorporate the terms of any new Incremental Term Loan therein.

 

(e)           Availability.  Notwithstanding anything to the contrary contained herein, no Additional Revolving Credit Commitments or Incremental Term Loans will be available after the Fourth Amendment Effective Date.

 

SECTION 2.16.  CASH COLLATERAL.

 

(a)           Certain Credit Support Events.  Upon the request of Administrative Agent or L/C Issuer, (i) if any L/C Issuer has honored any full or partial drawing request under any Credit issued by it and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the L/C Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrowers will immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.  At any time that there will exist a Defaulting Lender, immediately upon the request of Administrative Agent, any L/C Issuer or Swing Line Lender, the Borrowers will deliver to Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 3.07(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

 

(b)           Grant of Security Interest.  All Cash Collateral (other than credit support not constituting funds subject to deposit) will be maintained in blocked, interest bearing deposit accounts at Wells Fargo (the type of such account to be agreed upon between Administrative Agent and Administrative Borrower in form and substance satisfactory to Administrative Agent in its Reasonable Discretion).  Each Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) Administrative Agent, for the benefit of the Credit Group, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c).  If at any time Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrowers will, promptly upon demand by Administrative Agent, pay or provide to Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.  For the purpose of any Cash Collateral held in an interest bearing account pursuant to this Agreement, Administrative Agent will report to Administrative Borrower the aggregate amount of interest and other income earned on the Cash Collateral (such aggregate amounts, “Cash Collateral Interest”) upon receiving a written request for such

 

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information from Administrative Borrower.  All Cash Collateral Interest earned during each calendar year on the Cash Collateral deposited in such account will automatically be released to Administrative Borrower within ten Business Days after each December 31 of a calendar year.  Each Borrower will bear responsibility for paying any Taxes due thereon, and, as reasonably requested by Administrative Agent, each Borrower will provide to Administrative Agent a withholding certificate relating to such Taxes; provided, however, that Administrative Agent will withhold from amounts otherwise due to such party if required by any applicable Law.  The parties agree that, for tax reporting purposes, all Cash Collateral Interest will, as of the end of each calendar year and to the extent required by the Internal Revenue Service, be reported as having been earned by the Borrowers, whether or not such income was disbursed during such calendar year.  The Borrowers will be responsible for paying Taxes (including any penalties and interest thereon) on all Cash Collateral Interest earned on the Cash Collateral and for filing all necessary tax returns with respect to such income, provided, that Administrative Agent will have no obligation to file or prepare any tax returns or prepare any other reports for any taxing authorities concerning matters covered by this Agreement.  Administrative Agent will file any applicable IRS form, including IRS Form 1099, consistent with such treatment to the extent required by applicable Law. If any amounts payable to a Borrower under this Agreement would be subject to any penalty tax by reason of the application of Section 409A of the Code or regulations promulgated thereunder, then the Borrowers hereto agree to use commercially reasonable efforts to take such steps as they agree to be necessary or desirable (including providing an instruction to Administrative Agent) to comply with such Code section.  In no event will Administrative Agent be liable in connection with its investment or reinvestment of any Cash Collateral held by it pursuant to this Agreement in good faith and in accordance with the terms of any agreement concerning such Cash Collateral, including any liability for delays in the investment or reinvestment of the Cash Collateral, or any loss of interest incident to any such delays.

 

(c)           Application.  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.16 or Sections 2.04, 2.05, 2.06, 3.07 or 8.03 in respect of Letters of Credit or Swing Line Loans will be held and applied to the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

 

(d)           Release.  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations will be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee) or (ii) Administrative Agent’s good faith determination that there exists excess Cash Collateral; provided, however, (1) that Cash Collateral furnished by or on behalf of a Borrower will not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.16 may be otherwise applied in accordance with Section 8.04), and (2) the Person providing Cash Collateral and any L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral will not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

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ARTICLE III
 TAXES, YIELD PROTECTION AND ILLEGALITY

 

SECTION 3.01.  TAXES.

 

(a)           Payments Free of Taxes.

 

(i)            Any and all payments by or on account of any obligation of the Borrowers or any other Loan Party hereunder or under any other Loan Document will to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes (other than Excluded Taxes).  If, however, applicable Laws require any Borrower or such other Loan Party or Administrative Agent to withhold or deduct any Tax, such Tax will be withheld or deducted in accordance with such Laws as determined by such Borrower or such other Loan Party or Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to Section 3.01(e).

 

(ii)           If any Borrower or any other Loan Party or Administrative Agent will be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding Taxes, from any payment, then (A) Administrative Agent will withhold or make such deductions as are determined by Administrative Agent to be required based upon the information and documentation it has received pursuant to Section 3.01(e), (B) Administrative Agent will timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by such Borrower or such other Loan Party, as the case may be, will be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01), Administrative Agent or the applicable Lending Party, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(b)           Payment of Other Taxes by the Borrowers and the Other Loan Parties.  Without limiting the provisions of Section 3.01(a), each Borrower and each other Loan Party will timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)           Indemnification by Each Borrower and Each Other Loan Party.

 

(i)            Without limiting the provisions of Section 3.01(a) and Section 3.01(b), each Borrower and each other Loan Party will, and do hereby, jointly and severally, indemnify Administrative Agent and each Lending Party, and will make payment in respect thereof within fifteen days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01) withheld or deducted by any Borrower or any other Loan Party or Administrative Agent or paid by Administrative Agent or such Lending Party, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  Each Borrower and each other Loan Party will also, and do hereby, jointly and severally, indemnify Administrative Agent, and will make payment in respect thereof within fifteen days after demand therefor, for any amount which Lending Party for any reason fails to pay indefeasibly to Administrative Agent as required by clause (ii) of this Section 3.01(c).  A certificate as to the amount of any such payment or liability delivered to any Borrower or any other Loan Party by a Lending Party (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Lending Party, will be conclusive absent manifest error.

 

(ii)           Without limiting the provisions of Section 3.01(a) and Section 3.01(b), (A) no Loan Party will be required to indemnify any Foreign Lender, or pay any additional amount to such Foreign Lender, pursuant to Section 3.01(a), (b) or (c) in respect of Taxes to the extent that the obligation to pay or indemnify such additional amounts would not have arisen but for the failure of such Foreign Lender to comply with the provisions of Section 3.01(e), and (B) each Lending Party will, and does hereby, indemnify each Borrower and each other Loan Party and Administrative Agent, and will make payment in respect thereof within ten days after demand therefor, against any and all Taxes and any and

 

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all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Borrowers or any other Loan Party or Administrative Agent) incurred by or asserted against any Borrower or Administrative Agent by any Governmental Authority as a result of the failure by such Lending Party to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lending Party to such Borrower or such other Loan Party or Administrative Agent pursuant to Section 3.01(e).  Each Lending Party hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lending Party under this Agreement or any other Loan Document against any amount due to Administrative Agent under this clause (ii).  The agreements in this clause (ii) will survive the resignation and/or replacement of Administrative Agent, any assignment of rights by, or the replacement of, a Lending Party, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

(d)           Evidence of Payments.  Upon request by any Borrower or any other Loan Party or Administrative Agent, as the case may be, after any payment of Taxes by such Borrower or such other Loan Party or Administrative Agent to a Governmental Authority as provided in this Section 3.01, each Borrower and each other Loan Party will deliver to Administrative Agent or Administrative Agent will deliver to such Borrower or such other Loan Party, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to such Borrower or such other Loan Party or Administrative Agent, as the case may be.

 

(e)           Status of Lenders; Tax Documentation.

 

(i)            Each Lending Party will deliver to the Borrowers and to Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrowers or Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrowers or Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Document are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lending Party’s entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrowers or any other Loan Party pursuant to this Agreement or otherwise to establish such Lending Party’s status for withholding tax purposes in the applicable jurisdiction.

 

(ii)           Without limiting the generality of the foregoing, if any Borrower is resident for tax purposes in the United States,

 

(A)          any Lending Party that is a “United States person” within the meaning of Section 7701(a)(30) of the Code will deliver to the Borrowers and Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrowers or Administrative Agent as will enable the Borrowers or Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and

 

(B)          each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document will deliver to the Borrowers and Administrative Agent (in such number of copies as will be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lending Party under this Agreement (and from time to time thereafter upon the request of the 

 

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Borrowers or Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

 

(1)           executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, claiming eligibility for benefits of an income tax treaty to which the United States is a party,

 

(2)           executed originals of Internal Revenue Service Form W-8ECI,

 

(3)           executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation,

 

(4)           in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (2) a “10 percent stockholder” of any Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) executed originals of Internal Revenue Service Form W-8BEN or W-8BEN-E, as applicable, or

 

(5)           executed originals of any other form prescribed by applicable Laws as a basis for claiming exemption from or a reduction in United States Federal withholding tax together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrowers or Administrative Agent to determine the withholding or deduction required to be made.

 

(iii)          If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrowers and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrowers or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrowers or the Administrative Agent as may be necessary for the Borrowers and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment

 

(iv)          Each Lending Party will promptly (A) notify the Borrowers and Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction, and (B) take such steps as will not be materially disadvantageous to it, in the reasonable judgment of such Lending Party, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrowers or Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lending Party.

 

(f)            Treatment of Certain Refunds.  Unless required by applicable Laws, at no time will Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lending Party, or have any obligation to pay to any Lending Party, any refund of Taxes withheld or deducted from funds paid for the account of such Lending Party.  If Administrative Agent or any Lending Party determines, in its sole discretion, that it has received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrowers or any other Loan Party or with respect to which the Borrowers or any other Loan Party has paid additional amounts pursuant to this Section 3.01, it will pay to the Borrowers

 

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or such other Loan Party, as the case may be, an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrowers or such other Loan Party, as the case may be, under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses incurred by Administrative Agent or such Lending Party, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrowers or such other Loan Party, as the case may be, upon the request of Administrative Agent or such Lending Party, agrees to repay the amount paid over to the Borrowers or such other Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to Administrative Agent or such Lending Party, as the case may be, in the event Administrative Agent or such Lending Party is required to repay such refund to such Governmental Authority.  This Section 3.01(f) will not be construed to require Administrative Agent or any Lending Party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrowers or any other Loan Party or any other Person.

 

(g)           FATCA.  For purposes of this Section 3.01, the term “Lender” includes any L/C Issuer and the term “applicable Law” includes FATCA.  For purposes of determining withholding Taxes imposed under FATCA, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Agreement or any Loan as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471-2(b)(2)(i).

 

SECTION 3.02.  ILLEGALITY.

 

If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank offered market, then, on notice thereof by such Lender to the Borrowers through Administrative Agent, (a) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Revolving Credit Loans that are Base Rate Loans to Eurodollar Rate Loans will be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (i) the Borrowers will, upon demand from such Lender (with a copy to Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender will, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans as indicated by a written notice from such Lender to Administrative Agent and the Borrowers, and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, Administrative Agent will during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until Administrative is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate.  Upon any such prepayment or conversion, the Borrowers will also pay accrued interest on the amount so prepaid or converted and all amounts due under Section 3.05 in accordance with the terms thereof due to such prepayment or conversion.

 

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SECTION 3.03.  INABILITY TO DETERMINE RATES.

 

If (a) Administrative Agent determines in connection with any request for a Borrowing or continuation of, or a conversion to, Eurodollar Rate Loan that (i) Dollar deposits are not being offered to banks in the London interbank offered market for the applicable amount and Interest Period of such Eurodollar Rate Loan or (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (b) Required Lenders determine in connection with any request for a Borrowing or continuation of, or a conversion to, a Eurodollar Rate Loan that the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, then Administrative Agent will promptly so notify the Borrowers and each Lender in writing.  Thereafter, (1) the obligation of the Lenders to make or maintain Eurodollar Rate Loans will be suspended, and (2) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate will be suspended, in each case until Administrative Agent (upon the instruction of Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrowers may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Revolving Credit Borrowing consisting of Base Rate Loans in the amount specified therein.

 

SECTION 3.04.  INCREASED COSTS.

 

(a)           Increased Costs Generally.  If any Change in Law will:

 

(i)            impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lending Party (except any reserve requirement reflected in the Eurodollar Rate);

 

(ii)           subject any Lending Party to any tax of any kind whatsoever with respect to this Agreement, any Credit, any participation in a Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Lending Party in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lending Party); or

 

(iii)          impose on any Lender or any L/C Issuer or the London interbank offered market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Credit or participation therein;

 

and the result of any of the foregoing will be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or L/C Issuer of participating in, issuing or maintaining any Credit (or of maintaining its obligation to participate in or to issue any Credit), or to reduce the amount of any sum received or receivable by such Lending Party hereunder (whether of principal, interest or any other amount), then, upon request of such applicable Lending Party, the Borrowers will pay to such Lending Party such additional amount or amounts as will compensate such Lending Party for such additional costs incurred or reduction suffered.

 

(b)   Capital Requirements.  If any Lending Party determines that any Change in Law affecting such Lending Party or the Lending Office of such Lending Party or such Lending Party’s holding

 

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company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lending Party’s capital or on the capital of such Lending Party’s holding company, if any, as a consequence of this Agreement, the Commitments of any such Lender or the Loans made by, or participations in Letters of Credit held by, any such Lender, or the Credits issued by any such L/C Issuer, to a level below that which such Lending Party or such Lending Party’s holding company could have achieved but for such Change in Law (taking into consideration such Lending Party’s policies and the policies of such Lending Party’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrowers will pay to such Lending Party such additional amount or amounts as will compensate such Lending Party or such Lending Party’s holding company for any such reduction suffered.

 

(c)           Certificates for Reimbursement.  A certificate of a Lender or a L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section 3.04, as well as the basis for determining such amount or amounts, and delivered to the Administrative Borrowers, on behalf of the Borrowers, will be conclusive absent manifest error; provided that such certificate sets forth in reasonable detail the amount or amounts payable to such Lending Party pursuant to Sections 3.04(a) and (b).  The Borrowers will pay such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten days after receipt thereof.

 

(d)           Delay in Requests.  Failure or delay on the part of any Lender or L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 will not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation, provided that the Borrowers will not be required to compensate a Lender or L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Borrowers of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to in this subsection (d) will be extended to include the period of retroactive effect thereof).

 

(e)           Lookback; Nondiscrimination.  Notwithstanding the provisions of Sections 3.04(a) and (b), the Borrowers will only be liable (a) for amounts in respect of increased costs or reduced returns for the period of up to ninety days prior to the date on which such demand was made and (b) to the extent the Lender making demand therefor has required similarly situated borrowers or obligors to pay comparable amounts in respect of such increased costs or reduced returns.

 

SECTION 3.05.  COMPENSATION FOR LOSSES.

 

Upon demand of any Lender (with a copy to Administrative Agent) from time to time, the Borrowers will promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense actually incurred by it as a result of (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise), (b) any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than to continue a Loan as, or to convert a Loan to, a Base Rate Loan on the date or in the amount notified by the Borrowers, (c) any failure by the Borrowers (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrowers, or (d) any assignment of a Eurodollar Rate Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrowers pursuant to Section 2.04 or Section 3.06, including, in each of the foregoing

 

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cases, any loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or redeployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained.  The Borrowers will also pay any customary administrative fees charged by such Lender in connection with the foregoing.  For purposes of calculating amounts payable by the Borrowers to Lenders under this Section 3.05, each Lender will be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank offered market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.  For purposes of calculating amounts payable to any Lender under this Section 3.05, such Lender will be deemed to have funded each Eurodollar Rate Loan denominated in an Alternative Currency made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

 

SECTION 3.06.  MITIGATION OBLIGATIONS.

 

Notwithstanding anything to the contrary contained in Section 10.01, if any Lending Party requests compensation under Section 3.04, or the Borrowers are required to pay any additional amount to any Lending Party or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lending Party gives a notice pursuant to Section 3.02, then such Lending Party, at the request of the Borrowers, will use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lending Party, such designation or assignment:  (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable; and (ii) in each case, would not subject such Lending Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lending Party as reasonably determined by such Lending Party.  The Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lending Party in connection with any such designation or assignment.

 

SECTION 3.07.  DEFAULTING LENDERS.

 

(a)           Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:

 

(i)            Waivers and Amendments.  That Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement will be restricted as set forth in Section 10.01.

 

(ii)           Reallocation of Payments.  Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to Administrative Agent by that Defaulting Lender pursuant to Section 10.08), will be applied at such time or times as may be determined by Administrative Agent as follows:  first, to the payment of any amounts owing by that Defaulting Lender to Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuers or Swing Line Lender hereunder; third, if so determined by Administrative Agent or requested by any L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Credit or Swing Line Loan; fourth, as the Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender

 

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has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; fifth, if so determined by Administrative Agent and the Borrowers and subject to Section 2.16(b), to be held in an interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders, any L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (1) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting Lender has not fully funded its appropriate share and (2) such Loans or L/C Borrowings were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment will be applied solely to pay the Loans of, and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 3.07(a)(ii) will be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)          Certain Fees.  That Defaulting Lender (A) will not be entitled to receive any Revolving Credit Commitment Fee pursuant to Section 2.10(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers will not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender) and (B) will be limited in its right to receive L/C Fees as provided in Section 2.04(h).

 

(iv)          Reallocation of Percentage Shares to Reduce Fronting Exposure.  During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Credits or Swing Line Loans pursuant to Sections 2.04 and 2.05, the “Percentage Share” of each non-Defaulting Lender that is a Lender will be computed without giving effect to the Revolving Credit Commitment of that Defaulting Lender; provided, that, (A) each such reallocation will be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (B) each such reallocation will be given effect only to the extent that, after giving effect to such reallocation, each non-Defaulting Lender’s Percentage Share of the Defaulting Lender’s aggregate Fronting Exposure will not exceed the positive difference, if any, of (1) the Revolving Credit Commitment of that non-Defaulting Lender minus (2) the sum of (x) the aggregate Outstanding Amount of the Revolving Credit Loans of that non- Defaulting Lender and (y) that non-Defaulting Lender’s Percentage Share of the then Outstanding Amount of any L/C Obligations.  Subject to Section 10.21, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.

 

(b)           Defaulting Lender Cure.  If the Borrowers, Administrative Agent, each L/C issuer and Swing Line Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, 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 that portion of outstanding Revolving Credit Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Revolving Credit Loans and

 

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funded and unfunded participations in Credits and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Percentage Share (without giving effect to Section 3.07(a)(iv)), whereupon that 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 Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

 

SECTION 3.08.  REPLACEMENT OF LENDERS.

 

(a)           Notwithstanding anything to the contrary contained in Section 10.01, the Borrowers may with respect to any Specified Lender:

 

(i)            request one or more of the other Lenders to acquire and assume all of such Specified Lender’s Loans (including participations in L/C Obligations and in Swing Line Loans) and Commitments, which Lender or Lenders will have the right, but not the obligation, to so acquire and assume such Specified Lender’s Loans (including participations in L/C Obligations and in Swing Line Loans) and Commitments pursuant to the procedures set forth in Section 10.06(b); or

 

(ii)           with the prior written consent of Administrative Agent and, if such Specified Lender has any Revolving Credit Commitments, each applicable designated L/C Issuer and Swing Line Lender (which consent will not be unreasonably withheld or delayed), designate a replacement bank or financial institution that is an Eligible Assignee (a “Replacement Lender”), which Replacement Lender will assume all of the Loans (including participations in L/C Obligations and in Swing Line Loans) and Commitments of such Specified Lender pursuant to the procedures set forth in Section 10.06(b);

 

provided that the Borrowers may not require such Specified Lender to make any assignment and delegation, pursuant to the immediately preceding clauses (i) or (ii), as applicable, if (1) a Default or Event of Default then exists or (2) as a result of a change in circumstances involving such Lender or otherwise prior to the effectiveness of any such action, such Specified Lender is no longer a Specified Lender as a result of it no longer being a Defaulting Lender.

 

Any assignment and delegation by, a Specified Lender pursuant to this Section 3.08(a) will be subject to Section 3.05 and to payment to such Specified Lender of the aggregate Outstanding Amount of all of its Loans (including participations in L/C Obligations and in Swing Line Loans) at the time owing to it, all accrued and unpaid interest thereon, all accrued and unpaid fees and all other amounts payable to it hereunder, which amounts will be paid to such Specified Lender by the applicable assignee (to the extent of all such outstanding principal and accrued and unpaid interest and fees) and the Borrowers (to the extent of all such other amounts).  Each Lender hereby grants to Administrative Agent a power of attorney (which power of attorney, being coupled with an interest, is irrevocable) to execute and deliver, on behalf of such Lender, as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in circumstances contemplated by this Section 3.08(a).

 

(b)           Certain Rights as a Lender.  Upon the prepayment of all amounts owing to any Specified Lender and the termination of such Lender’s Commitments pursuant to this Section 3.08, such Specified Lender will no longer constitute a “Lender” for purposes hereof; provided that such Specified Lender will continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the date on which all amounts owing to such Specified Lender were prepaid in full and the Commitments of such Specified Lender were terminated pursuant to this Section 3.08.

 

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(c)           Evidence of Replacement.  Promptly following the replacement of any Specified Lender in accordance with this Section 3.08, Administrative Agent will distribute an amended Schedule 2.02, which will be deemed incorporated into this Agreement, to reflect changes in the identities of Lenders and adjustments of their respective Commitments or Percentage Shares, as applicable, resulting from any such removal or replacement.

 

SECTION 3.09.  SURVIVAL.

 

All obligations of the Borrowers under this Article III will survive termination of the Aggregate Revolving Credit Commitments and repayment of all other Obligations.

 

ARTICLE IV
 CONDITIONS PRECEDENT

 

SECTION 4.01.  CONDITIONS TO EFFECTIVENESS AND TO INITIAL CREDIT EXTENSION.

 

The obligation of the Lending Parties to make the initial Credit Extension hereunder is subject to the satisfaction of the following conditions precedent:

 

(a)           Receipt of Certain Documents.  Administrative Agent will have received the following, each of which will be, unless otherwise specified herein or otherwise required by Administrative Agent, originals (or telefacsimiles or portable document format versions thereof (in either such case, promptly followed by originals thereof)), each, to the extent to be executed by a Loan Party, properly executed by a Responsible Officer of such Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date), all in sufficient number as Administrative Agent will separately identify (including, if specified by Administrative Agent, for purposes of the distribution thereof to Administrative Agent, Lending Parties and the Borrowers):

 

(i)            This Agreement.  This Agreement, duly executed by each Borrower and each initial Guarantor, each Lending Party and Administrative Agent, together with all completed Schedules to this Agreement;

 

(ii)           Notes.  If requested by Swing Line Lender or any Lender, separate Notes executed by the Borrowers in favor of each such requesting Lending Party evidencing, as applicable, the Swing Line Loans or Revolving Credit Loans to be made by such Lending Party, duly executed by the Borrowers;

 

(iii)          Secretary’s Certificates.  Certificates, executed by the secretary of each Loan Party on behalf of such Loan Party, certifying, among other things, (A) that attached to such certificate are (1) true, correct and complete copies of the Organizational Documents of such Loan Party then in full force and effect, (2) true, correct and complete copies of the resolutions then in full force and effect adopted by the board of directors of such Loan Party authorizing and ratifying the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, (3) a certificate of good standing from the secretary of state of the state under whose laws such Loan Party was incorporated, (B) the name(s) of the Responsible Persons of such Loan Party authorized to execute Loan Documents on behalf of such Loan Party, together with a incumbency samples of the true signatures of such Responsible Persons, and (C) that Administrative Agent and the Lending Parties may conclusively rely on such certificate;

 

(iv)          Bring-Down Certificate.  A certificate signed by a Responsible Officer of each Loan Party (or in the case of CH2M Plateau Remediation Company an authorized signatory) certifying

 

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that (A) the conditions specified in Section 4.02 to the initial Credit Extension have been satisfied and (B) the Loan Parties are in compliance with the financial covenants set forth in Section 7.14 (as evidenced through detailed calculations of such financial covenants on a schedule to such certificate) as of December 31, 2013, on a pro forma basis after giving effect to the transactions contemplated hereunder; and

 

(v)           Opinions of the Loan Parties’ Counsel.  Such favorable opinion of (A) Dorsey & Whitney LLP, special counsel to the Loan Parties, addressed to Administrative Agent and each Lending Party, as to such matters as are reasonably required by Administrative Agent or any Lending Party with respect to the Loan Parties and the Loan Documents and (B) Carlton Fields Jorden Burt, P.A., special counsel to CH2M Inc., addressed to Administrative Agent and each Lending Party, as to such matters as are reasonably required by Administrative Agent or any Lending Party with respect to CH2M Inc. and the Loan Documents, and each of (A) and (B) in form and substance reasonably acceptable to Administrative Agent and its counsel.

 

(b)           Financial Information.  Administrative Agent will have received (i) audited Consolidated financial statements for the Parent and its Subsidiaries for the three Fiscal Years most recently ended and interim unaudited financial statements for each Fiscal Period ended since the last audited financial statement and (ii) projections prepared by management of balance sheets and income statements of the Parent and its Subsidiaries for the period from the Fiscal Period in which the Closing Date occurs through and including the end of the Parent’s Fiscal Years ending December 31, 2014, December 31, 2015 and December 31, 2016.

 

(c)           Third-Party Consents.  All material consents, approvals and authorizations from third Persons required under any material contract or agreement or other document necessary or for the consummation of the transactions contemplated by this Agreement and the other Loan Documents.

 

(d)           No Litigation.  No litigation, arbitration, investigation or other proceeding by any entity (private or governmental) will be pending or overtly threatened (a) with respect to this Agreement or any of the related Loan Documents, or (b) which could, if adversely determined, reasonably be expected to have or result in a Material Adverse Effect.

 

(e)           Know Your Customer.  Administrative Agent will have received all documentation and other information from the Loan Parties required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.

 

(f)            No Material Adverse Effect.  No Material Adverse Effect will have occurred since December 31, 2013.

 

(g)           Payment of Fees.  The Borrowers will have paid (i) all fees required to be paid to Administrative Agent, each Arranger and any Lending Party on or before the Closing Date and (ii) unless Administrative Agent will have agreed in writing to any delay in such payment, all fees, charges and disbursements of counsel to Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as will constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate will not thereafter preclude a final settling of accounts between the Borrowers and Administrative Agent).

 

For purposes of determining compliance with the conditions specified in this Section 4.01 (but without limiting the generality of the provisions of Section 9.04), each Lending Party that has signed this Agreement will be deemed to have consented to, approved or accepted or become satisfied with, each

 

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document or other matter required hereunder to be consented to or approved by or to be acceptable or satisfactory to a Lending Party unless Administrative Agent will have received notice from such Lending Party prior to the proposed Closing Date specifying its objection thereto.

 

SECTION 4.02.  CONDITIONS TO ALL CREDIT EXTENSIONS.

 

In addition to the conditions precedent to funding of the initial Credit Extensions on the Closing date set forth in Section 4.01, the obligation of each Lending Party to make any Credit Extension (including its initial Credit Extension) hereunder or to honor any Request for Credit Extension is subject to each of the following further conditions precedent:

 

(a)           Truth and Correctness of Representations and Warranties.  The representations and warranties of each Borrower and each other Loan Party contained in Article V or any other Loan Document will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they will be true and correct in all material respects (except that such materiality qualifier will not be applicable to any portion of any representation and warranty that is already qualified or modified by materiality in the text thereof) as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in Section 5.10 will be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b).

 

(b)           No Default or Event of Default.  No Default or Event of Default will then exist, or will result from such proposed Credit Extension or from the application of the proceeds thereof or from the honoring of any such Request for Credit Extension.

 

(c)           No Material Adverse Effect.  No Material Adverse Effect will have occurred since December 25, 2015.

 

(d)           Requests for Credit Extensions.  Administrative Agent and, if applicable, Swing Line Lender or the applicable designated L/C Issuer will have received the applicable Request for Credit Extension; provided that no L/C Applications will be required in connection with the Letters of Credit (as defined in the Original Credit Agreement) becoming Letters of Credit issued hereunder pursuant to the last sentence of Section 2.04(a)(i).

 

(e)           Alternative Currencies.  In the case of a Credit Extension to be denominated in an Alternative Currency, there will not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Administrative Agent, the Required Lenders (in the case of any Loans to be denominated in an Alternative Currency) or the L/C Issuer (in the case of any Credit to be denominated in an Alternative Currency) would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency.

 

(f)            Other Matters.  Administrative Agent will have received, in form and substance satisfactory to it, such other assurances, documents or consents related to the foregoing as Administrative Agent or Required Lenders may require in their Reasonable Discretion.

 

Each Request for Credit Extension submitted by the Borrowers will be deemed to be a representation and warranty that the conditions specified in Section 4.02(a) and Section 4.02(b) have

 

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been satisfied on and as of the date of the making of the applicable Credit Extension or the honoring of the applicable Request for Credit Extension.

 

ARTICLE V
 REPRESENTATIONS AND WARRANTIES

 

As of the Closing Date each Borrower on behalf of and as to itself and each of its Subsidiaries hereby represents and warrants to Administrative Agent and each Lending Party as follows, and will be deemed to have been brought down and apply anew (other than representations and warranties made as of a specific date, which will be deemed to have been made as of such specified date) to the making or issuance of each Credit Extension hereunder and as of the date of the delivery of any Compliance Certificate.

 

SECTION 5.01.  CORPORATE EXISTENCE AND POWER.

 

Each Borrower and each Subsidiary thereof (a)(i) in the case of any Loan Party or Significant Subsidiary, is a corporation, partnership or limited liability company duly organized, validly existing and in good standing (except in jurisdictions that do not recognize good standing) under the laws of the jurisdiction of its incorporation, organization or formation, and (ii) in the case of any Subsidiary that is not a Loan Party or a Significant Subsidiary, is a corporation, partnership or limited liability company duly organized, validly existing and in good standing (except in jurisdictions that do not recognize good standing) under the laws of the jurisdiction of its incorporation, organization or formation, except as could not reasonably be expected to cause a Material Adverse Change; (b) has the power and authority and all governmental licenses, authorizations, consents and approvals (i)(A) in the case of any Loan Party or a Significant Subsidiary, to own its assets and carry on its business substantially as currently conducted by it and such business as contemplated to be conducted by it upon and following the consummation of the transactions contemplated by the Loan Documents, and (B) in the case of any Subsidiary that is not a Loan Party or a Significant Subsidiary, to own its assets and carry on its business substantially as currently conducted by it and such business as contemplated to be conducted by it upon and following the consummation of the transactions contemplated by the Loan Documents, except as could not reasonably be expected to cause a Material Adverse Change and (ii) to execute, deliver, and perform its obligations under the Loan Documents to which each is a party; and (c) is duly qualified as a foreign corporation, partnership or limited liability company, as applicable, and is licensed and in good standing (except in jurisdictions that do not recognize good standing) under the laws of each jurisdiction where its ownership, leasing or operation of property or the conduct of its business requires such qualification or license, except to the extent that the failure to do so could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.02.  CORPORATE AUTHORIZATION; NO CONTRAVENTION.

 

The execution and delivery by each Loan Party, and the performance by each Loan Party of its obligations under each Loan Document to which such Person is party, 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 Organizational Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material contract or agreement to which such Person is a party or such Person’s properties are subject or (ii) any 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 Law applicable to any Loan Party or any of its Subsidiaries or any of their respective properties.  Each Loan Party is in compliance with all Contractual Obligations referred to in the foregoing clause (b)(i), except to the extent that any failure to be in compliance could not reasonably be expected to cause a Material Adverse Change.

 

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SECTION 5.03.  GOVERNMENTAL AUTHORIZATION; COMPLIANCE WITH LAWS.

 

(a)           Governmental Authorizations.  No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority (other than the filing of a Form 8-K with the SEC after the Closing Date and the approvals, consents, exemptions, authorizations, actions, notices and filings required by the Collateral Agreement) or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, as applicable, any Loan Party or any Significant Subsidiary of this Agreement or any other Loan Document.

 

(b)           Compliance with Laws.  Each Loan Party and each of their respective Subsidiaries is in compliance in all material respects with the requirements of all Laws applicable to such Person or any of its properties and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (i) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (ii) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.04.  BINDING EFFECT.

 

This Agreement has been, and each other Loan Document (when delivered hereunder) will have been, duly executed and delivered by each Loan Party that is party thereto.  This Agreement and each other Loan Document to which any Loan Party is a party constitute the legal, valid and binding obligations of such Person, enforceable against such Person in accordance with their respective terms, except as enforcement thereof may be limited by Bankruptcy Laws or other applicable Laws affecting the enforcement of creditors’ rights generally and by general principles of equity.

 

SECTION 5.05.  LITIGATION.

 

Except as specifically set forth on Schedule 5.05 (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents), (a) there are no claims, actions, suits, proceedings or other litigation pending or, to the Borrowers’ knowledge, overtly threatened against any Loan Party or any of its respective Subsidiaries, or against any of such Persons’ properties, at law or in equity, before any Governmental Authority which involves any material risk of any final judgment, order or liability, which after giving effect to any applicable insurance could reasonably be expected to cause a Material Adverse Change, and (b) to the Borrowers’ knowledge there is no Investigation by any Governmental Authority of any Loan Party’s or any such Subsidiary’s affairs or properties, with respect to which there is a reasonable likelihood of a finding adverse to such Loan Party or Subsidiary, which adverse finding, if made, would reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.06.  ERISA COMPLIANCE.

 

(a)           Each Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, each Multiemployer Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Pension Plan is listed on Schedule 5.06(a) (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents).  Each Pension Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, each Multiemployer Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable

 

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determination letter from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from Federal income tax under Section 501(a) of the Code, or an application for such a letter is currently being processed by the IRS.  To the Borrowers’ knowledge, nothing has occurred that would prevent or cause the loss of such tax-qualified status.

 

(b)           There are no pending or, to the Borrowers’ knowledge, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, any Multiemployer Plan that has resulted or could reasonably be expected to cause in a Material Adverse Change.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, any Multiemployer Plan that has resulted or could reasonably be expected to cause a Material Adverse Change.

 

(c)           (i) No ERISA Event has occurred and is continuing with respect to any Pension Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, any Multiemployer Plan that has resulted or could reasonably be expected to cause a Material Adverse Change; (ii) except as set forth on Schedule 5.06(c) (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents), each Borrower and each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, each Multiemployer Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any Pension Plan (other than a Multiemployer Plan), the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher; (iv) no Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid, which if remain unpaid could reasonably be expected to cause a Material Adverse Change; (v) no Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan (other than a Multiemployer Plan and other than in a completed standard termination) and, to the Borrowers’ knowledge, no Multiemployer Plan has been terminated by the plan administrator thereof or by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, any Multiemployer Plan, which such termination could reasonably be expected to cause a Material Adverse Change.

 

(d)           No Borrower nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan (other than a Multiemployer Plan) and, to the Borrowers’ knowledge, Multiemployer Plan other than (i) on the Closing Date, those listed on Schedule 5.06(d) (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents) and (ii) thereafter, Pension Plans not otherwise prohibited by this Agreement.

 

SECTION 5.07.  USE OF PROCEEDS.

 

The Borrowers will use the proceeds of the Loans solely for the purposes set forth in and as permitted by Section 7.09.

 

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SECTION 5.08.  ENVIRONMENTAL COMPLIANCE.

 

(a)           Environmental Compliance.  Except as set forth on Schedule 5.08 (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents), each Borrower and its Subsidiaries is in compliance in all material respects with each applicable Environmental Law in effect in any jurisdiction in which any properties of any Borrower or any Subsidiary are located or where any of them conducts its business, other than those which in the aggregate would not reasonably be expected to cause a Material Adverse Change.

 

(b)           Environmental Litigation.  Except as set forth on Schedule 5.08 (or as disclosed in writing to Administrative Agent after the Closing Date pursuant to Section 6.03; provided that such disclosure will not operate as a waiver of any right, power or remedy of the Lending Parties under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents), no suit, claim (including any Environmental Claim), action or proceeding of which any Borrower or any Subsidiary has been given notice or otherwise has knowledge is now pending before any court, board or other Governmental Authority, or to any Borrower’s or any Subsidiary’s knowledge, threatened by any Person (nor to the knowledge of each Borrower and each Subsidiary, does any factual basis exist therefor) for, and neither any Borrower nor any Subsidiary has received written correspondence from any Governmental Authority with respect to, except to the extent any of the following could not reasonably be expected to cause a Material Adverse Change:

 

(i)            noncompliance by any Borrower or any Subsidiary with any applicable Environmental Law;

 

(ii)           personal injury, wrongful death or other tortious conduct relating to Hazardous Materials used, generated, sold, transferred or manufactured by any Borrower or any Subsidiary (including products made of, containing or incorporating Hazardous Materials); or

 

(iii)          the release into the environment by any Borrower or any Subsidiary of any Hazardous Material generated by a Borrower or any Subsidiary whether or not occurring at or on a site owned, leased or operated by any Borrower or any Subsidiary.

 

SECTION 5.09.  TAXES.

 

All material Federal, state, local and foreign tax returns, reports and statements required to be filed by any Borrower (and, to the extent failure to do so could not reasonably be expected to cause a Material Adverse Change, any Subsidiary) have been filed with the appropriate Governmental Authorities and all material taxes, assessments, fees and other governmental charges and impositions shown thereon to be due and payable by such Person have been paid, or adequate provision for the payment has been made, prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof, or any such fine, penalty, interest, late charge or loss has been paid, or such Person is diligently contesting its liability therefor in good faith by appropriate proceedings and has fully reserved all such amounts in the audited Consolidated financial statements and the unaudited Consolidated financial statements of the Parent delivered to Administrative Agent and the Lenders pursuant to Sections 6.01(a) and (b).  Proper and accurate amounts have been withheld by the Parent and each of its Subsidiaries from their employees for all periods in material compliance with the tax, social security and unemployment withholding provisions of applicable Federal, state, local and foreign law and such withholdings have been timely paid to the respective Governmental Authorities except where failure to do so could not reasonably be expected to cause a Material Adverse Change.

 

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SECTION 5.10.  FINANCIAL CONDITION.

 

All balance sheets, and all statements of income, of retained earnings, and of changes in cash flow furnished to Administrative Agent and the Lenders by or on behalf of the Borrowers for the purposes of or in connection with this Agreement or any of the other Loan Documents have been prepared in accordance with GAAP consistently applied (from period to period except as and to the extent disclosed in the financial statements, provided, that any such disclosed changes will continue to be in accordance with GAAP) throughout the periods covered thereby and such financial statements present fairly in all material respects the financial condition of the entities covered thereby as of the dates thereof and the result of their operations for the periods covered thereby (except that interim financial statements are subject to customary year-end adjustments and may not have footnotes).  All projections which have been furnished to Administrative Agent and the Lenders for purposes of or in connection with this Agreement were prepared in good faith on the basis of the assumptions stated therein, which assumptions were, in the opinion of the management of the Borrowers, reasonable at the time made; and at the time of delivery, the management of the Borrowers believed that the forecasts of its future financial performance set forth in the projections were reasonable (it being understood that such projections are subject to uncertainties and contingencies, many of which are beyond the control of any Loan Party, and no assurances can be given that such projections will be realized).

 

SECTION 5.11.  MARGIN REGULATIONS; REGULATED ENTITIES.

 

No Loan Party nor any of respective Subsidiaries is engaged or will 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.  No Borrower is required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.  No Borrower nor any Subsidiary is a “holding company” or a “subsidiary company” of a “holding company” or an “affiliate” of a “holding company” within the meaning of the Public Utility Holding Company Act of 2005.

 

SECTION 5.12.  INTELLECTUAL PROPERTY.

 

Each Loan Party owns or is licensed or otherwise has the right to use all of the patents, copyrights, trademarks, service marks, trade names, contractual franchises and other intellectual property rights that are required for the operation of their respective businesses as currently conducted by it, except to the extent that failure to hold such ownership, license or other right could not reasonably be expected to cause a Material Adverse Change.  The use of such intellectual property by each Loan Party and the operation of its business do not infringe any valid and enforceable intellectual property rights of any other Person, except to the extent any such infringement could not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Change.

 

SECTION 5.13.  SOLVENCY.

 

The Borrowers, taken as a whole, are, and, after the consummation of the transactions contemplated by this Agreement, will be Solvent.

 

SECTION 5.14.  ANTI-TERRORISM LAWS

 

(a)           General.  No Loan Party nor any Subsidiary or Affiliate thereof is in violation of any Anti-Terrorism Law or engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

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(b)           Executive Order No. 13224.  No Loan Party nor any Subsidiary or Affiliate thereof or any of their respective agents acting or benefiting in any capacity in connection with the Loans or Letters of Credit or other transactions contemplated hereunder or under any of the other Loan Documents is any of the following (each a “Blocked Person”):  (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (iii) a Person with which any Lending Party is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order No. 13224; (v) a Person that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list, or (vi) a Person or entity who is affiliated or associated with a Person or entity listed above.

 

(c)           Trading with the Enemy Act.  No Loan Party nor any Subsidiary or Affiliate thereof has engaged in any business or activity prohibited by the Trading with the Enemy Act.

 

(d)           OFAC.  No Loan Party nor any Subsidiary or Affiliate of Parent or any Borrower is a Sanctioned Person or a Sanctioned Entity in violation of the sanctions programs administered by OFAC, nor is located, organized or resident in countries prohibited under the sanctions programs administered by OFAC, unless authorized by OFAC. No proceeds of any Loan will be used to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Entity to the extent prohibited under the sanctions programs administered by OFAC, unless authorized by OFAC.

 

SECTION 5.15.  FULL DISCLOSURE.

 

No Loan Document and no other document required to be delivered pursuant to Sections 6.01, 6.02 or 6.03 contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, each Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

 

SECTION 5.16.  CLASSIFICATION AS SENIOR INDEBTEDNESS.

 

The Obligations constitute “Senior Indebtedness”, “Designated Senior Indebtedness” or any similar designation under and as defined in any agreement governing any Subordinated Debt and the subordination provisions set forth in each such agreement are legally valid and enforceable against the parties thereto.

 

ARTICLE VI
 AFFIRMATIVE COVENANTS

 

So long as any Commitment is available hereunder or any Loan or Credit or other payment Obligation (other than as yet unasserted contingent obligations) remains unpaid, undrawn, unreimbursed or unsatisfied):

 

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SECTION 6.01.  FINANCIAL STATEMENTS.

 

The Parent will deliver to Administrative Agent (on behalf of each Lender) in form and detail satisfactory to Administrative Agent and Required Lenders:

 

(a)           Annual Financial Statements.  As soon as available and in any event no later than 105 days after the end of each Fiscal Year, a Consolidated balance sheet as at the end of such year, and related Consolidated statements of income, retained earnings and cash flows of the Parent and its Subsidiaries prepared for such Fiscal Year, setting forth, in comparative form the figures for the previous year, all in reasonable detail and (i) accompanied by a report thereon of KPMG LLP or other independent public accountants of recognized national standing selected by the Parent and reasonably satisfactory to the Administrative Agent, which report will not contain an adverse opinion, a disclaimer of opinion or be qualified or limited because of a restricted or limited examination by such accountant of any material portion of the Parent’s records or be unqualified but subject to a “going concern” uncertainty or other similar required explanatory language, and will state that such financial statements present fairly in all material respects the financial position of the Parent and its Subsidiaries on a Consolidated basis as at the dates indicated and the results of its operations and changes in its financial position for the periods indicated in conformity with GAAP applied on a basis consistent with prior years (except as otherwise stated therein) and that the examination by such accountants in connection with such Consolidated financial statements has been made in accordance with generally accepted auditing standards and (ii) together with the certificate referred to in clause (c) below, an internally prepared list of each Borrower, each Guarantor and each other Subsidiary of the Parent as listed in the Parent’s most recent Annual Report on Form 10-K filed with the SEC (or, if the Parent is no longer a reporting company under the Exchange Act, a list of Subsidiaries approved by Administrative Agent), along with each such Person’s gross revenue for the four Fiscal Periods then ended;

 

(b)           Fiscal Period Financial Statements.  As soon as available and in any event no later than fifty-five days after the end of the first three Fiscal Periods of each Fiscal Year, an internally prepared Consolidated balance sheet of the Parent as at the end of such period and the related Consolidated statements of income and cash flows of the Parent and its Subsidiaries prepared for such Fiscal Period and for such Fiscal Year to date, setting forth in each case in comparative form the figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail and certified by a Responsible Officer of the Parent having responsibility for financial matters that they (i) present fairly in all material respects the financial condition of the Parent and its Subsidiaries as at the dates indicated and the results of its operations and changes in their cash flow for the periods indicated, (ii) disclose all liabilities of the Parent and its Subsidiaries that are required to be reflected or reserved against under GAAP, whether liquidated or unliquidated, fixed or contingent, and (iii) have been prepared in accordance with GAAP, subject to the absence of footnotes and changes resulting from audit and year-end adjustments;

 

(c)           Compliance Certificate.  Concurrently with the delivery of the materials required in clauses (a) and (b) above, a Compliance Certificate dated as of the last day of such Fiscal Period, certified by a Responsible Officer of the Parent having responsibility for financial matters, with appropriate insertions satisfactory to Administrative Agent (which delivery may, unless Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or email and will be deemed to be an original authentic counterpart thereof for all purposes), including that such Responsible Officer has no knowledge of any Default or Event of Default, or if such Responsible Officer has such knowledge, specifying such Default or Event of Default and the nature thereof, and what action the Borrowers have taken, are taking or proposed to take with respect thereto, together with a schedule in form satisfactory to Administrative Agent, of the computations used by the Parent in determining compliance with the financial covenants contained in Section 7.14;

 

(d)           Financial Forecasts.  As soon as available, but in any event no later than one-hundred-five days after the end of each Fiscal Year, a one year (prepared on a Fiscal Period basis) budget of the

 

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Parent on a Consolidated basis for the then-commenced Fiscal Year, including a pro forma balance sheet and statements of income and showing projected operating revenues and expenses of the Parent on a Consolidated basis, in form and sufficient detail acceptable to Administrative Agent, in its Reasonable Discretion;

 

(e)           Accountants’ Statement.  Together with each delivery of audited financial statements pursuant to Section 6.01(a), a written statement by the independent public accountants giving the report thereon stating (i) whether, in connection with their audit examination, any condition or event which constitutes a Default or an Event of Default arising from a breach of Section 7.14 as they relate to accounting matters has come to their attention, and if such a condition or event has come to their attention, specifying the nature and period of existence thereof; provided, that such accountants will not be responsible for any failure to obtain knowledge of a Default or Event of Default that would not be disclosed in the course of their audit examination, and (ii) that based on their audit examination nothing has come to their attention which causes them to believe that the information contained in the certificates as they relate to accounting matters delivered therewith pursuant to Section 6.01(a), is not correct or that the matters set forth in the Compliance Certificates delivered therewith for the applicable Fiscal Year are not stated in accordance with the terms of this Agreement;

 

(f)            Current Reports.  As soon as available and in any event no later than 10 Business Days after the occurrence of each event that would have been required to be reported in a Current Report on Form 8-K under the Exchange Act (or such later time period provided for in Form 8-K promulgated by the SEC), the information that would have been required to be disclosed in such Current Report on Form 8-K (other than the information required under items 3.01, 3.02, 3.03, 5.02, 5.03, 5.04 and 5.05 of Form 8-K promulgated by the SEC); provided,  that no such information will be required to be furnished if the Issuer determines in its good faith judgment that such information is not material to a Holder or the business, assets, operations, financial position or prospects of the Parent and its Subsidiaries, taken as a whole; and

 

(g)           Other Reports.  Promptly upon any request by Administrative Agent (on behalf of each Lender), a copy of any detailed audit reports by independent public accountants in connection with the accounts or books of the Parent or any Subsidiary thereof.

 

SECTION 6.02.  OTHER INFORMATION.

 

The Administrative Borrower (on behalf of each Borrower) will deliver to Administrative Agent (on behalf of each Lender), in form and detail satisfactory to Administrative Agent:

 

(a)           Equity Interest Holder Reports and Certain Public Filings.  Promptly after the same are available, copies of each annual report, proxy or financial statement or other material report or communication sent to the holders of Equity Interests of the Parent in their capacity as stockholders and copies of all annual, regular, periodic and special reports and registration statements that the Parent or any of its Subsidiaries may file or be required to file with the SEC under Section 13 or Section 15(d) of the Exchange Act, and, in each case, not otherwise required to be delivered to Administrative Agent pursuant hereto;

 

(b)           Insurance Reports. Promptly upon Administrative Agent’s request, a copy of Loan Parties’ e-cert memorandum of insurance evidencing the Loan Parties’ insurance policies and limits.

 

(c)           Foreign Indebtedness.  Within five days after the execution of any documents evidencing Foreign Indebtedness involving commitments to incur Indebtedness in excess of an aggregate 

 

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amount of the Dollar Equivalent of $25,000,000, the Parent will deliver a complete, fully executed copy of such documents to Administrative Agent; and

 

(d)           Additional Information.  Promptly, such additional information regarding the business, financial or corporate affairs of any Loan Party or any Subsidiary thereof or compliance with the terms of the Loan Documents, as Administrative Agent may from time to time reasonably request.

 

Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(a) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, will be deemed to have been delivered on the date (i) on which the Parent posts such documents, or provides a link thereto on the Parent’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Parent’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided that:  (i) the Parent will deliver paper copies of such documents to Administrative Agent upon its request to the Parent to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent and (ii) the Parent will notify Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.  Administrative Agent will have no obligation to request the delivery of or to maintain paper copies of the documents referred to above.

 

Each Borrower hereby acknowledges that (1) Administrative Agent and the Arrangers from time to time will make available to the Lenders and each L/C Issuer materials and/or information provided by or on behalf of the Borrowers hereunder (collectively, “Borrower Materials”) by posting Borrower Materials to an Electronic Platform and (2) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities.  Each Borrower hereby agrees that (A) all Borrower Materials that are to be made available to Public Lenders will be clearly and conspicuously marked “PUBLIC” which, at a minimum, will mean that the word “PUBLIC” will appear prominently on the first page thereof; (B) by marking Borrower Materials “PUBLIC,” each Borrower will be deemed to have authorized Administrative Agent, each L/C Issuer and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Parent or their securities for purposes of Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute confidential information, they will be treated as set forth in Section 10.07); (C) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information;” and (D) Administrative Agent will be entitled to treat any Electronic Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Electronic Platform not designated “Public Side Information.”

 

SECTION 6.03.  NOTICES.

 

The Borrowers will promptly, after any Responsible Officer or any other senior executive officer of any Loan Party becomes aware thereof, notify Administrative Agent (on behalf of each Lender) of:

 

(a)           Defaults and Events of Default.  The occurrence of any Default or Event of Default; provided that the Borrowers will deliver such notice no more than three Business Days after any Responsible Officer or any other senior executive officer of any Loan Party becomes aware thereof;

 

(b)           Matters Involving a Material Adverse Change.  Any matter, circumstance, event or condition that could reasonably be expected to cause a Material Adverse Change;

 

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(c)           Litigation.  The (i) institution of any Investigation, litigation, alternative dispute proceeding or other similar suit or proceeding (a “Proceeding”) (or written threat to institute any of the foregoing) by any Person, including any Governmental Authority, (A) which creates a material risk of resulting, after giving effect to any applicable insurance, in the payment by any Loan Party of more than the Threshold Amount or (B) with respect to which there is a reasonable likelihood of a finding adverse to a Loan Party, which adverse finding, if made, could reasonably be expected to cause a Material Adverse Change, and (ii) of any material development in any Proceeding described in the foregoing clause (i); and

 

(d)           Swap Contracts.  Upon request from time to time of Administrative Agent, the Swap Termination Values, together with a description of the method by which such values were determined, relating to any then-outstanding Swap Contracts to which any Loan Party is a party.

 

Each notice pursuant to Sections 6.03(a) through (c) will be accompanied by a statement of a Responsible Officer of the Parent setting forth details of the occurrence referred to therein and stating what action, if any, the Parent (or the other applicable Person) has taken or proposes to take with respect thereto.  Each notice given pursuant to Section 6.03(a) will describe with particularity any and all provisions of this Agreement and any other Loan Document that have been (or could reasonably be expected to be) breached or violated.

 

SECTION 6.04.  PRESERVATION OF EXISTENCE, ETC.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof (unless a failure by a Borrower or a Subsidiary could not reasonably be expected to cause a Material Adverse Change) to, (a) preserve, renew and maintain in full force and effect their respective legal existence and good standing under the Laws of the jurisdiction of their organization except in a transaction permitted by Section 7.04 or Section 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of their respective businesses; and (c) preserve or renew all of their respective registered copyrights, patents, trademarks, trade names and service marks and other intellectual property.

 

SECTION 6.05.  MAINTENANCE OF PROPERTIES.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, (a) maintain, preserve and protect all of their respective material properties and equipment necessary to the operation of their respective businesses in good working order and condition, ordinary wear and tear excepted, and (b) make all necessary repairs thereto and renewals and replacements thereof, in each of the foregoing clauses (a) and (b) except where the failure to do so could not, individually or in the aggregate, reasonably be expected to cause a Material Adverse Change.

 

SECTION 6.06.  MAINTENANCE OF INSURANCE.

 

Each Borrower will maintain or cause to be maintained, with financially sound and reputable insurers, such professional liability insurance, Commercial General Liability insurance covering bodily injury and property damage, losses or damage in respect of the assets, properties and businesses of the Parent and, to the extent required below, its Subsidiaries, as may customarily be carried or maintained under similar circumstances by companies of similar size engaged in similar businesses, in each case in such amounts with such deductibles, covering such risks and otherwise on such terms and conditions as will be customary for companies similarly situated in the industry; provided, however, that it may effect workers’ compensation insurance or similar insurance with respect to operations in any particular state or other jurisdiction through an insurance fund operated by such state or jurisdiction or by meeting the self-insurance requirements of such state or jurisdiction, and will cause each Subsidiary to maintain such 

 

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insurance unless the Subsidiary’s failure to maintain the insurance could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 6.07.  COMPLIANCE WITH LAWS.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to them or to their respective assets, properties or businesses, and will use and operate all of its facilities and properties in compliance with all applicable Laws, including Environmental Laws, and keep all permits, approvals, certificates and other authorizations of Governmental Authorities as is required by applicable Law, including Environmental Laws, in effect and remain in compliance therewith, except, in each case, where the failure to comply therewith could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 6.08.  BOOKS AND RECORDS.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, maintain proper books of record and account, in which full, true and correct (in all material respects) entries in conformity with GAAP consistently applied are made of all financial transactions and matters involving their respective properties and businesses.

 

SECTION 6.09.  INSPECTION RIGHTS.

 

Each Borrower will, and will cause Loan Party and each Subsidiary thereof to, permit representatives and independent contractors of Administrative Agent and each Lender (which will be subject to confidentiality obligations of Administrative Agent and the Lenders pursuant to Section 10.07) to visit and inspect any of their respective properties, to examine their corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their respective affairs, finances and accounts with their respective directors, officers and independent public accountants, at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Administrative Borrower, on behalf of the Borrowers; provided that, unless an Event of Default has occurred and is continuing, the reasonable costs of only two such visits and related inspections during any calendar year, among all members of the Credit Group, will be borne by the Borrowers; provided, however, that, notwithstanding the foregoing, if and for so long as an Event of Default has occurred and is continuing, 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 Borrowers at any time and without advance notice and as many times as Administrative Agent or any Lender may require.  Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Borrower, Loan Party or 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 (a) 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, arm’s-length agreement with a third party or (b) is subject to attorney-client or similar privilege or constitutes attorney work product.

 

SECTION 6.10.   [RESERVED].

 

SECTION 6.11.  PAYMENT OF OBLIGATIONS.

 

Each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, pay and discharge as the same will become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets the failure of

 

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which to pay could reasonably be expected to cause a Material Adverse Change, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by such Person; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property (other than a Permitted Lien), except as could not reasonably be expected to cause a Material Adverse Change; and (c) all Indebtedness, as and when due and payable (but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness), except as could not reasonably be expected to cause a Material Adverse Change.

 

SECTION 6.12.  COVENANT TO GUARANTEE OBLIGATIONS AND GRANT SECURITY.

 

Upon the formation or acquisition by any Loan Party of any new direct or indirect Domestic Subsidiary that constitutes a Material Subsidiary, upon any Domestic Subsidiary becoming a Material Subsidiary as determined based on the most recent audited Consolidated financial statements or unaudited Consolidated financial statements, as the case may be, of the Parent and its Subsidiaries delivered to Administrative Agent pursuant to Sections 6.01(a) or (b), or upon any Subsidiary (other than a Subsidiary that is a Loan Party) providing a Guaranty of any Second Lien Debt, then the Borrowers will, in each case, at the Borrowers’ expense within thirty days (or such later time as may be agreed to by Administrative Agent in writing) after such formation or acquisition, the delivery of such Consolidated financial statements or such Guaranty is entered into (as applicable), notify Administrative Agent in writing of any Domestic Subsidiary constituting a Material Subsidiary or any Subsidiary (other than a Subsidiary that is a Loan Party) providing a Guaranty of any Second Lien Debt (as applicable) and cause such Person (and in the case of a Subsidiary, cause each direct and indirect parent of such Subsidiary, if such parent is not already a Loan Party), to (i) duly execute and deliver to Administrative Agent a Joinder Agreement in the form attached to this Agreement as Exhibit C, satisfactory to Administrative Agent in its Reasonable Discretion, pursuant to which such Person is joined to this Agreement and becomes a Subsidiary Guarantor hereunder for all purposes of this Agreement, including Section 10.15, and the other Loan Documents, guaranteeing the other Loan Parties’ Obligations under the Loan Documents, (ii) grant a security interest in all personal property pursuant to the applicable Security Documents (subject to the exceptions specified in such Security Documents) owned by such Subsidiary and in such priority as may be required pursuant to the Intercreditor Agreement, (iii) deliver to the Administrative Agent such opinions, documents and certificates as may be reasonably requested by the Administrative Agent and (iv) deliver to the Administrative Agent such original certificated Equity Interests or other certificates and stock or other transfer powers evidencing the Equity Interests of such Person.  Unless Administrative Agent and the Borrowers otherwise expressly agree in advance in writing that a particular Excluded Subsidiary will continue as or become a Guarantor, no Subsidiary that is an Excluded Subsidiary will be required to continue as or become a Guarantor under this Section 6.12.  Any Person that ceases to constitute a Material Subsidiary (other than a Subsidiary providing a Guaranty of any Second Lien Debt) or that is or becomes an Excluded Subsidiary or, with respect to any Subsidiary that is not a Material Subsidiary, that ceases to provide a Guaranty of Second Lien Debt will be released from its obligations as a Subsidiary Guarantor as provided in Section 10.15(a).  If as of the last day of the most recently ended Fiscal Year for which the Parent has delivered financial statements pursuant to Section 6.01(a) the aggregate gross revenue of the Subsidiaries that are Loan Parties was less than 90% of the Consolidated gross revenue of the Parent and its Subsidiaries (excluding that portion of revenues attributable to any Subsidiary that is an Excluded Subsidiary) for such Fiscal Year, then the Administrative Borrower shall promptly designate one or more additional Subsidiaries as Guarantors and the Borrowers shall cause any such designated Subsidiaries to comply with the provisions of Section 6.12 such that, after such designated Subsidiaries become Guarantors hereunder, the aggregate gross revenue of the Subsidiaries that are Loan Parties is 90% or more of the Consolidated gross revenue of the Parent and its Subsidiaries (excluding that portion of revenues attributable to any Subsidiary that is an Excluded Subsidiary) for such Fiscal Year, determined on a pro forma basis after giving effect to such designations.

 

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SECTION 6.13.  PARI PASSU.

 

The Borrowers covenant and agree that the Obligations of the Borrowers will at all times rank at least pari passu with all other Indebtedness of the Borrowers, except to the extent permitted by Section 7.01.

 

SECTION 6.14.  FURTHER ASSURANCES.

 

In addition to the obligations and documents which this Agreement expressly requires any Borrower or any of its Subsidiaries (including any Loan Party) execute, acknowledge, deliver and perform, each Borrower will, and will cause each Loan Party and each Subsidiary thereof to, execute and acknowledge (or cause to be executed and acknowledged) and deliver to Administrative Agent all documents, and take all actions, that may be reasonably requested by Administrative Agent or the Required Lenders from time to time hereunder to confirm the rights created or now or hereafter intended to be created under the Loan Documents, to carry out the purposes of the Loan Documents and the transactions contemplated hereunder and thereunder

 

ARTICLE VII
 NEGATIVE COVENANTS

 

Each Loan Party hereby covenants and agrees that, so long as any Commitment is available hereunder or any Loan or Letter of Credit or other payment Obligation (other than as yet unasserted contingent obligations) remains unpaid, undrawn, unreimbursed or unsatisfied, it will not, and will not permit any of its Subsidiaries whose annual gross revenues are greater than or equal to the Dollar Equivalent of $100,000,000 (each such Subsidiary is referred to herein as a “Significant Subsidiary”), directly or indirectly, to:

 

SECTION 7.01.  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 any of the following (collectively, “Permitted Liens”):

 

(a)           any Lien securing the Secured Obligations for the benefit of the Credit Group or any Bank Product Provider;

 

(b)           any Lien securing Indebtedness permitted by Sections 7.03(b), 7.03(n) and 7.03(p); provided that that Indebtedness permitted by Section 7.03(n) may be secured only by Liens on assets located outside of the United States and owned by the Foreign Subsidiary incurring such Indebtedness;

 

(c)           any Lien for tax liabilities, fees, assessments and other governmental charges or levies not yet delinquent or remaining payable without penalty or to the extent that non-payment thereof is permitted by Section 6.11; provided that no notice of lien has been filed or recorded under the Code;

 

(d)           any landlord’s, supplier’s, carrier’s, warehouseman’s, mechanic’s, materialman’s, repairman’s or other like Lien (whether arising by operation of law, contract or otherwise) arising in the ordinary course of business that is not overdue for a period of more than thirty days, or that is being contested in good faith and by appropriate proceedings timely instituted and diligently conducted, if adequate reserves with respect thereto, if any, in accordance with GAAP are set aside on the financial statements of the applicable Person;

 

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(e)           any pledge or deposit in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA or applicable Environmental Law;

 

(f)            any Lien incurred or deposit made to secure the performance of bids, trade contracts or leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds related to judgments or litigation), performance bonds and other obligations of a like nature (including obligations under indemnity agreements for surety bonds), in each case incurred in the ordinary course of business;

 

(g)           any zoning, building and other land use restrictions, easements, rights-of-way, covenants, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not in any case materially detract from the value of the real property subject thereto or interfere with the ordinary conduct of the businesses of such Person;

 

(h)           any interest or title of a lessor or sublessor under an operating lease;

 

(i)            any Lien securing a judgment for the payment of money not constituting an Event of Default under Section 8.01(h) or securing an appeal or other surety bond related to any such judgment;

 

(j)            any Lien existing on any property of any Target prior to the acquisition thereof pursuant to a Permitted Acquisition consummated after the Fourth Amendment Effective Date; provided that (A) such Lien is not created in contemplation of or in connection with such Permitted Acquisition and (B) such Lien will secure only those obligations which it secures on the date when such Permitted Acquisition closes and is consummated, and any refinancing of such Indebtedness secured by such Liens to the extent permitted by Section 7.03; provided further that the principal amount of Indebtedness secured by all such Liens pursuant to this clause (j) (other than Liens that (1) attach to or otherwise encumber only specified real property, improvements and/or fixed assets of such Target, or are in the nature of a purchase money security interest or a Capital Lease, and (2) are not in the nature of a floating Liens) does not exceed $25,000,000 in the aggregate;

 

(k)           Liens in effect on the Third Amendment Effective Date and described on Schedule 7.01; provided that no such Lien will extend to any property other than:  (i) property subject to such Lien on the date of this Agreement; (ii) after-acquired property to the extent such Lien includes a grant of a security interest in such after-acquired property; and (iii) products, proceeds, rents and profits of such property to the extent such Lien includes a grant of a security interest in such products, proceeds rents and profits;

 

(l)            Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost or fair market value (as reasonably determined in good faith by the Administrative Borrower), whichever is lower, of the property being acquired on the date of acquisition, and (iii) such security interests and the Indebtedness secured thereby are incurred prior to or within ninety days after such acquisition or the completion of such construction or improvement;

 

(m)          any Lien arising by virtue of any contractual, statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution or securities accounts; provided that such deposit account is not a dedicated cash collateral account in favor of such depository institution and is not otherwise intended to provide collateral security (other than for customary account commissions, fees and reimbursable expenses relating solely to such deposit account, and for returned items);

 

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(n)           Liens in the form of cash collateral securing reimbursement obligations under letters of credit and Bank Undertakings not issued by a L/C Issuer hereunder but permitted by Section 7.03(o);

 

(o)           any right of a licensee under any license agreement for the use of intellectual property or other intangible assets of any Borrower or any Subsidiary thereof as to which such Borrower or Subsidiary is the licensor permitted under Section 7.05;

 

(p)           any right of a licensor under any license agreement for the use of intellectual property or other intangible assets as to which any Borrower or any Subsidiary thereof is the licensee;

 

(q)           any Liens arising out of conditional sale, title retention, consignment or similar arrangements for sale of goods entered into by any Loan Party or Significant Subsidiary in the ordinary course of business not materially interfering with the conduct of the business of the Parent and its Subsidiaries taken as a whole;

 

(r)           any leases granted to others in the ordinary course of business not interfering, alone or in the aggregate, with the conduct of the business of the Parent and its Subsidiaries taken as a whole;

 

(s)            real estate security deposits with respect to leaseholds in the ordinary course of business;

 

(t)            Permitted Encumbrances;

 

(u)           customary Liens securing obligations under Permitted Receivables Financings;

 

(v)           Liens securing Indebtedness permitted by Section 7.03(r), which Liens shall be subject to, (i) with respect to the Indebtedness permitted under Section 7.03(r)(i), the Intercreditor Agreement or, (ii) with respect to any Indebtedness permitted under Section 7.03(r)(ii), the Intercreditor Agreement or an intercreditor agreement in form and substance substantially the same as the Intercreditor Agreement with such changes as the Administrative Agent may reasonably approve; and

 

(w)          other Liens securing outstanding Indebtedness not to exceed an aggregate amount when incurred equal to the greater of (i) 2% of Consolidated Tangible Assets as of the last day of the immediately preceding fiscal quarter for which financial statements are available and (ii) $50,000,000.

 

SECTION 7.02.  INVESTMENTS.

 

Make any Acquisition or enter into any agreement to make any Acquisition, or make, purchase or acquire any Investment unless such action is (1) permitted under the Second Lien Indenture at such time and (2) permitted under one or more of the following clauses of this Section:

 

(a)           Investments in Cash and Cash Equivalents in the ordinary course of business pursuant to the Borrowers’ usual and customary cash management policies and procedures;

 

(b)           any Permitted Acquisition; provided that, at the time such Permitted Acquisition is completed, the Additional Transaction Condition is met and the Administrative Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer confirming the satisfaction of the condition set forth in this proviso;

 

(c)           Guarantees constituting Indebtedness to the extent permitted by Section 7.03(c);

 

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(d)           Investments in any Loan Party and any Subsidiary that is not a Joint Venture;

 

(e)   Investments in the form of any Swap Contracts which are entered into not for speculative purposes but to hedge or mitigate risks to which a Borrower or any Subsidiary has perceived exposure (other than those in respect of the capital stock of a Borrower or any of its Subsidiaries); provided, that at the time any such Swap Contract is entered into, the Swap Termination Value of all outstanding Swap Contracts of the Loan Parties and their respective Subsidiaries, as determined on a Consolidated basis as of the last day of the Fiscal Period most recently ended for which the Issuer has delivered financial statements pursuant to Section 6.01(a) or 6.01(b), is $30,000,000 or less;

 

(f)            Investments existing on the Third Amendment Effective Date and set forth on Schedule 7.02;

 

(g)           Investments in Joint Ventures arising in the ordinary course of business consistent with past practice;

 

(h)           Investments permitted by Section 7.03; and

 

(i)            additional Investments by the Borrowers and Significant Subsidiaries in the aggregate amount invested after the Closing Date of $100,000,000; provided that (A) such Investments will be in Targets or other Persons engaged in one or more business activities that are of a type substantially similar, or reasonably related, to those engaged in by the Borrowers and their Subsidiaries as of the date of this Agreement and (B) such $100,000,000 cap shall be reduced to $25,000,000 to the extent the Additional Transaction Condition is not met at the time of any such Investment; provided, however, no Default or Event of Default shall occur as a result of the Borrowers and Significant Subsidiaries exceeding the cap contained in this clause (i) solely as a result of a reduction in the cap pursuant to this clause (B) (to the extent such Investment was permitted at the time made).

 

SECTION 7.03.  INDEBTEDNESS.

 

Create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness unless (1) such Indebtedness would be permitted under the Second Lien Indenture at the time of such incurrence and (2) such Indebtedness is permitted under one or more of the following clauses of this Section:

 

(a)           Indebtedness under this Agreement and the other Loan Documents or relating to any Bank Product;

 

(b)           Indebtedness outstanding on the Third Amendment Effective Date and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the amount paid, and fees and expenses incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;

 

(c)           contingent obligations with respect to (i) performance guarantees and surety bonds incurred in the ordinary course of business and of a type and amount consistent with past practices of the Borrowers and their Subsidiaries and (ii) the sale of accounts receivable as permitted under Section 7.05(j);

 

(d)           Swap Contracts permitted pursuant to Section 7.02(e);

 

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(e)           Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations and purchase money obligations incurred to finance the acquisition, construction or improvement of fixed or capital assets (excluding real property) within the limitations set forth in Section 7.01(l); provided, however, that (i) such Indebtedness is incurred prior to or within ninety days after such acquisition or the completion of such construction or improvement and (ii) the aggregate amount of all such Indebtedness at any one time outstanding will not exceed $100,000,000;

 

(f)            endorsements for collection or deposit and Indebtedness of the Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums, in each case in the ordinary course of business;

 

(g)           unsecured Indebtedness in the form of intercompany loans made by and between the Parent and its Subsidiaries and by and between Subsidiaries in connection with the internal cash management system maintained the Borrowers and their Subsidiaries substantially as in effect on the Closing Date, or Guarantees by the Loan Parties or their Significant Subsidiaries of Indebtedness of any of their Subsidiaries to the extent necessary to support the normal operating activities of such Subsidiaries;

 

(h)           unsecured Indebtedness in respect of (i) notes issued to former employees for the purchase price of stock redeemed by the Parent in accordance with the stock repurchase requirements set forth in the Parent’s bylaws in effect as of the Closing Date, (ii) notes issued in the purchase by the Parent of shares of its common stock under the repurchase rights set forth in the Parent’s bylaws in effect as of the Closing Date, (iii) notes issued in the purchase by the Parent of shares of its common stock on the internal market to balance the supply and demand for common stock between sellers and buyers, and (iv) notes issued to employees or former employees upon the exercise of (or in satisfaction of) stock appreciation rights or to pay or satisfy rights under a phantom stock plan;

 

(i)            Indebtedness

 

A.            of the Parent resulting from the private placement of long-term senior unsecured notes; provided, however, the Parent will be required to provide evidence satisfactory to Required Lenders that (i) the obligations arising under such long-term senior unsecured notes rank pari passu or junior in right of payment to the Obligations under this Agreement and the other Loan Documents and (ii) on a pro forma basis, after giving effect to the issuance of the long-term senior unsecured notes, (I) no Default or Event of Default will exist, (II) the Borrowers will remain in compliance with each of the financial covenants set forth in Section 7.14 upon the occurrence of an additional $1.00 of Indebtedness and (III) the Consolidated Leverage Ratio will be no greater than 3.75:1.00; and

 

B.            of any Loan Party consisting of senior notes (including Guarantees by any Loan Party of such Indebtedness incurred by a subsidiary of such Loan Party); provided that in the case of Indebtedness incurred pursuant to this clause (B), (i) such Indebtedness shall be unsecured, (ii) on a pro forma basis, after giving effect to such Indebtedness, (I) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.14 and (II) the Consolidated Leverage Ratio will be no greater than 3.75:1.00, (iii) the representations, covenants and events of default in respect of such Indebtedness (other than interest rate and fees) are no more restrictive on the applicable obligor than the representations, covenants and Events of Default hereof and (iv) the maturity date of such Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date and such Indebtedness shall not be subject to amortization or mandatory prepayment prior to such date;

 

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(j)            Indebtedness in respect of accounts payable and accrued expenses incurred in the ordinary course of business which in the aggregate could not reasonably be expected to cause a Material Adverse Change;

 

(k)           Indebtedness arising from judgments not constituting an Event of Default under Section 8.01(h);

 

(l)            (i) unsecured Indebtedness assumed in connection with Permitted Acquisitions and (ii) secured Indebtedness assumed in connection with Permitted Acquisitions to the extent the Liens securing such Indebtedness (if any) are permitted under Section 7.01;

 

(m)          Earnouts incurred in connection with Permitted Acquisitions;

 

(n)           Indebtedness and all commitments to incur Indebtedness incurred by Significant Subsidiaries that are Foreign Subsidiaries in currencies other than Dollars in an aggregate amount not to exceed the Dollar Equivalent of $50,000,000 at any one time outstanding or committed (“Foreign Indebtedness”), including Guarantees by any Loan Party or Significant Subsidiary of Foreign Indebtedness, in each case so long as (i) no Event of Default has occurred and is continuing or will occur as a result of the incurrence or Guarantee of such Foreign Indebtedness and (ii) within five days after the closing of any financing transaction involving the incurrence or commitments to incur Foreign Indebtedness in excess of an aggregate amount of the Dollar Equivalent of $25,000,000, the Administrative Borrower will deliver to Administrative Agent drafts of the material loan documentation related to such Foreign Indebtedness in substantially final form;

 

(o)           to the extent the Administrative Borrower, on behalf of the Borrowers, requests the issuance of a Credit pursuant to Section 2.04 and no L/C Issuer is able or willing to issue such Credit under this Agreement, whether because the issuance of such Credit cannot be made in accordance with the conditions of Section 2.04 or otherwise, the Borrowers may request banks and other issuers of letters of credit or independent undertakings within the meaning of, and complying with the requirements of, 12 C.F.R. §7.1016 as to which the issuer’s obligation to honor depends upon the presentation of specified documents and not upon non-documentary conditions or resolution of any questions of fact or law (such undertakings referred to in this clause (o) and the definition of Middle East Letters of Credit as “bank undertakings”) to issue standby and commercial letters of credit and bank undertakings instead of such requested Credit up to an aggregate amount available and undrawn or drawn and unreimbursed at any time for all such letters of credit and bank undertakings issued other than under this Agreement of up to a Dollar Equivalent of $150,000,000 (exclusive of fluctuations in foreign exchange rates after the date of issuance); provided, that, notwithstanding the foregoing, without requesting the issuance of a Credit pursuant to Section 2.04 and whether or not any L/C Issuer is able or willing to issue such Credit under this Agreement, the Administrative Borrower may request the issuance of Middle East Letters of Credit from banks or other issuers of letters of credit or bank undertakings that are not L/C Issuers (for the avoidance of doubt, the other restriction set forth in this clause (o) shall apply (including such $150,000,000 aggregate limit) to such Middle East Letters of Credit);

 

(p)           Indebtedness of any Loan Party or any Significant Subsidiary secured only by a mortgage or deed of trust on real property owned by such Loan Party or Subsidiary in the aggregate principal amount for all such mortgage financings of the Loan Parties and their Subsidiaries not to exceed $50,000,000 outstanding at any time;

 

(q)           Subordinated Debt of any Loan Party or any Significant Subsidiary; provided that (i) such Indebtedness shall be unsecured, (ii) such Indebtedness shall be subordinated to the Obligations, (iii) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.14, after

 

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giving effect to such Indebtedness on a pro forma basis, (iv) the representations, covenants and events of default in respect of such Indebtedness (other than interest rate and fees) are no more restrictive on the applicable obligor than the representations, covenants and Events of Default hereof and (v) the maturity date of such Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date and such Indebtedness shall not be subject to amortization or mandatory prepayment prior to such date;

 

(r)   (i) Indebtedness incurred on the Fourth Amendment Effective Date pursuant to the Second Lien Indenture in an aggregate principal or face amount of up to $250,000,000 and (ii) additional Indebtedness and Indebtedness that replaces, refunds or refinances the Second Lien Indenture or such additional Indebtedness (“Second Lien Refinancing Indebtedness”), in each case secured by Liens on the Collateral, which Liens are expressly subordinated to the Liens on the Collateral securing the Secured Obligations pursuant to Section 7.01(v)(ii), including any amendment, supplement, modification, extension, renewal, restatement or amendment and restatement of the Second Lien Indenture, such additional Indebtedness or Second Lien Refinancing Indebtedness, provided, however, (A) the representations, covenants and events of default in respect of such additional Indebtedness or Second Lien Refinancing Indebtedness (in each case other than (1) pricing, interest rate,  fees, premiums, rate floors, optional prepayment or redemption terms and security and (2) any representations, covenants and events of default applicable only to periods after the Revolving Credit Maturity Date) are, taken as a whole and in the good faith judgment of the Administrative Borrower, no more restrictive on the applicable obligors than the representations, covenants and events of default, taken as a whole, of the Second Lien Indenture or Indebtedness being replaced, refunded or refinanced, as applicable, (B) the final maturity date of such additional Indebtedness or Second Lien Refinancing Indebtedness shall be no earlier than six months following the Revolving Credit Maturity Date, (C) as of the date of incurrence of such additional Indebtedness or Second Lien Refinancing Indebtedness, as applicable, no Default or Event of Default will exist and (D) (x) in the case of any such additional Indebtedness, the Borrowers shall demonstrate, on a pro forma basis after giving effect to the issuance of such additional Indebtedness or Second Lien Refinancing Indebtedness, as applicable, and the use of proceeds therefrom, that the Consolidated Leverage Ratio will be no greater than 3.50:1.00 and (y) in the case of any Indebtedness that replaces, refunds or refinances the Second Lien Indenture or such additional Indebtedness, such replacement, refunding or refinancing does not result in an increase in the principal amount of the Indebtedness so replaced, refunded or refinanced other than by the amount of premiums paid thereon and the fees and expenses incurred in connection therewith and by the amount of unfunded commitments with respect thereto; and

 

(s)            in addition to the other Indebtedness permitted under this Section 7.03, Indebtedness of the Parent and any of its Subsidiaries, taken together, in the aggregate principal amount outstanding at any time not to exceed $150,000,000 and, in the case of any Loan Party, ranking pari passu or junior in right of payment to the Obligations under this Agreement and the other Loan Documents; provided, however, no more than $50,000,000 of such Indebtedness may be secured by Permitted Liens.

 

SECTION 7.04.  FUNDAMENTAL CHANGES.

 

Merge, dissolve, liquidate, recapitalize, consolidate with or into another Person, except that, so long as no Event of Default has occurred and is continuing or would result therefrom:

 

(a)           any Loan Party may merge or consolidate with any Domestic Subsidiary; provided that (i) such Loan Party will be the continuing or surviving Person; or (ii) if such Loan Party is not the continuing or surviving Person, then (A) such Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (B) concurrently with the effectiveness of such merger or consolidation, the continuing or surviving Domestic

 

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Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation;

 

(b)           any Significant Subsidiary may merge or consolidate with (i) any Loan Party, provided that (A) such Loan Party will be the continuing or surviving Person or (B) if such Loan Party is not the continuing or surviving Person, then (1) such Subsidiary will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such Domestic Subsidiary will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such Domestic Subsidiary’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents after giving effect to such merger or consolidation; (ii) any one or more other Domestic Subsidiaries that is not a Loan Party, provided that if any merger or consolidation of two such Domestic Subsidiaries which are not Loan Parties results in the creation of a Material Subsidiary, such resulting Subsidiary will be subject to Section 6.12; or (iii) any Foreign Subsidiary; provided that such merging or consolidating Subsidiary is not a Loan Party;

 

(c)           reserved;

 

(d)           in connection with any Permitted Acquisition, any Significant Subsidiary may merge into or consolidate with any other Person or permit any other Person to merge into or consolidate with it; provided that (i) the Person surviving such merger will be a directly or indirectly wholly-owned Subsidiary of a Borrower and (ii) in the case of any such merger to which any Loan Party is a party, (A) such Loan Party is the surviving Person, or (B) if such Loan Party is not the surviving Person, then (1) such surviving Person will be a Domestic Subsidiary, (2) the Loan Party will provide Administrative Agent with written notice at least ten days prior to the consummation of any such merger or consolidation and (3) concurrently with the effectiveness of such merger or consolidation, such surviving Person will execute such documentation as Administrative Agent requires in its Reasonable Discretion to evidence such surviving Person’s assumption of all of the Obligations of such merging or consolidating Loan Party and to comply with the provisions of the Loan Documents (including the requirements of Section 6.12) after giving effect to such merger or consolidation; and

 

(e)           the liquidation or dissolution of any Subsidiary; provided that, in the case of any Subsidiary that is a Loan Party, (i) the Borrowers provide written notice to Administrative Agent at least ten days prior to the effectiveness of such liquidation or dissolution and (ii)(A) all assets and property of such Subsidiary is transferred to another Loan Party or (B) if such assets and property are transferred to another Subsidiary, (1) such recipient Subsidiary is a Domestic Subsidiary and (2) if such transfer of assets and property to such recipient Subsidiary results in the creation of a Material Subsidiary, upon the effectiveness of such transfer of assets or property the Borrowers will comply with Section 6.12 with respect to such recipient Subsidiary.

 

SECTION 7.05.  DISPOSITIONS.

 

Dispose of (whether in one or a series of transactions) any property or assets (or enter into any agreement to do the same), except:

 

(a)           Dispositions of used, obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and the abandonment or other Disposition of intellectual property that is, in the reasonable judgment of the Borrowers, no longer economically

 

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practicable to maintain or useful in the conduct of the business of the Parent and its Subsidiaries, taken as a whole;

 

(b)           subject to Section 7.07, Dispositions of property by any Borrower or any Significant Subsidiary to any Borrower or to a wholly owned Subsidiary of any Borrower;

 

(c)           Dispositions permitted by Section 7.02, 7.04 or 7.06;

 

(d)           the unwinding of any Swap Contract;

 

(e)           leases of property, including real property, in each case in the ordinary course of business not materially interfering with the conduct of the business of the Parent and its Subsidiaries, taken as a whole;

 

(f)            licenses for the use of intellectual property or other intangible assets; provided that, (i) in the case of any such license granted on an non-exclusive basis, such license will be in the ordinary course of such licensor’s business, and (ii) in the case of any such license granted on an exclusive basis, such licensor has determined in its reasonable business judgment that such intellectual property or other intangible assets are not likely to be otherwise monetized by the Borrowers and Significant Subsidiaries in the ordinary course of their respective businesses;

 

(g)           Dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business;

 

(h)           Dispositions of Cash and Cash Equivalents in the ordinary course of business and Dispositions in respect of any Bank Products;

 

(i)            Dispositions of assets for cash or other property if all of the following conditions are met: (i) such assets (valued at book value) do not constitute a “substantial part” (as defined below) of the assets of the Parent and its Subsidiaries taken as a whole; and (ii) with respect to such disposition of assets that in the aggregate, exceed $100,000,000 (valued at book value), a Responsible Officer of the applicable transferor will certify to Administrative Agent that: (A) the sale is for reasonably equivalent value, (B) is in the best interests of such transferor and (C) immediately after the consummation of the transaction and after giving effect thereto, no Default or Event of Default would exist. For purposes of this Section 7.05(i), a sale of assets will be deemed to involve a “substantial part” of the assets of the Parent and its Subsidiaries taken as a whole if the book value of such assets, together with all other assets sold in reliance upon this Section 7.05(i) during the same Fiscal Year (except those assets sold pursuant to clauses (a) through (h) of this Section 7.05), equals 10.00% or more of the Consolidated total assets of the Parent and its Subsidiaries taken as a whole determined as of the end of the immediately preceding Fiscal Year; and

 

(j)            Eligible Receivables sold in any Permitted Receivable Financing; provided that the face amount of Program Receivables proposed to be sold plus the aggregate face amount of Eligible Receivables previously sold in all other Permitted Receivables Financings made since the Closing Date may not exceed 5% of Eligible Receivables determined as of the last day of the Fiscal Period most recently ended before such proposed sale for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b).

 

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SECTION 7.06.  RESTRICTED PAYMENTS.

 

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, unless (1) such Restricted Payment would be permitted to be made under the Second Lien Indenture at the time of such proposed Restricted Payment and (2) such Restricted Payment would be permitted under one or more of the following clauses of this Section:

 

(a)           in the case of any Loan Party (other than the Parent) or any Significant Subsidiary, such Loan Party or Significant Subsidiary may declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, in respect of Restricted Payments to any Loan Party and to wholly-owned Subsidiaries of any Loan Party (and, in the case of a Restricted Payment by a non-wholly-owned Significant Subsidiary, to the owners of Equity Interests of such Significant Subsidiary, in respect of which such Restricted Payment is declared, made and/or incurred, on a pro rata basis based on their relative ownership interests);

 

(b)           in the case of the Parent, Parent may declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, in respect of:

 

(i)            repurchases of its common stock offered for sale on the limited market (also known as the internal market) referred to in the “special provisions relative to stock” set forth in the Parent’s bylaws, as those bylaws are in effect as of the Closing Date; provided, that, before the Additional Transaction Condition is satisfied, (A) the amount of any Restricted Payment made pursuant to this Section 7.06(b)(i) shall not exceed the Available Restricted Payment Amount determined at the time of such Restricted Payment, (B) both before and after giving effect to such Restricted Payment, no Default or Event of Default has occurred and be continuing and (C) the Borrowers are, both before and after giving effect to such Restricted Payment, in compliance on a pro forma basis with the financial covenants set forth in Section 7.14 determined as of the date such Restricted Payment is to be made;

 

(ii)           Legally Required Restricted Payments;

 

(iii)          Restricted Payments made in connection with and strictly for:

 

(A)          payments on or repurchases of common stock issued by the Parent (including dividends on the Parent’s common stock but excluding Restricted Payments made pursuant to clauses (i) and (ii) above); provided that, at the time of making, and after giving effect to, each such Restricted Payment, (1) at any time during which the Additional Transaction Condition is not met, the amount of any Restricted Payment pursuant to this Section 7.06(b)(iii) shall not exceed the Available Restricted Payment Amount determined at the time of such Restricted Payment, (2) at any time during which the Additional Transaction Condition is met, the aggregate amount of all Restricted Payments pursuant to this Section 7.06(b)(iii) (including all Restricted Payments pursuant to this clause (A) and clause (B) below) does not exceed $100,000,000 during any Fiscal Year, (3) at any time during which the Additional Transaction Condition is not met, the Borrowers shall be in pro forma compliance with the financial covenants set forth in Section 7.14, and (4) in each case the additional conditions set forth below are satisfied; and

 

(B)          redemptions of preferred stock issued by the Parent (excluding any dividends on such preferred stock) ; provided any such redemption of preferred stock may be made only if, at the time of making, and after giving effect to, each such Restricted Payment, (1) the Additional Transaction Condition is met, (2) the aggregate amount of all Restricted Payments pursuant to this Section 7.06(b)(iii) (including all

 

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Restricted Payments pursuant to this clause (B) and clause (A) above) does not exceed $100,000,000 during any Fiscal Year, and (3) in each case the additional conditions set forth below are satisfied;

 

The making of any Restricted Payment pursuant to clause (A) or clause (B) of this Section 7.06(b)(iii) shall be subject, in each case, to satisfaction (at the time of, and after giving effect to, such Restricted Payment) of the following additional conditions: (I) at the time of, and after giving effect to, such Restricted Payment, no Default or Event of Default has occurred and is continuing or would result therefrom, (II) at the time of, and after giving effect to, such Restricted Payment, the cash distribution and payment thereof is in compliance with Section 6.07, and (III) after giving effect to any such Restricted Payment, on a pro forma basis, the Consolidated Leverage Ratio, determined as of the last day of the Fiscal Period most recently ended before such Restricted Payment for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b), is less than or equal to 2.75:1.00; provided, that, to the extent the aggregate amount of all Restricted Payments made pursuant to this Section 7.06(b)(iii) in any Fiscal Period exceeds $5,000,000 (and subsequent to crossing such threshold, each time the aggregate amount of all additional payments in any Fiscal Period exceeds an increment of $5,000,000), the Borrowers shall concurrently provide a certificate executed by a Responsible Officer of the Parent evidencing compliance with the leverage ratio requirements set forth in clause (III) of this Section 7.06(b)(iii) and, if applicable, compliance with the financial covenant requirement set forth in clause (A)(3) of this Section 7.06(b)(iii));

 

(iv)          reserved;

 

(v)           Restricted Payments consisting of dividends (other than dividends paid in accordance with clause (vi) below) on the Parent’s preferred stock so long as after giving effect to any such Restricted Payment pursuant to this clause (v), (A) no Default or Event of Default has occurred and is continuing or would result therefrom, (B) the Borrowers shall demonstrate pro forma compliance with the financial covenants set forth in Section 7.14 determined as of the last day of the Fiscal Period most recently ended before such Restricted Payment for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b), (C) the Additional Transaction Condition is satisfied at the time such Restricted Payment is made and (D) after giving effect to any such Restricted Payment on a pro forma basis, the Consolidated Leverage Ratio, determined as of the last day of the Fiscal Period most recently ended before such transaction for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b), shall be less than or equal to 1.50:1.00;

 

(vi)          Restricted Payments made (A) solely in Equity Interests of the Parent or (B) in an aggregate amount equal to the amount of proceeds received by the Parent from the issue of new Equity Interests of the Parent, so long as after giving effect to any such Restricted Payment pursuant to this clause (vi), the Borrowers shall demonstrate pro forma compliance with the financial covenants set forth in Section 7.14 determined as of the last day of the Fiscal Period most recently ended before such Restricted Payment for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b);

 

(vii)         Restricted Payments made pursuant to any shareholder rights plan adopted for the purpose of protecting shareholders from takeover tactics (and solely to the extent that such Restricted Payments are made in furtherance of such purpose); provided, that, with respect to any Restricted Payment made pursuant to this clause (vii) at any time on or prior to December 31,

 

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2015, the Borrowers shall demonstrate pro forma compliance with the financial covenants set forth in Section 7.14 determined as of the last day of the Fiscal Period most recently ended before such Restricted Payment for which the Parent has delivered financial statements pursuant to Section 6.01(a) or Section 6.01(b); and

 

(viii)        Restricted Payments made by the Parent in connection with the net exercise by holders of options or warrants or similar securities, or in connection with the withholding or payment of taxes upon the vesting of restricted stock, stock appreciation rights or similar securities of the Parent.

 

SECTION 7.07.  TRANSACTIONS WITH AFFILIATES.

 

Enter into any transaction, directly or indirectly, with or for any Affiliate of a Borrower (other than another Borrower or any Subsidiary) except (a) on a basis no more favorable to such Affiliate than would be obtained in a comparable arm’s length transaction with a Person not an Affiliate of a Borrower, (b) any transaction involving assets that are not material to the business and operations of the Borrowers or the Subsidiaries involved in such transaction or (c) any transaction related to any Bank Products.

 

SECTION 7.08.  BURDENSOME AGREEMENTS.

 

Except as provided in this Agreement or another Loan Document, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on such Loan Party’s or Significant Subsidiary’s ability to (a) pay dividends or make any other distributions on any of its Equity Interests, (b) repay or prepay any Indebtedness owed by such Loan Party or Significant Subsidiary to any Borrower or any other Subsidiary of the Borrowers, (c) make loans or advances to any Borrower or any other Subsidiary of the Borrowers or (d) transfer any of its property or assets to any Borrower or any other Subsidiary of the Borrowers, in each case other than (i) customary non-assignment provisions of leases, subleases and sublicenses and similar agreements and in other contracts (and applicable solely to the rights and obligations under such contracts), (ii) with respect to the specific property to be sold pursuant to an executed agreement in connection with a Disposition permitted under Section 7.05, (iii) encumbrances or restrictions under documents with respect to Indebtedness permitted under (A) Section 7.03(b) (provided that the encumbrances or restrictions under documents with respect to any refinancing, refunding, renewal or extension of such Indebtedness are not materially more restrictive than the encumbrances or restrictions under the Indebtedness being refinanced, refunded, renewed or extended) or (B) Section 7.03(e), (iv) pursuant to any Permitted Lien, (v) pursuant to terms subordinating intercompany Indebtedness to claims of pension trustees, (vi) pursuant to the terms of any Bank Products, and (vii) encumbrances or restrictions contained in the Second Lien Documents, the Intercreditor Agreement or any other documents governing Second Lien Debt, any Incremental Term Loans or any Hedging Agreements.

 

SECTION 7.09.  USE OF PROCEEDS.

 

Use any portion of the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, (a) to purchase or carry margin stock (within the meaning of Regulation U of the FRB) if and to the extent doing so would result in a violation of Regulation T, U or X of the FRB by any Lender or to extend credit to others for the purpose of purchasing or carrying margin stock if and to the extent doing so would result in a violation of Regulation T, U or X of the FRB by any Lender or to refund indebtedness originally incurred for such purpose or (b) for any other purpose other than (i) to refinance all of the Indebtedness under the Original Credit Agreement, (ii) to fund the Transaction Costs and (iii) to fund the ongoing working capital and general corporate needs of

 

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the Borrowers and their Subsidiaries (including Permitted Acquisitions), to the extent permitted by the Loan Documents and in all material respects by applicable Law.

 

SECTION 7.10.  MAINTENANCE OF BUSINESS

 

From and after the Closing Date, engage in any business other than the types of business activities in which the Parent and its Subsidiaries engage as of the date of this Agreement and business activities reasonably related or complementary thereto.

 

SECTION 7.11.  AMENDMENTS OF ORGANIZATION DOCUMENTS.

 

Amend or modify any Organizational Document of any Loan Party in any way could reasonably be expected to cause a Material Adverse Change (including the ability of the Loan Parties to pay the Obligations in full when and as payable under the Loan Documents).  Each Borrower will give Administrative Agent written notice of any rescission or modification of its resolutions delivered to the Administrative Agent pursuant to Section 4.01(a).  For the avoidance of doubt, this Section 7.11 will not restrict or effect any transaction permitted by Section 7.04.

 

SECTION 7.12.  ACCOUNTING CHANGES.

 

Make any change in (a) accounting policies or financial reporting practices or (b) the Fiscal Year, in each case except as required by GAAP, as contemplated by the definitions of “Fiscal Period” and “Fiscal Year” or as required to implement any such change.

 

SECTION 7.13.  PREPAYMENTS OF INDEBTEDNESS.

 

Prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner (i) any Second Lien Debt and (ii) any other Indebtedness, if (A) such prepayment would, on a pro forma basis, cause a Default or Event of Default hereunder or (B) such prepayment is prohibited by the Second Lien Indenture; provided that the provisions of this Section 7.13 will not apply to (i) the prepayment of the Loans in accordance with the terms of this Agreement or (ii) the prepayment of obligations under the Borrowers’ internal cash management system substantially similar to the system in effect on the Closing Date; provided further that any redemptions and repayments of Second Lien Debt shall be permitted:

 

(a)           in an aggregate principal amount not to exceed $25,000,000 so long as (i) the Borrowers shall be in compliance with the financial covenants set forth in Section 7.14 after giving pro forma effect to the making of any such redemption or prepayment; (ii) the Loan Parties shall have Minimum Liquidity of not less than $300,000,000 after giving pro forma effect to any such redemption or prepayment and (iii) immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing;

 

(b)           if made (i) solely with any Second Lien Debt, Subordinated Debt or any Indebtedness permitted under Section 7.03 not secured by any Collateral (“Permitted Unsecured Debt”), (ii) in an aggregate amount equal to the amount of net proceeds received by any Borrower or Guarantor from the incurrence or issuance of such Second Lien Debt, such Subordinated Debt or Permitted Unsecured Indebtedness or (iii) a combination of such Second Lien Debt, such Subordinated Debt, Permitted Unsecured Indebtedness and net proceeds, so long as the Borrowers shall demonstrate pro forma compliance (after giving effect to any such redemption or prepayment) with the financial covenants set forth in Section 7.14 and immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing; and

 

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(c)           if made (i) solely in Equity Interests (other than Disqualified Equity Interests) of the Parent, (ii) in an aggregate amount equal to the amount of proceeds received by the Parent from the issue of new Equity Interests (other than Disqualified Equity Interests) of the Parent or (iii) a combination of such Equity Interests (other than Disqualified Equity Interests) and proceeds, so long as the Borrowers shall demonstrate pro forma compliance (after giving effect to any such redemption or prepayment) with the financial covenants set forth in Section 7.14 and immediately after giving effect to any such redemption or prepayment, no Default or Event of Default has occurred and is continuing.

 

SECTION 7.14.  FINANCIAL COVENANTS.

 

(c)   Minimum Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge Coverage Ratio, as determined as of the last day of each Fiscal Period, to be less than 1.50:1.00.

 

(d)   Maximum Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio to exceed 4.00:1.00, as determined as of the last day of each Fiscal Period ended on or after March 31, 2017.

 

(e)   Maximum Consolidated First Lien Leverage Ratio. Permit the Consolidated First Lien Leverage Ratio to exceed 3.00:1.00, as determined as of the last day of each Fiscal Period.

 

For purposes of calculating compliance with the financial covenants in this Section 7.14, the Fourth Amendment to Credit Agreement, dated as of the Fourth Amendment Effective Date, by and among the Loan Parties, the Lenders party thereto, the Administrative Agent and the Collateral Agent, and the incurrence of the initial borrowing by the Loan Parties under the Second Lien Indenture on the Fourth Amendment Effective Date shall be deemed to have occurred on March 31, 2017.

 

SECTION 7.15.  AMENDMENTS OF CERTAIN DEBT

 

The Loan Parties will not, nor will they permit any Subsidiary to, without the prior written consent of the Required Lenders, amend, modify, waive or extend or permit the amendment, modification, waiver or extension of any term of any document governing or relating to any Indebtedness incurred pursuant to Sections 7.03(i) or (q) unless the criteria for such Indebtedness set forth in Sections 7.03(i) or (q) (as applicable) continue to be met after such amendment, modification, waiver or extension.  The Loan Parties will not, nor will they permit any Subsidiary to, without the prior written consent of the Required Lenders, amend, modify, waive or extend or permit the amendment, modification, waiver or extension of any term of any Second Lien Document or other document governing or relating to any Second Lien Debt to which they are parties, except (a) as permitted by the Intercreditor Agreement or other intercreditor agreement relating to such Indebtedness or (b) in connection with any replacement, refinancing, amendment, supplement, modification, extension, renewal, restatement or refunding of any Second Lien Debt, in each case, that is permitted under Section 7.03.

 

ARTICLE VIII
 EVENTS OF DEFAULT AND REMEDIES

 

SECTION 8.01.  EVENTS OF DEFAULT.

 

Each of the following will constitute an event of default hereunder (each, an “Event of Default’):

 

(a)           Non-Payment.  The Borrowers fail to pay on the date and in the manner required to be paid hereunder or under any of the Loan Documents, (i) any amount of principal of any Loan or any L/C Obligation or deposit of funds as Cash Collateral in respect of L/C Obligations, (ii) any interest on any

 

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Loan or on any L/C Obligation, or any fee due hereunder or under any other Loan Document, or (iii) any other Obligation or amount payable hereunder or under any other Loan Document (in each case other than any Bank Product Debt), and in each case under the foregoing clauses (ii) or (iii) of this Section 8.01(a) such failure continues for three Business Days; or

 

(b)           Specific Covenants.  Any Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.03(a), Section 6.04, Section 6.06, Section 6.12, or Article VII; or any Guarantor fails to perform or observe any term, covenant or agreement contained in its Guaranty (including any failure of any Subsidiary Guarantor to perform or observe any term, covenant or agreement contained in Section 10.15) except in relation to any Bank Product Debt; or the Parent or any other Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01 or Section 6.02 and such failure continues for five Business Days; or

 

(c)           Representations and Warranties.  Any representation, warranty, statement or certification made by any Loan Party or any of its Subsidiaries herein or in any other Loan Document or in any other document, instrument or Record delivered or made available to Administrative Agent or any other Lending Party in connection with any Loan Document proves to be untrue, incorrect or misleading in any material respect (except that such materiality qualifier will not be applicable to any representation, warranty, statement or certification that is already qualified or modified by materiality in the text thereof) as of the date when made or deemed to have been made or repeated; or

 

(d)           Other Defaults.  Any Loan Party fails to perform or observe any other covenant or agreement (not specified in Section 8.01(a), Section 8.01(b) or Section 8.01(c)) contained in this Agreement or any other Loan Document (in each case other than any covenant or agreement made by a Loan Party in favor of a Bank Product Provider in respect of Bank Products) on its part to be performed or observed and such failure continues for thirty days after an Responsible Officer of any Borrower becomes aware, or reasonably should have become aware thereof, whether by notice thereof by Administrative Agent or any Lending Party or otherwise; or

 

(e)           Cross-Default.  (i) Any Loan Party or Subsidiary thereof (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise and after giving effect to any grace period) in respect of Indebtedness under any Second Lien Facility or any other Indebtedness (other than Indebtedness hereunder, Bank Product Debt and Indebtedness under Swap Contracts having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount; or (B) fails to observe or perform any other agreement or condition relating to such Indebtedness under any Second Lien Facility or such other Indebtedness or contained in any document evidencing, securing or relating to any of the foregoing, or any other default or event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders), as the case may be, to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity (including the foreclosure or similar action on any Lien securing such Indebtedness); or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (1) any event of default under such Swap Contract as to which any Borrower or any of its Subsidiaries is the Defaulting Party (as defined in such Swap Contract) or (2) any Termination Event (as so defined) under such Swap Contract as to which any Loan Party or any Subsidiary thereof is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by such Loan Party or such Subsidiary as a result thereof is greater than the Threshold Amount; or

 

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(f)            Insolvency; Voluntary Proceedings.  Any Loan Party or any Material Subsidiary thereof (i) ceases or fails to be Solvent (for purposes of this Section 8.01(f), determined without regard to any intercompany payables), or generally fails to pay, or admits in writing its inability to pay, its debts as they become due, subject to applicable grace periods, if any, whether at stated maturity or otherwise; (ii) except as permitted under Section 7.04, voluntarily liquidates, dissolves or ceases to conduct its business in the ordinary course; (iii) commences any Insolvency Proceeding with respect to itself; or (iv) takes any action to effectuate or authorize any of the foregoing; or

 

(g)           Involuntary Proceedings.  (i) Any involuntary Insolvency Proceeding is commenced or filed against any Loan Party or any Material Subsidiary, or any writ, judgment, warrant of attachment, execution or similar process, is issued or levied against a substantial part of any Loan Party’s properties or

 

assets or the properties or assets of any Material Subsidiary, and any such proceeding or petition will not be dismissed, or such writ, judgment, warrant of attachment, execution or similar process will not be released, vacated or fully bonded within sixty days after commencement, filing or levy; (ii) any Loan Party or any Material Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding, or an order for relief (or similar order under non-United States Bankruptcy Law) is ordered in any Insolvency Proceeding; or (iii) any Loan Party or any Material Subsidiary acquiesces in the appointment of a receiver, trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other similar Person for itself or a substantial portion of its property, assets or business; or

 

(h)           Judgments.  There is entered or issued against any Loan Party or any Material Subsidiary (i) a final (non-interlocutory) judgment, order or decree by any Governmental Authority or a final or binding award by an arbitrator or arbitration panel or other similar alternative dispute resolution body for the payment of money in an amount, singularly or in the aggregate, exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage); or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to cause, individually or in the aggregate, a Material Adverse Change and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order or (B) there is a period of forty-five consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; 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 Borrower or any ERISA Affiliate under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) any Borrower 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 in an aggregate amount in excess of the Threshold Amount; or

 

(j)            Invalidity of Loan Documents.  Any Loan Document or any provision thereof, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any Loan Document or any provision thereof; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document or any provision thereof; or any Loan Document shall for any reason cease to create a valid and perfected first priority Lien (except to the extent permitted therein and subject to Permitted Liens) on, or security interest in, any material part of the Collateral purported to be covered the Security Documents taken as a whole; or

 

(k)           Change of Control.  There occurs a Change of Control; or

 

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(l)            Subordinated Debt.  The subordination provisions applicable to any Subordinated Debt shall cease to give the Lenders the rights, powers and privileges purported to be created thereby at any time such Subordinated Debt remains outstanding.

 

SECTION 8.02.  WAIVERS OF EVENTS OF DEFAULTS.

 

Any Event of Default (or any Default that, with the lapsing of the applicable grace period, if any, would become an Event of Default) may be waived only with the written consent of Required Lenders; except that an Event of Default (or a Default) under any of Sections 8.01(a), (f), (g) or (k) may only be waived with the written consent of all Lenders. Any Event of Default (or Default) so waived will be deemed to have been cured and not to be continuing; but no such waiver will be deemed a continuing waiver or will extend to or affect any subsequent like default or impair any rights arising therefrom.

 

SECTION 8.03.  REMEDIES UPON EVENT OF DEFAULT.

 

Upon the occurrence and during the continuance of any Default or Event of Default, the Lending Parties will have no obligation to advance money or extend any additional credit to or for the benefit of the Borrowers, whether in the form of the making of Loans, the issuance of Letters of Credit or otherwise. In addition, upon the occurrence and during the continuance of any Event of Default, Administrative Agent will, at the request of, or may, with the consent of, Required Lenders, take any or all of the following actions, all of which are hereby authorized by the Borrowers and each of the other Loan Parties:

 

(a)           Termination of Commitments.  Declare, by written notice to the Borrowers, the Aggregate Commitments, including any commitments of any Lender or the Swing Lien Lender to make and advance Loans and any obligation of any L/C Issuer to make or issue L/C Credit Extensions, to be terminated, whereupon such commitments and obligations will be terminated, but without affecting any of the Credit Group’s Liens, if any;

 

(b)           Acceleration of Obligations.  Declare all or any portion of the unpaid principal amount the outstanding Loans, the interest accrued and unpaid thereon and the other amounts and Obligations owing or payable under this Agreement or under any other Loan Document or any other instrument executed by the Borrowers or any other Loan Party pursuant to the Loan Documents to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers and each such other Loan Party;

 

(c)           Cash Collateralization of L/C Obligations.  Require that the Borrowers Cash Collateralize the L/C Obligations in an amount equal to 105.0% of the then Outstanding Amount thereof;

 

(d)           Discretionary Advances.  Make advances of Loans after the occurrence of any Event of Default, without thereby waiving their right to demand payment of the Obligations under this Agreement, or any of the other Loan Documents, or any other rights or remedies described in this Agreement or any other Loan Document, and without liability to make any other or further advances, notwithstanding Administrative Agent’s or any Lending Party’s previous exercise of any such rights and remedies; or

 

(e)           Exercise of Rights and Remedies.  Exercise on behalf of itself and the Lending Parties, in addition to all rights and remedies granted or otherwise made available to Administrative Agent or the Lending Parties under this Agreement, any and all rights and remedies granted or otherwise made available to Administrative Agent or the Lending Parties under the Collateral Documents and other Loan Documents or otherwise under applicable Law or in equity;

 

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provided that, upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrowers under any Bankruptcy Law, the obligation of each Lender or Swing Line Lender to make or advance Loans and any obligation of any L/C Issuer to make or issue L/C Credit Extensions will automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts and Obligations as aforesaid will automatically become due and payable, and the obligation of the Borrowers to Cash Collateralize the L/C Obligations in an amount equal to 105.0% of the then Outstanding Amount thereof will automatically become effective, in each case, without further act of Administrative Agent or any Lending Party.

 

SECTION 8.04.  APPLICATION OF FUNDS.

 

Following the occurrence and during the continuation of an Event of Default or following any exercise of remedies provided for in Section 8.03 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.03), any amounts received on account of the Obligations will, subject to the provisions of Section 2.16 and Section 3.07, be applied by Administrative Agent in the following order (on a pro rata basis within each level of priority):

 

(a)           First, to payment in full of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to Administrative Agent and amounts payable under Article III) payable to Administrative Agent in its capacity as such;

 

(b)           Second, to payment in full of that portion of the Obligations constituting fees (including commitment fees), indemnities and other amounts (other than principal, interest and L/C Fees) payable to the Lending Parties (including fees, charges and disbursements of counsel to the respective Lending Parties arising under the Loan Documents and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

(c)           Third, to payment in full of that portion of the Obligations constituting accrued and unpaid interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents and accrued and unpaid L/C Fees, ratably among the Lending Parties in proportion to the respective amounts described in this clause Third payable to them;

 

(d)           Fourth, to payment in full of that portion of the Obligations constituting unpaid principal of all Loans and the L/C Borrowings;

 

(c)   Fifth, to Administrative Agent for the account of the applicable designated L/C Issuers, to Cash Collateralize in full that portion of L/C Obligations comprised of the aggregate undrawn amount of Credits to the extent not otherwise Cash Collateralized by the Borrowers pursuant to Sections 2.04 and Section 2.16;

 

(d)   Sixth, to payment in full of all other Obligations; and

 

(e)   Seventh, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by Law.

 

Subject to Section 2.04(c) and Section 2.16, amounts used to Cash Collateralize the aggregate undrawn amount of Credits pursuant to the foregoing clause Fifth will be applied to satisfy drawings under such Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount will be applied to the other Obligations, if any, in the order set forth in this Section 8.04.

 

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ARTICLE IX
  ADMINISTRATIVE AGENT

 

SECTION 9.04.  APPOINTMENT AND AUTHORIZATION.

 

(a)   Each Lending Party hereby irrevocably appoints Wells Fargo to act on its behalf as Administrative Agent hereunder and under the other Loan Documents, including to act in such representative capacity as secured party on behalf and for the benefit of each such Lending Party under this Agreement and the other Loan Documents, and authorizes Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the terms hereof and thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article IX (other than the first sentence of Section 9.12 which is also for the benefit of the Loan Parties) are solely for the benefit of Administrative Agent and the Lending Parties, and no Borrower nor any other Loan Party will have rights as a third party beneficiary of any of such provisions.

 

(b)   The Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the Lending Parties (including in its capacity as a potential Bank Product Provider) hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lending Party for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Secured Obligations, together with such powers and discretion as are reasonably incidental thereto (including to enter into additional Loan Documents or supplements to existing Loan Documents on behalf of the Secured Parties).  In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to this Article IX for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of Articles IX and X as if set forth in full herein with respect thereto.

 

SECTION 9.02.  RIGHTS AS A LENDER.

 

If the Person serving as Administrative Agent hereunder is also “Swing Line Lender,” a “L/C Issuer” or a “Lender,” such Person will have the same rights and powers in such capacity(ies) as any other Person in such capacity(ies) and may exercise the same as though it were not Administrative Agent. 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 any Borrower or any Subsidiary or Affiliate of any Borrower as if such Person were not Administrative Agent hereunder and without any duty to account therefor to any other Lending Party.

 

SECTION 9.03.  EXCULPATORY PROVISIONS.

 

Administrative Agent will 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, Administrative Agent:

 

(a)   No Fiduciary Duties.  Will not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

 

(b)   No Obligations Regarding Certain Actions.  Will 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 Administrative Agent is required to exercise as directed in writing by Required Lenders (or such other number or percentage of Lenders as

 

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will be expressly provided for herein or in any other Loan Documents), Swing Line Lender or a L/C Issuer, as applicable; provided that Administrative Agent will not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law;

 

(c)   Disclosure Obligations.  Will not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and will not be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity; and

 

(d)   Limitation on Liability.  Will not be liable for any action taken or not taken by it (i) with the consent or at the request of Required Lenders (or such other number or percentage of Lenders as will be necessary, or as Administrative Agent will believe in good faith will be necessary, under the circumstances as provided in Section 8.02 and Section 10.01), or (ii) in the absence of its own gross negligence or willful misconduct. Administrative Agent will be deemed not to have knowledge of any Default or Event of Default, unless and until the Borrowers, a Loan Party, or a Lending Party provides written notice to Administrative Agent describing such Default or Event of Default. Administrative Agent will not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (B) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (D) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (E) any failure to monitor or maintain any portion of the Collateral, or (F) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent.

 

SECTION 9.04.  RELIANCE BY ADMINISTRATIVE AGENT.

 

Administrative Agent will be entitled to rely upon, and will 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.  Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and will 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 Credit, that by its terms must be fulfilled to the satisfaction of a specified Lending Party, Administrative Agent may presume that such condition is satisfactory to such Lending Party, unless Administrative Agent will have received notice to the contrary from such Lending Party prior to the making of such Loan or the issuance of such Credit.  In this regard, for purposes of determining compliance with the conditions set forth in Section 4.01, each Lending Party that has executed this Agreement will be deemed to have consented to, approved or accepted, or to be satisfied with, each document and matter either sent, or made available, by Administrative Agent to such Lending Party for consent, approval, acceptance or satisfaction, or required thereunder to be to be consent to or approved by or acceptable or satisfactory to such Lending Party, unless Administrative Agent will have received notice from such Lending Party not less than two days prior to the Closing Date specifying such Lending Party’s objection thereto and such objection will not have been withdrawn by notice to Administrative Agent to such effect on or prior to the Closing Date. Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountants and other experts it selects and will not be liable for any action it takes or does not take in accordance with the advice of any such counsel, accountants or experts.

 

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SECTION 9.05.  DELEGATION OF DUTIES.

 

Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents it appoints. Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  Administrative Agent will not be responsible for the negligence or misconduct of any sub-agent or attorney-in-fact that it selects with reasonable care.  The exculpatory provisions of this Article IX will apply to any such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent and will apply to their respective activities in connection with the syndication of the credit facilities provided for herein, as well as activities as Administrative Agent.

 

SECTION 9.06.  RESIGNATION OF ADMINISTRATIVE AGENT.

 

Administrative Agent may at any time give notice of its resignation to Lending Parties and the Borrowers. Upon receipt of any such notice of resignation, Required Lenders will have the right, with, unless an Event of Default exists, the consent of the Borrowers (which consent will not be unreasonably withheld), to appoint a successor, which will be a bank, trust company or insurance company organized (or in the case of a bank, having a branch registered) under the laws of the United States or of any state thereof and having a combined capital and surplus of at least $500,000,000. If no such successor will have been so appointed by Required Lenders and will have accepted such appointment within thirty days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of Lending Parties, appoint a successor Administrative Agent meeting the qualifications set forth in this Section 9.06; provided that, if Administrative Agent will notify Lending Parties and the Borrowers that no qualifying Person has accepted such appointment, then such resignation will nonetheless become effective in accordance with such notice and (a) the retiring Administrative Agent will be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by Administrative Agent on behalf of any Lending Party under any of the Loan Documents, the retiring Administrative Agent will continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (b) all payments, communications and determinations provided to be made by, to or through Administrative Agent will instead be made by or to each Lending Party directly, until such time as Required Lenders appoint a successor Administrative Agent as provided for in this Section 9.06.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor will succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent will be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided in this Section 9.06).  The fees payable by the Borrowers to a successor Administrative Agent will be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such successor.  After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article IX and Section 10.04 will continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.

 

Any resignation by Wells Fargo as Administrative Agent pursuant to this Section 9.06 will also constitute its resignation as Swing Line Lender.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder (i) such successor will succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender; (ii) the retiring Swing Line Lender will be discharged from all of their respective duties and obligations hereunder or under the other Loan 

 

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Documents; and (iii) the successor Swing Line Lenders will purchase the outstanding Swing Line Loans of the resigning Swing Lien Lender at par.

 

SECTION 9.07.  NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS.

 

Each Lending Party acknowledges that it has, independently and without reliance upon Administrative Agent, any other Lending Party or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lending Party also acknowledges that it will, independently and without reliance upon Administrative Agent, any other Lending Party or any of their Related Parties and based on such documents and information as it will from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

SECTION 9.08.  NO OTHER DUTIES, ETC.

 

Notwithstanding anything to the contrary contained herein, no Person identified herein or on the facing page or signature pages hereof as a “Syndication Agent,” “Documentation Agent,” “Co-Agent,” “Book Manager,” “Book Runner,” “Arranger,” “Lead Arranger,” “Joint Lead Arranger” or “Joint Arranger,” if any, will have or be deemed to have any right, power, obligation, liability, responsibility or duty under this Agreement or the other Loan Documents, other than in such Person’s capacity as (a) Administrative Agent or a Lending Party hereunder and (b) an Indemnitee hereunder, and no such Person will have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on such Persons in deciding to enter into this Agreement or any other Loan Document or in taking or not taking any action hereunder or thereunder.

 

SECTION 9.09.  ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM.

 

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party, Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation will then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent will have made any demand on the Borrowers) will be entitled and empowered, by intervention in such proceeding or otherwise (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other 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 Lending Parties and Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of Lending Parties and Administrative Agent and their respective agents and counsel and all other amounts due Lending Parties and Administrative Agent under Sections 2.04(h), Section 2.10 and Section 10.04) allowed in such judicial proceeding, and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lending Party to make such payments to Administrative Agent and, in the event that Administrative Agent will consent to the making of such payments directly to Lending Parties, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Section 2.10 and Section 10.04.  Nothing contained herein will be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lending Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lending Party or to authorize Administrative Agent to vote in respect of the claim of any Lending Party in any such proceeding.

 

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SECTION 9.10.  GUARANTY MATTERS.

 

Each Lending Party and Bank Product Provider hereby (a) irrevocably authorizes Administrative Agent to execute and deliver all documentation reasonably requested to evidence the release of any Guarantor from its obligations under a Guaranty if such Person ceases to be a Material Subsidiary, whether as a result of a transaction permitted hereunder or otherwise by operation of the definition of “Material Subsidiary” or is or becomes an Excluded Subsidiary, (b) irrevocably authorizes Administrative Agent to release any Lien on any Collateral granted to or held by the Administrative Agent under any Credit Document (i) upon termination of the Commitments and payment in full of all Secured Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements with respect thereto reasonably satisfactory to the Administrative Agent (to the extent the Administrative Agent is a party to such arrangements) and the applicable L/C Issuers shall have been made), (ii) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under the Loan Documents, (iii) that is property of a Guarantor released from its obligations under a Guaranty in accordance with the Loan Documents, or (iv) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders, (c) irrevocably authorizes Administrative Agent to subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(l) and (d) agrees that, upon request by Administrative Agent at any time, it will confirm in writing Administrative Agent’s authority to execute and deliver such documentation pursuant to this Section 9.10.  Without limiting the generality of the foregoing, each Lending Party and Bank Product Provider hereby (x) agrees that with respect to the Liens on any Collateral referenced in clause (b)(ii) above, such Liens shall be automatically released at the time of a Disposition of such Collateral permitted under any Loan Document, and (y) irrevocably authorizes Administrative Agent to execute and deliver all documentation reasonably requested to effect the release of any such Liens granted to or held by the Administrative Agent under any Loan Document.

 

SECTION 9.11.  LEGAL REPRESENTATION OF ADMINISTRATIVE AGENT.

 

In connection with the negotiation, drafting, and execution of this Agreement and the other Loan Documents, or in connection with future legal representation relating to loan administration, amendments, modifications, waivers, or enforcement of remedies, King & Spalding, LLP (“K&S”) only has represented and only will represent Wells Fargo in its capacity as Administrative Agent and as a Lending Party and Wells Fargo Securities, LLC in its capacity as the “left lead” Arranger.  Each other Lending Party hereby acknowledges that K&S does not represent it in connection with any such matters

 

SECTION 9.12.  SECURED HEDGING AGREEMENTS AND SECURED CASH MANAGEMENT AGREEMENTS.

 

Notwithstanding anything to the contrary herein or in any other Loan Document, no Bank Product Provider that obtains the benefits of Section 8.04 or any Collateral by virtue of the provisions hereof or of any Security 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 IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Bank Products unless the Administrative Agent has received written notice of such Bank Product, together with such supporting documentation as the Administrative Agent may request, from the applicable Bank Product Provider.

 

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SECTION 9.13.  CREDIT BIDDING.

 

(a)           Upon the instruction of the Required Lenders, the Administrative Agent, on behalf of itself and the Lenders, shall have the right to credit bid and purchase for the benefit of the Administrative Agent and the Lenders all or any portion of Collateral at any sale thereof conducted by the Administrative Agent under the provisions of the UCC, including pursuant to Sections 9-610 or 9-620 of the UCC, at any sale thereof conducted under the provisions of the United States Bankruptcy Code, including Section 363 thereof, or a sale under a plan of reorganization, or at any other sale or foreclosure conducted by the Administrative Agent (whether by judicial action or otherwise) in accordance with Applicable Law.

 

(b)           Each Lender hereby agrees that, except as otherwise provided in any Loan Documents or with the written consent of the Administrative Agent and the Required Lenders, it will not take any enforcement action, accelerate obligations under any Loan Documents, or exercise any right that it might otherwise have under Applicable Law to credit bid at foreclosure sales, UCC sales or other similar dispositions of Collateral.

 

ARTICLE X
  GENERAL PROVISIONS

 

SECTION 10.01.  AMENDMENTS, ETC.

 

No amendment or, subject to Section 8.02, waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrowers or any other Loan Party therefrom (including any cure of any Event of Default), will be effective unless in writing signed by Required Lenders (or Administrative Agent at the written request of Required Lenders) and the Borrowers or the applicable Loan Party, as the case may be, with receipt acknowledged by Administrative Agent, and each such waiver or consent will be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent will:

 

(a)   waive any condition set forth in Section 4.02 or, in the case of the initial Credit Extension, Section 4.01, without the written consent of each Lender;

 

(b)   extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.03) without the written consent of such Lender;

 

(c)   postpone any date fixed by this Agreement or any other Loan Document for any payment, of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under such other Loan Document without the written consent of each Lender entitled to such payment;

 

(d)   reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (i) of the second proviso to this Section 10.01(d)) any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder, without the written consent of each Lender entitled to such amount; provided, however, that only the consent of the Required Lenders will be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of the Borrowers to pay interest or L/C Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;

 

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(e)   change (i) any provision of this Section 10.01 or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause (ii) of this Section 10.01(e)), without the written consent of each Lender, (ii) the definition of “Revolving Credit Maturity Date” or “Revolving Credit Stated Maturity Date,” Eligible Assignee,” “Participant,” “Defaulting Lender” or “Specified Lender” without the written consent of each Lender, or (iii) the definition of “Alternative Currency” or provision of Section 1.02(l) without the written consent of each Lender;

 

(f)    change (i) Section 2.07 to allow for non-pro rata application of any reductions in the Aggregate Revolving Credit Commitments, (ii) Section 3.07 or (iii) Section 8.04 without the written consent of each Lender;

 

(g)   release any Guarantor from its Guaranty without the written consent of each Lender except as permitted by Section 10.15(a) or Section 9.10; or

 

(h)   release all or substantially all of the value of the Collateral without the written consent of each Lender; provided that the Administrative Agent may release any Collateral permitted to be released pursuant to the terms of this Agreement or the Security Documents;

 

and provided, further, that (i) no amendment, waiver or consent will, unless in writing and signed by Wells Fargo and each other designated L/C Issuer that has issued a Credit under this Agreement in addition to the Lenders required above, affect the rights or duties of any L/C Issuer under this Agreement or any Issuer Document relating to any Credit issued or to be issued by it; (ii) no amendment, waiver or consent will, unless in writing and signed by Swing Line Lender in addition to the Lenders required above, affect the rights or duties of Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent will, unless in writing and signed by Administrative Agent in addition to the Lenders required above, affect the rights or duties of Administrative Agent under this Agreement or any other Loan Document; and (iv) the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender will have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (1) the Commitments of any Defaulting Lender may not be increased or extended without the consent of such Lender, (2) the amount of principal and accrued fees and interest owing to the Defaulting Lender may not be reduced without the consent of such Lender, and (3) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders will require the consent of such Defaulting Lender.

 

For the avoidance of doubt and notwithstanding any provision to the contrary contained in this Section 10.01, this Agreement and any other Loan Document may be amended (or amended and restated) with the written consent of the Administrative Agent and the Loan Parties in accordance with Section 2.15 to (a) add one or more Incremental Term Loan facilities to this Agreement and to permit extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Revolving Credit Loans and the accrued interest and fees in respect thereof and (b) include appropriately the Lenders holding such Incremental Term Loans in any determination of the Required Lenders and Lenders.

 

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SECTION 10.02.  NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATIONS.

 

(a)   Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.02(b) or in the penultimate paragraph of Section 6.02), all notices and other communications provided for herein will be in writing and will be delivered by hand or overnight courier service, mailed by certified or registered mail, sent by telefacsimile transmission or sent by approved electronic communication in accordance with Section 10.02(b), and all notices and other communications expressly permitted to be given by telephone will be made to the applicable telephone number, as follows:

 

(i)            if to the Borrowers, any Guarantor, Administrative Agent, any L/C Issuer or Swing Line Lender, to the address, telefacsimile number, e-mail address or telephone number specified for such Person on Schedule 10.02; and

 

(ii)           if to any Lender, to the address, telefacsimile number, e-mail address or telephone number specified in its Administrative Detail Form (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrowers).

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, will be deemed to have been given when received, and notices sent by telefacsimile transmission or by means of approved electronic communication will be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, will be deemed to have been given at the opening of business on the next business day for the recipient); provided that notices delivered through electronic communications to the extent provided by Section 10.02(b) will be effective as provided in such subsection (b).

 

(b)   Electronic Communications.

 

(i)            Each Lending Party agrees that notices and other communications to it hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent (which include those set forth in the penultimate paragraph of Section 6.02); provided that the foregoing will not apply to notices to any Lending Party pursuant to Article II if such Lending Party has notified Administrative Agent that it is incapable of receiving notices under Article II by electronic communication.  In furtherance of the foregoing, each Lending Party hereby agrees to notify Administrative Agent in writing, on or before the date such Lending Party becomes a party to this Agreement, of such Lending Party’s e-mail address to which a notice may be sent (and from time to time thereafter to ensure that Administrative Agent has on record an effective e-mail address for such Lending Party).  Each of Administrative Agent and each Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by means of electronic communication pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

 

(ii)           Subject to the penultimate paragraph of Section 6.02, unless Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address will be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication will be deemed to have been sent at the opening of business on the next business day for the recipient; and (B) notices or communications posted to an Internet or intranet website will be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor.

 

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(iii)          Each Borrower hereby acknowledges that (A) Administrative Agent may make available to Lending Parties Specified Materials by posting some or all of the Specified Materials on an Electronic Platform, (B) the distribution of materials and information through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with any such distribution, (C) the Electronic Platform is provided and used on an “AS IS,” “AS AVAILABLE” basis and (D) neither Administrative Agent nor any of its Affiliates warrants the accuracy, completeness, timeliness, sufficiency or sequencing of the Specified Materials posted on the Electronic Platform.  ADMINISTRATIVE AGENT, ON BEHALF OF ITSELF AND ITS AFFILIATES, EXPRESSLY AND SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE ELECTRONIC PLATFORM, DELAYS IN POSTING OR DELIVERY, OR PROBLEMS ACCESSING THE SPECIFIED MATERIALS POSTED ON THE ELECTRONIC PLATFORM, AND ANY LIABILITY FOR ANY LOSSES, COSTS, EXPENSES OR LIABILITIES THAT MAY BE SUFFERED OR INCURRED IN CONNECTION WITH THE ELECTRONIC PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES IN CONNECTION WITH THE ELECTRONIC PLATFORM.

 

(iv)          Each Lending Party hereby agrees that notice to it in accordance with Section 10.02(b)(ii)(B) specifying that any Specified Materials have been posted to the Electronic Platform will, for purposes of this Agreement, constitute effective delivery to such Lending Party of such Specified Materials.

 

(v)           Each Borrower hereby acknowledges that (A) Administrative Agent will make available to the Lending Parties Specified Materials provided by or on behalf of the Borrowers and the other Loan Parties hereunder by posting the Specified Materials on an Electronic Platform and (B) certain of the Lending Parties (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrowers or the other Loan Parties or their Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Specified Materials that may be distributed to the Public Lenders and that (1) all such Specified Materials will be clearly and conspicuously marked “PUBLIC” which, at a minimum, will mean that the word “PUBLIC” will appear prominently on the first page thereof; (2) by marking Borrower Materials “PUBLIC,” each Borrower (on behalf of itself, the other Loan Parties and its other Affiliates) will be deemed to have authorized Administrative Agent and the Lending Parties to treat such Specified Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to each Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Specified Materials constitute confidential information, they will treated as set forth in Section 10.07); (3) all Specified Materials marked “PUBLIC” are permitted to be made available through a portion of the Electronic Platform designated “Public Investor;” and (4) Administrative Agent will be entitled to treat any Specified Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Electronic Platform not designated “Public Investor.”

 

(vi)          Each Lending Party (A) acknowledges that the Specified Materials, including information furnished to it by any Loan Party or Administrative Agent pursuant to, or in the course of administering, the Loan Documents, may include material, non-public information concerning the Borrowers and the other Loan Parties and their respective Affiliates or their respective securities and businesses and (B) confirms that (1) it has developed compliance procedures regarding the use of material, non-public information and (2) it will handle such material, non-public information in accordance with such procedures and applicable Laws, including Federal and state securities laws.

 

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(c)   Change of Address, Etc.  The Borrowers, Administrative Agent, Swing Line Lender and any L/C Issuer may change their respective address(es), telefacsimile number(s), telephone number(s) or e-mail address(es) for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address(es), telefacsimile number(s), telephone number(s) or e-mail address(es) for notices and other communications hereunder by notice to the Borrowers, Administrative Agent, Swing Line Lender and each L/C Issuer.

 

(d)   Reliance by Administrative Agent and Lending Parties.  Administrative Agent and Lending Parties will be entitled to rely and act upon any notices (including telephonic or electronically delivered Requests for Credit Extension) purportedly given by or on behalf of the Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.  The Borrowers will indemnify Administrative Agent and each Lending Party and their respective Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrowers.  All telephonic notices to and other telephonic communications with Administrative Agent may be recorded by Administrative Agent, and each of the parties hereto hereby consents to such recording.

 

SECTION 10.03.  NO WAIVER; CUMULATIVE REMEDIES; ENFORCEMENT.

 

No failure by Administrative Agent or any Lending Party to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder will operate as a waiver thereof and no single or partial exercise of any right, remedy, power or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

 

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents (including any rights and remedies of any Lending Party or Bank Product Provider under Section 10.15 and Section 10.16) against the Borrowers or any other Loan Party will be vested exclusively in, and all actions and proceedings at law in connection with such enforcement will be instituted and maintained exclusively by, Administrative Agent in accordance with Section 8.03 for the benefit of all the Secured Parties; provided, however, that the foregoing will not prohibit (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.14), or (d) any Secured Party from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders will have the rights otherwise ascribed to Administrative Agent pursuant to Section 8.03 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

 

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SECTION 10.04.  EXPENSES; INDEMNITY; DAMAGE WAIVER.

 

(a)   Costs and Expenses.  The Borrowers will pay (i) all reasonable out-of-pocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of, or consents with respect to, the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby will be consummated); (ii) all reasonable out-of-pocket expenses incurred by each L/C Issuer in connection with the issuance, amendment, renewal or extension of any Credit or any demand for payment thereunder; and (iii) all out-of-pocket expenses incurred by Administrative Agent or any Lending Party (including the fees, charges and disbursements of (x) a single counsel for Administrative Agent and (y) a single counsel for the Lending Parties), in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section 10.04 or (B) in connection with the Loans made or Credits issued hereunder, including all such out-of-pocket expenses incurred during any workout or restructuring (or negotiations in connection with the foregoing) in respect of such Loans or Credits.

 

(b)   Indemnification by the Borrowers.  Each Borrower will jointly and severally indemnify each Indemnitee against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities, costs and related expenses (including the reasonable fees, charges, settlement costs and disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party or any of their respective Affiliates arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any document contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent) and its Related Parties only, the administration of this Agreement and the other Loan Documents; (ii) any Loan or Credit or the use or proposed use of the proceeds therefrom (including any refusal by L/C Issuer to honor a demand for payment under a Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Credit); (iii) any Environmental Claim or Environmental Liability; or (iv) any actual or prospective claim, investigation, litigation or other proceeding (including any administrative proceeding or any arbitration or other alternative dispute resolution proceeding) relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Borrower or any other Loan Party or any of their respective Affiliates, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity will not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee.

 

(c)   Reimbursement by Lenders.  If and to the extent the Borrowers for any reason fails to pay when due any amount that they are required to pay under Section 10.04(a) or Section 10.04(b) to Administrative Agent (or any sub-agent thereof), Swing Line Lender, any L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent (or any such sub-agent), Swing Line Lender, each L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share (based on its Percentage Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), Swing Line Lender, any L/C Issuer or any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent),

 

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Swing Line Lender or L/C Issuer in connection with such capacity.  The obligations of Lenders under this subsection (c) are subject to the provisions of Section 2.13(d).

 

(d)   Waiver of Consequential Damages, Etc.  To the fullest extent permitted by applicable Law, each Loan Party and each member of the Credit Group agrees that it will not assert, and hereby waives, any claim against any Indemnitee (in the case of such waiver by the Loan Parties) and any Loan Party or Related Party thereof (in the case of such waiver by the members of the Credit Group), 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 document contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Credit or the use of the proceeds thereof.  No Indemnitee referred to in Section 10.04(b) will be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby, except to the extent that such liability is determined in a final, nonappealable judgment by a court of competent jurisdiction to have resulted from such Indemnitee’s gross negligence or willful misconduct.

 

(e)   Payments.  All amounts due under this Section 10.04 will be payable not later than three Business Days after demand therefor.

 

(f)    Survival.  The agreements in this Section 10.04 will survive the resignation of Administrative Agent, Swing Line Lender and any L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations and the termination of this Agreement.

 

SECTION 10.05.  MARSHALLING; PAYMENTS SET ASIDE.

 

Neither Administrative Agent nor any Lending Party will be under any obligation to marshal any asset in favor of the Borrowers or any other Person or against or in payment of any or all of the Obligations.  To the extent that any payment by or on behalf of the Borrowers is made to Administrative Agent or any Lending Party, or Administrative Agent or any Lending Party exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by Administrative Agent or any Lending Party in such Person’s discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Bankruptcy Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied will be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lending Party severally agrees to pay to Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by Administrative Agent plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate.  The obligations of each Lending Party under clause (b) of the preceding sentence will survive the payment in full of the Obligations and the termination of this Agreement.

 

SECTION 10.06.  SUCCESSORS AND ASSIGNS.

 

(a)   Successors and Assigns Generally.  The provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lending Party, and neither Swing Line Lender nor any Lender may assign or otherwise transfer any of its rights or 

 

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obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of Section 10.06(b), (ii) by way of participation in accordance with the provisions of Section 10.06(d) or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.06(f) (and any other attempted assignment or transfer by any party hereto will be null and void). Nothing in this Agreement, expressed or implied, will be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 10.06(e) and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent and each Lending Party) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)   Assignments by Swing Line Lender or any Lender.  Swing Line Lender or any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment(s) and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans, as applicable) at the time owing to it); provided that:

 

(i)            except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment(s) and Loans at the time owing to it or in the case of an assignment to a Lender or an Affiliate of a Lender, the aggregate amount of the Commitment(s) (which for this purpose includes Loans outstanding thereunder) or, if any Commitment is not then in effect, the Outstanding Amount of the Loans of the assigning Swing Line Lender or Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if a “trade date” is specified in the Assignment and Assumption, as of such trade date, will not be less than $10,000,000 unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, each Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed);

 

(ii)           each partial assignment will be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) will not apply to rights in respect of Swing Line Loans;

 

(iii)          any assignment of a Commitment must be approved by Administrative Agent, the applicable designated L/C Issuer of any Letter of Credit then outstanding and Swing Line Lender, unless the Person that is the proposed assignee is itself a Lender, an Affiliate of a Lender or an Approved Fund (whether or not the proposed assignee would otherwise qualify as an Eligible Assignee);

 

(iv)          so long as an Event of Default does not then exist, any assignment (other than an assignment to another Lender, an Affiliate of a Lender or an Approved Fund) will require the prior written consent of the Administrative Borrower, on behalf of the Borrowers (which will not be unreasonably withheld), provided that the Administrative Borrower will be deemed to have consented to any such assignment unless it will object thereto by written notice to Administrative Agent within five Business Days after having received notice thereof; and

 

(v)           no such assignment will be made (A) to any Borrower, Guarantor or any of their respective Affiliates or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (v), (C) to a natural person, or (D) any Person who is a beneficial owner of Subordinated Debt of the Loan Parties or any of such Person’s Affiliates.

 

The parties to each assignment will execute and deliver to Administrative Agent an Assignment and Assumption, a processing and recordation fee of $3,500; provided that Administrative Agent hereby

 

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waives such processing and recordation fee in connection with any assignment effected pursuant to Section 3.07(a).  In addition, the Eligible Assignee, if it is not then a Lender, will deliver to Administrative Agent an Administrative Detail Form.  Subject to acceptance and recording thereof by Administrative Agent pursuant to subsection (c) of this Section 10.06, from and after the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder will be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of Swing Line Lender or a Lender, as applicable, under this Agreement, and the assigning Swing Line Lender or Lender, as applicable, thereunder will, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lending Party’ rights and obligations under this Agreement, such Lending Party will cease to be a party hereto) but will continue to be entitled to the benefits of Section 3.01, Section 3.04, Section 3.05 and Section 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment.  Upon request, the Borrowers (at their expense) will execute and deliver Notes to the assignee Lending Party.  Any assignment or transfer by Swing Line Lender or a Lender of rights or obligations under this Agreement that does not comply with this Section 10.06(b) will be null and void.

 

(c)   Register.  Administrative Agent, acting solely for this purpose as an agent of the Borrowers (and such agency being solely for tax purposes), will maintain at Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a Register.  The entries in the Register will be conclusive absent manifest error, and the Borrowers, Administrative Agent and Lending Parties may 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. In addition, Administrative Agent will maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender.  The Register will be available for inspection by each of the Borrowers, Swing Line Lender and each L/C Issuer, at any reasonable time and from time to time upon reasonable prior notice.  In addition, at any time that a request for a consent for a material or substantive change to the Loan Documents or any waiver of any provision thereunder is pending, any Lender wishing to consult with other Lenders in connection therewith may request and receive from Administrative Agent a copy of the Register.

 

(d)   Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment will be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment will make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrowers and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (i) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (ii) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Credits and Swing Line Loans in accordance with its Percentage Share.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder will become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest will be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

(e)   Participations.  Swing Line Lender or any Lender may at any time, without the consent of, or notice to, the Borrowers or Administrative Agent, sell participations to any Participant in all or a portion of such Person’s rights and/or obligations under this Agreement (including all or a portion of its Commitment(s) and/or the Loans (including such Lender’s participations in L/C Obligations and/or

 

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Swing Line Loans) owing to it); provided that (i) any sale of a participation to a proposed Participant that would not otherwise qualify as an Eligible Assignee or that is a Defaulting Lender must be approved by Administrative Agent, (ii) such Person’s obligations under this Agreement will remain unchanged, (iii) such Person will remain solely responsible to the other parties hereto for the performance of such obligations and (iv) the Borrowers, Administrative Agent and Lending Parties will continue to deal solely and directly with such Person in connection with such Person’s rights and obligations under this Agreement.  Any document pursuant to which Swing Line Lender or a Lender sells such a participation will provide that such Person will retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement and the other Loan Documents; provided that such document may provide that such Person will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to Section 10.06(f), the Borrowers agree that each Participant will be entitled to the benefits of Section 3.01, Section 3.04 and Section 3.05 to the same extent as if it were a Lending Party hereunder and had acquired its interest by assignment pursuant to Section 10.06(b).  To the extent permitted by law, each Participant also will be entitled to the benefits of Section 10.08 as though it were a Lending Party, as long as such Participant agrees to be subject to Section 2.14 as though it were a Lending Party.

 

(f)    Limitations upon Participant Rights.  A Participant will not be entitled to receive any greater payment under Section 3.01 or Section 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrowers’ prior written consent.  A Participant that would be a Foreign Lender if it were a Lender will not be entitled to the benefits of Section 3.01 unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as though it were a Lender.

 

(g)   Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment will release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(h)   Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption will be deemed to include electronic signatures or the keeping of records in electronic form, each of which will be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act.

 

(i)    Resignation as L/C Issuer or Swing Line Lender.  Notwithstanding anything to the contrary contained herein, if at any time Wells Fargo assigns all of its Commitments and Loans pursuant to subsection (b) of this Section 10.06, Wells Fargo may do either or both of the following: (i) upon thirty days’ notice to the Borrowers and all Lenders, resign as L/C Issuer or (ii) upon thirty days’ notice to the Borrowers, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or Swing Line Lender, the Borrowers will be entitled to appoint from among Lenders a successor L/C Issuer or Swing Line Lender (subject to such Lender’s consent to such appointment, at its sole discretion); provided that no failure by the Borrowers to appoint any such successor will affect the resignation of Wells Fargo as a L/C Issuer or Swing Line Lender, as the case may be. If Wells Fargo resigns as a L/C Issuer, it will retain all the rights and obligations of a L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as a L/C Issuer and all L/C Obligations with respect thereto

 

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(including the right to require Lenders to make Revolving Credit Loans that are Base Rate Revolving Credit Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.04(c)).  If Wells Fargo resigns as Swing Line Lender, it will retain all the rights of Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require Lenders to make Revolving Credit Loans that are Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.05(c).

 

SECTION 10.07.  TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.

 

Each Lender will make no disclosure of confidential information furnished to it by the Borrowers or any of their Subsidiaries, and identified as such, unless such information has become public, except: (a) in connection with operations under or the enforcement of this Agreement or any other Loan Document, to Persons who have a reasonable need to be furnished such confidential information and who agree to comply with the restrictions contained in this Section 10.07 with respect to such information and to the extent such disclosure does not violate any applicable Laws; (b) pursuant to any statutory or regulatory requirement or any court order, subpoena or other legal process; (c) to any parent or corporate Affiliate of such Lender or to any Participant, proposed Participant or proposed Assignee; provided, however, that any such Person agrees to comply with the restrictions set forth in this Section 10.07 with respect to such information and to the extent such disclosure does not violate any applicable Laws; (d) to its independent counsel, auditors and other professional advisors with an instruction to such Person to keep such information confidential; (e) subject to an agreement containing provisions substantially similar to those of this Section 10.07, to any direct or indirect counterparty in any swap agreement or hedging arrangement (or to such contractual counterparty’ s professional advisors) relating to the Loan Parties and their obligations; (f) with respect to confidential information related to the tax treatment and tax structure of the transactions contemplated by the Loan Documents and all materials of any kind (including opinions or other tax analyses) that are provided to such Lender relating to such tax treatment and tax structure; provided, however, that such disclosure may not be made to the extent required to be kept confidential to comply with any applicable federal or state securities laws; or (g) with the prior written consent of the Parent, to any other Person.

 

Each Loan Party hereby agrees that Administrative Agent, any Lender or any Affiliate thereof may (a) disclose a general description of transactions arising under the Loan Documents for advertising, marketing or other similar purposes, and (b) use any Loan Party’s name, logo or other indicia germane to such party in connection with such advertising, marketing or other similar purposes.

 

SECTION 10.08.  RIGHT OF SETOFF.

 

If an Event of Default will have occurred and be continuing, each Lending Party and its respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lending Party to or for the credit or the account of any Borrower or any other Loan Party against any and all of the Obligations to such Lending Party or such Affiliate, irrespective of whether or not such Lending Party will have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be unmatured or are owed to a branch or office of such Lending Party different from the branch or office holding such deposit or obligated on such obligations; provided, that in the event that any Defaulting Lender will exercise any such right of setoff, (a) all amounts so set off will be paid over immediately to Administrative Agent for further application in accordance with the provisions of Section 3.07 and, pending such payment, will be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Administrative Agent and the Lending Parties, and (b) the Defaulting Lender will provide promptly to

 

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Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lending Party and its Affiliates under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) that such Lending Party or its Affiliates may have.  Each Lending Party agrees to notify the Borrowers and Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice will not affect the validity of such setoff and application.

 

SECTION 10.09.  INTEREST RATE LIMITATION.

 

Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents will not exceed the maximum rate of non-usurious interest permitted by applicable Law. If Administrative Agent or any Lender will receive interest in an amount that exceeds the maximum rate of non-usurious interest permitted by applicable Law, the excess interest will be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrowers or the Guarantors, as applicable.  In determining whether the interest contracted for, charged, or received by Administrative Agent or a Lender exceeds the maximum rate of non-usurious interest permitted by applicable Law, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

 

SECTION 10.10.  COUNTERPARTS; INTEGRATION; EFFECTIVENESS.

 

This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together will constitute a single contract.  This Agreement and the other Loan Documents constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous documents, agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement will become effective when it will have been executed and delivered by Administrative Agent and when Administrative Agent will have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy will be effective as delivery of a manually executed counterpart of this Agreement.

 

SECTION 10.11.  SURVIVAL OF REPRESENTATIONS AND WARRANTIES.

 

All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith will survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by Administrative Agent and each Lending Party, regardless of any investigation made by Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent or any Lender may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and will continue in full force and effect as long as any Loan or any other Obligation (other than unasserted contingent indemnification obligations) hereunder will remain unpaid or unsatisfied or any Credit will remain outstanding.

 

SECTION 10.12.  SEVERABILITY.

 

If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement

 

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and the other Loan Documents will not be affected or impaired thereby and (b) the parties will endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders will be limited by Bankruptcy Laws, as determined in good faith by Administrative Agent, L/C Issuer or Swing Line Lender, as applicable, then such provisions will be deemed to be in effect only to the extent not so limited.

 

SECTION 10.13.  LENDER-CREDITOR RELATIONSHIP.

 

The relationship between the Lending Parties and Administrative Agent, on the one hand, and the Borrowers and the other Loan Parties, on the other, is solely that of creditor and debtor. Neither any Lending Party nor Administrative Agent has (or will be deemed to have) any fiduciary relationship or duty to the Borrowers or any other Loan Party arising out of or in connection with, and there is no agency or joint venture relationship between the Lending Parties and Administrative Agent, on the one hand, and the Borrowers and the other Loan Parties, on the other, by virtue of this Agreement or any other Loan Document or any of the Transactions contemplated herein or therein.

 

SECTION 10.14.  USA PATRIOT ACT NOTICE.

 

Each Lending Party that is subject to the PATRIOT Act and Administrative Agent (for itself and not on behalf of any Lending Party) hereby notifies the Borrowers that, pursuant to the requirements of the PATRIOT Act, they are each required to obtain, verify and record information that identifies the Borrowers and each other Loan Party, which information includes the name and address of the Borrowers and each other Loan Party and other information that will allow such Lending Party or Administrative Agent, as applicable, to identify the Borrowers and each other Loan Party in accordance with the PATRIOT Act.

 

SECTION 10.15.  GUARANTY BY SUBSIDIARIES.

 

(a)   Guaranty.  Each Domestic Subsidiary of the Borrowers that is a Material Subsidiary party hereto (each, a “Subsidiary Guarantor”) jointly and severally, unconditionally and irrevocably guarantees to Administrative Agent, Lending Parties and the Bank Product Providers the full and prompt payment when due (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise) of the Obligations and all Bank Product Debt (the “Guaranteed Obligations”); provided, however, that no Excluded Subsidiary shall become a Subsidiary Guarantor unless Administrative Agent and the Borrowers expressly agree in advance in writing and no Subsidiary that is a Borrower shall be a Subsidiary Guarantor.  The Guaranteed Obligations include interest that, but for a proceeding under any Bankruptcy Law, would have accrued on such Guaranteed Obligations, whether or not a claim is allowed against the Borrowers for such interest in any such proceeding. Notwithstanding the foregoing, (i) if (A) any Subsidiary Guarantor that has been a Material Subsidiary ceases to be a Material Subsidiary for a period of twelve consecutive months, and (B) no Event of Default has occurred and is continuing as of the end of such twelve consecutive month period, or (ii) if any Subsidiary Guarantor is or becomes an Excluded Subsidiary, then in either case under the preceding clauses (i) and (ii), upon the Administrative Borrower’s written notification to Administrative Agent of the satisfaction of the conditions necessary to release such Subsidiary Guarantor, such Subsidiary Guarantor will be released as a Subsidiary Guarantor hereunder upon Administrative Agent’s subsequent written acknowledgement of such release (such acknowledgement not to be unreasonably withheld); provided that no such release shall occur if such Subsidiary Guarantor, following such release, will continue to Guarantee any Second Lien Debt.  Any

 

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Subsidiary required to become a Subsidiary Guarantor hereunder solely because such Subsidiary provides a Guaranty with respect to any Second Lien Debt will be released as a Subsidiary Guarantor hereunder if such Subsidiary Guarantor ceases to provide a Guaranty with respect to any Second Lien Debt upon Administrative Agent’s subsequent written acknowledgement of such release (such acknowledgement not to be unreasonably withheld).

 

(b)   Separate Obligation.  Each Subsidiary Guarantor acknowledges and agrees that (i) the Guaranteed Obligations are separate and distinct from any Indebtedness arising under or in connection with any other document, including under any provision of this Agreement other than this Section 10.15 or any Bank Product, executed at any time by such Subsidiary Guarantor in favor of Administrative Agent, any Lending Party or any Bank Product Provider; and (ii) such Subsidiary Guarantor will pay and perform all of the Guaranteed Obligations as required under this Section 10.15, and Administrative Agent, Lending Parties and Bank Product Providers may enforce any and all of their respective rights and remedies hereunder, without regard to any other document, including any provision of this Agreement other than this Section 10.15 and Section 10.03, at any time executed by such Subsidiary Guarantor in favor of Administrative Agent, any Lending Party or any Bank Product Provider, irrespective of whether any such other document, or any provision thereof or hereof, will for any reason become unenforceable or any of the Indebtedness thereunder will have been discharged, whether by performance, avoidance or otherwise. Each Subsidiary Guarantor acknowledges that, in providing benefits to the Borrowers, Administrative Agent, Lending Parties and Bank Product Providers are relying upon the enforceability of this Section 10.15 and the Guaranteed Obligations as separate and distinct Indebtedness of each such Subsidiary Guarantor, and each Subsidiary Guarantor agrees that Administrative Agent, the Lending Parties and the Bank Product Providers would be denied the full benefit of their bargain if at any time this Section 10.15 or the Guaranteed Obligations were treated any differently.  The fact that the Guaranty is set forth in this Agreement rather than in a separate guaranty document is for the convenience of the Borrowers and each Subsidiary Guarantor and will in no way impair or adversely affect the rights or benefits of Administrative Agent, the Lending Parties and the Bank Product Providers under this Section 10.15.  Each Subsidiary Guarantor agrees to execute and deliver a separate document, immediately upon request at any time of Administrative Agent, any Lending Party or any Bank Product Provider, evidencing each such Subsidiary Guarantor’s obligations under this Section 10.15.  Upon the occurrence of any Event of Default, a separate action or actions may be brought against each such Subsidiary Guarantor, whether or not any Borrower or any other Subsidiary Guarantor or any other Person is joined therein or a separate action or actions are brought against any such Borrower or any such other Subsidiary Guarantor or any such other Person.

 

(c)   Insolvency Laws; Right of Contribution.

 

(i)            As used in this Section 10.15(c): (a) the term “Guarantor Applicable Insolvency Laws” means the Laws of any Governmental Authority relating to bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent transfers or conveyances or other similar laws (including 11 U. S. C. §547, §548, §550 and other “avoidance” provisions of Title 11 of the Bankruptcy Code) as applicable in any proceeding in which the validity or enforceability of this Agreement or any other Loan Document against any Subsidiary Guarantor, or any Guarantor Specified Lien is in issue; and (b) “Guarantor Specified Lien” means any Lien from time to time granted by any Subsidiary Guarantor securing the Guaranty Obligations. Notwithstanding any provision of this Agreement to the contrary, if, in any proceeding, a court of competent jurisdiction determines that with respect to any Subsidiary Guarantor, this Agreement or any other Loan Document or any Guarantor Specified Lien would, but for the operation of this Section 10.15(c), be subject to avoidance and/or recovery or be unenforceable by reason of Guarantor Applicable Insolvency Laws, this Agreement, such other Loan Document and each such Guarantor Specified Lien will be valid and enforceable against such Guarantor, only to the maximum extent that would not cause this Agreement,

 

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such other Loan Document or such Guarantor Specified Lien to be subject to avoidance, recovery or unenforceability. To the extent that any payment to, or realization by, Administrative Agent or any Lending Party on the Guaranty Obligations exceeds the limitations of this Section 10.15(c) and is otherwise subject to avoidance and recovery in any such proceeding, the amount subject to avoidance will in all events be limited to the amount by which such actual payment or realization exceeds such limitation, and this Agreement as limited will in all events remain in full force and effect and be fully enforceable against such Guarantor.  This Section 10.15(c) is intended solely to reserve the rights of Administrative Agent, the Lending Parties and the Bank Product Providers hereunder against each Guarantor, in such proceeding to the maximum extent permitted by Guarantor Applicable Insolvency Laws and neither any Borrower, nor any Guarantor or any other guarantor of the Obligations nor any other Person will have any right, claim or defense under this Section 10.15(c) that would not otherwise be available under Guarantor Applicable Insolvency Laws in such proceeding.

 

(ii)           Each Subsidiary Guarantor hereby agrees that, to the extent that any Subsidiary Guarantor will have paid an amount hereunder to or on behalf of Administrative Agent, the Lending Parties and the Bank Product Providers that is greater than the net value of the benefits received, directly or indirectly, by such paying Guarantor as a result of the Credit Extensions and other credit accommodations extended hereunder or under any Bank Product, such paying Guarantor will be entitled to contribution from any Guarantor that has not paid its proportionate share, based on benefits received as a result of the making and issuance of the Credit Extensions or Bank Product. Any amount payable as a contribution under this Section 10.15(c) will be determined as of the date on which the related payment or distribution is made by the Guarantor seeking contribution and each Guarantor acknowledges that the right to contribution hereunder will constitute an asset of such Guarantor to which such contribution is owed.  Notwithstanding the foregoing, the provisions of this Section 10.15(c) will in no respect limit the obligations and liabilities of any Guarantor to Administrative Agent and the Lending Parties hereunder or under any other Loan Document, and each Guarantor will remain jointly and severally liable for the full payment and performance of the Guaranty Obligations.

 

(d)   Liability of Subsidiary Guarantors.  The liability of each Subsidiary Guarantor under this Section 10.15 will be irrevocable, absolute, independent and unconditional, and will not be affected by any circumstance that might constitute a discharge of a surety or guarantor other than the indefeasible payment and performance in full of all Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Subsidiary Guarantor agrees as follows:

 

(i)            such Subsidiary Guarantor’s liability hereunder will be the immediate, direct, and primary obligation of such Subsidiary Guarantor and will not be contingent upon Administrative Agent’s, any Lending Party’s or any Bank Product Provider’s exercise or enforcement of any remedy it may have against any Borrower or any other Person, or against any collateral or other security for any Guaranteed Obligations;

 

(ii)           this Guaranty is a guaranty of payment when due and not merely of collectibility;

 

(iii)          Administrative Agent, Lending Parties and Bank Product Providers may enforce this Section 10.15 upon the occurrence of an Event of Default notwithstanding the existence of any dispute among Administrative Agent, Lending Parties or Bank Product Providers, on the one hand, and the Borrowers or any other Person, on the other hand, with respect to the existence of such Event of Default;

 

(iv)          such Subsidiary Guarantor’s payment of a portion, but not all, of the Guaranteed Obligations will in no way limit, affect, modify or abridge such Subsidiary Guarantor’s liability for any portion of the Guaranteed Obligations remaining unsatisfied; and

 

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(v)           such Subsidiary Guarantor’s liability with respect to the Guaranteed Obligations will remain in full force and effect without regard to, and will not be impaired or affected by, nor will such Subsidiary Guarantor be exonerated or discharged by, any of the following events:

 

(A)  any proceeding under any Bankruptcy Law;

 

(B)  any limitation, discharge, or cessation of the liability of the Borrowers or any other Person for any Guaranteed Obligations due to any applicable Law, or any invalidity or unenforceability in whole or in part of any of the Guaranteed Obligations or the Loan Documents;

 

(C)  any merger, acquisition, consolidation or change in structure of the Borrowers or any other Guarantor or Person, or any sale, lease, transfer or other disposition of any or all of the assets or shares of the Borrowers or any other Guarantor or Person;

 

(D)  any assignment or other transfer, in whole or in part, of Administrative Agent’s or any Lending Party’s interests in and rights under this Agreement (including this Section 10.15) or the other Loan Documents;

 

(E)   any claim, defense, counterclaim or setoff, other than that of prior performance, that any Borrower, any such Subsidiary Guarantor, any other Guarantor or any other Person may have or assert, including any defense of incapacity or lack of corporate or other authority to execute any of the Loan Documents;

 

(F)   Administrative Agent’s, any Lending Party’s or any Bank Product Provider’s amendment, modification, renewal, extension, cancellation or surrender of any Loan Document or any Guaranteed Obligations;

 

(G)  Administrative Agent’s, any Lending Party’s or any Bank Product Provider’s exercise or non-exercise of any power, right or remedy with respect to any Guaranteed Obligations or any collateral;

 

(H)  Administrative Agent’s, any Lending Party’s or any Bank Product Provider’s vote, claim, distribution, election, acceptance, action or inaction in any proceeding under any Bankruptcy Law; or

 

(I)    any other guaranty, whether by such Subsidiary Guarantor or any other Person, of all or any part of the Guaranteed Obligations or any other indebtedness, obligations or liabilities of the Borrowers to Administrative Agent, any Lending Party or any Bank Product Provider.

 

(e)   Consents of Subsidiary Guarantors.  Each Subsidiary Guarantor hereby unconditionally consents and agrees that, without notice to or further assent from any such Subsidiary Guarantor:

 

(i)            the principal amount of the Guaranteed Obligations may be increased or decreased and additional indebtedness or obligations of the Borrowers under the Loan Documents or any Bank Product may be incurred and the time, manner, place or terms of any payment under any Loan Document or any Bank Product may be extended or changed, by one or more amendments, modifications, renewals or extensions of any Loan Document, any Bank Product or otherwise;

 

(ii)           the time for the Borrowers’ (or any other Person’s) performance of or compliance with any term, covenant or agreement on its part to be performed or observed under any Loan Document 

 

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or any Bank Product may be extended, or such performance or compliance waived, or failure in or departure from such performance or compliance consented to, all in such manner and upon such terms as Administrative Agent, Lending Parties or Bank Product Providers (as applicable under the relevant Loan Documents or Bank Product) may deem proper;

 

(iii)          Administrative Agent, Lending Parties and Bank Product Providers may request and accept other guaranties and may take and hold security as collateral for the Guaranteed Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend such other guaranties or security and may permit or consent to any such action or the result of any such action, and may apply such security and direct the order or manner of sale thereof; and

 

(iv)          Administrative Agent, Lending Parties or Bank Products may exercise, or waive or otherwise refrain from exercising, any other right, remedy, power or privilege even if the exercise thereof affects or eliminates any right of subrogation or any other right of such Subsidiary Guarantor against the Borrowers.

 

(f)    Guarantors’ Waivers.  Each Subsidiary Guarantor hereby waives and agrees not to assert:

 

(i)            any right to require Administrative Agent, any Lending Party or any Bank Product Provider to proceed against any Borrower, any other Guarantor or any other Person, or to pursue any other right, remedy, power or privilege of Administrative Agent, any Lending Party or any Bank Product Provider whatsoever;

 

(ii)           the defense of the statute of limitations in any action hereunder or for the collection or performance of the Guaranteed Obligations (and in this regard that the performance of any act or any payment which tolls any statute of limitations applicable to Secured Obligations under any of the Loan Documents or any Bank Product will similarly operate to toll the statute of limitations applicable to each such Subsidiary Guarantor’s liability hereunder);

 

(iii)          any defense arising by reason of any lack of corporate or other authority or any other defense of any Borrower, such Subsidiary Guarantor or any other Person (other than payment in full of the Guaranteed Obligations);

 

(iv)          any defense based upon Administrative Agent’s, any Lending Party’s or any Bank Product Provider’s errors or omissions in the administration of the Guaranteed Obligations;

 

(v)           any rights to set-offs and counterclaims;

 

(vi)          without limiting the generality of the foregoing, to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, or that may conflict with the terms of this Section 10.15; and

 

(vii)         any and all notice of the acceptance of this Guaranty, and any and all notice of the creation, renewal, modification, extension or accrual of the Guaranteed Obligations, or the reliance by Administrative Agent, the Lending Parties and the Bank Product Providers upon this Guaranty, or the exercise of any right, power or privilege hereunder.  The Guaranteed Obligations will conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. Each Subsidiary Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon any Borrower, any Guarantor or any other Person with respect to the Guaranteed Obligations.

 

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(g)   Stay of Acceleration.  If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against the Borrowers under any Bankruptcy Law, or otherwise, all such amounts will nonetheless be jointly and severally payable by each Guarantor immediately upon demand by Administrative Agent.

 

(h)   Financial Condition of the Borrowers.  No Subsidiary Guarantor will have any right to require Administrative Agent or any Lending Party to obtain or disclose any information with respect to (i) the financial condition or character of the Borrowers or the ability of the Borrowers to pay and perform the Guaranteed Obligations, (ii) the Guaranteed Obligations; (iii) any collateral or other security for any or all of the Guaranteed Obligations; (iv) the existence or nonexistence of any other guarantees of all or any part of the Guaranteed Obligations, (v) any action or inaction on the part of Administrative Agent, any Lending Party or any Bank Product Provider or any other Person or (vi) any other matter, fact or occurrence whatsoever. Each Subsidiary Guarantor hereby acknowledges that it has undertaken its own independent investigation of the financial condition of the Borrowers and all other matters pertaining to this Guaranty set forth in this Section 10.15 and further acknowledges that it is not relying in any manner upon any representation or statement of Administrative Agent, any Lending Party or any Bank Product Provider with respect thereto.

 

(i)    Subrogation.  Until the Obligations (other than unasserted contingent indemnification obligations) will be satisfied in full and the Aggregate Commitments will be terminated, no Subsidiary Guarantor will directly or indirectly exercise (i) any rights that it may acquire by way of subrogation under this Section 10.15, by any payment hereunder or otherwise, (ii) any rights of contribution, indemnification, reimbursement or similar suretyship claims arising out of this Section 10.15 or (iii) any other right that it might otherwise have or acquire (in any way whatsoever) that could entitle it at any time to share or participate in any right, remedy or security of Administrative Agent or any Lending Party as against any Borrower or other Guarantors or any other Person, whether in connection with this Section 10.15, any of the other Loan Documents, any Bank Products or otherwise.

 

(j)    Subordination.  All payments on account of all indebtedness, liabilities and other obligations of any Borrower to any Subsidiary Guarantor or to any other Subsidiary Guarantor, whether now existing or hereafter arising, and whether due or to become due, absolute or contingent, liquidated or unliquidated, determined or undetermined (the “Guarantor Subordinated Indebtedness”) will be subject, subordinate and junior in right of payment and exercise of remedies, to the extent and in the manner set forth herein, to the prior payment in full in cash of the Obligations.  Subject to Section 7.06, as long as any of the Obligations (other than unasserted contingent indemnification obligations) will remain outstanding and unpaid, each Subsidiary Guarantor will not accept or receive any payment or distribution by or on behalf of any Borrower or any other Subsidiary Guarantor, directly or indirectly, or assets of any Borrower or any other Subsidiary Guarantor, of any kind or character, whether in cash, property or securities, including on account of the purchase, redemption or other acquisition of Guarantor Subordinated Indebtedness, as a result of any collection, sale or other disposition of collateral, or by setoff, exchange or in any other manner, for or on account of the Guarantor Subordinated Indebtedness (“Guarantor Subordinated Indebtedness Payments”), except that, so long as an Event of Default does not then exist, each Subsidiary Guarantor will be entitled to accept and receive payments on its Guarantor Subordinated Indebtedness in accordance with past business practices of such Subsidiary Guarantor and such Borrower (or any other applicable Guarantor) and not in contravention of any Law or the terms of the Loan Documents.

 

If any Guarantor Subordinated Indebtedness Payments will be received in contravention of this Section 10.15, such Guarantor Subordinated Indebtedness Payments will be held in trust for the benefit of Administrative Agent and Lending Parties and will be paid over or delivered to Administrative Agent for application to the payment in full of all Obligations remaining unpaid to the extent necessary to give

 

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effect to this Section 10.15 after giving effect to any concurrent payments or distributions to Administrative Agent and Lending Parties in respect of the Obligations.

 

(k)   Continuing Guaranty.  The Guaranty set forth in this Section 10.15 is a continuing irrevocable guaranty and agreement of subordination and will continue in effect and be binding upon each Subsidiary Guarantor until termination of the Aggregate Commitments and payment and performance in full of the Obligations, including Obligations (other than unasserted contingent indemnification obligations) that may exist continuously or which may arise from time to time under successive transactions, and each Subsidiary Guarantor expressly acknowledges that this Guaranty will remain in full force and effect notwithstanding that there may be periods in which no such Obligations exist. The Guaranty set forth in this Section 10.15 shall not extend to any Bank Product Debt following payment in full of the Obligations (other than unasserted contingent indemnification obligations).

 

(l)    Reinstatement.  The Guaranty set forth in this Section 10.15 will continue to be effective or will be reinstated and revived, as the case may be, if, for any reason, any payment of the Guaranteed Obligations by or on behalf of the Borrowers (or receipt of any proceeds of collateral) will be rescinded, invalidated, declared to be fraudulent or preferential, set aside, voided or otherwise required to be repaid to the Borrowers, its estate, trustee, receiver or any other Person (including under any Bankruptcy Law), or must otherwise be restored by Administrative Agent, any Lending Party or any Bank Product Provider, whether as a result of proceedings under any Bankruptcy Law or otherwise.  All losses, damages, costs and expenses that Administrative Agent, any Lending Party or any Bank Product Provider may suffer or incur as a result of any voided or otherwise set aside payments will be specifically covered by the indemnity in favor of Administrative Agent and Lending Parties contained in Section 10.04.

 

(m)  Substantial Benefits.  The Credit Extensions provided to or for the benefit of the Borrowers hereunder by Lending Parties and any Bank Products provided to or for the benefit of the Borrowers by the Bank Product Providers have been and are to be contemporaneously used for the benefit of the Borrowers and each Subsidiary Guarantor.  It is the position, intent and expectation of the parties that each Borrower and each Subsidiary Guarantor have derived and will derive significant and substantial direct and indirect benefits from the Credit Extensions to be made available by Lending Parties or any Bank Product Provider under the Loan Documents and any Bank Products made available by the Bank Product Providers.

 

(n)   Knowing and Explicit Waivers.   Each Subsidiary Guarantor acknowledges that it either has obtained the advice of legal counsel or has had the opportunity to obtain such advice in connection with the terms and provisions of this Section 10.15.  Each Subsidiary Guarantor acknowledges and agrees that each of the waivers and consents set forth herein is made with full knowledge of its significance and consequences, that all such waivers and consents herein are explicit and knowing and that each Subsidiary Guarantor expects such waivers and consents to be fully enforceable

 

(o)   Keepwell.  Without limiting anything in this Section 10.15, each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time to each Guarantor that is not an “eligible contract participant” under the Commodity Exchange Act at the time the guarantee under this Article 10 becomes effective with respect to any Swap Obligation, to honor all of the Obligations of such Guarantor under this Section 10.15 in respect of such Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this clause (o) for the maximum amount of such liability that can be hereby incurred without rendering its undertaking under this clause (o), or otherwise under this Section 10.15, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The undertaking of each Qualified ECP Guarantor under this clause (o) shall remain in full force and effect until termination of the Commitments and payment in full of all

 

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Loans and other Secured Obligations. Each Qualified ECP Guarantor intends that this clause (o) constitute, and this clause (o) shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Guarantor that would otherwise not constitute an “eligible contract participant” under the Commodity Exchange Act

 

(p)   Eligible Contract Participant.  Notwithstanding anything to the contrary in any Loan Document, no Subsidiary Guarantor shall be deemed under this Section 10.15 to be a guarantor of any Swap Obligations if such Subsidiary Guarantor was not an “eligible contract participant” as defined in §1a(18) of the Commodity Exchange Act, at the time the guarantee under this Section 10.15 becomes effective with respect to such Swap Obligation and to the extent that the providing of such guarantee by such Subsidiary Guarantor would violate the Commodity Exchange Act; provided however that in determining whether any Subsidiary Guarantor is an “eligible contract participant” under the Commodity Exchange Act, the guarantee of the Secured Obligations of such Subsidiary Guarantor under this Section 10.15  by a Subsidiary Guarantor that is also a Qualified ECP Guarantor shall be taken into account.

 

If, while any Guarantor Subordinated Indebtedness is outstanding, any proceeding under any Bankruptcy Law is commenced by or against any Borrower or its property, Administrative Agent, when so instructed by L/C Issuer, Swing Line Lender and Required Lenders, is hereby irrevocably authorized and empowered (in the name of Lending Parties or in the name of any Subsidiary Guarantor or otherwise), but will have no obligation, to demand, sue for, collect and receive every payment or distribution in respect of all Guarantor Subordinated Indebtedness and give acquittances therefor and to file claims and proofs of claim and take such other action (including voting the Guarantor Subordinated Indebtedness) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of Administrative Agent and Lending Parties; and each Subsidiary Guarantor will promptly take such action as Administrative Agent (on instruction from L/C Issuer, Swing Line Lender and Required Lenders) may reasonably request: (A) to collect the Guarantor Subordinated Indebtedness for the account of the Lending Parties and to file appropriate claims or proofs of claim in respect of the Guarantor Subordinated Indebtedness; (B) to execute and deliver to Administrative Agent such powers of attorney, assignments and other instruments as it may request to enable it to enforce any and all claims with respect to the Guarantor Subordinated Indebtedness; and (C) to collect and receive any and all Guarantor Subordinated Indebtedness Payments.

 

SECTION 10.16.  JOINT AND SEVERAL LIABILITY OF THE BORROWERS.

 

(a)   Joint and Several Liability.  Each Borrower, jointly and severally, hereby irrevocably and unconditionally accepts, not merely as a surety but also as a co-debtor, joint and several liability with the other Borrowers, with respect to the payment and performance of all of the Obligations (including any Obligations arising under this Section 10.16) and Bank Product Debt, it being the intention of the parties hereto that all the Obligations and Bank Product Debt will be the joint and several obligations of each Borrower without preferences or distinction among them. If and to the extent that any Borrower will fail to make any payment with respect to any of the Obligations or Bank Product Debt as and when due or to perform any of the Obligations or Bank Product Debt in accordance with the terms thereof, then in each such event the other Borrowers will make such payment with respect to, or perform, such Obligation and Bank Product Debt. The liability of Borrowers set forth in this Section 10.16 shall not extend to any Bank Product Debt following payment in full of the Obligations (other than unasserted contingent indemnification obligations).

 

(b)   Liability of the Borrowers.  The liability of each Borrower under this Agreement and the other Loan Documents will be irrevocable, absolute, independent and unconditional, and will not be affected by any circumstance that might constitute a discharge of a surety or guarantor other than the

 

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indefeasible payment and performance in full of all Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Borrower agrees as follows:

 

(i)            such Borrower’s liability hereunder will be the immediate, direct, and primary obligation of such Borrower and will not be contingent upon Administrative Agent’s or any Lending Party’s exercise or enforcement of any remedy it may have against any other Borrower or any other Person, or against any collateral or other security for any Obligations;

 

(ii)           such Borrower’s payment of a portion, but not all, of the Obligations will in no way limit, affect, modify or abridge such Borrower’s liability for any portion of the Obligations remaining unsatisfied; and

 

(iii)          such Borrower’s liability with respect to the Obligations will remain in full force and effect without regard to, and will not be impaired or affected by, nor will such Borrower be exonerated or discharged by, any of the following events:

 

(A)  any proceeding under any Bankruptcy Law;

 

(B)  any limitation, discharge, or cessation of the liability of any other Borrower or any other Person for any Obligations due to any applicable Law, or any invalidity or unenforceability in whole or in part of any of the Obligations or the Loan Documents;

 

(C)  any merger, acquisition, consolidation or change in structure of any Borrower or any Guarantor or other Person, or any sale, lease, transfer or other disposition of any or all of the assets or shares of any Borrower or any Guarantor or other Person;

 

(D)  any assignment or other transfer, in whole or in part, of Administrative Agent’s or any Lending Party’s interests in and rights under this Agreement (including this Section 10.16) or the other Loan Documents;

 

(E)   any claim, defense, counterclaim or setoff, other than that of prior performance, that any Borrower, any Guarantor or any other Person may have or assert, including any defense of incapacity or lack of corporate or other authority to execute any of the Loan Documents;

 

(F)   Administrative Agent’s or any Lending Party’s amendment, modification, renewal, extension, cancellation or surrender of any Loan Document or any Guaranteed Obligations;

 

(G)  Administrative Agent’s or any Lending Party’s exercise or non-exercise of any power, right or remedy with respect to any Obligations or any collateral; or

 

(H)  Administrative Agent’s or any Lending Party’s vote, claim, distribution, election, acceptance, action or inaction in any proceeding under any Bankruptcy Law.

 

(c)   Insolvency Laws; Right of Contribution.

 

(i)            As used in this Section 10.16(c):  (a) the term “Borrower Applicable Insolvency Laws” means the Laws of any Governmental Authority relating to bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent transfers or conveyances or other similar laws (including 11 U. S. C. §547, §548, §550 and other “avoidance” provisions of Title 11 of the Bankruptcy Code) as applicable in any proceeding in which the validity or

 

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enforceability of this Agreement or any other Loan Document against any Borrower, or any Borrower Specified Lien is in issue; and (b) “Borrower Specified Lien” means any Lien from time to time granted by any Borrower securing the Obligations. Notwithstanding any provision of this Agreement to the contrary, if, in any proceeding, a court of competent jurisdiction determines that with respect to any Borrower, this Agreement or any other Loan Document or any Borrower Specified Lien would, but for the operation of this Section 10.16(c), be subject to avoidance and/or recovery or be unenforceable by reason of Borrower Applicable Insolvency Laws, this Agreement, such other Loan Document and each such Borrower Specified Lien will be valid and enforceable against such Borrower only to the maximum extent that would not cause this Agreement, such other Loan Document or such Borrower Specified Lien to be subject to avoidance, recovery or unenforceability.  To the extent that any payment to, or realization by, Administrative Agent or any Lending Party on the Obligations exceeds the limitations of this Section 10.16(c) and is otherwise subject to avoidance and recovery in any such proceeding, the amount subject to avoidance will in all events be limited to the amount by which such actual payment or realization exceeds such limitation, and this Agreement as limited will in all events remain in full force and effect and be fully enforceable against such Borrower.  This Section 10.16(c) is intended solely to reserve the rights of Administrative Agent and the Lending Parties hereunder against each Borrower, in such proceeding to the maximum extent permitted by Borrower Applicable Insolvency Laws and no Borrower, nor any Guarantor or any other guarantor of the Obligations nor any other Person will have any right, claim or defense under this Section 10.16(c) that would not otherwise be available under Borrower Applicable Insolvency Laws in such proceeding.

 

(ii)           each Borrower hereby agrees that, to the extent that any Borrower will have paid an amount hereunder to or on behalf of Administrative Agent and the Lending Parties that is greater than the net value of the benefits received, directly or indirectly, by such paying Borrower as a result of the Credit Extensions and other credit accommodations extended hereunder, such paying Borrower will be entitled to contribution from any Borrower that has not paid its proportionate share, based on benefits received as a result of the making and issuance of the Credit Extensions.  Any amount payable as a contribution under this Section 10.16(c) will be determined as of the date on which the related payment or distribution is made by the Borrower seeking contribution and each Borrower acknowledges that the right to contribution hereunder will constitute an asset of such Borrower to which such contribution is owed. Notwithstanding the foregoing, the provisions of this Section 10.16(c) will in no respect limit the obligations and liabilities of any Borrower to Administrative Agent and the Lending Parties hereunder or under any other Loan Document, and each Borrower will remain jointly and severally liable for the full payment and performance of the Obligations.

 

(d)   Consents of the Borrowers.  Each Borrower hereby unconditionally consents and agrees that, without notice to or further assent from such Borrower:

 

(i)            the time for any Borrower’s (or any other Person’s) performance of or compliance with any term, covenant or agreement on its part to be performed or observed under any Loan Document may be extended, or such performance or compliance waived, or failure in or departure from such performance or compliance consented to, all in such manner and upon such terms as Administrative Agent and Lending Parties (as applicable under the relevant Loan Documents) may deem proper;

 

(ii)           Administrative Agent and Lending Parties may request and accept other guaranties and may take and hold security as collateral for the Guaranteed Obligations, and may, from time to time, in whole or in part, exchange, sell, surrender, release, subordinate, modify, waive, rescind, compromise or extend such other guaranties or security and may permit or consent to any such action or the result of any such action, and may apply such security and direct the order or manner of sale thereof; and

 

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(iii)          Administrative Agent or Lending Parties may exercise, or waive or otherwise refrain from exercising, any other right, remedy, power or privilege even if the exercise thereof affects or eliminates any right of subrogation or any other right of such Borrower against any other Borrower or against any Guarantor or any other Person.

 

(e)   Suretyship Waivers.  Each Borrower hereby waives and agrees not to assert:

 

(i)            any right to require Administrative Agent or any Lending Party to proceed against any other Borrower, any Guarantor or any other Person, or to pursue any other right, remedy, power or privilege of Administrative Agent or any Lending Party whatsoever;

 

(ii)           any defense arising by reason of any lack of corporate or other authority or any other defense of any other Borrower, any Guarantor or any other Person;

 

(iii)          without limiting the generality of the foregoing, to the fullest extent permitted by law, any defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guarantors or sureties, or that may conflict with the terms of this Section 10.16; and

 

(iv)          any notice of the acceptance of its joint and several liability under this Agreement and the other Loan Documents.  The Obligations will conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Section 10.16.

 

(f)    Stay of Acceleration.  If acceleration of the time for payment of any of the Obligations is stayed, in connection with any case commenced by or against any other Borrower under any Bankruptcy Law, or otherwise, all such amounts will nonetheless be jointly and severally immediately payable by such Borrower.

 

(g)   Financial Condition of Other Borrowers.  No Borrower will have any right to require Administrative Agent or any Lending Party to obtain or disclose any information with respect to (i) the financial condition or character of any other Borrower or the ability of any other Borrower to pay and perform the Obligations, (ii) the Obligations, (iii) any collateral or other security for any or all of the Obligations, (iv) the existence or nonexistence of any other guarantees of all or any part of the Obligations or (v) any action or inaction on the part of Administrative Agent or any Lending Party or any other Person.  Each Borrower hereby acknowledges that it has undertaken its own independent investigation of the financial condition of each other Borrower and further acknowledges that it is not relying in any manner upon any representation or statement of Administrative Agent or any Lending Party with respect thereto.

 

(h)   Subrogation. Until the Obligations (other than unasserted contingent indemnification Obligations) will be satisfied in full and the Aggregate Commitments will be terminated, no Borrower will directly or indirectly exercise (i) any rights that it may acquire by way of subrogation under this Section 10.16, by any payment hereunder or otherwise, (ii) any rights of contribution, indemnification, reimbursement or similar suretyship claims arising out of this Section 10.16 or (iii) any other right that it might otherwise have or acquire (in any way whatsoever) that could entitle it at any time to share or participate in any right, remedy or security of Administrative Agent or any Lending Party as against any other Borrower or any Guarantor or other Person, whether in connection with this Section 10.16, any of the other Loan Documents or otherwise.

 

(i)    Subordination.  Any claim which any Borrower may have against any other Borrower with respect to any payments to Administrative Agent or any Lending Party hereunder or under any other Loan

 

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Documents are hereby expressly made subordinate and junior in right of payment, without limitation as to any increases in the Obligations arising hereunder or thereunder, to the prior payment in full in cash of the Obligations and, in the event of any proceeding under any Bankruptcy Law relating to any Borrower, its debts or its assets, whether voluntary or involuntary, all such Obligations (other than unasserted contingent indemnification obligations) will be paid in full in Cash before any payment or distribution of any character, whether in Cash, securities or other property, will be made to any other Borrower therefore.

 

(j)    Substantial Benefits.  The Credit Extensions provided to or for the benefit of the Borrowers hereunder by Lending Parties and any Bank Products provided to or for the benefit of the Borrowers by the Bank Product Providers have been and are to be contemporaneously used for the benefit of each Borrower and each of the other Loan Parties.  It is the position, intent and expectation of the parties that each Borrower and each other Loan Party have derived and will derive significant and substantial direct and indirect benefits from the Credit Extensions to be made available by Lending Parties under the Loan Documents and any Bank Products made available by the Bank Product Providers.

 

SECTION 10.17.  ADMINISTRATIVE BORROWER.

 

Each Borrower hereby irrevocably appoints the Parent (“Administrative Borrower”) as its agent to act as specified in the Loan Documents, and Administrative Borrower hereby accepts such appointment. Each Borrower hereby irrevocably authorizes and directs Administrative Borrower to take on its behalf all actions required of such Person under the Loan Documents, and to exercise all powers and to perform all duties of such Person thereunder, including, (a) to submit and receive all certificates, notices, elections and communications and (b) to receive and disburse the proceeds of Loans. Any of the foregoing taken or received by Administrative Borrower on behalf of any Borrower will be deemed for all purposes to have been taken or received by such Borrower and will be binding on such Person to the same extent as if directly taken or received by such Borrower.

 

SECTION 10.18.  GOVERNING LAW; JURISDICTION; ETC.

 

(a)   Governing Law.  This Agreement will be governed by, and construed in accordance with, the laws of the State of New York, without regard to principles of conflicts of law other than New York General Obligations Law 5-1401 and 5-1402.

 

(b)   Submission to Jurisdiction.  Each Borrower and each other Loan Party party hereto each irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the courts of the Supreme Court of the State of New York sitting in New York County in the Borough of Manhattan and of the United States District Court for the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document to which each is a party, or for recognition or enforcement of any judgment, and each of the parties hereto irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such state courts or, to the fullest extent permitted by applicable Law, in such Federal courts. Each of the parties hereto agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.  Nothing in this Agreement or in any other Loan Document will affect any right that Administrative Agent or any Lending Party may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or any of its properties in the courts of any other jurisdiction.

 

(c)   Waiver of Venue.  Each Borrower and each other Loan Party party hereto each irrevocably and unconditionally waives, to the fullest extent permitted by applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this

 

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Agreement or any other Loan Document in any court referred to in subsection (b) of this Section 10.18.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(d)   Service of Process.  Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 10.02.  Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable Law.

 

SECTION 10.19.  JUDGMENT CURRENCY.

 

If, for the purpose of obtaining judgment in any court or obtaining an order enforcing a judgment, it becomes necessary to convert any amount due under this Agreement in Dollars or in any other currency (hereinafter in this Section 10.19 called the “first currency”) into any other currency (hereinafter in this Section 10.19 called the “second currency”), then the conversion will be made at the rate of exchange at which in accordance with normal banking procedures Administrative Agent could purchase the first currency with such second currency at Administrative Agent’s close of business on the Business Day next preceding the day on which the judgment is given or (as the case may be) the order is made. Any payment made to Administrative Agent or any Lending Party pursuant to this Agreement in the second currency will constitute a discharge of the obligations of the Borrowers to pay to Administrative Agent and the Lending Parties any amount originally due to Administrative Agent and the Lending Parties in the first currency under this Agreement only to the extent of the amount of the first currency which Administrative Agent and each of the Lending Parties is able, on the date of the receipt by it of such payment in any second currency, to purchase, in accordance with Administrative Agent’s and such Lending Party’s normal banking procedures, with the amount of such second currency so received. If the amount of the first currency falls short of the amount originally due to Administrative Agent and the Lending Parties in the first currency under this Agreement, each Borrower hereby agrees that it will indemnify each of Administrative Agent and each of the Lending Parties against and save each of Administrative Agent and each of the Lending Parties harmless from any shortfall so arising.  This indemnity will constitute an obligation of the Borrowers separate and independent from the other obligations contained in this Agreement, will give rise to a separate and independent cause of action and will continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due to Administrative Agent or any Lending Party under this Agreement or under any such judgment or order. Any such shortfall will be deemed to constitute a loss suffered by each of Administrative Agent and each such Lending Party, as the case may be, and the Borrowers will not be entitled to require any proof or evidence of any actual loss.  The covenant contained in this Section 10.19 will survive the payment in full of all of the other Obligations of the Borrowers under this Agreement and the other Loan Documents.

 

SECTION 10.20.  WAIVER OF RIGHT TO JURY TRIAL.

 

(a)   BORROWER AND EACH OTHER LOAN PARTY, ADMINISTRATIVE AGENT, ANY BANK PRODUCT PROVIDER AND EACH LENDING PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. BORROWER AND EACH OTHER LOAN PARTY HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT AND THE LENDING PARTIES ENTERING INTO THIS AGREEMENT.

 

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(b)   EACH OF THE PARTIES HERETO REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL ON SUCH MATTERS. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

 

SECTION 10.21.  ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF EEA FINANCIAL INSTITUTIONS.

 

Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

(a)   the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

 

(b)   the effects of any Bail-In Action on any such liability, including, if applicable:

 

(i)            a reduction in full or in part or cancellation of any such liability;

 

(ii)           a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

 

(iii)          the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

 

SECTION 10.22.  INTERCREDITOR AGREEMENT.

 

REFERENCE IS MADE TO THE INTERCREDITOR AGREEMENT. EACH LENDER, SWING LINE LENDER AND ISSUING BANK HEREUNDER (a) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT AND (b) AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AGREEMENT AS “FIRST LIEN AGENT” AND ON BEHALF OF SUCH LENDER, SWING LINE LENDER AND ISSUING BANK. THE PROVISIONS OF THIS SECTION 10.22 ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER, SWING LINE LENDER AND ISSUING BANK IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER, SWING LINE LENDER AND ISSUING BANK AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AGREEMENT.

 

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SECTION 10.23.  CONFLICTS.

 

Notwithstanding anything to the contrary contained herein and in any other Loan Document (but excluding the Intercreditor Agreement), in the event of any conflict or inconsistency between the Intercreditor Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control, except to the extent that the conflict or inconsistency relates to any provision of this Agreement or any other Loan Document the amendment or waiver of, or consent to the departure from, which would require the approval of any Lender other than the Required Lenders (and their respective successors and assigns)

 

[SIGNATURE PAGES FOLLOW.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

 

	
BORROWERS:
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CH2M   HILL COMPANIES, LTD.
    	
 
    	
CH2M HILL, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
 Steven Mathews
    	
 
    	
Name:
    	
 Steven Mathews
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    	
Title:
    	
 Treasurer and Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
OPERATIONS   MANAGEMENT INTERNATIONAL, INC.
    	
 
    	
CH2M HILL   ENGINEERS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
 Allan Chow
    	
 
    	
Name:
    	
 Steven Mathews
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    	
Title:
    	
 Treasurer and Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CH2M   HILL GLOBAL, INC.
    	
 
    	
CH2M HILL   CONSTRUCTORS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
 Steven Mathews
    	
 
    	
Name:
    	
 Allan Chow
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    	
Title:
    	
 Treasurer and Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CHVENG,   LLC
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 Steven Mathews
    	
 
    	
 
    	
 
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    	
 
    	
 
    


 

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SUBSIDIARY GUARANTORS:

 

	
CH2M   HILL ALASKA, INC.
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 Steven Mathews
    	
 
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
CH2M   HILL PLATEAU REMEDIATION COMPANY
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 Steven Mathews
    	
 
    
	
Title:
    	
 Treasurer and Authorized Signatory
    	
 
    


 

i











 

	
ADMINISTRATIVE AGENT:
    	
 
    
	
 
    	
 
    
	
WELLS   FARGO BANK, NATIONAL ASSOCIATION,
    	
 
    
	
in   its capacity as Administrative Agent
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

ii











 

	
LENDERS:
    	
 
    
	
 
    	
 
    	
 
    
	
WELLS   FARGO BANK, NATIONAL ASSOCIATION,
    	
 
    
	
as a   Lender and as the Swing Line Lender and as an L/C Issuer
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BNP   PARIBAS
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BANK   OF THE WEST
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
JPMORGAN   CHASE BANK, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE   BANK OF TOKYO-MITSUBISHI UFJ, LTD.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
BANK   OF AMERICA, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

iii











 

	
HSBC BANK USA, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
CITIZENS   BAN K, N.A.
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
US   BANK NATIONAL ASSOCIATION
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
THE   NORTHERN TRUST COMPANY
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 

iv












 

EXHIBIT D

 

Pages of Security Agreement

 

(as amended by Section 1.3 of this Amendment)

 

See attached.

 











 

SECURITY AGREEMENT

 

This SECURITY AGREEMENT (this “Agreement”), dated as of September 30, 2016, among the Persons listed on the signature pages hereof as “Grantors” and those additional entities that hereafter become parties hereto by executing a Joinder Agreement (each, a “Grantor” and collectively, the “Grantors”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), in its capacity as collateral agent for each member of the Credit Group (in such capacity, together with its successors and assigns in such capacity, “Agent”).

 

WITNESSETH:

 

WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement, dated as of March 28, 2014 (as amended by that certain First Amendment to Credit Agreement, dated as of September 26, 2014, that certain Second Amendment to Credit Agreement, dated as of March 30, 2015, that certain Consent, dated as of April 25, 2016, and that certain Third Amendment to Credit Agreement, dated as of the date hereof (the “Third Amendment”), and as further amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among CH2M HILL Companies, Ltd., a Delaware corporation (the “Parent”), CH2M HILL, Inc., a Florida corporation (“CH2M Inc.”), Operations Management International, Inc., a California corporation (“OMI”), CH2M HILL Engineers, Inc., a Delaware corporation (“CH2M Engineers”), CH2M HILL Global, Inc., a Delaware corporation (“CH2M Global”), CH2M HILL Constructors, Inc., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL Energy, Ltd.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, collectively the “Borrowers” and each a “Borrower”), the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, in separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group, the Credit Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof;

 

WHEREAS, Agent has agreed to act as agent for the benefit of the Credit Group and the Bank Product Providers in connection with the transactions contemplated by the Third Amendment, the Credit Agreement and this Agreement;

 

WHEREAS, in order to induce the Credit Group to enter into the Third Amendment and the other Loan Documents, to induce the Bank Product Providers to enter into the Bank Product Agreements, and to induce the Credit Group and the Bank Product Providers to make financial accommodations to Borrowers as provided for in the Credit Agreement, the other Loan Documents and the Bank Product Agreements, each Grantor has agreed to grant to Agent, for the benefit of the Credit Group and the Bank Product Providers, a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations; and

 

WHEREAS, each Grantor (other than Borrowers) is a Subsidiary of the Parent and, as such, will benefit by virtue of the financial accommodations extended to Borrowers by the Credit Group.

 

NOW, THEREFORE, for and in consideration of the recitals made above and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 











 

(xvi)                 “Collateral” has the meaning specified therefor in Section 2.

 

(xvii)                 “Commercial Tort Claims” means commercial tort claims (as that term is defined in the Code).

 

(xviii)                 “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

(xix)                “Control Agreement” has the meaning specified therefor in the Credit Agreement.

 

(xx)                “Copyright Security Agreement” means each Copyright Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit A.

 

(xxi)                 “Copyrights” means any and all rights in any works of authorship, including (A) copyrights and moral rights, (B) copyright registrations and recordings thereof and all applications in connection therewith including those listed on Schedule 1, (C) income, license fees, royalties, damages, and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (D) the right to sue for past, present, and future infringements thereof, and (E) all of each Grantor’s rights corresponding thereto throughout the world.

 

(xxii)                “Credit Agreement” has the meaning specified therefor in the recitals to this Agreement.

 

(xxiii)                “Credit Group” has the meaning specified therefor in the Credit Agreement.

 

(xxiv)               “Deposit Account” means a deposit account (as that term is defined in the Code).

 

(xxv)               “Equipment” means equipment (as that term is defined in the Code).

 

(xxvi)               “Equity Interest Attributes” mean, with respect to any Equity Interest in any Person, all substitutions therefor and replacements thereof, all proceeds thereof and any rights relating thereto, also including any certificates representing the such Equity Interests, the right to receive any certificates representing any of such Equity Interests, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive any dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in Cash or in kind, in respect thereof, and all Cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

 

(xxvii)               “Equity Interests” has the meaning specified therefor in the Credit Agreement.

 

(xxviii)               “Event of Default” has the meaning specified therefor in the Credit Agreement.

 

(xxix)               “Excluded Accounts” means all Deposit Accounts of the Grantors that are established solely as payroll and other zero balance accounts and all Deposit Accounts and Securities Accounts held with Agent.

 

(xxx)              “Excluded Actions” means: (a) the making of any filings or taking of other action in any jurisdiction outside of the United States or required by the Laws of any jurisdiction outside of the United States to create or perfect any security interest in any property, including, any Intellectual Property

 

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expressly deemed effective under Section 9-406, 9- 407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law notwithstanding such prohibition; provided, however, such assets shall cease to be excluded at such time as such prohibition ceases to be in effect to the extent such assets are excluded as a result of such prohibition;

 

(v)                any Program Receivables (and other related property customarily pledged or transferred in connection with a receivables financing transaction) subject to a Lien permitted under Section 7.01(u) of the Credit Agreement;

 

(vi)                any Equity Interest in any Person other than a wholly-owned Subsidiary of the Parent and all Equity Interest Attributes in respect thereof to the extent the grant of a security interest therein or Lien thereon is prohibited by the Organizational Documents of such Person (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction) to the extent (A) such prohibition was existing on the Third Amendment Effective Date or on the date on which the applicable Person becomes a direct or indirect Subsidiary of the Parent (and not created in contemplation of such Person becoming a Subsidiary of the Parent) or (B) solely with respect to non-wholly owned Subsidiaries (including any wholly-owned Subsidiaries that become non-wholly-owned Subsidiaries), such restriction was added or incorporated in the Organizational Documents of such Subsidiary or contract as a result of good faith negotiations concerning such Subsidiary among the Parent (or any Affiliate of the Parent), the joint venture partners or Equity Interest holders or clients, which as of the First Amendment shall include any Equity Interest in CH2M HILL BWXT West Valley, LLC and all Equity Interest Attributes in respect thereof;

 

(vii)                 any Equity Interest in any Joint Venture of any Loan Party and all Equity Interest Attributes in respect thereof to the extent the gross revenue of such Joint Venture was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a);

 

(viii)                  CFC Debt;

 

(ix)                 voting Equity Interests in any CFC or Foreign Holding Company representing more than 65% of the voting Equity Interests of such CFC or Foreign Holding Company and all Equity Interest Attributes in respect thereof;

 

(x)                 Equity Interests representing more than 65% of the Equity Interests in any Subsidiary that is disregarded as an entity from its owner under Treasury Regulations Section 301.7701-3 and substantially all the assets of which consist for U.S. federal income tax purposes of Equity Interests in a CFC or CFC Debt and all Equity Interest Attributes in respect thereof;

 

(xi)                 property to the extent a security interest in such property would result in adverse tax consequences to the Parent and its Subsidiaries (including as a result of the operation of Section 956 of the Internal Revenue Code of 1986 or any similar Law in any applicable jurisdiction) as reasonably determined by the Administrative Borrower and Agent;

 

(xii)                 any of the Equity Interests of Foreign Subsidiaries that are held by CFCs or Foreign Holding Companies and all Equity Interest Attributes in respect thereof;

 

(xiii)                 (A) any leasehold interest in Real Property or (B) any Real Property that is not a single fee-owned Real Property with a fair value (as reasonably determined by the Administrative Borrower) above $10,000,000;

 

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(xiv)                any letter-of-credit right (other than a letter-of-credit right that constitutes a Supporting Obligation under the Code), other item of Negotiable Collateral, or Chattel Paper, in each case with a value (as reasonably determined by the Administrative Borrower) less than $7,500,000, or a Commercial Tort Claim with a value (as reasonably determined by the Administrative Borrower) less than $5,000,000; and

 

(xv)                any Intellectual Property with respect to which the grant or perfection of a security interest would constitute or result in the abandonment of, invalidation of or rendering unenforceable any of right, title or interest therein, including any “intent to use” trademark application or intent-to-use service mark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent that and during the period in which the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable right, title or interest therein or any such trademark or service mark application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral;

 

provided, however, that immediately upon the ineffectiveness, lapse or termination of any restriction, prohibition or condition set forth in clauses (ii), (iv), or (vi) above, the Collateral shall include, and Grantors shall be deemed to have granted to Agent a security in, all such rights and interests or other assets, as the case may be, as if such provision had never been in effect; provided, further, Excluded Collateral shall not include any Proceeds, monies due or to become due with respect to, or substitutions or replacements of any Excluded Collateral (unless such Proceeds, monies, substitutions or replacements would otherwise constitute Excluded Collateral).

 

3.             Security for Secured Obligations. The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter. Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Credit Group, the Bank Product Providers or any of them, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding involving any Grantor due to the existence of such Insolvency Proceeding.

 

4.             Grantors Remain Liable. Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain liable under the contracts and agreements included in the Collateral, including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by Agent or any other member of the Credit Group of any of the rights hereunder shall not release any Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) none of the members of the Credit Group shall have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the members of the Credit Group be obligated to perform any of the obligations or duties of any Grantors thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Until an Event of Default shall occur and be continuing, except as otherwise provided in this Agreement, the Credit Agreement, or any other Loan Document, Grantors shall have the right to possession and enjoyment of the Collateral for the purpose of conducting the ordinary course of their respective businesses, subject to and upon the terms hereof and of the Credit Agreement and the other Loan Documents. Without limiting the generality of the foregoing, it is the intention of the parties hereto that record and beneficial ownership of the Pledged Interests constituting Collateral, including all voting, consensual, dividend, and distribution rights, shall remain in the applicable Grantor except as otherwise provided in this Agreement.

 

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(ii)         Each Grantor authorizes the filing by Agent of financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to Agent such other instruments or notices, as Agent may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby;

 

(iii)          Each Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments (A) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, (B) describing the Collateral as being of equal or lesser scope or with greater detail, or (C) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance. Each Grantor also hereby ratifies any and all such financing statements or amendments filed by Agent in any jurisdiction before the Third Amendment Effective Date; and

 

(iv)         Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Agent (not to be unreasonably withheld), subject to such Grantor’s rights under Section 9-509(d)(2) of the Code; and

 

(v)        Subject to the terms of the Intercreditor Agreement (as defined in the Intercreditor Agreement), each Grantor agrees that, (A) if it grants a Lien on any of its assets securing any “Second Priority Claims” (as defined in the Intercreditor Agreement (as defined in the Credit Agreement)) which assets are not also subject to a Lien in respect of the Secured Obligations, then it shall be deemed to have granted a Lien on such assets in favor of Agent to secure the Secured Obligations and, (B) if it perfects a Lien on any of its assets securing any Second Priority Claims that is not also perfected in respect of the Secured Obligations, then it shall take such action to perfect such Lien in favor of Agent without request of Agent.

 

(i)            Post-Third Amendment Effective Date Requirements. As promptly as practicable, and in any event within the time periods after the Third Amendment Effective Date specified in Schedule 9 hereto or such later date as Agent agrees to in writing, including to reasonably accommodate unforeseen circumstances, deliver the documents or take the actions specified on Schedule 9, in each case except to the extent otherwise agreed by Agent.

 

7.             Relation to Other Security Documents. The provisions of this Agreement shall be read and construed with the other Loan Documents referred to below in the manner so indicated.

 

(a)           Credit Agreement. In the event of any conflict between any provision in this Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall control.

 

(b)           Patent, Trademark, Copyright Security Agreements. The provisions of the Copyright Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements, Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or remedies of Agent hereunder. In the event of any conflict between any provision in this Agreement and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, such provision of this Agreement shall control.

 

8.             Agent’s Right to Perform Contracts, Exercise Rights, etc. Upon the occurrence and during the continuance of an Event of Default, Agent (or its designee) (a) may proceed to perform any and all of the obligations of any Grantor contained in any contract, lease, or other agreement and exercise

 

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12.          Collection of Accounts, General Intangibles and Negotiable Collateral. At any time upon the occurrence and during the continuance of an Event of Default, Agent or Agent’s designee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles, Chattel Paper or Negotiable Collateral of such Grantor have been assigned to Agent, for the benefit of the Credit Group and the Bank Product Providers, or that Agent has a security interest therein, and (b) collect the Accounts, General Intangibles and Negotiable Collateral of any Grantor directly, and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations under the Loan Documents.

 

13.          Disposition of Pledged Interests by Agent. None of the Pledged Interests constituting Collateral existing as of the date of this Agreement are, and none of the Pledged Interests constituting Collateral hereafter acquired on the date of acquisition thereof will be, registered or qualified under the various federal or state securities laws of the United States and disposition thereof after an Event of Default may be restricted to one or more private (instead of public) sales in view of the lack of such registration. Each Grantor understands that in connection with such disposition, Agent may approach only a restricted number of potential purchasers and further understands that a sale under such circumstances may yield a lower price for such Pledged Interests than if such Pledged Interests were registered and qualified pursuant to federal and state securities laws and sold on the open market. Each Grantor, therefore, agrees that: (a) if Agent shall, pursuant to the terms of this Agreement, sell or cause such Pledged Interests or any portion thereof to be sold at a private sale, Agent shall have the right to rely upon the advice and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do so shall not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer such Pledged Interests or any portion thereof for sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be conclusive evidence that Agent has handled the disposition in a commercially reasonable manner.

 

14.          Voting and Other Rights in Respect of Pledged Interests.

 

(a)           So long as no Event of Default has occurred and is continuing, and the Grantors have not received the notice from Agent set forth in Section 14(b), each Grantor may exercise all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests constituting Collateral owned by such Grantor and receive and retain all dividends, interest or other distributions paid in respect thereof.

 

(b)           Upon the occurrence and during the continuation of an Event of Default, (i) Agent may, at its option, and with two Business Days prior notice to the Grantors, and in addition to all rights and remedies available to Agent under any other agreement, at law, in equity, or otherwise, exercise all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests constituting Collateral owned by each Grantor, but under no circumstances is Agent obligated by the terms of this Agreement to exercise such rights, and (ii) if Agent duly exercises its right to vote any of such Pledged Interests, each Grantor hereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote such Pledged Interests in any manner Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders, partners or members, as the case may be. The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable.

 

15.          Remedies. Upon the occurrence and during the continuance of an Event of Default:

 

(a)           Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the

 

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EXHIBIT E

 

Security Agreement

 

(after giving effect to Section 1.3 of this Amendment)

 

See attached.

 

Exhibit E is provided for convenience of reference only and is not intended to, and does not, supersede the Security Agreement or this Amendment.

 











 

SECURITY AGREEMENT

 

This SECURITY AGREEMENT (this “Agreement”), dated as of September 30, 2016,  among the Persons listed on the signature pages hereof as “Grantors” and those additional entities that hereafter become parties hereto by executing a Joinder Agreement (each, a “Grantor” and collectively, the “Grantors”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), in its capacity as collateral agent for each member of the Credit Group (in such capacity, together with its successors and assigns in such capacity, “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain Second Amended and Restated Credit Agreement, dated as of March 28, 2014 (as amended by that certain First Amendment to Credit Agreement, dated as of September 26, 2014, that certain Second Amendment to Credit Agreement, dated as of March 30, 2015, that certain Consent, dated as of April 25, 2016, and that certain Third Amendment to Credit Agreement, dated as of the date hereof (the “Third Amendment”), and as further amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among CH2M HILL Companies, Ltd., a Delaware corporation (the “Parent”), CH2M HILL, Inc., a Florida corporation (“CH2M Inc.”), Operations Management International, Inc., a California corporation (“OMI”), CH2M HILL Engineers, Inc., a Delaware corporation (“CH2M Engineers”), CH2M HILL Global, Inc., a Delaware corporation (“CH2M Global”), CH2M HILL Constructors, Inc., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL Energy, Ltd.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, collectively the “Borrowers” and each a “Borrower”), the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, in separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group, the Credit Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof;

 

WHEREAS, Agent has agreed to act as agent for the benefit of the Credit Group and the Bank Product Providers in connection with the transactions contemplated by the Third Amendment, the Credit Agreement and this Agreement;

 

WHEREAS, in order to induce the Credit Group to enter into the Third Amendment and the other Loan Documents, to induce the Bank Product Providers to enter into the Bank Product Agreements, and to induce the Credit Group and the Bank Product Providers to make financial accommodations to Borrowers as provided for in the Credit Agreement, the other Loan Documents and the Bank Product Agreements, each Grantor has agreed to grant to Agent, for the benefit of the Credit Group and the Bank Product Providers, a continuing security interest in and to the Collateral in order to secure the prompt and complete payment, observance and performance of, among other things, the Secured Obligations; and

 

WHEREAS, each Grantor (other than Borrowers) is a Subsidiary of the Parent and, as such, will benefit by virtue of the financial accommodations extended to Borrowers by the Credit Group.

 

NOW, THEREFORE, for and in consideration of the recitals made above and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 











 

1.             Definitions; Construction.

 

(a)           All initially capitalized terms used herein (including in the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Credit Agreement.  Any terms (whether capitalized or lower case) used in this Agreement that are defined in the Code shall be construed and defined as set forth in the Code unless otherwise defined herein or in the Credit Agreement; provided that to the extent that the Code is used to define any term used herein and if such term is defined differently in different Articles of the Code, the definition of such term contained in Article 9 of the Code shall govern.  In addition to those terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:

 

(i)                 “Account” means an account (as that term is defined in Article 9 of the Code).

 

(ii)                “Account Debtor” means an account debtor (as that term is defined in the Code).

 

(iii)               “Agent” has the meaning specified therefor in the preamble to this Agreement.

 

(iv)               “Agent’s Lien” means the Liens granted by one or more of the Parent and its Subsidiaries to Agent under the Loan Documents.

 

(v)                “Agreement” has the meaning specified therefor in the preamble to this Agreement.

 

(vi)               “Bank Product Agreements” means any agreement governing or related to Bank Products other than this Agreement, the Credit Agreement or any other Loan Document.

 

(vii)              “Bank Product Provider” has the meaning specified therefor in the Credit Agreement.

 

(viii)             “Books” means books and records (including each Grantor’s Records indicating, summarizing, or evidencing such Grantor’s assets (including the Collateral) or liabilities, each Grantor’s Records relating to such Grantor’s business operations or financial condition, and each Grantor’s goods or General Intangibles related to such information).

 

(ix)               “Borrowers” has the meaning specified therefor in the recitals to this Agreement.

 

(x)                “Cash” has the meaning specified therefor in the Credit Agreement.

 

(xi)               “Cash Equivalents” has the meaning specified therefor in the Credit Agreement.

 

(xii)              “CFC” has the meaning specified therefor in the Credit Agreement.

 

(xiii)             “CFC Debt” has the meaning specified therefor in the Credit Agreement.

 

(xiv)             “Chattel Paper” means chattel paper (as that term is defined in the Code), and includes tangible chattel paper and electronic chattel paper.

 

(xv)             “Code” means the State of New York Uniform Commercial Code, as in effect from time to time; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to Agent’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.

 

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(xvi)            “Collateral” has the meaning specified therefor in Section 2.

 

(xvii)           “Commercial Tort Claims” means commercial tort claims (as that term is defined in the Code).

 

(xviii)          “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

 

(xix)            “Control Agreement” has the meaning specified therefor in the Credit Agreement.

 

(xx)             “Copyright Security Agreement” means each Copyright Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit A.

 

(xxi)             “Copyrights” means any and all rights in any works of authorship, including (A) copyrights and moral rights, (B) copyright registrations and recordings thereof and all applications in connection therewith including those listed on Schedule 1, (C) income, license fees, royalties, damages, and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (D) the right to sue for past, present, and future infringements thereof, and  (E) all of each Grantor’s rights corresponding thereto throughout the world.

 

(xxii)            “Credit Agreement” has the meaning specified therefor in the recitals to this Agreement.

 

(xxiii)          “Credit Group” has the meaning specified therefor in the Credit Agreement.

 

(xxiv)          “Deposit Account” means a deposit account (as that term is defined in the Code).

 

(xxv)           “Equipment” means equipment (as that term is defined in the Code).

 

(xxvi)          “Equity Interest Attributes” mean, with respect to any Equity Interest in any Person, all substitutions therefor and replacements thereof, all proceeds thereof and any rights relating thereto, also including any certificates representing the such Equity Interests, the right to receive any certificates representing any of such Equity Interests, all warrants, options, share appreciation rights and other rights, contractual or otherwise, in respect thereof and the right to receive any dividends, distributions of income, profits, surplus, or other compensation by way of income or liquidating distributions, in Cash or in kind, in respect thereof, and all Cash, instruments, and other property from time to time received, receivable, or otherwise distributed in respect of or in addition to, in substitution of, on account of, or in exchange for any or all of the foregoing.

 

(xxvii)         “Equity Interests” has the meaning specified therefor in the Credit Agreement.

 

(xxviii)        “Event of Default” has the meaning specified therefor in the Credit Agreement.

 

(xxix)          “Excluded Accounts” means all Deposit Accounts of the Grantors that are established solely as payroll and other zero balance accounts.

 

(xxx)           “Excluded Actions” means: (a) the making of any filings or taking of other action in any jurisdiction outside of the United States or required by the Laws of any jurisdiction outside of the United States to create or perfect any security interest in any property, including, any Intellectual Property registered in any jurisdiction outside the United States; (b) the entering into of any security or pledge

 

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agreement governed by the laws of any jurisdiction outside the United States; (c) the seeking or obtaining of any bailee waivers, landlord waivers, estoppels or collateral access letters; (d) other than after the occurrence and during the continuance of an Event of Default, the taking of control by possession of any Cash (other than Cash held on deposit with a member of the Credit Group, Cash Collateral required by the terms of the Loan Documents or other payments or provisions of Cash expressly provided by the terms of the Loan Documents); (e) the delivering of any certificates representing the Equity Interests in any Pledged Company that is a Foreign Subsidiary to Agent for possession if Agent and the Administrative Borrower reasonably determine that the cost of such delivery for possession exceeds the practical benefit to the Credit Group and the Bank Product Providers afforded thereby; (f) the perfection of any security interest (other than by filing a UCC financing statement) in any Equity Interest in any Subsidiary (other than a Loan Party) whose gross revenue was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) of the Credit Agreement; (g) the sending of any notices or otherwise notifying any Account Debtors or other contractual third parties (other than after the occurrence and during the continuance of an Event of Default) and (h) the delivering of any certificates representing the Equity Interests in any Subsidiary (other than a Loan Party) to the extent the Parent notifies Agent that the Parent has determined to terminate the existence of such Subsidiary.

 

(xxxi)           “Excluded Collateral” has the meaning specified therefor in Section 2.

 

(xxxii)         “Fixtures” means fixtures (as that term is defined in the Code).

 

(xxxiii)        “Foreign Holding Company” has the meaning specified therefor in the Credit Agreement.

 

(xxxiv)        “General Intangibles” means general intangibles (as that term is defined in the Code), and includes payment intangibles, software, contract rights, rights to payment, rights under Hedging Agreements (including the right to receive payment on account of the termination (voluntarily or involuntarily) of such Hedging Agreements), rights arising under common law, statutes, or regulations, choses or things in action, goodwill, Intellectual Property, Intellectual Property Licenses, purchase orders, customer lists, monies due or recoverable from pension funds, route lists, rights to payment and other rights under any royalty or licensing agreements, including Intellectual Property Licenses, infringement claims, pension plan refunds, pension plan refund claims, insurance premium rebates, tax refunds, and tax refund claims, interests in a partnership or limited liability company which do not constitute a security under Article 8 of the Code, and any other personal property other than Commercial Tort Claims, money, Accounts, Chattel Paper, Deposit Accounts, goods, Investment Property, Negotiable Collateral, and oil, gas, or other minerals before extraction; provided, however, that General Intangibles shall not include any Pledged Interests, Pledged Operating Agreements, or Pledged Partnership Agreements.

 

(xxxv)         “Grantor” and “Grantors” have the respective meanings specified therefor in the preamble to this Agreement.

 

(xxxvi)        “Insolvency Proceeding” has the meaning specified therefor in the Credit Agreement.

 

(xxxvii)       “Intellectual Property” means any and all Patents, Copyrights, Trademarks, trade secrets, know-how, inventions (whether or not patentable), algorithms, software programs (including source code and object code), processes, product designs, industrial designs, blueprints, drawings, data, customer lists, URLs and domain names, specifications, documentations, reports, catalogs, literature, and any other forms of technology or proprietary information of any kind, including all rights therein and all applications for registration or registrations thereof, in which any Grantor owns any right, title or interest.

 

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(xxxviii)      “Intellectual Property Licenses” means any written agreement to which a Grantor is a party granting any right to such Grantor to use or sublicense any Intellectual Property owned by any third party including the license agreements listed on Schedule 2, and (z) the right to use any of the licenses or other similar rights described in this definition in connection with the enforcement of the Credit Group’s rights under the Loan Documents; provided, that (i) any agreement that grants to any Grantor any licenses for Off-the-Shelf Software, including Open Source Materials, (ii) any agreement that is entered into by any Grantor in the ordinary course of business with its employees, contractors, employees, agents and vendors who create Intellectual Property on behalf of any Grantor, and (iii) non-disclosure or confidentiality agreements, in each case, will not be considered an Intellectual Property License.

 

(xxxix)        “Inventory” means inventory (as that term is defined in the Code).

 

(xl)               “Investment Property” means (A) any and all investment property (as that term is defined in the Code), and (B) any and  all Pledged Interests, Pledged Operating Agreements, and Pledged Partnership Agreements.

 

(xli)              “Joinder” means each joinder agreement to this Agreement and the Credit Agreement executed and delivered by Agent and each of the other parties listed on the signature pages thereto, in substantially the form of Exhibit C to the Credit Agreement.

 

(xlii)             “Lender” and “Lenders” have the respective meanings specified therefor in the recitals to this Agreement.

 

(xliii)            “Loan Document” has the meaning specified therefor in the Credit Agreement.

 

(xliv)           “Loan Party” has the meaning specified therefor in the Credit Agreement.

 

(xlv)            “Mortgages” has the meaning specified therefor in the Credit Agreement.

 

(xlvi)           “Negotiable Collateral” means letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and documents (as each such term is defined in the Code).

 

(xlvii)          “Obligations” has the meaning specified therefor in the Credit Agreement.

 

(xlviii)         “Off-the-Shelf Software” means off-the-shelf or otherwise generally commercially available software that is available for an annual license fee of no more than $8,000 per user.

 

(xlix)           “Open Source Materials” means, collectively, software or other materials that are distributed as “free software” (as defined by the Free Software Foundation), “open source software” (meaning software distributed under any license approved by the Open Source Initiative as set forth at www.opensource.org) or under a similar licensing or distribution model.

 

(l)                 “Parent” has the meaning specified therefor in the recitals to this Agreement.

 

(li)                “Patents” means patents and patent applications, including (A) the patents and patent applications listed on Schedule 3, (B) all continuations, divisionals, continuations-in-part, re-examinations, reissues, and renewals thereof and improvements thereon, (C) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past, present, or future infringements thereof, (D) the right to sue for past, present, and future infringements thereof, and (E) all of each Grantor’s rights corresponding thereto throughout the world.

 

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(lii)               “Patent Security Agreement” means each Patent Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit B.

 

(liii)              “Permitted Investments” means any Investments (as defined in the Credit Agreement) permitted pursuant to Section 7.02 of the Credit Agreement.

 

(liv)              “Permitted Liens” has the meaning specified therefor in the Credit Agreement.

 

(lv)               “Person” has the meaning specified therefor in the Credit Agreement.

 

(lvi)              “Pledged Companies” means each first-tier Subsidiary of a Grantor listed on Schedule 4 as a “Pledged Company”, together with each other first-tier Subsidiary of such Grantor, all or a portion of which Subsidiary’s Equity Interests are acquired or otherwise owned by such Grantor after the Third Amendment Effective Date.

 

(lvii)             “Pledged Interests” means all of each Grantor’s right, title and interest in and to all of the Equity Interests now owned or hereafter acquired by such Grantor, regardless of class or designation, in each of the Pledged Companies, and all Equity Interest Attributes in respect thereof .

 

(lviii)             “Pledged Interests Addendum” means a Pledged Interests Addendum substantially in the form of Exhibit C.

 

(lix)              “Pledged Operating Agreements” means all of each Grantor’s rights, powers, and remedies under the limited liability company operating agreements of each of the Pledged Companies that are limited liability companies.

 

(lx)               “Pledged Partnership Agreements” means all of each Grantor’s rights, powers, and remedies under the partnership agreements of each of the Pledged Companies that are partnerships.

 

(lxi)              “Proceeds” has the meaning specified therefor in Section 2.

 

(lxii)             “PTO” means the United States Patent and Trademark Office.

 

(lxiii)            “Real Property” means any estates or interests in real property now owned or hereafter acquired by any Grantor or any Subsidiary of any Grantor and the improvements thereto.

 

(lxiv)           “Record” means information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.

 

(lxv)            “Responsible Officer” has the meaning specified therefor in the Credit Agreement.

 

(lxvi)           “Secured Obligations” has the meaning specified therefor in the Credit Agreement.

 

(lxvii)          “Securities Account” means a securities account (as that term is defined in the Code).

 

(lxviii)         “Security Interest” has the meaning specified therefor in Section 2.

 

(lxix)           “Supporting Obligations” means supporting obligations (as such term is defined in the Code), and includes letters of credit and guaranties issued in support of Accounts, Chattel Paper, documents, General Intangibles, instruments or Investment Property.

 

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(lxx)            “Trademarks” means any and all trademarks, trade names, registered trademarks, trademark applications, service marks, registered service marks and service mark applications, including (A) the trade names, registered trademarks, trademark applications, registered service marks and service mark applications listed on Schedule 5, (B) all renewals thereof, (C) all income, royalties, damages and payments now and hereafter due or payable under and with respect thereto, including payments under all licenses entered into in connection therewith and damages and payments for past or future infringements or dilutions thereof, (D) the right to sue for past, present and future infringements and dilutions thereof, (E) the goodwill of each Grantor’s business symbolized by the foregoing or connected therewith, and (F) all of each Grantor’s rights corresponding thereto throughout the world.

 

(lxxi)           “Trademark Security Agreement” means each Trademark Security Agreement executed and delivered by Grantors, or any of them, and Agent, in substantially the form of Exhibit D.

 

(lxxii)          “URL” means “uniform resource locator,” an internet web address.

 

(b)           The terms of Sections 1.02(a)(i) through (ix), (a)(xi) , (c), (d), (e), (f), (g), (h), (j), (k) and (q) of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.  Any requirement of a writing contained herein shall be satisfied by the transmission of a Record.

 

2.             Grant of Security.  Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit of each of the Secured Parties, to secure the Secured Obligations, a security interest (hereinafter referred to as the “Security Interest”) in all of such Grantor’s right, title, and interest in and to the following property, whether now owned or hereafter acquired by such Grantor or arising and wherever located (the “Collateral”):

 

(a)           all of such Grantor’s Accounts;

 

(b)           all of such Grantor’s Books;

 

(c)           all of such Grantor’s Chattel Paper;

 

(d)           all of such Grantor’s Commercial Tort Claims;

 

(e)           all of such Grantor’s Deposit Accounts;

 

(f)            all of such Grantor’s Equipment;

 

(g)           all of such Grantor’s Fixtures;

 

(h)           all of such Grantor’s General Intangibles;

 

(i)            all of such Grantor’s Inventory;

 

(j)            all of such Grantor’s Investment Property;

 

(k)           all of such Grantor’s Intellectual Property and Intellectual Property Licenses;

 

(l)            all of such Grantor’s Negotiable Collateral;

 

(m)          all of such Grantor’s Securities Accounts;

 

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(n)           all of such Grantor’s Supporting Obligations;

 

(o)           all of such Grantor’s money, Cash Equivalents, or other assets of such Grantor that now or hereafter come into the possession, custody, or control of Agent (or its agent or designee) or any other member of the Credit Group; and

 

(p)           all of the proceeds (as such term is defined in the Code) and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance or Commercial Tort Claims covering or relating to any or all of the foregoing, and any and all Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, Fixtures, General Intangibles, Inventory, Investment Property, Intellectual Property, Negotiable Collateral, Securities Accounts, Supporting Obligations, money, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for taxes or otherwise, and all proceeds of any such proceeds, or any portion thereof or interest therein, and the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, or otherwise with respect to any of the foregoing (the “Proceeds”).  Without limiting the generality of the foregoing, the term “Proceeds” includes whatever is receivable or received when Investment Property or proceeds are sold, exchanged, collected, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to any Grantor or Agent from time to time with respect to any of such Investment Property.

 

Notwithstanding anything contained in this Agreement to the contrary, the term “Collateral” shall not include any of the following (the “Excluded Collateral”):

 

(i)                 property as to which the Administrative Agent and the Administrative Borrower reasonably determine that the costs of obtaining, perfecting or maintaining a security interest in or Lien on such assets are excessive in relation to the value afforded thereby;

 

(ii)                property to the extent that such grant of a security interest is prohibited by any Law, requires a consent not obtained of any Governmental Authority pursuant to such Law or is prohibited by, or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document or, in the case of any investment property or instruments, any applicable shareholder or similar agreement, except to the extent that such Law or the term in such contract, license, agreement, instrument or other document or shareholder or similar agreement providing for such prohibition, breach, default or termination or requiring such consent is ineffective under applicable Law (including Section 9-406, 9- 407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law or principles of equity);

 

(iii)               any property consisting of vessels, aircraft, motor vehicle and other over-the-road rolling stock, railroad rolling stock and related property to the extent covered by a “certificate of title” (as each such term is defined in the Code) or certificate of ownership to the extent that a Lien thereon cannot be perfected by the filing of financing statements in the applicable jurisdiction;

 

(iv)               any property and proceeds thereof subject to a Lien permitted by Section 7.01(l) of the Credit Agreement to the extent the granting of a security interest in or a Lien on such assets would violate or invalidate the documents providing for such Permitted Lien after giving effect to Section 9-406, 9- 407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law, other than proceeds and receivables thereof, the assignment of which is expressly

 

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deemed effective under Section 9-406, 9- 407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable Law notwithstanding such prohibition;

 

(v)                any Program Receivables (and other related property customarily pledged or transferred in connection with a receivables financing transaction) subject to a Lien permitted under Section 7.01(u) of the Credit Agreement;

 

(vi)               any Equity Interest in any Person other than a wholly-owned Subsidiary of the Parent and all Equity Interest Attributes in respect thereof to the extent the grant of a security interest therein or Lien thereon is prohibited by the Organizational Documents of such Person (after giving effect to Section 9-406, 9-407, 9-408 or 9-409 of the Code (or any successor provision or provisions) of any relevant jurisdiction) to the extent (A) such prohibition was existing on the Third Amendment Effective Date or on the date on which the applicable Person becomes a direct or indirect Subsidiary of the Parent (and not created in contemplation of such Person becoming a Subsidiary of the Parent) or (B) solely with respect to non-wholly owned Subsidiaries (including any wholly-owned Subsidiaries that become non-wholly-owned Subsidiaries), such restriction was added or incorporated in the Organizational Documents of such Subsidiary or contract as a result of good faith negotiations concerning such Subsidiary among the Parent (or any Affiliate of the Parent), the joint venture partners or Equity Interest holders or clients, which as of the First Amendment shall include any Equity Interest in CH2M HILL BWXT West Valley, LLC and all Equity Interest Attributes in respect thereof;

 

(vii)              any Equity Interest in any Joint Venture of any Loan Party and all Equity Interest Attributes in respect thereof to the extent the gross revenue of such Joint Venture was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a);

 

(viii)             CFC Debt;

 

(ix)               voting Equity Interests in any CFC or Foreign Holding Company representing more than 65% of the voting Equity Interests of such CFC or Foreign Holding Company and all Equity Interest Attributes in respect thereof;

 

(x)                Equity Interests representing more than 65% of the Equity Interests in any Subsidiary that is disregarded as an entity from its owner under Treasury Regulations Section 301.7701-3 and substantially all the assets of which consist for U.S. federal income tax purposes of Equity Interests in a CFC or CFC Debt and all Equity Interest Attributes in respect thereof;

 

(xi)               property to the extent a security interest in such property would result in adverse tax consequences to the Parent and its Subsidiaries (including as a result of the operation of Section 956 of the Internal Revenue Code of 1986 or any similar Law in any applicable jurisdiction) as reasonably determined by the Administrative Borrower and Agent;

 

(xii)              any of the Equity Interests of Foreign Subsidiaries that are held by CFCs or Foreign Holding Companies and all Equity Interest Attributes in respect thereof;

 

(xiii)             (A) any leasehold interest in Real Property or (B) any Real Property that is not a single fee-owned Real Property with a fair value (as reasonably determined by the Administrative Borrower) above $10,000,000;

 

(xiv)            any letter-of-credit right (other than a letter-of-credit right that constitutes a Supporting Obligation under the Code), other item of Negotiable Collateral, or Chattel Paper, in each case with a 

 

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value (as reasonably determined by the Administrative Borrower) less than $7,500,000, or a Commercial Tort Claim with a value (as reasonably determined by the Administrative Borrower) less than $5,000,000; and

 

(xv)             any Intellectual Property with respect to which the grant or perfection of a security interest would constitute or result in the abandonment of, invalidation of or rendering unenforceable any of right, title or interest therein, including any “intent to use” trademark application or intent-to-use service mark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent that and during the period in which the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable right, title or interest therein or any such trademark or service mark application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral;

 

provided, however, that immediately upon the ineffectiveness, lapse or termination of any restriction, prohibition or condition set forth in clauses (ii), (iv), or (vi) above, the Collateral shall include, and Grantors shall be deemed to have granted to Agent a security in, all such rights and interests or other assets, as the case may be, as if such provision had never been in effect; provided, further, Excluded Collateral shall not include any Proceeds, monies due or to become due with respect to, or substitutions or replacements of any Excluded Collateral (unless such Proceeds, monies, substitutions or replacements would otherwise constitute Excluded Collateral).

 

3.             Security for Secured Obligations.  The Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the Credit Group, the Bank Product Providers or any of them, but for the fact that they are unenforceable or not allowable (in whole or in part) as a claim in an Insolvency Proceeding involving any Grantor due to the existence of such Insolvency Proceeding.

 

4.             Grantors Remain Liable.  Anything herein to the contrary notwithstanding, (a) each of the Grantors shall remain liable under the contracts and agreements included in the Collateral, including the Pledged Operating Agreements and the Pledged Partnership Agreements, to perform all of the duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by Agent or any other member of the Credit Group of any of the rights hereunder shall not release any Grantor from any of its duties or obligations under such contracts and agreements included in the Collateral, and (c) none of the members of the Credit Group shall have any obligation or liability under such contracts and agreements included in the Collateral by reason of this Agreement, nor shall any of the members of the Credit Group be obligated to perform any of the obligations or duties of any Grantors thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.  Until an Event of Default shall occur and be continuing, except as otherwise provided in this Agreement, the Credit Agreement, or any other Loan Document, Grantors shall have the right to possession and enjoyment of the Collateral for the purpose of conducting the ordinary course of their respective businesses, subject to and upon the terms hereof and of the Credit Agreement and the other Loan Documents.  Without limiting the generality of the foregoing, it is the intention of the parties hereto that record and beneficial ownership of the Pledged Interests constituting Collateral, including all voting, consensual, dividend, and distribution rights, shall remain in the applicable Grantor except as otherwise provided in this Agreement.

 

5.             Representations and Warranties.  Each Grantor on behalf of itself makes the following representations and warranties to the Credit Group (provided that, notwithstanding anything contained in 

 

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this Agreement to the contrary, no Grantor makes any representation or warranty whatsoever with respect to any Excluded Collateral):

 

(a)           As of the Third Amendment Effective Date, Schedule 6 sets forth (i) the exact legal name and jurisdiction of organization of such Grantor, (ii) the address of such Grantor’s chief executive office, and (iii) the tax identification number and organizational identification number, if any, of such Grantor.

 

(b)           As of the Third Amendment Effective Date and to such Grantor’s knowledge, such Grantor does not hold any Commercial Tort Claim constituting Collateral that exceeds $5,000,000 in value (as reasonably determined by the Administrative Borrower).

 

(c)           Set forth on Schedule 7, as of the Third Amendment Effective Date, is a list of all of its Deposit Accounts and Securities Accounts, in each case constituting Collateral and other than Excluded Accounts, at any bank or other financial institution in the United States, including, with respect to each bank or financial institution (i) the name and address of such Person and (ii) the account numbers of such Deposit Accounts or Securities Accounts maintained with such Person.

 

(d)           As of the Third Amendment Effective Date, such Grantor does not own any single fee-owned Real Property constituting Collateral with a fair value (as reasonably determined by the Administrative Borrower) in excess of $10,000,000.

 

(e)           As of the Third Amendment Effective Date: (i) Schedule 1 provides a complete and correct list of all Copyrights owned by such Grantor and registered with the United States Copyright Office or the subject of pending applications for registration with the United States Copyright Office; (ii) Schedule 3 provides a complete and correct list of all Patents owned by such Grantor and registered with the PTO or the subject of pending applications for registration with the PTO; and (iii) Schedule 5 provides a complete and correct list of all registered Trademarks owned by such Grantor and registered with the PTO or the subject of pending applications for registration with the PTO.

 

(f)            Subject to any restrictions under the Law of the jurisdiction of organization of any issuer of Equity Interests, this Agreement creates a valid security interest in the Collateral of such Grantor, to the extent a security interest therein can be created under the Code, securing the payment of the Secured Obligations.

 

(g)           Except with respect to Excluded Actions and except to the extent a security interest in the Collateral cannot be perfected by the filing of a financing statement under the Code, all filings and other actions necessary to perfect and protect such security interest have been duly taken or will be taken under the Code upon (i) the filing of appropriate financing statements in the applicable jurisdictions listed on Schedule 8 and (ii) the taking of possession or “control” (as such term is used in Article 8 and 9 of the Code (as applicable)) by Agent of the Collateral with respect to which a security interest may be perfected only by possession or such control (which possession or control has been given to Agent to the extent required by this Agreement), Agent shall have, to the extent required by this Agreement, a first priority perfected security interest (subject to Permitted Liens) in the Collateral of such Grantor to the extent such security interest can be perfected under the Code.

 

(h)           Upon filing of any Copyright Security Agreement with the United States Copyright Office, filing of any Patent Security Agreement and any Trademark Security Agreement with the PTO, and the filing of appropriate financing statements in the jurisdictions listed on Schedule 8, Agent shall have, to the extent required by this Agreement, a perfected security interest (subject to

 

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Permitted Liens) in such Grantor’s Copyrights, Patents, or Trademarks, in each case constituting Collateral and which are registered with the United States Copyright Office or the PTO, as applicable.

 

(i)            As of the Third Amendment Effective Date and to such Grantor’s knowledge, (i) all of the Equity Interests issued by (A) such Grantor’s Pledged Companies the Pledged Interests of which constitute Collateral (other than the Equity Interests in any Pledged Company whose gross revenue was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) of the Credit Agreement and the Equity Interests in any Foreign Subsidiary) and (B) such Grantor are duly authorized, validly issued, fully paid and nonassessable, and (ii) such Equity Interests constitute the percentage of the issued and outstanding Equity Interests of the Pledged Companies of such Grantor identified on Schedule 4.

 

(j)            Other than Excluded Actions, as of the Third Amendment Effective Date, such Grantor has delivered to and deposited with Agent all certificates representing such Grantor’s Equity Interests issued by its Pledged Companies the Pledged Interests of which constitute Collateral to the extent such Equity Interests are represented by certificates, and undated powers (or other documents of transfer reasonably acceptable to Agent) endorsed in blank with respect to such certificates.

 

(k)           No consent, approval, authorization, or other order or other action by, and no notice to or filing with, any Governmental Authority or any other Person, to the extent required by this Agreement, is required for (i) the grant of the Security Interest by such Grantor in and to the Collateral pursuant to this Agreement or for the execution, delivery, or performance of this Agreement by such Grantor, except in each case under this clause (i), (A) such actions as may be required by applicable foreign Laws affecting the pledge of the Pledged Interests of Foreign Subsidiaries, (B) the obtaining of Control Agreements as to Deposit Accounts that are not required to be furnished pursuant to this Agreement, (C) Excluded Actions, and (D) such other actions which are not affirmatively and expressly required to be taken by the Grantors pursuant to this Agreement or the Credit Agreement or which have not been affirmatively requested or taken by Agent, or (ii) the exercise by Agent of the voting or other rights provided for in this Agreement with respect to such Grantor’s Equity Interests issued by such Grantor’s Pledged Companies the Pledged Interests of which constitute Collateral and by such Grantor, and the other remedies in respect of the Collateral pursuant to this Agreement, except in each case under this clause (ii), (A) as may be required in connection with such disposition of Equity Interests issued by such Grantor’s Pledged Companies the Pledged Interests of which constitute Collateral by Laws affecting the offering and sale of securities generally or the local Law of the jurisdiction of organization of the issuer thereof, (B) Excluded Actions, (C) consents, approvals, authorizations, or other orders or actions that have been obtained or given (as applicable) and that are still in force, (D) notices or filings that have been given or made (as applicable), (E) consents, approvals, authorizations, or other orders or actions, notices or filings in respect of the exercise of any voting or other rights or remedies regarding any Equity Interests in any Pledged Company that is a Foreign Subsidiary or whose gross revenue was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) of the Credit Agreement, (F) actions required with respect to Collateral permitted under this Agreement or the Credit Agreement to be in the possession of third parties, (G) as may be required by the applicable court in connection with any Commercial Tort Claim,  (H) as may be required in connection with enforcement against an Account Debtor under applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, (I) as may be required by Laws generally applicable to the enforcement of remedies, (J) actions required to be taken by the Grantors pursuant to this Agreement or the Credit Agreement before the completion thereof so long as such actions are being taken in accordance with the terms of this Agreement or the Credit Agreement,  and (K) such other actions which are not affirmatively and expressly required to be taken by the Grantors pursuant to this Agreement or the Credit Agreement or which have not been affirmatively requested or taken by Agent.

 

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(l)            To such Grantor’s knowledge and excluding any limited liability company or partnership interests issued by a Pledged Company that is a Foreign Subsidiary or whose gross revenue was less than $20,000,000 for the Fiscal Year most recently ended for which the Parent has delivered financial statements pursuant to Section 6.01(a) of the Credit Agreement, (i) as to all limited liability company or partnership interests issued under any Pledged Operating Agreement or Pledged Partnership Agreement, in each case constituting Collateral, such Grantor’s Equity Interests issued by its Pledged Companies the Pledged Interests of which constitute Collateral issued pursuant to such agreement (A) are not dealt in or traded on securities exchanges or in securities markets, (B) do not constitute investment company securities, and (C) are not held by such Grantor in a Securities Account and (ii) no Pledged Operating Agreement or Pledged Partnership Agreements governing any of such Equity Interests provides that such Equity Interests are securities governed by Article 8 of the Code as in effect in any relevant jurisdiction.

 

(m)          With respect to each parcel of such Grantor’s Real Property subject to a Mortgage, Agent has received all such flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.

 

6.             Covenants.  Each Grantor covenants and agrees with Agent that from and after the date of this Agreement and until the date of termination of this Agreement in accordance with Section 20 (provided that, notwithstanding anything contained in this Agreement to the contrary, no Excluded Actions shall be required to be taken by the Grantors or their Subsidiaries), unless Agent shall otherwise consent in writing:

 

(a)           Possession or Control of Certain Negotiable Collateral and Chattel Paper.  In the event that any Collateral, including Proceeds, of such Grantor is evidenced by or consists of Negotiable Collateral or Chattel Paper having an individual value of $7,500,000 or more, such Grantor shall promptly, notify Agent thereof, and if and to the extent that perfection or priority of Agent’s Security Interest is dependent on or materially enhanced by possession or “control” (as such term is used in Article 8 and 9 of the Code (as applicable)), such Grantor, promptly after request by Agent, shall execute such other documents and instruments as shall be reasonably requested by Agent or, if applicable, endorse and deliver physical possession of such Negotiable Collateral or Chattel Paper to Agent, together with such undated powers (or other relevant document of transfer reasonably acceptable to Agent) endorsed in blank as shall be requested by Agent, and shall do such other acts or things reasonably deemed necessary or desirable by Agent to protect Agent’s Security Interest therein; provided, however, that if such Chattel Paper is electronic Chattel Paper, such Grantor, promptly after request by Agent, shall take all steps reasonably necessary to grant Agent “control” (as such term is used in Article 9 of the Code) of all electronic Chattel Paper in accordance with the Code and all “transferable records” (as such term is defined in Section 16 of the Uniform Electronic Transaction Act and Section 201 of the federal Electronic Signatures in Global and National Commerce Act as in effect in any relevant jurisdiction in the United States).

 

(b)           Control Agreements.  For each of its individual Deposit Accounts or Securities Accounts (in each case constituting Collateral and other than Excluded Accounts), such Grantor shall review such account to determine whether the average balance for such account for any Fiscal Period after the Third Amendment Effective Date is more than $7,500,000 and if such average balance is more than $7,500,000, such Grantor promptly shall obtain an authenticated Control Agreement from the depository institution or securities intermediary maintaining such account; provided, however, that if the aggregate amount of such average balances of all Deposit Accounts and Security Accounts (in each case constituting Collateral and other than Excluded Accounts) of the Grantors not subject to Control Agreements is more than $15,000,000 , then Administrative Borrower promptly shall designate one or more of such accounts to become subject to Control Agreements so that after becoming subject to Control 

 

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Agreements the aggregate amount of such average balances of the remaining Deposit Accounts and Securities Accounts (in each case constituting Collateral and other than Excluded Accounts) of the Grantors not subject to Control Agreements would have been less than $15,000,000, and each Grantor whose Deposit Account or Securities Account has been so designated by Administrative Borrower promptly shall obtain an authenticated Control Agreement from the depository institution or securities intermediary maintaining such Deposit Account or Securities Account for such Grantor.

 

(c)            Commercial Tort Claims.  If such Grantor obtains a Commercial Tort Claim that is not Excluded Collateral, then it shall promptly notify Agent in a writing signed by such Grantor setting forth a brief description of such Commercial Tort Claim and granting to Agent a security interest therein and in the Proceeds thereof, which writing shall incorporate the provisions hereof and shall be in form and substance reasonably satisfactory to Agent.

 

(d)           Intellectual Property.

 

(i)         Upon the request of Agent, in order to facilitate filings with the PTO and the United States Copyright Office, such Grantor shall execute and deliver to Agent one or more Copyright Security Agreements, Trademark Security Agreements, or Patent Security Agreements to further evidence Agent’s Lien on such Grantor’s Patents, Trademarks, or Copyrights, and the General Intangibles of such Grantor relating thereto or represented thereby;

 

(ii)        Such Grantor acknowledges and agrees that no member of the Credit Group shall have any duties with respect to any Intellectual Property or Intellectual Property Licenses of such Grantor.  Without limiting the generality of this Section 6(d)(ii), such Grantor acknowledges and agrees that no member of the Credit Group shall be under any obligation to take any steps necessary to preserve rights in the Collateral consisting of Intellectual Property or Intellectual Property Licenses against any other Person, but Agent may do so at its option if an Event of Default has occurred and is continuing, and all expenses incurred in connection therewith (including reasonable fees and expenses of attorneys and other professionals) shall be for the sole account of the Borrowers; and

 

(iii)       On each date on which a Compliance Certificate is to be delivered pursuant to Section 6.01(c) of the Credit Agreement in respect of a Fiscal Year (or, if an Event of Default has occurred and is continuing, more frequently if requested by Agent), each Grantor shall provide Agent with a written report of all new U.S. federal Patents, Trademarks or Copyrights that are registered or the subject of pending applications for registrations, in each case, which were acquired, registered, or for which applications for registration were filed by any Grantor during the prior period and any statement of use or amendment to allege use with respect to intent-to-use trademark applications.

 

(e)           Pledged Interests.

 

(i)         If such Grantor shall acquire, obtain, or receive any Equity Interests in a Pledged Company the Pledged Interests of which constitute Collateral after the Third Amendment Effective Date, it shall promptly deliver to Agent a duly executed Pledged Interests Addendum identifying such Pledged Interests; and

 

(ii)        Except to the extent constituting an Excluded Action, such Grantor will cooperate with Agent in obtaining all necessary approvals and making all necessary filings under federal, state or local law in the United States to effect the perfection of the Security Interest on the Pledged Interests constituting Collateral or, to the extent a sale or transfer thereof by Agent is permitted under this Agreement, to effect such sale or transfer thereof.

 

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(f)            Real Property.  Promptly (i) after the acquisition by such Grantor of any single fee-owned parcel of Real Property with a fair value (as reasonably determined by the Administrative Borrower) above $10,000,000 that is not subject to the existing Security Documents (as defined in the Credit Agreement) notify Agent and (ii) thereafter (A) deliver such Mortgages, title insurance policies, environmental reports, surveys and other documents reasonably requested by Agent in connection with granting and perfecting a first priority Lien, other than Permitted Liens, on such parcel in favor of Agent, for the benefit of the Credit Group, all in form and substance reasonably acceptable to Agent and (B) deliver  in respect of such parcel (1) a flood zone determination and, (2) if such Real Property is located in a special flood hazard area: (I) notices to (and confirmation of receipt by) such Grantor as to the existence of a special flood hazard area and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program because the community does not participate in the National Flood Insurance Program; and (II) to the extent flood hazard insurance is available in the community in which such parcel is located, a copy of: (w) the flood hazard insurance policy, (x) such Grantor’s application for a flood hazard insurance policy, together with proof of payment of the premium associated therewith, (y) a declaration page confirming that flood hazard insurance has been issued to such Grantor  or (z) such other evidence of flood hazard insurance as may be reasonably available, which, in each case, is reasonably sufficient to demonstrate compliance with applicable law and banking regulations, including without limitation, the National Flood Insurance Act of 1968, as amended, the National Flood Insurance Reform Act of 1994, and the regulations of the Federal Deposit Insurance Corporation thereunder, 12 CFR §339, each as amended form time to time and including any applicable successor or replacement statutes and regulations.

 

(g)           Maintenance of Insurance.

 

(i)         Except as provided in Section 6(i) hereto, the Commercial General Liability insurance that such Grantor must maintain under Section 6.06 of the Credit Agreement shall name Agent as an additional insured party thereunder for the benefit of the Secured Parties.

 

(ii)        All policies of property hazard insurance with respect to any parcel of such Grantor’s Real Property subject to a Mortgage that such Grantor must maintain under such Mortgage shall name Agent as lender’s loss payee.

 

(iii)       Without limiting the foregoing, each Grantor shall (A) maintain, if available, fully paid flood hazard insurance on all Real Property constituting Collateral with respect to which a Mortgage is granted (after giving effect to clause (i) of the definition of “Excluded Collateral”) and that is located in a special flood hazard area in which flood insurance is available under the National Flood Insurance Act of 1968, as amended, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994  (the “1994 Flood Insurance Reform Act”) and (B) promptly following receipt of a written request therefor, furnish to the Agent (and each Lender that so requests) evidence of  compliance with the 1994 Flood Insurance Reform Act and applicable rules and regulations promulgated thereunder.

 

(h)           Further Assurances.

 

(i)         Each Grantor agrees that from time to time, at its own expense, such Grantor will promptly execute and deliver all further instruments and documents, and take all further action, that Agent may reasonably request, in order to perfect and protect the Security Interest granted or purported to be granted hereby, to maintain such Security Interest or to enable Agent to exercise and enforce its rights and remedies hereunder with respect to any of the Collateral;

 

(ii)        Each Grantor authorizes the filing by Agent of financing or continuation statements, or amendments thereto, and such Grantor will execute and deliver to Agent such other instruments or

 

15











 

notices, as Agent may reasonably request, in order to perfect and preserve the Security Interest granted or purported to be granted hereby;

 

(iii)       Each Grantor authorizes Agent at any time and from time to time to file, transmit, or communicate, as applicable, financing statements and amendments (A) describing the Collateral as “all personal property of debtor” or “all assets of debtor” or words of similar effect, (B) describing the Collateral as being of equal or lesser scope or with greater detail, or (C) that contain any information required by part 5 of Article 9 of the Code for the sufficiency or filing office acceptance.  Each Grantor also hereby ratifies any and all such financing statements or amendments filed by Agent in any jurisdiction before the Third Amendment Effective Date;

 

(iv)       Each Grantor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Agent (not to be unreasonably withheld), subject to such Grantor’s rights under Section 9-509(d)(2) of the Code; and

 

(v)        Subject to the terms of the Intercreditor Agreement (as defined in the Intercreditor Agreement), each Grantor agrees that, (A) if it grants a Lien on any of its assets securing any “Second Priority Claims” (as defined in the Intercreditor Agreement (as defined in the Credit Agreement)) which assets are not also subject to a Lien in respect of the Secured Obligations, then it shall be deemed to have granted a Lien on such assets in favor of Agent to secure the Secured Obligations and, (B) if it perfects a Lien on any of its assets securing any Second Priority Claims that is not also perfected in respect of the Secured Obligations, then it shall take such action to perfect such Lien in favor of Agent without request of Agent.

 

(i)            Post-Third Amendment Effective Date Requirements.  As promptly as practicable, and in any event within the time periods after the Third Amendment Effective Date specified in Schedule 9 hereto or such later date as Agent agrees to in writing, including to reasonably accommodate unforeseen circumstances, deliver the documents or take the actions specified on Schedule 9, in each case except to the extent otherwise agreed by Agent.

 

7.             Relation to Other Security Documents.  The provisions of this Agreement shall be read and construed with the other Loan Documents referred to below in the manner so indicated.

 

(a)           Credit Agreement. In the event of any conflict between any provision in this Agreement and a provision in the Credit Agreement, such provision of the Credit Agreement shall control.

 

(b)           Patent, Trademark, Copyright Security Agreements.  The provisions of the Copyright Security Agreements, Trademark Security Agreements, and Patent Security Agreements are supplemental to the provisions of this Agreement, and nothing contained in the Copyright Security Agreements, Trademark Security Agreements, or the Patent Security Agreements shall limit any of the rights or remedies of Agent hereunder.  In the event of any conflict between any provision in this Agreement and a provision in a Copyright Security Agreement, Trademark Security Agreement or Patent Security Agreement, such provision of this Agreement shall control.

 

8.             Agent’s Right to Perform Contracts, Exercise Rights, etc.  Upon the occurrence and during the continuance of an Event of Default, Agent (or its designee) (a) may proceed to perform any and all of the obligations of any Grantor contained in any contract, lease, or other agreement and exercise any and all rights of any Grantor therein contained as fully as such Grantor itself could, (b) shall have the right to use any Grantor’s rights under Intellectual Property Licenses in connection with the enforcement

 

16











 

of Agent’s rights hereunder, including the right to prepare for sale and sell any and all Inventory and Equipment now or hereafter owned by any Grantor and now or hereafter covered by such licenses, and (c) shall have the right to request that any Equity Interests that are pledged hereunder be registered in the name of Agent or any of its nominees.

 

9.             Agent Appointed Attorney-in-Fact.  Each Grantor hereby irrevocably appoints Agent its attorney-in-fact, with full authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, at such time as an Event of Default has occurred and is continuing under the Credit Agreement, to take any action and to execute any instrument which Agent may reasonably deem necessary or advisable to accomplish the purposes of this Agreement, including:

 

(a)           to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in connection with the Accounts or any other Collateral of such Grantor;

 

(b)           to receive and open all mail addressed to such Grantor and to notify postal authorities to change the address for the delivery of mail to such Grantor to that of Agent;

 

(c)           to receive, indorse, and collect any drafts or other instruments, documents, Negotiable Collateral or Chattel Paper;

 

(d)           to file any claims or take any action or institute any proceedings which Agent may deem necessary or desirable for the collection of any of the Collateral of such Grantor or otherwise to enforce the rights of Agent with respect to any of the Collateral;

 

(e)           to repair, alter, or supply goods, if any, necessary to fulfill in whole or in part the purchase order of any Person obligated to such Grantor in respect of any Account of such Grantor; and

 

(f)            to use any Intellectual Property or Intellectual Property Licenses of such Grantor, including labels, Patents, Trademarks, trade names, URLs, domain names, industrial designs, Copyrights, or advertising matter, in preparing for sale, advertising for sale, or selling Inventory or other Collateral and to collect any amounts due under Accounts, contracts or Negotiable Collateral of such Grantor;

 

To the extent permitted by Law, each Grantor hereby ratifies all that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof.  This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated in accordance with Section 20.

 

10.          Agent May Perform.  If any Grantor fails to perform any agreement contained herein, Agent may itself perform, or cause performance of, such agreement, and the reasonable expenses of Agent incurred in connection therewith shall be payable, jointly and severally, by Grantors.

 

11.          Agent’s Duties.  The powers conferred on Agent hereunder are solely to protect Agent’s interest in the Collateral, for the benefit of the Credit Group and the Bank Product Providers, and shall not impose any duty upon Agent to exercise any such powers.  Except for the safe custody of any Collateral in its actual possession and the accounting for moneys actually received by it hereunder, Agent shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral.  Agent shall be deemed to have exercised reasonable care in the custody and preservation of any Collateral in its actual possession if such Collateral is accorded treatment substantially equal to that which Agent accords its own property.

 

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12.          Collection of Accounts, General Intangibles and Negotiable Collateral.  At any time upon the occurrence and during the continuance of an Event of Default, Agent or Agent’s designee may (a) notify Account Debtors of any Grantor that the Accounts, General Intangibles, Chattel Paper or Negotiable Collateral of such Grantor have been assigned to Agent, for the benefit of the Credit Group and the Bank Product Providers, or that Agent has a security interest therein, and (b) collect the Accounts, General Intangibles and Negotiable Collateral of any Grantor directly, and any collection costs and expenses shall constitute part of such Grantor’s Secured Obligations under the Loan Documents.

 

13.          Disposition of Pledged Interests by Agent.  None of the Pledged Interests constituting Collateral existing as of the date of this Agreement are, and none of the Pledged Interests constituting Collateral hereafter acquired on the date of acquisition thereof will be, registered or qualified under the various federal or state securities laws of the United States and disposition thereof after an Event of Default may be restricted to one or more private (instead of public) sales in view of the lack of such registration.  Each Grantor understands that in connection with such disposition, Agent may approach only a restricted number of potential purchasers and further understands that a sale under such circumstances may yield a lower price for such Pledged Interests than if such Pledged Interests were registered and qualified pursuant to federal and state securities laws and sold on the open market.  Each Grantor, therefore, agrees that:  (a) if Agent shall, pursuant to the terms of this Agreement, sell or cause such Pledged Interests or any portion thereof to be sold at a private sale, Agent shall have the right to rely upon the advice and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated to seek such advice and the failure to do so shall not be considered in determining the commercial reasonableness of such action) as to the best manner in which to offer such Pledged Interests or any portion thereof for sale and as to the best price reasonably obtainable at the private sale thereof; and (b) such reliance shall be conclusive evidence that Agent has handled the disposition in a commercially reasonable manner.

 

14.          Voting and Other Rights in Respect of Pledged Interests.

 

(a)           So long as no Event of Default has occurred and is continuing, and the Grantors have not received the notice from Agent set forth in Section 14(b), each Grantor may exercise all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests constituting Collateral owned by such Grantor and receive and retain all dividends, interest or other distributions paid in respect thereof.

 

(b)           Upon the occurrence and during the continuation of an Event of Default, (i) Agent may, at its option, and with two Business Days prior notice to the Grantors, and in addition to all rights and remedies available to Agent under any other agreement, at law, in equity, or otherwise, exercise all voting rights, or any other ownership or consensual rights (including any dividend or distribution rights) in respect of the Pledged Interests constituting Collateral owned by each Grantor, but under no circumstances is Agent obligated by the terms of this Agreement to exercise such rights, and (ii) if Agent duly exercises its right to vote any of such Pledged Interests, each Grantor hereby appoints Agent, such Grantor’s true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote such Pledged Interests in any manner Agent deems advisable for or against all matters submitted or which may be submitted to a vote of shareholders, partners or members, as the case may be.  The power-of-attorney and proxy granted hereby is coupled with an interest and shall be irrevocable.

 

15.          Remedies.  Upon the occurrence and during the continuance of an Event of Default:

 

(a)           Agent may, and, at the instruction of the Required Lenders, shall exercise in respect of the Collateral, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it, all the rights and remedies of a secured party on default under the

 

18











 

Code or any other applicable Law.  Without limiting the generality of the foregoing, each Grantor expressly agrees that, in any such event, Agent without demand of performance or other demand, advertisement or notice of any kind (except a notice specified below of time and place of public or private sale) to or upon any Grantor or any other Person (all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent permitted by the Code or any other applicable Law), to the extent commercially reasonable may take immediate possession of all or any portion of the Collateral and (i) require such Grantor to, and such Grantor hereby agrees that it will at its own expense and upon request of Agent forthwith, assemble all or part of the Collateral as directed by Agent and make it available to Agent at one or more locations where such Grantor regularly maintains Inventory, and (ii) without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of Agent’s offices or elsewhere, for Cash, on credit, and upon such other terms, in each case as may be commercially reasonable.  Each Grantor agrees that, to the extent notification of sale shall be required by law, at least 10 days notification by mail to the applicable Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification and specifically such notification shall constitute a reasonable “authenticated notification of disposition” within the meaning of Section 9-611 of the Code.  Agent shall not be obligated to make any sale of Collateral regardless of notification of sale having been given.  Agent may adjourn any public sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.  Each Grantor agrees that (A) the internet shall constitute a “place” for purposes of Section 9-610(b) of the Code and (B) to the extent notification of sale shall be required by Law, notification by mail of the URL where a sale will occur and the time when a sale will commence at least 10 days prior to the sale shall constitute a reasonable notification for purposes of Section 9-611(b) of the Code.  Each Grantor agrees that any sale of Collateral to a licensor pursuant to the terms of a license agreement between such licensor and a Grantor is sufficient to constitute a commercially reasonable sale (including as to method, terms, manner, and time) within the meaning of Section 9-610 of the Code.

 

(b)           Agent may, in addition to other rights and remedies provided for herein, in the other Loan Documents, or otherwise available to it under applicable Law and without the requirement of notice to or upon any Grantor or any other Person (which notice is hereby expressly waived to the maximum extent permitted by the Code or any other applicable Law), (i) with respect to any Grantor’s Deposit Accounts in which Agent’s Liens are perfected by control under Section 9-104 of the Code, instruct the bank maintaining such Deposit Account for the applicable Grantor to pay the balance of such Deposit Account to or for the benefit of Agent, and (ii) with respect to any Grantor’s Securities Accounts in which Agent’s Liens are perfected by control under Section 9-106 of the Code, instruct the securities intermediary maintaining such Securities Account for the applicable Grantor to (A) transfer any Cash in such Securities Account to or for the benefit of Agent, or (B) liquidate any financial assets in such Securities Account that are customarily sold on a recognized market and transfer the Cash proceeds thereof to or for the benefit of Agent.

 

(c)           Any Cash held by Agent as Collateral and all Cash proceeds received by Agent in respect of any sale of, collection from, or other realization upon all or any part of the Collateral shall be applied against the Obligations in the order set forth in the Credit Agreement.   In the event the proceeds of Collateral are insufficient to satisfy all of the Secured Obligations in full, each Grantor shall remain jointly and severally liable for any such deficiency.

 

(d)           Agent shall have the right to the appointment of a receiver for the properties and assets of each Grantor, and each Grantor hereby consents to such rights and such appointment and hereby waives any objection such Grantor may have thereto or the right to have a bond or other security posted by Agent.

 

19











 

16.          No Waiver; Remedies Cumulative.  The terms set forth in the first paragraph of Section 10.03 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

 

17.          Marshaling. The terms set forth in the first sentence of Section 10.05 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

 

18.          Integration, Amendments; Etc.  This Agreement and the other Loan Documents constitute the entire agreement among the parties hereto relating to the subject matter hereof and supersede any and all previous documents, agreements and understandings, oral or written, relating to the subject matter hereof.  No amendment (except as otherwise contemplated by this Agreement, including by Pledged Interest Addendum and Joinder) or waiver of any provision of this Agreement, and no consent to any departure by any Grantor herefrom, will be effective unless in writing signed by Agent at the written request of Required Lenders and the Grantors, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.

 

19.          Addresses for Notices.  All notices and other communications provided for hereunder shall be given in the form and manner and delivered to Agent at its address specified in the Credit Agreement, and to any of the Grantors at their respective addresses specified in the Credit Agreement, as applicable, or, as to any other party, at such other address as shall be designated by such party in a written notice to the other party.

 

20.          Continuing Security Interest: Assignments under Credit Agreement.

 

(a)           This Agreement shall create a continuing security interest in the Collateral and shall (i) remain in full force and effect until the Obligations (other than as yet unasserted contingent obligations) have been paid in full in accordance with the provisions of the Credit Agreement and the Commitments have expired or have been terminated, (ii) be binding upon each Grantor and their respective successors and assigns, and (iii) inure to the benefit of, and be enforceable by, Agent and its successors, transferees and assigns.  Without limiting the generality of the foregoing clause (iii), any Lender may, in accordance with the provisions of the Credit Agreement, assign or otherwise transfer all or any portion of its rights and obligations under the Credit Agreement to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise.  Upon payment in full of the Secured Obligations (other than as yet unasserted contingent obligations) in accordance with the provisions of the Credit Agreement and the expiration or termination of the Commitments, the Security Interest granted hereby shall terminate and all rights to the Collateral shall revert to Grantors or any other Person entitled thereto.  At such time, upon the Administrative Borrower’s request, Agent will authorize the filing of appropriate termination statements to terminate such Security Interest.  No transfer or renewal, extension, assignment, or termination of this Agreement or of the Credit Agreement, any other Loan Document, or any other instrument or document executed and delivered by any Grantor to Agent nor any additional loans made by any Lender to any Borrower, nor the taking of further security, nor the retaking or re-delivery of the Collateral to Grantors, or any of them, by Agent, nor any other act of the Credit Group or the Bank Product Providers, or any of them, shall release any Grantor from any obligation, except a release or discharge executed in writing by Agent in accordance with the provisions of the Credit Agreement.  Agent shall not by any act, delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder, unless such waiver is in writing and signed by Agent and then only to the extent therein set forth.  A waiver by Agent of any right or remedy on any occasion shall not be construed as a bar to the exercise of any such right or remedy which Agent would otherwise have had on any other occasion.

 

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(b)           Each Grantor agrees that, if any payment made by any Grantor or other Person and applied to the Secured Obligations is at any time annulled, avoided, set, aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by Agent or any other member of the Credit Group to such Grantor, its estate, trustee, receiver or any other party, including any Grantor, under any Bankruptcy Law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, (i) any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of Section 20(a), or (ii) any provision of this Agreement shall have been terminated, cancelled or surrendered, such Lien, other Collateral or provision shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Grantor in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

 

21.          Survival of Representations and Warranties.  The terms set forth in the first sentence of Section 10.11 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

 

22.          GOVERNING LAW; SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL; VENUE.  THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN NEW YORK GENERAL OBLIGATIONS LAW 5-1401 AND 5-1402.  The terms of Sections 10.18(b), (c), and (d), 10.19 and 10.20 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

 

23.          Agent.  Each reference herein to any right granted to, benefit conferred upon or power exercisable by the “Agent” shall be a reference to Agent, for the benefit of each member of the Credit Group and each of the Bank Product Providers

 

24.          Miscellaneous.

 

(a)           This Agreement is a Loan Document.

 

(b)           This Agreement may be executed in any number of counterparts (and by different parties hereto in different counterparts), each of which will constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic method of transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

 

(c)           If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby and (ii) the parties hereto will endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

 

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[signature pages follow]

 

22












 

IN WITNESS WHEREOF, the undersigned parties hereto have caused this Agreement to be executed and delivered as of the day and year first above written.

 

GRANTORS:

 

	
CH2M   HILL COMPANIES, LTD.
    	
 
    	
CH2M HILL, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    	
Name:
    	
Steven Mathews
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
OPERATIONS   MANAGEMENT INTERNATIONAL, INC.
    	
 
    	
CH2M HILL ENGINEERS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
Allan Chow
    	
 
    	
Name:
    	
Steven Mathews
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CH2M   HILL GLOBAL, INC.
    	
 
    	
CH2M HILL   CONSTRUCTORS, INC.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    	
Name:
    	
Allan Chow
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CHVENG,   LLC
    	
 
    	
CH2M HILL PLATEAU   REMEDIATION COMPANY
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
By:
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    	
Name:
    	
Steven Mathews
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
Title:
    	
Treasurer and   Authorized Signatory
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
CH2M   HILL ALASKA, INC.
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
Steven Mathews
    	
 
    	
 
    	
 
    
	
Title:
    	
Treasurer and   Authorized Signatory
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
[       ]
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
By:
    	
 
    	
 
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    	
 
    	
 
    


 

[SIGNATURE PAGE TO SECURITY AGREEMENT]

 











 

	
AGENT:
    	
WELLS FARGO BANK, NATIONAL   ASSOCIATION,
   a national banking association
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

[SIGNATURE PAGE TO SECURITY AGREEMENT]

 











 

SCHEDULE 1

 

COPYRIGHTS

 











 

SCHEDULE 2

 

INTELLECTUAL PROPERTY LICENSES

 











 

SCHEDULE 3

 

PATENTS

 











 

SCHEDULE 4

 

PLEDGED COMPANIES

 

	
Name of Grantor
    	
 
    	
Name of Pledged
   Company
    	
 
    	
Number of
   Shares/Units
    	
 
    	
Class of
   Interests
    	
 
    	
Percentage
   of Class
   Owned
    	
 
    	
Percentage
   of Class
   Pledged
    	
 
    	
Certificate
   Nos.
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 











 

SCHEDULE 5

 

TRADEMARKS

 











 

SCHEDULE 6

 

NAME; CHIEF EXECUTIVE OFFICE; TAX IDENTIFICATION NUMBERS AND ORGANIZATIONAL NUMBERS

 

3











 

SCHEDULE 7

 

DEPOSIT ACCOUNTS AND SECURITIES ACCOUNTS

 

4











 

SCHEDULE 8

 

LIST OF UNIFORM COMMERCIAL CODE FILING JURISDICTIONS

 

	
Grantor
    	
 
    	
Jurisdiction
    
	
CH2M HILL   Companies, Ltd.
    	
 
    	
Delaware
    
	
CH2M   HILL, Inc.
    	
 
    	
Florida
    
	
Operations   Management International, Inc.
    	
 
    	
California
    
	
CH2M HILL   Engineers, Inc.
    	
 
    	
Delaware
    
	
CH2M HILL Global, Inc.
    	
 
    	
Delaware
    
	
CH2M HILL   Constructors, Inc.
    	
 
    	
Delaware
    
	
CHVENG, LLC
    	
 
    	
Delaware
    
	
CH2M HILL   Alaska, Inc.
    	
 
    	
Alaska
    
	
CH2M HILL   Plateau Remediation Company
    	
 
    	
Washington
    


 

5











 

SCHEDULE 9

 

POST-THIRD AMENDMENT EFFECTIVE DATE REQUIREMENTS

 

1.             Property and Liability Insurance.  Within 45 Business Days after the Third Amendment Effective Date, such Grantor shall (a) cause its Commercial General Liability insurance maintained under Section 6.06 of the Credit Agreement to name Agent as an additional insured party thereunder for the benefit of the Secured Parties, and (b) deliver to Agent evidence of  (i) one or more policies of Commercial General Liability insurance covering such Grantor and (ii) payment of all insurance premiums for the current policy year of such policies.

 

2.             [Other items, if any]

 












 

EXHIBIT A

 

COPYRIGHT SECURITY AGREEMENT

 

This COPYRIGHT SECURITY AGREEMENT (this “Copyright Security Agreement”) is made this     day of            , 20  , by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), in its capacity as agent for each member of the Credit Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain (a) Third Amendment to Credit Agreement, dated as of September 30, 2016 (the “Third Amendment”), by and among CH2M HILL Companies, Ltd., a Delaware corporation (the “Parent”), CH2M HILL, Inc., a Florida corporation (“CH2M Inc.”), Operations Management International, Inc., a California corporation (“OMI”), CH2M HILL Engineers, Inc., a Delaware corporation (“CH2M Engineers”), CH2M HILL Global, Inc., a Delaware corporation (“CH2M Global”), CH2M HILL Constructors, Inc., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL Energy, Ltd.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, each a “Borrower,” and, collectively, the “Borrowers”), the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, as Administrative Agent and (b) Second Amended and Restated Credit Agreement, dated as of March 28, 2014 (as amended by that certain First Amendment to Credit Agreement, dated as of September 26, 2014, that certain Second Amendment to Credit Agreement, dated as of March 30, 2015, that certain Consent, dated as of April 25, 2016, and the Third Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among the Borrowers, the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, in separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group, the Credit Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof; and

 

WHEREAS, the members of the Credit Group and the Bank Product Providers are willing to make the financial accommodations to Borrowers as provided for in the Credit Agreement, the other Loan Documents, and the Bank Product Agreements, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of the Credit Group and the Bank Product Providers, that certain Security Agreement, dated as of September 30, 2016 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

 

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Credit Group and the Bank Product Providers, this Copyright Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantors hereby agree as follows:

 

1.             DEFINED TERMS.  All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit

 

7











 

Agreement, and this Copyright Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.

 

2.             GRANT OF SECURITY INTEREST IN COPYRIGHT COLLATERAL.  Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Credit Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing security interest (referred to in this Copyright Security Agreement as the “Security Interest”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “Copyright Collateral”):

 

(a)           all of such Grantor’s Copyrights including those referred to on Schedule I;

 

(b)           all renewals or extensions of the foregoing; and

 

(c)           all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Copyright, including the right to receive damages.

 

Notwithstanding anything to be the contrary in this Copyright Security Agreement, the term “Copyright Collateral” shall not include any Excluded Collateral.

 

3.             SECURITY FOR SECURED OBLIGATIONS.  This Copyright Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Copyright Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the other members of the Credit Group, the Bank Product Providers or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

 

4.             SECURITY AGREEMENT.  The Security Interest granted pursuant to this Copyright Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Credit Group and the Bank Product Providers, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Copyright Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Copyright Security Agreement and the Security Agreement, the Security Agreement shall control.

 

5.             AUTHORIZATION TO SUPPLEMENT.  Grantors hereby authorize Agent unilaterally to modify this Copyright Security Agreement by amending Schedule I to include any future United States registered Copyrights or applications therefor of each Grantor.  Notwithstanding the foregoing, no failure to so modify this Copyright Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

 

6.             COUNTERPARTS.  This Copyright Security Agreement is a Loan Document.  This Copyright Security Agreement may be executed in any number of counterparts (and by different parties hereto in different counterparts) each of which will constitute an original, but all of which when taken together shall constitute a single contract.

 

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7.             GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE PROVISION.  THIS COPYRIGHT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE SET FORTH IN SECTION 22 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

 

[SIGNATURE PAGE FOLLOWS]

 

9











 

IN WITNESS WHEREOF, the parties hereto have caused this Copyright Security Agreement to be executed and delivered as of the day and year first above written.

 

.

 

	
GRANTORS:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
ACCEPTED   AND ACKNOWLEDGED BY:
    
	
 
    	
 
    
	
AGENT:
    	
WELLS FARGO BANK, NATIONAL   ASSOCIATION, a national banking association
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

[SIGNATURE PAGE TO COPYRIGHT SECURITY AGREEMENT]

 











 

SCHEDULE I
 TO
  COPYRIGHT SECURITY AGREEMENT

 

COPYRIGHT REGISTRATIONS

 

	
Grantor
    	
 
    	
Copyright
    	
 
    	
Registration No.
    	
 
    	
Registration Date
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 











 

EXHIBIT B

 

PATENT SECURITY AGREEMENT

 

This PATENT SECURITY AGREEMENT (this “Patent Security Agreement”) is made this     day of            , 20  , by and among the Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), in its capacity as agent for each member of the Credit Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity,  “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain (a) Third Amendment to Credit Agreement, dated as of September 30, 2016 (the “Third Amendment”), by and among CH2M HILL Companies, Ltd., a Delaware corporation (the “Parent”), CH2M HILL, Inc., a Florida corporation (“CH2M Inc.”), Operations Management International, Inc., a California corporation (“OMI”), CH2M HILL Engineers, Inc., a Delaware corporation (“CH2M Engineers”), CH2M HILL Global, Inc., a Delaware corporation (“CH2M Global”), CH2M HILL Constructors, Inc., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL Energy, Ltd.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, each a “Borrower,” and, collectively, the “Borrowers”), the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, as Administrative Agent and (b) Second Amended and Restated Credit Agreement, dated as of March 28, 2014 (as amended by that certain First Amendment to Credit Agreement, dated as of September 26, 2014, that certain Second Amendment to Credit Agreement, dated as of March 30, 2015, that certain Consent, dated as of April 25, 2016, and the Third Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among the Borrowers, the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, in separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group, the Credit Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof; and

 

WHEREAS, the members of Credit Group and the Bank Product Providers are willing to make the financial accommodations to Borrowers as provided for in the Credit Agreement, the other Loan Documents, and the Bank Product Agreements, but only upon the condition, among others, that the Grantors shall have executed and delivered to Agent, for the benefit of the Credit Group and the Bank Product Providers, that certain Security Agreement, dated as of September 30, 2016 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

 

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of the Credit Group and the Bank Product Providers, this Patent Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

 











 

1.             DEFINED TERMS.  All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit Agreement, and this Patent Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.

 

2.             GRANT OF SECURITY INTEREST IN PATENT COLLATERAL. Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Credit Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing security interest (referred to in this Patent Security Agreement as the “Security Interest”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “Patent Collateral”):

 

(a)           all of its Patents including those referred to on Schedule I;

 

(b)           all divisionals, continuations, continuations-in-part, reissues, reexaminations, or extensions of the foregoing; and

 

(c)           all products and proceeds of the foregoing, including any claim by such Grantor against third parties for past, present or future infringement of any Patent.

 

Notwithstanding anything to the contrary in this Patent Security Agreement, the term “Patent Collateral” shall not include any Excluded Collateral.

 

3.             SECURITY FOR SECURED OBLIGATIONS.  This Patent Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Patent Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the other members of the Credit Group, the Bank Product Providers or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

 

4.             SECURITY AGREEMENT.  The Security Interest granted pursuant to this Patent Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Credit Group and the Bank Product Providers, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Patent Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Patent Security Agreement and the Security Agreement, the Security Agreement shall control.

 

5.             AUTHORIZATION TO SUPPLEMENT.  Grantors hereby authorize Agent unilaterally to modify this Patent Security Agreement by amending Schedule I to include any such new patent rights of each Grantor.  Notwithstanding the foregoing, no failure to so modify this Patent Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

 

6.             COUNTERPARTS.  This Patent Security Agreement is a Loan Document.  This Patent Security Agreement may be executed in any number of counterparts (and by different parties hereto in different counterparts) each of which, will constitute an original, but all of which when taken together shall constitute a single contract.

 

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7.             GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE PROVISION.  THIS PATENT SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE SET FORTH IN SECTION 22 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Patent Security Agreement to be executed and delivered as of the day and year first above written.

 

	
GRANTORS:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
AGENT:
    	
ACCEPTED   AND ACKNOWLEDGED BY:
    
	
 
    	
WELLS FARGO BANK, NATIONAL   ASSOCIATION, a national banking association
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

[SIGNATURE PAGE TO PATENT SECURITY AGREEMENT]

 











 

SCHEDULE I
 to
  PATENT SECURITY AGREEMENT

 

Patents

 

	
Grantor
    	
 
    	
Patent
    	
 
    	
Application/
   Patent No.
    	
 
    	
Filing Date
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 












 

EXHIBIT C

 

PLEDGED INTERESTS ADDENDUM

 

This Pledged Interests Addendum, dated as of             , 20    (this “Pledged Interests Addendum”), is delivered pursuant to Section 6 of the Security Agreement referred to below.  The undersigned hereby agrees that this Pledged Interests Addendum may be attached to that certain Security Agreement, dated as of September 30, 2016, (as amended, restated, supplemented, or otherwise modified from time to time, the “Security Agreement”), made by the undersigned, together with the other Grantors named therein, to WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Agent.  Initially capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Security Agreement or, if not defined therein, in the Credit Agreement (as defined in the Security Agreement), and this Pledged Interests Addendum shall be subject to the rules of construction set forth in Section 1(b) of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.  The undersigned hereby agrees that the additional Equity Interests listed on Schedule I to the extent they constitute Collateral shall be and become part of the Pledged Interests pledged by the undersigned to Agent in the Security Agreement and any Person identified as a Pledged Company on Schedule I shall, to the extent it is not already identified as a Pledged Company under the Security Agreement, be and become a “Pledged Company” under the Security Agreement, each with the same force and effect as if originally named therein.

 

This Pledged Interests Addendum is a Loan Document.

 

The undersigned hereby certifies that the representations and warranties set forth in Sections 5(i) and (j) of the Security Agreement of the undersigned are true and correct as to the Pledged Interests listed herein on and as of the date hereof.

 

THIS PLEDGED INTERESTS ADDENDUM SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE SET FORTH IN SECTION 22 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

 

[SIGNATURE PAGE FOLLOWS]

 











 

IN WITNESS WHEREOF, the undersigned has caused this Pledged Interests Addendum to be executed and delivered as of the day and year first above written.

 

 

	
 
    	
[                   ]
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 











 

SCHEDULE I
 TO
  PLEDGED INTERESTS ADDENDUM

 

Pledged Interests

 

	
Name of Grantor
    	
 
    	
Name of Pledged
   Company
    	
 
    	
Number of
   Shares/Units
    	
 
    	
Class of
   Interests
    	
 
    	
Percentage
   of Class
   Owned
    	
 
    	
Certificate
   Nos.
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

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EXHIBIT D

 

TRADEMARK SECURITY AGREEMENT

 

This TRADEMARK SECURITY AGREEMENT (this “Trademark Security Agreement”) is made this     day of            , 20  , by and among Grantors listed on the signature pages hereof (collectively, jointly and severally, “Grantors” and each individually “Grantor”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (“Wells Fargo”), in its capacity as agent for the Credit Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain (a) Third Amendment to Credit Agreement, dated as of September 30, 2016 (the “Third Amendment”), by and among CH2M HILL Companies, Ltd., a Delaware corporation (the “Parent”), CH2M HILL, Inc., a Florida corporation (“CH2M Inc.”), Operations Management International, Inc., a California corporation (“OMI”), CH2M HILL Engineers, Inc., a Delaware corporation (“CH2M Engineers”), CH2M HILL Global, Inc., a Delaware corporation (“CH2M Global”), CH2M HILL Constructors, Inc., a Delaware corporation (“CH2M Constructors”), and CHVENG, LLC (formerly known as CH2M HILL Energy, Ltd.), a Delaware limited liability company (“CHVENG,” and together with the Parent, CH2M Inc., OMI, CH2M Engineers, CH2M Global and CH2M Constructors, each a “Borrower,” and, collectively, the “Borrowers”), the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, as Administrative Agent and (b) Second Amended and Restated Credit Agreement, dated as of March 28, 2014 (as amended by that certain First Amendment to Credit Agreement, dated as of September 26, 2014, that certain Second Amendment to Credit Agreement, dated as of March 30, 2015, that certain Consent, dated as of April 25, 2016, and the Third Amendment and as further amended, restated, amended and restated, supplemented or otherwise modified, the “Credit Agreement”), by and among the Borrowers, the Subsidiary Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo, in separate capacities as Swing Line Lender and as Administrative Agent on behalf and for the benefit of the Credit Group, the Credit Group has agreed to make certain financial accommodations available to Borrowers from time to time pursuant to the terms and conditions thereof; and

 

WHEREAS, the members of the Credit Group and the Bank Product Providers are willing to make the financial accommodations to Borrowers as provided for in the Credit Agreement, the other Loan Documents, and the Bank Product Agreements, but only upon the condition, among others, that Grantors shall have executed and delivered to Agent, for the benefit of Credit Group and the Bank Product Providers, that certain Security Agreement, dated as of September 30, 2016 (including all annexes, exhibits or schedules thereto, as from time to time amended, restated, supplemented or otherwise modified, the “Security Agreement”); and

 

WHEREAS, pursuant to the Security Agreement, Grantors are required to execute and deliver to Agent, for the benefit of Credit Group and the Bank Product Providers, this Trademark Security Agreement;

 

NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Grantor hereby agrees as follows:

 

1.             DEFINED TERMS.  All initially capitalized terms used but not otherwise defined herein have the meanings given to them in the Security Agreement or, if not defined therein, in the Credit

 











 

Agreement, and this Trademark Security Agreement shall be subject to the rules of construction set forth in Section 1(b) of the Security Agreement, which rules of construction are incorporated herein by this reference, mutatis mutandis.

 

2.             GRANT OF SECURITY INTEREST IN TRADEMARK COLLATERAL.  Each Grantor hereby unconditionally grants, assigns, and pledges to Agent, for the benefit each member of the Credit Group and each of the Bank Product Providers, to secure the Secured Obligations, a continuing security interest (referred to in this Trademark Security Agreement as the “Security Interest”) in all of such Grantor’s right, title and interest in and to the following, whether now owned or hereafter acquired or arising (collectively, the “Trademark Collateral”):

 

(a)           all of its Trademarks including those referred to on Schedule I;

 

(b)           all goodwill of the business connected with the use of, and symbolized by, each Trademark and each Intellectual Property License with respect to Trademarks; and

 

(c)           all products and proceeds (as that term is defined in the Code) of the foregoing, including any (i) claim by such Grantor against third parties for past, present or future infringement or dilution of any Trademark or (ii) injury to the goodwill associated with any Trademark.

 

(d)           Notwithstanding anything to the contrary in this Trademark Security Agreement, the term “Trademark Collateral” shall not include any Excluded Collateral.

 

3.             SECURITY FOR SECURED OBLIGATIONS.  This Trademark Security Agreement and the Security Interest created hereby secures the payment and performance of the Secured Obligations, whether now existing or arising hereafter.  Without limiting the generality of the foregoing, this Trademark Security Agreement secures the payment of all amounts which constitute part of the Secured Obligations and would be owed by Grantors, or any of them, to Agent, the other members of the Credit Group, the Bank Product Providers or any of them, whether or not they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Grantor.

 

4.             SECURITY AGREEMENT.  The Security Interest granted pursuant to this Trademark Security Agreement is granted in conjunction with the security interests granted to Agent, for the benefit of the Credit Group and the Bank Product Providers, pursuant to the Security Agreement.  Each Grantor hereby acknowledges and affirms that the rights and remedies of Agent with respect to the Security Interest in the Trademark Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.  To the extent there is any inconsistency between this Trademark Security Agreement and the Security Agreement, the Security Agreement shall control.

 

5.             AUTHORIZATION TO SUPPLEMENT.  Grantors hereby authorize Agent unilaterally to modify this Trademark Security Agreement by amending Schedule I to include any such new Trademark rights of each Grantor.  Notwithstanding the foregoing, no failure to so modify this Trademark Security Agreement or amend Schedule I shall in any way affect, invalidate or detract from Agent’s continuing security interest in all Collateral, whether or not listed on Schedule I.

 

6.             COUNTERPARTS.  This Trademark Security Agreement is a Loan Document.  This Trademark Security Agreement may be executed in any number of counterparts (and by different parties hereto in different counterparts) each of which will constitute an original, but all of which when taken together shall constitute a single contract.

 

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7.             CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER, AND JUDICIAL REFERENCE PROVISION.  THIS TRADEMARK SECURITY AGREEMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO JURISDICTION AND SERVICE OF PROCESS, WAIVER OF JURY TRIAL AND VENUE SET FORTH IN SECTION 22 OF THE SECURITY AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.

 

[SIGNATURE PAGE FOLLOWS]

 

5











 

IN WITNESS WHEREOF, the parties hereto have caused this Trademark Security Agreement to be executed and delivered as of the day and year first above written.

 

	
GRANTORS:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    
	
 
    	
 
    
	
 
    	
 
    
	
AGENT:
    	
ACCEPTED   AND ACKNOWLEDGED BY:
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK, NATIONAL   ASSOCIATION, a national banking association
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
 
    	
Name:
    
	
 
    	
 
    	
Title:
    


 

[SIGNATURE PAGE TO TRADEMARK SECURITY AGREEMENT]

 











 

SCHEDULE I
 to
  TRADEMARK SECURITY AGREEMENT

 

Trademark Registrations/Applications

 

	
Grantor
    	
 
    	
Mark
    	
 
    	
Application/
   Registration No.
    	
 
    	
App/Reg Date