Exhibit 10.2

 

Execution Version

 

Published CUSIP Number:  91307FAC9

Revolving A Credit CUSIP Number:  91307FAD7

Revolving B Credit CUSIP Number:  91307FAE5

 

$1,500,000,000

 

CREDIT AGREEMENT

 

dated as of June 27, 2018

 

by and among

 

UNITED THERAPEUTICS CORPORATION,
 as Borrower,

 

CERTAIN SUBSIDIARIES OF THE BORROWER PARTY HERETO,

as Guarantors,

 

THE LENDERS REFERRED TO HEREIN,

as Lenders,

 

BANK OF AMERICA, N.A.,

DNB BANK ASA, NEW YORK BRANCH,

MUFG BANK, LTD., and

PNC BANK, NATIONAL ASSOCIATION,

as co-Syndication Agents

 

CITIBANK, N.A.,

as Documentation Agent

 

and

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent and Swingline Lender

 

WELLS FARGO SECURITIES, LLC,

DNB MARKETS, INC.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

MUFG BANK, LTD., and

PNC CAPITAL MARKETS LLC,

as Joint Lead Arrangers and Joint Bookrunners

 











 

Table of Contents

 

	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE I. DEFINITIONS
    	
1
    
	
 
    	
 
    
	
Section 1.1
    	
Definitions
    	
1
    
	
Section 1.2
    	
Other Definitions and   Provisions
    	
26
    
	
Section 1.3
    	
Accounting Terms
    	
27
    
	
Section 1.4
    	
Rounding
    	
27
    
	
Section 1.5
    	
References to Agreement   and Laws
    	
27
    
	
Section 1.6
    	
Times of Day
    	
28
    
	
Section 1.7
    	
Guarantees
    	
28
    
	
Section 1.8
    	
Covenant Compliance   Generally
    	
28
    
	
Section 1.9
    	
Rates
    	
28
    
	
 
    	
 
    	
 
    
	
ARTICLE II. CREDIT FACILITIES
    	
28
    
	
 
    	
 
    	
 
    
	
Section 2.1
    	
Revolving Credit Loans
    	
28
    
	
Section 2.2
    	
Swingline Loans
    	
29
    
	
Section 2.3
    	
Procedure for Advances   of Revolving Credit Loans and Swingline Loans
    	
31
    
	
Section 2.4
    	
Repayment and   Prepayment of Revolving Credit and Swingline Loans
    	
32
    
	
Section 2.5
    	
Permanent Reduction of   the Revolving A Credit Commitment and/or the Revolving B Credit Commitment
    	
33
    
	
Section 2.6
    	
Termination of Credit   Facilities
    	
34
    
	
Section 2.7
    	
Optional Extensions of   Commitments
    	
34
    
	
 
    	
 
    	
 
    
	
ARTICLE III. GENERAL LOAN PROVISIONS
    	
37
    
	
 
    	
 
    	
 
    
	
Section 3.1
    	
Interest
    	
37
    
	
Section 3.2
    	
Notice and Manner of   Conversion or Continuation of Loans
    	
38
    
	
Section 3.3
    	
Fees
    	
39
    
	
Section 3.4
    	
Manner of Payment
    	
40
    
	
Section 3.5
    	
Evidence of Indebtedness
    	
40
    
	
Section 3.6
    	
Sharing of Payments by   Lenders
    	
41
    
	
Section 3.7
    	
Administrative Agent’s   Clawback
    	
41
    
	
Section 3.8
    	
Changed Circumstances
    	
42
    
	
Section 3.9
    	
Indemnity
    	
44
    
	
Section 3.10
    	
Increased Costs
    	
44
    
	
Section 3.11
    	
Taxes
    	
46
    
	
Section 3.12
    	
Mitigation Obligations;   Replacement of Lenders
    	
49
    
	
Section 3.13
    	
Defaulting Lenders
    	
50
    
	
Section 3.14
    	
Increase in Revolving A   Credit Commitment and/or Revolving B Credit Commitment
    	
52
    
	
 
    	
 
    	
 
    
	
ARTICLE IV. CONDITIONS OF CLOSING AND   BORROWING
    	
53
    
	
 
    	
 
    	
 
    
	
Section 4.1
    	
Conditions to Closing   and Initial Extensions of Credit
    	
53
    
	
Section 4.2
    	
Conditions to All   Extensions of Credit
    	
56
    
	
 
    	
 
    	
 
    
	
ARTICLE V. REPRESENTATIONS AND WARRANTIES   OF THE CREDIT PARTIES
    	
56
    
	
 
    	
 
    
	
Section 5.1
    	
Organization; Power;   Qualification
    	
56
    
	
Section 5.2
    	
Ownership
    	
56
    
	
Section 5.3
    	
Authorization;   Enforceability
    	
56
    
	
Section 5.4
    	
Compliance of   Agreement, Loan Documents and Borrowing with Laws, Etc.
    	
57
    
	
Section 5.5
    	
Compliance with Law;   Governmental Approvals
    	
57
    
	
Section 5.6
    	
Tax Returns and   Payments
    	
57
    
	
Section 5.7
    	
Intellectual Property   Matters
    	
57
    


 

i











 

Table of Contents (continued)

 

	
 
    	
Page
    
	
 
    	
 
    	
 
    
	
Section 5.8
    	
Environmental Matters
    	
58
    
	
Section 5.9
    	
Employee Benefit   Matters
    	
58
    
	
Section 5.10
    	
Margin Stock
    	
60
    
	
Section 5.11
    	
Government Regulation
    	
60
    
	
Section 5.12
    	
Financial Statements
    	
60
    
	
Section 5.13
    	
No Material Adverse   Effect
    	
60
    
	
Section 5.14
    	
Solvency
    	
60
    
	
Section 5.15
    	
Title to Properties
    	
60
    
	
Section 5.16
    	
Litigation
    	
60
    
	
Section 5.17
    	
Anti-Corruption Laws   and Sanctions
    	
60
    
	
Section 5.18
    	
Absence of Defaults
    	
61
    
	
Section 5.19
    	
Disclosure
    	
61
    
	
Section 5.20
    	
No EEA Financial   Institution
    	
61
    
	
 
    	
 
    	
 
    
	
ARTICLE VI. AFFIRMATIVE COVENANTS
    	
61
    
	
 
    	
 
    	
 
    
	
Section 6.1
    	
Financial Statements
    	
61
    
	
Section 6.2
    	
Certificates; Other   Reports
    	
62
    
	
Section 6.3
    	
Notice of Litigation   and Other Matters
    	
63
    
	
Section 6.4
    	
Preservation of   Corporate Existence and Related Matters
    	
64
    
	
Section 6.5
    	
Maintenance of Property   and Licenses
    	
64
    
	
Section 6.6
    	
Insurance
    	
64
    
	
Section 6.7
    	
Accounting Methods and   Financial Records
    	
64
    
	
Section 6.8
    	
Payment of Taxes
    	
64
    
	
Section 6.9
    	
Compliance with Laws   and Approvals
    	
64
    
	
Section 6.10
    	
Environmental Laws
    	
64
    
	
Section 6.11
    	
Compliance with ERISA
    	
65
    
	
Section 6.12
    	
Visits and Inspections
    	
65
    
	
Section 6.13
    	
Additional Subsidiaries
    	
65
    
	
Section 6.14
    	
Use of Proceeds
    	
65
    
	
Section 6.15
    	
Compliance with   Anti-Corruption Laws and Sanctions
    	
66
    
	
Section 6.16
    	
Further Assurances
    	
66
    
	
 
    	
 
    	
 
    
	
ARTICLE VII. NEGATIVE COVENANTS
    	
66
    
	
 
    	
 
    	
 
    
	
Section 7.1
    	
Indebtedness
    	
66
    
	
Section 7.2
    	
Liens
    	
67
    
	
Section 7.3
    	
Investments
    	
69
    
	
Section 7.4
    	
Fundamental Changes
    	
70
    
	
Section 7.5
    	
Asset Dispositions
    	
71
    
	
Section 7.6
    	
Restricted Payments
    	
72
    
	
Section 7.7
    	
Transactions with   Affiliates
    	
72
    
	
Section 7.8
    	
Burdensome Agreements
    	
73
    
	
Section 7.9
    	
Nature of Business
    	
73
    
	
Section 7.10
    	
Financial Covenants
    	
74
    
	
 
    	
 
    	
 
    
	
ARTICLE VIII. DEFAULT AND REMEDIES
    	
74
    
	
 
    	
 
    	
 
    
	
Section 8.1
    	
Events of Default
    	
74
    
	
Section 8.2
    	
Remedies
    	
76
    
	
Section 8.3
    	
Rights and Remedies   Cumulative; Non-Waiver; etc.
    	
76
    
	
Section 8.4
    	
Crediting of Payments   and Proceeds
    	
77
    
	
Section 8.5
    	
Administrative Agent   May File Proofs of Claim
    	
78
    


 

ii











 

Table of Contents (continued)

 

	
 
    	
Page
    
	
 
    	
 
    
	
ARTICLE IX. THE ADMINISTRATIVE AGENT
    	
78
    
	
 
    	
 
    	
 
    
	
Section 9.1
    	
Appointment and   Authority
    	
78
    
	
Section 9.2
    	
Rights as a Lender
    	
79
    
	
Section 9.3
    	
Exculpatory Provisions
    	
79
    
	
Section 9.4
    	
Reliance by the   Administrative Agent
    	
80
    
	
Section 9.5
    	
Delegation of Duties
    	
80
    
	
Section 9.6
    	
Resignation of   Administrative Agent
    	
80
    
	
Section 9.7
    	
Non-Reliance on Administrative   Agent and Other Lenders
    	
81
    
	
Section 9.8
    	
No Other Duties, Etc.
    	
81
    
	
Section 9.9
    	
Guaranty Matters
    	
82
    
	
Section 9.10
    	
Guaranteed Hedge   Agreements and Guaranteed Cash Management Agreements
    	
82
    
	
 
    	
 
    	
 
    
	
ARTICLE X. GUARANTY
    	
82
    
	
 
    	
 
    	
 
    
	
Section 10.1
    	
The Guaranty
    	
82
    
	
Section 10.2
    	
Obligations   Unconditional
    	
82
    
	
Section 10.3
    	
Reinstatement
    	
83
    
	
Section 10.4
    	
Certain Additional   Waivers
    	
84
    
	
Section 10.5
    	
Remedies
    	
84
    
	
Section 10.6
    	
Rights of Contribution
    	
84
    
	
Section 10.7
    	
Guarantee of Payment;   Continuing Guarantee
    	
84
    
	
Section 10.8
    	
Keepwell
    	
84
    
	
 
    	
 
    	
 
    
	
ARTICLE XI. MISCELLANEOUS
    	
85
    
	
 
    	
 
    	
 
    
	
Section 11.1
    	
Notices
    	
85
    
	
Section 11.2
    	
Amendments, Waivers and   Consents
    	
87
    
	
Section 11.3
    	
Expenses; Indemnity
    	
89
    
	
Section 11.4
    	
Right of Setoff
    	
91
    
	
Section 11.5
    	
Governing Law;   Jurisdiction, Etc.
    	
92
    
	
Section 11.6
    	
Waiver of Jury Trial
    	
92
    
	
Section 11.7
    	
Reversal of Payments
    	
93
    
	
Section 11.8
    	
Injunctive Relief
    	
93
    
	
Section 11.9
    	
Successors and Assigns;   Participations
    	
93
    
	
Section 11.10
    	
Treatment of Certain   Information; Confidentiality
    	
97
    
	
Section 11.11
    	
Performance of Duties
    	
98
    
	
Section 11.12
    	
All Powers Coupled with   Interest
    	
98
    
	
Section 11.13
    	
Survival
    	
98
    
	
Section 11.14
    	
Titles and Captions
    	
99
    
	
Section 11.15
    	
Severability of   Provisions
    	
99
    
	
Section 11.16
    	
Counterparts;   Integration; Effectiveness; Electronic Execution
    	
99
    
	
Section 11.17
    	
Term of Agreement
    	
99
    
	
Section 11.18
    	
USA PATRIOT Act
    	
100
    
	
Section 11.19
    	
Independent Effect of   Covenants
    	
100
    
	
Section 11.20
    	
No Advisory or   Fiduciary Responsibility
    	
100
    
	
Section 11.21
    	
Acknowledgement and   Consent to Bail-In of EEA Financial Institutions
    	
101
    
	
Section 11.22
    	
Inconsistencies with   Other Documents
    	
101
    
	
Section 11.23
    	
Certain ERISA Matters
    	
101
    
	
Section 11.24
    	
Release of Guarantors
    	
103
    


 

iii











 


	
EXHIBITS
    	
 
    	
 
    
	
Exhibit A-1
    	
 
    	
Form of Revolving Credit Note
    
	
Exhibit A-2
    	
 
    	
Form of Swingline Note
    
	
Exhibit B
    	
 
    	
Form of Notice of Borrowing
    
	
Exhibit C
    	
 
    	
Form of Notice of Account Designation
    
	
Exhibit D
    	
 
    	
Form of Notice of Prepayment
    
	
Exhibit E
    	
 
    	
Form of Notice of Conversion/Continuation
    
	
Exhibit F
    	
 
    	
Form of Officer’s Compliance Certificate
    
	
Exhibit G
    	
 
    	
Form of Assignment and Assumption
    
	
Exhibit H
    	
 
    	
Forms of U.S. Tax Compliance Certificates
    
	
Exhibit I
    	
 
    	
Form of Extension Letter
    
	
Exhibit J
    	
 
    	
Form of Joinder Agreement
    
	
 
    	
 
    	
 
    
	
SCHEDULES
    	
 
    	
 
    
	
Schedule 1.1
    	
 
    	
Commitments and Commitment Percentages
    
	
Schedule 5.2
    	
 
    	
Subsidiaries
    
	
Schedule 5.9
    	
 
    	
ERISA Plans
    
	
Schedule 7.1
    	
 
    	
Existing Indebtedness
    
	
Schedule 7.2
    	
 
    	
Existing Liens
    




 












 

CREDIT AGREEMENT, dated as of June 27, 2018, by and among UNITED THERAPEUTICS CORPORATION, a Delaware corporation (the “Borrower”), the Guarantors (as defined herein), the lenders who are party to this Agreement and the lenders who may become a party to this Agreement pursuant to the terms hereof (the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders and Swingline Lender.

 

STATEMENT OF PURPOSE

 

The Borrower has requested, and subject to the terms and conditions set forth in this Agreement, the Administrative Agent and the Lenders have agreed to extend, certain revolving credit facilities to the Borrower.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

Section 1.1                                    Definitions.  The following terms when used in this Agreement shall have the meanings assigned to them below:

 

“Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which any Credit Party or any of its Subsidiaries (a) acquires any going business or all or substantially all of the assets of any Person, or division thereof, whether through purchase of assets, merger or otherwise or (b) directly or indirectly acquires at least a majority (in number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of the outstanding ownership interests of a partnership or limited liability company.

 

“Administrative Agent” means Wells Fargo, in its capacity as Administrative Agent hereunder, and any successor thereto appointed pursuant to Section 9.6.

 

“Administrative Agent’s Office” means the office of the Administrative Agent specified in or determined in accordance with the provisions of Section 11.1(c).

 

“Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent.

 

“Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

 

“Agreement” means this Credit Agreement.

 

“Anniversary Date” has the meaning assigned thereto in Section 2.7(a)(i).

 

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption,

 











 

including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.

 

“Applicable Law” means all applicable provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of Governmental Authorities and all orders and decrees of all courts and arbitrators.

 

“Applicable Margin” means the corresponding percentages per annum as set forth below based on the Consolidated Total Leverage Ratio and, in the case of the Revolving B Commitment Fee, the Utilization Percentage:

 

	
 
    	
 
    	
Consolidated
    	
 
    	
Revolving A Credit Facility
    	
 
    	
Revolving B Credit Facility
    	
 
    
	
Pricing
   Level
    	
 
    	
Total
   Leverage
   Ratio
    	
 
    	
Revolving A
   Commitment
   Fee
    	
 
    	
LIBOR
   Rate
   Loan
    	
 
    	
Base
   Rate
   Loan
    	
 
    	
Utilization
   Percentage
    	
 
    	
Revolving B
   Commitment
   Fee
    	
 
    	
LIBOR
   Rate
   Loan
    	
 
    	
Base
   Rate
   Loan
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
<   33.3%
    	
 
    	
0.650
    	
%
    	
 
    	
 
    	
 
    	
 
    
	
I
    	
 
    	
Less than or equal to   1.50 to 1.00
    	
 
    	
0.25
    	
%
    	
1.75
    	
%
    	
0.75
    	
%
    	
> 33.3% but <   66.6%
    	
 
    	
0.425
    	
%
    	
1.625
    	
%
    	
0.625
    	
%
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
> 66.6%
    	
 
    	
0.200
    	
%
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
<   33.3%
    	
 
    	
0.700
    	
%
    	
 
    	
 
    	
 
    	
 
    
	
II
    	
 
    	
Greater than 1.50 to   1.00, but less than or equal to 2.00 to 1.00
    	
 
    	
0.30
    	
%
    	
2.00
    	
%
    	
1.00
    	
%
    	
> 33.3% but <   66.6%
    	
 
    	
0.475
    	
%
    	
1.875
    	
%
    	
0.875
    	
%
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
> 66.6%
    	
 
    	
0.250
    	
%
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
<   33.3%
    	
 
    	
0.800
    	
%
    	
 
    	
 
    	
 
    	
 
    
	
III
    	
 
    	
Greater than 2.00 to   1.00
    	
 
    	
0.35
    	
%
    	
2.25
    	
%
    	
1.25
    	
%
    	
> 33.3% but <   66.6%
    	
 
    	
0.550
    	
%
    	
2.125
    	
%
    	
1.125
    	
%
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
> 66.6%
    	
 
    	
0.300
    	
%
    	
 
    	
 
    	
 
    	
 
    


 

The Applicable Margin shall be determined and adjusted quarterly (other than, with respect to the Revolving B Commitment Fee, any adjustment based upon a change in the applicable Utilization Percentage in accordance with clause (c) below) on the date that is five (5) Business Days after the day on which the Borrower provides an Officer’s Compliance Certificate pursuant to Section 6.2(a) for the most recently ended fiscal quarter of the Borrower (each such date, a “Calculation Date”); provided that (a) the Applicable Margin shall be based on Pricing Level I until the first Calculation Date occurring after the Closing Date and, thereafter the Pricing Level shall be determined by reference to the Consolidated Total Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date (subject, in the case of the Revolving B Commitment Fee, to the applicable Utilization Percentage), (b) if the Borrower fails to provide an Officer’s Compliance Certificate when due as required by Section 6.2(a) for the most recently ended fiscal quarter of the Borrower preceding the applicable Calculation Date, the Applicable Margin from the date on which such Officer’s Compliance Certificate was required to have been delivered shall, upon the request of the Required Lenders, be based on Pricing Level III (subject, in the case of the Revolving B Commitment Fee, to the applicable Utilization Percentage) until such time as such Officer’s Compliance Certificate is delivered, at which time the Pricing Level shall be determined by reference to the Consolidated Total Leverage Ratio as of the last day of the most recently ended fiscal quarter of the Borrower preceding such Calculation Date (subject, in the case of the Revolving B Commitment Fee, to the applicable Utilization Percentage), and

 

2











 

(c) with respect to the Revolving B Commitment Fee, the Applicable Margin shall also be adjusted on a daily basis with respect to any change in the Utilization Percentage.

 

The applicable Pricing Level shall be effective from one Calculation Date until the next Calculation Date (subject, in the case of the Revolving B Commitment Fee, to any change in the applicable Utilization Percentage).  Any adjustment in the Pricing Level shall be applicable to all Extensions of Credit then existing or subsequently made or issued.

 

Notwithstanding the foregoing, in the event that any financial statement or Officer’s Compliance Certificate delivered pursuant to Section 6.1 or 6.2(a) is shown to be inaccurate (regardless of whether (i) this Agreement is in effect, (ii) any Commitments are in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered or such financial statement or Officer’s Compliance Certificate was delivered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin for any period (an “Applicable Period”) than the Applicable Margin applied for such Applicable Period, then (A) the Borrower shall promptly deliver to the Administrative Agent a corrected Officer’s Compliance Certificate for such Applicable Period, (B) the Applicable Margin for such Applicable Period shall be determined as if the Consolidated Total Leverage Ratio in the corrected Officer’s Compliance Certificate were applicable for such Applicable Period, and (C) the Borrower shall promptly and retroactively be obligated to pay to the Administrative Agent the accrued additional interest and fees owing as a result of such increased Applicable Margin for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with Section 3.4.  Nothing in this paragraph shall limit the rights of the Administrative Agent and Lenders with respect to Sections 3.1(b) and 8.2 nor any of their other rights under this Agreement or any other Loan Document.  The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment of all other Obligations hereunder.

 

“Applicable Period” has the meaning assigned thereto in the definition of Applicable Margin.

 

“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, collectively, Wells Fargo Securities, LLC, DNB Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), MUFG Bank, Ltd., and PNC Capital Markets LLC, in their respective capacity as joint lead arrangers and joint bookrunners.

 

“Asset Disposition” means the sale, transfer, license, lease or other disposition of any Property (including any disposition of Equity Interests other than any issuance, sale or other disposition of Equity Interests of the Borrower) by any Credit Party or any Subsidiary thereof.  The term “Asset Disposition” shall not include (a) the sale of inventory in the ordinary course of business, (b) the transfer of assets to the Borrower or any Guarantor pursuant to any other transaction permitted pursuant to Section 7.4, (c) the write-off, discount, sale or other disposition of defaulted or past-due receivables and similar obligations in the ordinary course of business and not undertaken as part of an accounts receivable financing transaction, (d) the disposition of any Hedge Agreement, (e) dispositions of cash and Cash Equivalents, (f) the transfer by any Credit Party of its assets to any other Credit Party, (g) the transfer by any Non-Guarantor Subsidiary of its assets to any Credit Party (provided that in connection with any new transfer, such Credit Party shall not pay more than an amount equal to the fair market value of such assets as determined in good faith at the time of such transfer), (h) the transfer by any Non-Guarantor Subsidiary of its assets to

 

3











 

any other Non-Guarantor Subsidiary and (i) Liens permitted by Section 7.2 (other than clause (m) thereof).

 

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.9), and accepted by the Administrative Agent, in substantially the form attached as Exhibit G or any other form approved by the Administrative Agent.

 

“Attributable Indebtedness” means, on any date of determination, (a) in respect of any Capital Lease Obligation of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease, the capitalized amount or principal 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 Capital Lease Obligation.

 

“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.

 

“Base Rate” means, for any date, the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50% and (c) subject to the implementation of a Replacement Rate in accordance with Section 3.8(c), LIBOR that would be calculated as of such day for an Interest Period of one month plus 1%; each change in the Base Rate shall take effect simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate or LIBOR (provided that clause (c) shall not be applicable during any period in which LIBOR is unavailable or unascertainable).  Notwithstanding anything to the contrary herein, in no event shall the Base Rate be less than 0%.

 

“Base Rate Loan” means any Loan bearing interest at a rate based upon the Base Rate as provided in Section 3.1(a).

 

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

 

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

 

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

 

“Borrower” has the meaning assigned thereto in the introductory paragraph hereto.

 

“Borrower Materials” has the meaning assigned thereto in Section 6.2.

 

“Business Day” means (a) for all purposes other than as set forth in clause (b) below, any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina and New

 

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York, New York are open for the conduct of their commercial banking business and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, any LIBOR Rate Loan, or any Base Rate Loan as to which the interest rate is determined by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a London Banking Day.

 

“Calculation Date” has the meaning assigned thereto in the definition of Applicable Margin.

 

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

“Cash Equivalents” means, collectively, (a) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing not more than 360 days from the date of acquisition thereof, (b) commercial paper maturing not more than 360 days from the date of creation thereof and rated at least “A-1” (or the then-equivalent grade) by S&P and rated at least “Prime-1” (or the then-equivalent grade) by Moody’s, (c) certificates of deposit maturing not more than 120 days from the date of creation thereof issued by (i) any Lender, or (ii) any commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of at least”A-1” (or the then-equivalent grade) by a nationally recognized rating agency, (d) time deposits maturing no more than ninety (90) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder, (e) Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, as amended, at least 95% of the portfolios of which are Investments of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition, (f) repurchase agreements with banks described in clause (d) above for government obligations described in clause (a) above, maturing not more than 360 days from the date of acquisition and for the stated price thereof in such agreements, (g) corporate debt instruments issued by Persons with a rating of “A” or higher from S&P or “A2” or higher from Moody’s with maturities of 3 years or less from the date of acquisition, and (h) deposits in demand deposit accounts in the name of the Borrower and its Subsidiaries in the ordinary course of business.

 

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payables and purchasing cards), electronic funds transfer and other cash management arrangements.

 

“Cash Management Bank” means any Person that, (a) at the time it enters into a Cash Management Agreement with a Credit Party or a Subsidiary, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on the Closing Date), is a party to a Cash Management Agreement with a Credit Party or a Subsidiary, in each case in its capacity as a party to such Cash Management Agreement.

 

“Change in Control” means 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 any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a “person” or “group” shall be deemed to

 

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have “beneficial ownership” of all Equity Interests 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 more than thirty-five percent (35%) of the Equity Interests of the Borrower entitled to vote in the election of members of the board of directors (or equivalent governing body) of the Borrower.

 

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

“Class” means, when used in reference to any Loan, whether such Loan is a Revolving A Credit Loan or Revolving B Credit Loan and, when used in reference to any Commitment, whether such Commitment is a Revolving A Credit Commitment or a Revolving B Credit Commitment.

 

“Closing Date” means the date of this Agreement.

 

“Code” means the Internal Revenue Code of 1986.

 

“Commitment Percentage” means, as to any Lender, such Lender’s Revolving A Credit Commitment Percentage or Revolving B Credit Commitment Percentage, as applicable.

 

“Commitments” means, collectively, as to all Lenders, the Revolving A Credit Commitments and the Revolving B Credit Commitments of such Lenders.

 

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

 

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

 

“Consolidated” means, when used with reference to financial statements or financial statement items of any Person, such statements or items on a consolidated basis in accordance with applicable principles of consolidation under GAAP.

 

“Consolidated EBITDA” means, for any period, the sum of the following determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP: (a) Consolidated Net Income for such period plus (b) the sum of the following, without duplication, to the extent deducted in determining Consolidated Net Income for such period: (i) income and franchise taxes, (ii) Consolidated Interest Expense, (iii) amortization and depreciation, (iv) stock based compensation expense (including with respect to stock option, share tracking award and employee stock purchase plans), (v) non-cash license fee charges, (vi) non-cash asset impairment charges, (vii) non-recurring non-cash charges reducing Consolidated Net Income in such period (excluding any such expenses or charges to the extent representing an accrual or reserve for any cash charge in any future period and excluding write-downs of current assets), and (viii) non-recurring transaction fees, costs and expenses, integration,

 

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reorganization and restructuring costs and facility consolidation and closing costs incurred in connection with reorganizations, restructurings and Investments (including, the incurrence or repayment of Indebtedness in connection therewith) and Asset Dispositions permitted hereunder, provided that (A) such fees, costs and expenses in this clause (viii) are incurred within twelve (12) months of the occurrence of such applicable triggering event and (B) the aggregate amount of such fees, costs and expenses added back pursuant to this clause (viii) shall not exceed the greater of (x) 15% of Consolidated EBITDA for the applicable period of four fiscal quarters (prior to giving effect to such adjustments) and (y) $100,000,000 during any such applicable period of four fiscal quarters, less (c) to the extent included in determining Consolidated Net Income for such period, (i) interest income and (ii) all non-recurring non-cash items increasing Consolidated Net Income.  For purposes of this Agreement, Consolidated EBITDA shall be adjusted on a Pro Forma Basis.

 

“Consolidated Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date to (b) Consolidated Interest Expense for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

 

“Consolidated Interest Expense” means, for any period, the interest expense (including, without limitation, interest expense attributable to Capital Lease Obligations and all net payment obligations pursuant to Hedge Agreements relating to interest rates) determined on a Consolidated basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP.

 

“Consolidated Net Income” means, for any period, the net income (or loss) of the Borrower and its Subsidiaries for such period, determined on a Consolidated basis, without duplication, in accordance with GAAP; provided, that in calculating Consolidated Net Income of the Borrower and its Subsidiaries for any period, there shall be excluded (a) the net income (or loss) of any Person, in which the Borrower or any of its Subsidiaries has a joint interest with a third party, except to the extent such net income is actually paid in cash to the Borrower or any of its Subsidiaries by dividend or other distribution during such period, and (b) any gain or loss from Asset Dispositions outside of the ordinary course of business during such period.

 

“Consolidated Net Tangible Assets” means, as of any date of determination, for the Borrower and its Subsidiaries, on a Consolidated basis, the total amount of assets less the sum of (1) the goodwill and other intangible assets, and (2) all current liabilities, in each case, except as specifically set forth herein, reflected on the most recent consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the most recently ended fiscal quarter for which financial statements have been or are required to have been delivered pursuant to Section 6.1(a) or (b).  Consolidated Net Tangible Assets shall be determined on a Pro Forma Basis.

 

“Consolidated Total Indebtedness” means, as of any date of determination with respect to the Borrower and its Subsidiaries on a Consolidated basis without duplication, the sum of all Indebtedness contemplated in clauses (a), (b), (c), (d), (e), (f) (to the extent representing outstanding reimbursement obligations of such person with respect to letters of credit and banker’s acceptances), (g) and (i) (to the extent relating to Indebtedness of others that would be included in Consolidated Total Indebtedness if the Borrower were the direct obligor thereunder) of the definition thereof of the Borrower and its Subsidiaries.

 

“Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness on such date to (b) Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending on or immediately prior to such date.

 

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“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.

 

“Core Intellectual Property” means all registered trademarks and patents owned or licensed by the Borrower and its Subsidiaries covering the development, manufacture, or marketing of the Borrower’s or its Subsidiaries’ Products, other than any such trademarks or patents that are not material to the Borrower and its Subsidiaries taken as a whole at the time of the incurrence of the relevant Lien or at the time the relevant representation or warranty is made, as applicable.  A patent or trademark shall be deemed not to be “material” if it is expired, held invalidated or unenforceable, or if it solely covers one or more Product(s) for which a third party has launched a generic version of such Product(s) in the United States.  As used herein “Product” means a product approved for marketing and sale in the United States by the U.S. Food and Drug Administration (“FDA”) and listed in FDA’s “Orange Book.”

 

“Credit Facilities” means, collectively, the Revolving A Credit Facility, the Revolving B Credit Facility and the Swingline Facility.

 

“Credit Parties” means, collectively, the Borrower and the Guarantors.

 

“Current Revolving A Credit Maturity Date” has the meaning set forth in Section 2.7(a)(i).

 

“Current Revolving B Credit Maturity Date” has the meaning set forth in Section 2.7(b)(i).

 

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

 

“Default” means any of the events specified in Section 8.1 which with the passage of time, the giving of notice or the occurrence of any other condition, would constitute an Event of Default.

 

“Defaulting Lender” means, subject to Section 3.13(b), any Lender that (a) has failed to (i) fund all or any portion of the Revolving Credit Loans or participations in Swingline Loans required to be funded by it hereunder within two Business Days of the date such Loans or participations were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Swingline Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed

 

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for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.13(b)) upon delivery of written notice of such determination to the Borrower, the Swingline Lender and each Lender.

 

“Disqualified Equity Interests” means any Equity Interests that, by their terms (or by the terms of any security or other Equity Interest into which they are convertible or for which they are exchangeable) or upon the happening of any event or condition, (a) mature or are mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), (b) are redeemable at the option of the holder thereof (other than solely for Qualified Equity Interests) (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all other Obligations that are accrued and payable and the termination of the Commitments), in whole or in part, (c) provide for the scheduled payment of dividends in cash or (d) are or become convertible into or exchangeable for Indebtedness or any other Equity Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is 91 days after the latest Maturity Date; provided, that only the portion of the Equity Interests that so mature or are mandatorily redeemable, are so convertible or exchangeable or are so redeemable at the option of the holder thereof prior to such date shall be deemed to be Disqualified Equity Interests; provided, further, that (i) if such Equity Interests is issued pursuant to a plan for the benefit of the Borrower or its Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Equity Interests solely because they may be required to be repurchased by the Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations and (ii) any class of Equity Interests of such Person that by its terms authorizes such person to satisfy its obligations thereunder by delivery of Equity Interests that are not Disqualified Equity Interests shall be deemed not to constitute Disqualified Equity Interests.

 

“Dollars” or “$” means, unless otherwise qualified, dollars in lawful currency of the United States.

 

“Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision of the United States.

 

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

 

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

 

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

 

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.9(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 11.9(b)(iii)).

 

“Employee Benefit Plan” means (a) any employee benefit plan within the meaning of Section 3(3) of ERISA that is maintained for employees of any Credit Party or any ERISA Affiliate or (b) any Pension Plan or Multiemployer Plan that has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Credit Party or any ERISA Affiliate.

 

“Environmental Claims” means any and all administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of noncompliance or violation, investigations (other than internal reports prepared by any Person in the ordinary course of business and not in response to any third party action or request of any kind) or proceedings relating in any way to any actual or alleged violation of or liability under any Environmental Law or relating to any permit issued, or any approval given, under any such Environmental Law, including, without limitation, any and all claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to public health or the environment.

 

“Environmental Laws” means any and all federal, foreign, state, provincial and local laws, statutes, ordinances, codes, rules, standards and regulations, permits, licenses, approvals, interpretations and orders of courts or Governmental Authorities, relating to the protection of public health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.

 

“Equity Interests” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests, (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person and (f) any and all warrants, rights or options to purchase any of the foregoing; provided that “Equity Interests” shall not include Indebtedness that is convertible into any of the foregoing, prior to such conversion.

 

“ERISA” means the Employee Retirement Income Security Act of 1974, and the rules and regulations thereunder.

 

“ERISA Affiliate” means any Person who together with any Credit Party or any of its Subsidiaries is treated as a single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section 4001(b) of ERISA.

 

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

 

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“Eurodollar Reserve Percentage” means, for any day, the percentage which is in effect for such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including, without limitation, any basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any similar category of liabilities for a member bank of the Federal Reserve System in New York City.

 

“Event of Default” means any of the events specified in Section 8.1; provided that any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

 

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

 

“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the liability of such Credit Party for or the guarantee of such Credit Party of, or the grant by such Credit Party of a security interest to secure, such Swap Obligation (or any liability or guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Credit Party’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 liability for or the guarantee of such Credit Party or the grant of such security interest becomes effective with respect to such Swap Obligation (such determination being made after giving effect to any applicable keepwell, support or other agreement for the benefit of the applicable Credit Party, including under Section 10.8).  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guarantee or security interest is or becomes illegal for the reasons identified in the immediately preceding sentence of this definition.

 

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, United States federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in a Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.12(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.11, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.11(f) and (d) any United States federal withholding Taxes imposed under FATCA.

 

“Existing Credit Agreement” means that certain credit agreement, dated as of January 29, 2016, among the Borrower, the guarantors party thereto, the lenders party thereto, and Wells Fargo Bank, National Association, as administrative agent.

 

“Extending Revolving A Credit Lender” has the meaning assigned thereto in Section 2.7(a)(iv).

 

“Extending Revolving B Credit Lender” has the meaning assigned thereto in Section 2.7(b)(iv).

 

“Extension Letter” means a letter from the Borrower to the Administrative Agent requesting an extension of each Revolving A Credit Lender’s Scheduled Revolving A Credit Maturity Date and/or each

 

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Revolving B Credit Lender’s Scheduled Revolving B Credit Maturity Date, substantially in the form of Exhibit I.

 

“Extensions of Credit” means, as to any Lender at any time, an amount equal to the sum of (a) the aggregate principal amount of all Revolving A Credit Loans made by such Lender then outstanding, plus (b) the aggregate principal amount of all Revolving B Credit Loans made by such Lender then outstanding, plus (c) such Lender’s Revolving B Credit Commitment Percentage of the Swingline Loans then outstanding.

 

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreements,, treaty or convention among Governmental Authorities and implementing the foregoing.

 

“FDIC” means the Federal Deposit Insurance Corporation.

 

“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 on such day (or, if such day is not a Business Day, for the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that if such rate is not so published for any day which is a Business Day, the Federal Funds Rate shall be the average rate charged to Wells Fargo on such day on such transactions as determined by the Administrative Agent.  Notwithstanding the foregoing, if the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“Fee Letter” means the separate fee letter agreement dated June 4, 2018 among the Borrower, Wells Fargo and Wells Fargo Securities, LLC.

 

“Fiscal Year” means the fiscal year of the Borrower and its Subsidiaries ending on December 31.

 

“Foreign Lender” means a Lender that is not a U.S. Person.

 

“Fronting Exposure” means, at any time there is a Defaulting Lender, with respect to the Swingline Lender, such Defaulting Lender’s Revolving B Credit Commitment Percentage of outstanding Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

 

“FSHCO” means any Domestic Subsidiary that (i) substantially all of the assets of which consist, directly or indirectly, of Equity Interests in one or more direct or indirect subsidiaries that are “controlled foreign corporations” within the meaning of Section 957 of the Code or of Indebtedness of such subsidiaries or (ii) is a subsidiary of a “controlled foreign corporation” within the meaning of Section 957 of the Code or of an entity described in clause (i) of this definition.

 

“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, bonds and similar extensions of credit in the ordinary course of its activities.

 

“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

 

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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.

 

“Governmental Approvals” means all authorizations, consents, approvals, permits, licenses and exemptions of, and all registrations and filings with or issued by, any Governmental Authorities.

 

“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).

 

“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation or (e) for the purpose of assuming in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (whether in whole or in part).

 

“Guaranteed Cash Management Agreement” means any Cash Management Agreement between or among any Credit Party or any Subsidiary and any Cash Management Bank.

 

“Guaranteed Hedge Agreement” means any Hedge Agreement between or among any Credit Party or any Subsidiary and any Hedge Bank.

 

“Guaranteed Obligations” means, collectively, (a) the Obligations and (b) all existing or future payment and other obligations owing by any Credit Party or any Subsidiary under (i) any Guaranteed Hedge Agreement and (ii) any Guaranteed Cash Management Agreement; provided, however, that the “Guaranteed Obligations” of a Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

 

“Guaranteed Parties” means, collectively, the Administrative Agent, the Lenders, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.5, any other holder from time to time of any of any Guaranteed Obligations and, in each case, their respective successors and permitted assigns.

 

“Guarantors” means, collectively, (a) the Subsidiaries of the Borrower as are or may from time to time become parties to this Agreement pursuant to Section 6.13, (b) with respect to (i) all existing or future payment or other obligations owing by any Credit Party (other than the Borrower) or any Subsidiary under any Guaranteed Hedge Agreement or any Guaranteed Cash Management Agreement, and (ii) any Swap Obligation of a Specified Credit Party (determined before giving effect to Sections 10.1

 

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and 10.8) under the Guaranty, the Borrower, and (c) the successors and permitted assigns of the foregoing.

 

“Guaranty” means the Guaranty made by the Guarantors in favor of the Guaranteed Parties pursuant to Article X.

 

“Hazardous Materials” means any substances or materials (a) which are or become defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to public health or the environment and are or become regulated by any Governmental Authority, (c) the presence of which require investigation or remediation under any Environmental Law or common law, (d) the discharge or emission or release of which requires a permit or license under any Environmental Law or other Governmental Approval, (e) which are deemed by a Governmental Authority to constitute a nuisance or a trespass which pose a health or safety hazard to Persons or neighboring properties, or (f) which contain, without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.

 

“Hedge Agreement” means 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.  Notwithstanding the foregoing, the following shall not constitute Hedge Agreements:  (a) any accelerated share repurchase contract, share call option or similar contract with respect to the purchase by the Borrower of its common stock and (b) any call options, warrants or similar instruments with respect to the common stock of the Borrower entered into by the Borrower in connection with an issuance of convertible Indebtedness of the Borrower permitted under this Agreement.

 

“Hedge Bank” means any Person that, (a) at the time it enters into a Hedge Agreement with a Credit Party or a Subsidiary permitted under Article VII, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent or (b) at the time it (or its Affiliate) becomes a Lender or the Administrative Agent (including on the Closing Date), is a party to a Hedge Agreement with a Credit Party or a Subsidiary, in each case in its capacity as a party to such Hedge Agreement.

 

“Hedge Termination Value” means, in respect of any one or more Hedge Agreements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedge Agreements, (a) for any date on or after the date such Hedge Agreements 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), the amount(s) determined as the mark-to-market value(s) for such Hedge Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedge Agreements (which may include a Lender or any Affiliate of a Lender).

 

“Immaterial Subsidiary” means any Subsidiary of the Borrower that is not a Material Subsidiary.

 

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“Indebtedness” means, with respect to any Person at any date and without duplication, the sum of the following:

 

(a)                                 all liabilities, obligations and indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds, debentures, notes or other similar instruments of any such Person;

 

(b)                                 all obligations of such Person to pay the deferred purchase price of property or services, except (i) trade payables arising in the ordinary course of business, (ii) any earn-out obligation unless such obligation is not paid promptly after becoming due and payable and (iii) accruals for payroll or other employee compensation accrued in the ordinary course of business;

 

(c)                                  the Attributable Indebtedness of such Person with respect to such Person’s Capital Lease Obligations and Synthetic Leases (regardless of whether accounted for as indebtedness under GAAP);

 

(d)                                 all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person to the extent of the value of such property (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business);

 

(e)                                  all Indebtedness of any other Person secured by a Lien on any asset owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements except trade payables arising in the ordinary course of business), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse (but if such Indebtedness has not been assumed by, and is otherwise non-recourse to, such Person, only to the extent of the lesser of the fair market value of the assets of such Person subject to such Lien and the amount of such Indebtedness);

 

(f)                                   all obligations, contingent or otherwise, of any such Person relative to the face amount of letters of credit, whether or not drawn, and banker’s acceptances issued for the account of any such Person;

 

(g)                                  all obligations of any such Person in respect of Disqualified Equity Interests;

 

(h)                                 all net obligations of such Person under any Hedge Agreements; and

 

(i)                                     all Guarantees of any such Person with respect to any of the foregoing.

 

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.  The amount of any net obligation under any Hedge Agreement on any date shall be deemed to be the Hedge Termination Value thereof as of such date.

 

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Credit Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

 

“Interest Period” means, as to each LIBOR Rate Loan, the period commencing on the date such LIBOR Rate Loan is disbursed or converted to or continued as a LIBOR Rate Loan and ending on the

 

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date one (1), two (2), three (3), or six (6) months or, if agreed by all of the relevant Lenders twelve (12) months thereafter, in each case as selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation and subject to availability; provided that:

 

(a)                                 the Interest Period shall commence on the date of advance of or conversion to any LIBOR Rate Loan and, in the case of immediately successive Interest Periods, each successive Interest Period shall commence on the date on which the immediately preceding Interest Period expires;

 

(b)                                 if any Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that if any Interest Period with respect to a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the immediately preceding Business Day;

 

(c)                                  any Interest Period with respect to a LIBOR Rate Loan that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the relevant calendar month at the end of such Interest Period;

 

(d)                                 no Interest Period shall extend beyond the Revolving A Credit Maturity Date or the Revolving B Credit Maturity Date, as applicable; and

 

(e)                                  there shall be no more than 8 Interest Periods in effect at any time.

 

“Investment” has the meaning assigned thereto in Section 7.3.

 

“IRS” means the United States Internal Revenue Service.

 

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit J executed and delivered in accordance with the provisions of Section 6.13.

 

“Lender” means each Person executing this Agreement as a Lender on the Closing Date and any other Person that shall have become a party to this Agreement as a Lender pursuant to an Assignment and Assumption or joinder agreement delivered pursuant to Section 3.14, other than any Person that ceases to be a party hereto as a Lender pursuant to an Assignment and Assumption.  Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

“Lending Office” means, with respect to any Lender, the office of such Lender maintaining such Lender’s Extensions of Credit.

 

“LIBOR” means, subject to the implementation of a Replacement Rate in accordance with Section 3.8(c),

 

(a)                                 for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for a period equal to the applicable Interest Period as published by the ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period.  If, for any reason, such rate is not so published, then “LIBOR” shall be determined by the Administrative Agent to be the arithmetic

 

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average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2) London Banking Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period, and

 

(b)                                 for any interest rate calculation with respect to a Base Rate Loan, the rate of interest per annum determined on the basis of the rate for deposits in Dollars for an Interest Period equal to one month (commencing on the date of determination of such interest rate) as published by the ICE Benchmark Administration Limited, a United Kingdom company, or a comparable or successor quoting service approved by the Administrative Agent, at approximately 11:00 a.m. (London time) on such date of determination, or, if such date is not a Business Day, then the immediately preceding Business Day.  If, for any reason, such rate is not so published, then “LIBOR” for such Base Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of the rate per annum at which deposits in Dollars would be offered by first class banks in the London interbank market to the Administrative Agent at approximately 11:00 a.m. (London time) on such date of determination for a period equal to one month commencing on such date of determination.

 

Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all purposes, absent manifest error.  Notwithstanding the foregoing, (x) in no event shall LIBOR (including any Replacement Rate with respect thereto) be less than 0%, and (y) unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 3.8(c), in the event that a Replacement Rate with respect to LIBOR is implemented, then all references herein to LIBOR shall be deemed references to such Replacement Rate.

 

“LIBOR Rate” means a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

	
 
    	
LIBOR Rate =
    	
LIBOR
    	
 
    
	
 
    	
 
    	
1.00-Eurodollar Reserve   Percentage
    	
 
    


 

Notwithstanding the foregoing, if the LIBOR Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“LIBOR Rate Loan” means any Loan bearing interest at a rate based upon the LIBOR Rate as provided in Section 3.1(a).

 

“Lien” means, with respect to any asset, any mortgage, leasehold mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such asset.  For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement relating to such asset.

 

“Loan Documents” means, collectively, this Agreement, each Note, each Joinder Agreement, the Fee Letter, and each other instrument, certificate and agreement executed and delivered by the Credit Parties or any of their respective Subsidiaries in favor of the Administrative Agent or any Guaranteed Party in connection with this Agreement (excluding any Guaranteed Hedge Agreement and any Guaranteed Cash Management Agreement).

 

“Loans” means the collective reference to the Revolving A Credit Loans, the Revolving B Credit Loans and the Swingline Loans, and “Loan” means any of such Loans.

 

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“London Banking Day” means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank Eurodollar market.

 

“Material Adverse Effect” means a material adverse effect on (a) the operations, business, assets, properties, or financial condition of the Borrower and its Subsidiaries taken as a whole, (b) the ability of the Credit Parties as a whole to perform their obligations under the Loan Documents, or (c) the rights and remedies of the Administrative Agent or any Lender under any Loan Document or (d) the validity or enforceability against any Credit Party of any Loan Document to which it is a party.

 

“Material Subsidiary” means, as of any date of determination, any Subsidiary of the Borrower (a) contributing (together with the Consolidated EBITDA of its Subsidiaries), as of the end of the most recently ended four-fiscal quarter period then ended for which financial statements were required to be delivered pursuant to Section 6.1(a) or (b), more than ten percent (10%) of Consolidated EBITDA for such period, (b) holding (together with the assets of its Subsidiaries), as of the end of the most recently ended four-fiscal quarter period then ended for which financial statements were required to be delivered pursuant to Section 6.1(a) or (b), more than ten percent (10%) of the consolidated assets of the Borrower and its Subsidiaries on a Consolidated basis for such period, or (c) designated in writing by the Borrower to the Administrative Agent as a Material Subsidiary; provided, that if all Immaterial Subsidiaries (i) contribute (together with the Consolidated EBITDA of their respective Subsidiaries), in the aggregate, more than ten percent (10%) of Consolidated EBITDA, or (ii) hold (together with the assets of their respective Subsidiaries), in the aggregate, more than ten percent (10%) of the consolidated assets of the Borrower and its Subsidiaries on a Consolidated basis, in each case, as of the end of any four-fiscal quarter period for which financial statements were required to be delivered pursuant to Section 6.1(a) or (b), then, in either case, within ten (10) Business Days of the date such financial statements were required to be delivered, the Borrower shall designate in writing to the Administrative Agent one or more of such Immaterial Subsidiaries as Material Subsidiaries such that, following such written designation, none of the conditions set forth in clauses (i) or (ii) are thereafter satisfied.

 

“Maturity Date” means the Revolving A Credit Maturity Date or the Revolving B Credit Maturity Date, as applicable.

 

“Moody’s” means Moody’s Investors Service, Inc.

 

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Credit Party or any ERISA Affiliate is making, or is accruing an obligation to make, or has accrued an obligation to make contributions within the preceding seven (7) years.

 

“Non-Consenting Lender” means any Lender that does not approve any consent, waiver, amendment, modification or termination that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 11.2 and (b) has been approved by the Required Lenders.

 

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

 

“Non-Extending Revolving A Credit Lender” has the meaning assigned thereto in Section 2.7(a)(ii).

 

“Non-Extending Revolving B Credit Lender” has the meaning assigned thereto in Section 2.7(b)(ii).

 

“Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a Guarantor.

 

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“Notes” means the collective reference to the Revolving Credit Notes and the Swingline Note.

 

“Notice Date” has the meaning assigned thereto in Section 2.7(a)(ii).

 

“Notice of Account Designation” has the meaning assigned thereto in Section 2.3(b).

 

“Notice of Borrowing” has the meaning assigned thereto in Section 2.3(a).

 

“Notice of Conversion/Continuation” has the meaning assigned thereto in Section 3.2.

 

“Notice of Prepayment” has the meaning assigned thereto in Section 2.4(c).

 

“Obligations” means, in each case, whether now in existence or hereafter arising: (a) the principal of and interest on (including interest accruing after the filing of any bankruptcy or similar petition) the Loans, and (b) all other fees and commissions (including attorneys’ fees), charges, indebtedness, loans, liabilities, financial accommodations, obligations, covenants and duties owing by the Credit Parties and each of their respective Subsidiaries to the Lenders or the Administrative Agent, in each case under any Loan Document, with respect to any Loan of every kind, nature and description, direct or indirect, absolute or contingent, due or to become due, contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note and including interest and fees that accrue after the commencement by or against any Credit Party or any Subsidiary thereof of any proceeding under any Debtor Relief Laws, naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

 

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

 

“Officer’s Compliance Certificate” means a certificate of the chief financial officer or the treasurer of the Borrower substantially in the form attached as Exhibit F.

 

“Operating Lease” means, as to any Person as determined in accordance with GAAP, any lease of Property (whether real, personal or mixed) by such Person as lessee which is not a capital lease.

 

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.12(b)).

 

“Participant” has the meaning assigned thereto in Section 11.9(d).

 

“Participant Register” has the meaning assigned thereto in Section 11.9(d).

 

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

 

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“PBGC” means the Pension Benefit Guaranty Corporation or any successor agency.

 

“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or Section 412 of the Code and which (a) is maintained, funded or administered for the employees of any Credit Party or any ERISA Affiliate or (b) has at any time within the preceding seven (7) years been maintained, funded or administered for the employees of any Credit Party or any current ERISA Affiliates.

 

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

 

“Platform” means Debt Domain, Intralinks, SyndTrak or a substantially similar electronic transmission system.

 

“Prime Rate” means, at any time, the rate of interest per annum publicly announced from time to time by the Administrative Agent as its prime rate.  Each change in the Prime Rate shall be effective as of the opening of business on the day such change in such prime rate occurs.  The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to its customers or other banks.

 

“Priority Indebtedness” means without duplication, (a) any Indebtedness of Non-Guarantor Subsidiaries (whether or not any such Indebtedness is secured by any Liens), and (b) any Indebtedness of any Credit Party that is secured by any Lien.

 

“Pro Forma Basis” means, for purposes of calculating the financial covenants in Section 7.10 or compliance with any other covenant herein, the relevant transactions for which such calculation is being made (including the incurrence, repayment, repurchase or redemption of any Indebtedness in connection therewith) and any other Specified Transactions occurring since the beginning of the applicable period of measurement, shall be deemed to have occurred as of the first day of such applicable period of measurement.  In connection with the foregoing, as applicable, all income statement items (whether positive or negative) attributable to Property or a Person disposed of in an Asset Disposition shall be excluded and all income statement items (whether positive or negative) attributable to Property or a Person acquired in an Acquisition shall be included (provided that such income statement items to be included are, in the good faith judgment of the Borrower, factually supportable and based upon reasonable assumptions and calculations).

 

“Pro Forma Compliance” shall mean, at any date of determination, that (a) no Event of Default shall have occurred and be continuing, or would result from the relevant transactions, and (b) on a Pro Forma Basis after giving effect to the relevant transactions (including, without limitation, the assumption, the issuance, incurrence and permanent repayment of Indebtedness), the Borrower and its Subsidiaries shall be in compliance with the financial covenants in Section 7.10, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which the financial statements required pursuant to Section 6.1(a) or (b), as applicable, have been delivered (it being understood that for purposes of determining compliance on a Pro Forma Basis with the maximum Consolidated Total Leverage Ratio in Section 7.10(a) at any date of determination, the numerator of the Consolidated Total Leverage Ratio shall be Consolidated Total Indebtedness on such date and after giving effect to any incurrence, repayment, repurchase or redemption of Indebtedness on such date).

 

“Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Equity Interests.

 

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“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Public Lenders” has the meaning assigned thereto in Section 6.2.

 

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“Qualified Equity Interests” means any Equity Interests that are not Disqualified Equity Interests.

 

“Recipient” means (a) the Administrative Agent, and (b) any Lender, as applicable.

 

“Register” has the meaning assigned thereto in Section 11.9(c).

 

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

“Replacement Rate” has the meaning specified in Section 3.8(c).

 

“Required Lenders” means, at any time, Lenders having Total Credit Exposures representing more than fifty percent (50%) of the Total Credit Exposures of all Lenders.  The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

 

“Required Revolving A Credit Lenders” means, at any time, Revolving A Credit Lenders having Total Revolving A Credit Exposures representing more than fifty percent (50%) of the Total Revolving A Credit Exposures of all Revolving A Credit Lenders.  The Total Revolving A Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving A Credit Lenders at any time.

 

“Required Revolving B Credit Lenders” means, at any time, Revolving B Credit Lenders having Total Revolving B Credit Exposures representing more than fifty percent (50%) of the Total Revolving B Credit Exposures of all Revolving B Credit Lenders.  The Total Revolving B Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Revolving B Credit Lenders at any time.

 

“Responsible Officer” means, as to any Person, the chief executive officer, president, chief financial officer, controller, treasurer or assistant treasurer of such Person or any other officer of such Person designated in writing by the Borrower and reasonably acceptable to the Administrative Agent; provided that, to the extent requested thereby, the Administrative Agent shall have received a certificate of such Person certifying as to the incumbency and genuineness of the signature of each such officer.  Any document delivered hereunder or under any other Loan Document that is signed by a Responsible Officer of a Person shall be conclusively presumed to have been authorized by all necessary corporate, limited liability company, partnership and/or other action on the part of such Person and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Person.

 

“Restricted Payment” has the meaning assigned thereto in Section 7.6.

 

“Revolving A Commitment Fee” has the meaning assigned thereto in Section 3.3(a).

 

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“Revolving A Credit Commitment” means (a) as to any Revolving A Credit Lender, the obligation of such Revolving A Credit Lender to make Revolving A Credit Loans to the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving A Credit Lender’s name on the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 3.14) and (b) as to all Revolving A Credit Lenders, the aggregate commitment of all Revolving A Credit Lenders to make Revolving A Credit Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 3.14).  The aggregate Revolving A Credit Commitment of all the Revolving A Credit Lenders on the Closing Date shall be $1,000,000,000.  The initial Revolving A Credit Commitment of each Revolving A Credit Lender is set forth opposite the name of such Lender on Schedule 1.1.

 

“Revolving A Credit Commitment Percentage” means, with respect to any Revolving A Credit Lender at any time, the percentage of the total Revolving A Credit Commitments of all the Revolving A Credit Lenders represented by such Revolving A Credit Lender’s Revolving A Credit Commitment.  If the Revolving A Credit Commitments have terminated or expired, the Revolving A Credit Commitment Percentages shall be determined based upon the Revolving A Credit Commitments most recently in effect, giving effect to any assignments.  The initial Revolving A Credit Commitment Percentage of each Revolving A Credit Lender is set forth opposite the name of such Lender on Schedule 1.1.

 

“Revolving A Credit Exposure” means, as to any Revolving A Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving A Credit Loans.

 

“Revolving A Credit Facility” means the revolving credit facility established pursuant to Section 2.1(a) (including any increase in such revolving credit facility established pursuant to Section 3.14).

 

“Revolving A Credit Lender” means each Lender with a Revolving A Credit Commitment.

 

“Revolving A Credit Loan” means any revolving loan made to the Borrower pursuant to Section 2.1(a), and all such revolving loans collectively as the context requires.

 

“Revolving A Credit Maturity Date” means, with respect to each Revolving A Credit Lender, the earliest to occur of (a) June 27, 2023, as such date may be extended from time to time with respect to such Revolving A Credit Lender pursuant to Section 2.7(a) (such date, as so extended, being referred to herein as such Lender’s “Scheduled Revolving A Credit Maturity Date”), (b) the date of termination of the Revolving A Credit Commitments by the Borrower pursuant to Section 2.5, and (c) the date of termination of the Revolving  A Credit Commitments pursuant to Section 8.2(a).

 

“Revolving A Credit Outstandings” means, the aggregate outstanding principal amount of Revolving A Credit Loans after giving effect to any borrowings and prepayments or repayments of Revolving A Credit Loans, as the case may be, occurring on such date.

 

“Revolving B Commitment Fee” has the meaning assigned thereto in Section 3.3(a).

 

“Revolving B Credit Commitment” means (a) as to any Revolving B Credit Lender, the obligation of such Revolving B Credit Lender to make Revolving B Credit Loans to, and to purchase participations in Swingline Loans for the account of, the Borrower hereunder in an aggregate principal amount at any time outstanding not to exceed the amount set forth opposite such Revolving B Credit Lender’s name on the Register, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 3.14) and (b) as to all Revolving B Credit Lenders, the aggregate commitment of all Revolving B Credit Lenders to make Revolving B Credit

 

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Loans, as such amount may be modified at any time or from time to time pursuant to the terms hereof (including, without limitation, Section 3.14).  The aggregate Revolving B Credit Commitment of all the Revolving B Credit Lenders on the Closing Date shall be $500,000,000.  The initial Revolving B Credit Commitment of each Revolving B Credit Lender is set forth opposite the name of such Lender on Schedule 1.1.

 

“Revolving B Credit Commitment Percentage” means, with respect to any Revolving B Credit Lender at any time, the percentage of the total Revolving B Credit Commitments of all the Revolving B Credit Lenders represented by such Revolving B Credit Lender’s Revolving B Credit Commitment.  If the Revolving B Credit Commitments have terminated or expired, the Revolving B Credit Commitment Percentages shall be determined based upon the Revolving B Credit Commitments most recently in effect, giving effect to any assignments.  The initial Revolving B Credit Commitment Percentage of each Revolving B Credit Lender is set forth opposite the name of such Lender on Schedule 1.1.

 

“Revolving B Credit Exposure” means, as to any Revolving B Credit Lender at any time, the aggregate principal amount at such time of its outstanding Revolving B Credit Loans and such Revolving B Credit Lender’s participation in Swingline Loans at such time.

 

“Revolving B Credit Facility” means the revolving credit facility established pursuant to Section 2.1(b) (including any increase in such revolving credit facility established pursuant to Section 3.14).

 

“Revolving B Credit Lender” means each Lender with a Revolving B Credit Commitment.

 

“Revolving B Credit Loan” means any revolving loan made to the Borrower pursuant to Section 2.1(b), and all such revolving loans collectively as the context requires.

 

“Revolving B Credit Maturity Date” means, with respect to each Revolving B Credit Lender, the earliest to occur of (a) June 27, 2023, as such date may be extended from time to time with respect to such Revolving B Credit Lender pursuant to Section 2.7(b) (such date, as so extended, being referred to herein as such Lender’s “Scheduled Revolving B Credit Maturity Date”), (b) the date of termination of the Revolving B Credit Commitments by the Borrower pursuant to Section 2.5, and (c) the date of termination of the Revolving B Credit Commitments pursuant to Section 8.2(a).

 

“Revolving B Credit Outstandings” means, the aggregate outstanding principal amount of Revolving B Credit Loans and Swingline Loans after giving effect to any borrowings and prepayments or repayments of Revolving B Credit Loans and Swingline Loans, as the case may be, occurring on such date.

 

“Revolving Credit Loans” means the Revolving A Credit Loans and/or the Revolving B Credit Loans.

 

“Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving A Credit Lender or Revolving B Credit Lender evidencing the Loans made by such Lender, substantially in the form attached as Exhibit A-1, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

“S&P” means Standard & Poor’s Financial Services LLC, a part of McGraw-Hill Financial and any successor thereto.

 

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“Sanctioned Country” means at any time, a country, region or territory which is itself the subject or target of any comprehensive Sanctions (as of the date hereof, Crimea, Cuba, Iran, North Korea and Syria).

 

“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant Sanctions authority, or (b) any Person owned or controlled by any such Person or Persons described in clause (a).

 

“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC), the European Union, Her Majesty’s Treasury or the United Nations Security Council.

 

“Scheduled Revolving A Credit Maturity Date” has the meaning assigned in the definition of “Revolving A Credit Maturity Date”.

 

“Scheduled Revolving B Credit Maturity Date” has the meaning assigned in the definition of “Revolving B Credit Maturity Date”.

 

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

 

“Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the fair value of the assets of such Person and its Subsidiaries on a Consolidated basis is greater than the total amount of liabilities, including contingent liabilities, of such Person and its Subsidiaries on a Consolidated basis, (b) the present fair salable value of the assets of such Person and its Subsidiaries on a Consolidated basis 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 and its Subsidiaries on a Consolidated basis will be able to pay their to pay such debts and liabilities as they mature, (d) such Person and its Subsidiaries on a Consolidated basis are not engaged in business or a transaction for which such Person’s and its Subsidiaries’ on a Consolidated basis property would constitute an unreasonably small capital, and (e) such Person and its Subsidiaries on a Consolidated basis are able to pay their debts and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business.  The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

 

“Specified Credit Party” means each Credit Party that is, at the time on which the relevant Guaranty by such Credit Party becomes effective with respect to a Swap Obligation, a corporation, partnership, proprietorship, organization, trust or other entity that would not be an “eligible contract participant” under the Commodity Exchange Act at such time but for the effect of Section 10.8.

 

“Specified Transaction” means (i) any Asset Disposition or Acquisition with respect to which consideration paid or received is in excess of $25,000,000 occurring during the applicable period of measurement and (ii) any incurrence, repayment, repurchase or redemption of Indebtedness in connection therewith.

 

“Subsidiary” means as to any Person, any corporation, partnership, limited liability company or other entity of which more than fifty percent (50%) of the outstanding Equity Interests having ordinary voting power to elect a majority of the board of directors (or equivalent governing body) or other managers of such corporation, partnership, limited liability company or other entity is at the time owned

 

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by (directly or indirectly) or the management is otherwise controlled by (directly or indirectly) such Person (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation, partnership, limited liability company or other entity shall have or might have voting power by reason of the happening of any contingency).  Unless otherwise qualified, references to “Subsidiary” or “Subsidiaries” herein shall refer to those of the Borrower.

 

“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

“Swingline Commitment” means the lesser of (a) $50,000,000 and (b) the Revolving B Credit Commitment.

 

“Swingline Facility” means the swingline facility established pursuant to Section 2.2.

 

“Swingline Lender” means Wells Fargo in its capacity as swingline lender hereunder or any successor thereto.

 

“Swingline Loan” means any swingline loan made by the Swingline Lender to the Borrower pursuant to Section 2.2, and all such swingline loans collectively as the context requires.

 

“Swingline Note” means a promissory note made by the Borrower in favor of the Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the form attached as Exhibit A-2, and any substitutes therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.

 

“Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in accordance with GAAP.

 

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

 

“Termination Event” means the occurrence of any of the following which, individually or in the aggregate, has resulted or could reasonably be expected to result in liability of the Borrower in an aggregate amount in excess of the Threshold Amount: (a) a “Reportable Event” described in Section 4043 of ERISA for which the thirty (30) day notice requirement has not been waived by the PBGC, or (b) the withdrawal of any Credit Party or any ERISA Affiliate from a Pension Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA, or (c) the termination of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension Plan amendment as a termination, under Section 4041 of ERISA, if the plan assets are not sufficient to pay all plan liabilities, or (d) the institution of proceedings to terminate, or the appointment of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would reasonably be expected to constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 430(k) of the Code or Section 303 of ERISA, or (g) the determination that any Pension Plan or Multiemployer Plan is considered an at-risk plan or plan in endangered or critical status with the meaning of Sections 430, 431 or 432 of the Code or Sections 303, 304 or 305 of ERISA or (h) the partial or complete withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan if withdrawal liability is asserted by such

 

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plan, or (i) any event or condition which results in the insolvency of a Multiemployer Plan under Section 4245 of ERISA, or (j) any event or condition which results in the termination of a Multiemployer Plan under Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section 4042 of ERISA, or (k) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any Credit Party or any ERISA Affiliate.

 

“Threshold Amount” means $75,000,000.

 

“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments, the Revolving A Credit Exposure and the Revolving B Credit Exposure of such Lender at such time.

 

“Total Revolving A Credit Exposure” means, as to any Revolving A Credit Lender at any time, the unused Revolving A Credit Commitment and the Revolving A Credit Exposure of such Revolving A Credit Lender at such time.

 

“Total Revolving B Credit Exposure” means, as to any Revolving B Credit Lender at any time, the unused Revolving B Credit Commitment and the Revolving B Credit Exposure of such Revolving B Credit Lender at such time.

 

“United States” means the United States of America.

 

“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“U.S. Tax Compliance Certificate” has the meaning assigned thereto in Section 3.11(f).

 

“Utilization Percentage” means, as of any date, a percentage determined by the Administrative Agent that is equal to (a)(i) an amount equal to the highest outstanding principal amount of Revolving B Loans on such date, divided by (ii) an amount equal to the Revolving B Credit Commitment in effect on such date, multiplied by (b) 100.

 

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

 

“Withholding Agent” means any Credit Party and the Administrative Agent.

 

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

 

Section 1.2                                    Other Definitions and Provisions.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (f) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (g) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles

 

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and Sections of, and Exhibits and Schedules to, this Agreement, (h) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (i) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form and (j) 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”.

 

Section 1.3                                    Accounting Terms.

 

(a)                                 All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with GAAP, applied on a consistent basis, as in effect from time to time and in a manner consistent with that used in preparing the audited financial statements required by Section 6.1(a), except as otherwise specifically prescribed herein.  Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

(b)                                 If at any time any change in GAAP would affect the computation of any financial ratio or requirement, or compliance with any other covenant, set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend the relevant ratio, covenant or other requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, once such request is made, until so amended, (i) such ratio, covenant or other requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio, covenant or other requirement made before and after giving effect to such change in GAAP.  Notwithstanding the foregoing, any obligations of a Person under a lease (whether existing now or entered into in the future) that is not (or would not be) a Capital Lease Obligation under GAAP as in effect on the Closing Date (as reflected in the Borrower’s audited financial statements as of December 31, 2017) shall not be treated as a Capital Lease Obligation solely as a result of the adoption after the Closing Date of changes in GAAP described in the Accounting Standards Update to Leases (Topic 842) issued by the Financial Accounting Standards Board (as the same may be amended from time to time) or any changes in GAAP arising therefrom or similar changes.

 

Section 1.4                                    Rounding.  Any financial ratios required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or percentage is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

Section 1.5                                    References to Agreement and Laws.  Unless otherwise expressly provided herein, (a) any definition or reference to formation documents, governing documents, agreements (including the Loan Documents) and other contractual documents or instruments shall be deemed to include all

 

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subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Loan Document; and (b) any definition or reference to any Applicable Law, including, without limitation, the Code, the Commodity Exchange Act, ERISA, the Exchange Act, the PATRIOT Act, the Securities Act of 1933, the Uniform Commercial Code, the Investment Company Act of 1940, the Interstate Commerce Act, the Trading with the Enemy Act of the United States or any of the foreign assets control regulations of the United States Treasury Department, shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Applicable Law.

 

Section 1.6                                    Times of Day.  Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable).

 

Section 1.7                                    Guarantees.  Unless otherwise specified, the amount of any Guarantee shall be the lesser of the principal amount of the obligations guaranteed and still outstanding and the maximum amount for which the guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee.

 

Section 1.8                                    Covenant Compliance Generally.  For purposes of determining compliance under Sections 7.1, 7.2, 7.3, 7.5 and 7.6, any amount in a currency other than Dollars will be converted to Dollars in a manner consistent with that used in calculating Consolidated Net Income in the most recent annual financial statements of the Borrower and its Subsidiaries delivered pursuant to Section 6.1(a).  Notwithstanding the foregoing, for purposes of determining compliance with Sections 7.1, 7.2 and 7.3, with respect to any amount of Indebtedness or Investment in a currency other than Dollars, no breach of any basket contained in such Sections shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Indebtedness or Investment is incurred; provided that for the avoidance of doubt, the foregoing provisions of this Section 1.8 shall otherwise apply to such Sections, including with respect to determining whether any Indebtedness or Investment may be incurred at any time under such Sections.

 

Section 1.9                                    Rates.  The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “LIBOR”.

 

ARTICLE II.

 

CREDIT FACILITIES

 

Section 2.1                                    Revolving Credit Loans.

 

(a)                                 Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Revolving A Credit Lender severally agrees to make Revolving A Credit Loans to the Borrower from time to time from the Closing Date to, but not including, the Revolving A Credit Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3; provided, that (a) the Revolving A Credit Outstandings shall not exceed the Revolving A Credit Commitment and (b) the Revolving A Credit Exposure of any Revolving A Credit Lender shall not at any time exceed such Revolving A Credit Lender’s Revolving A Credit Commitment.  Each Revolving A Credit Loan by a Revolving A Credit Lender shall be in a principal amount equal to such Revolving A Credit Lender’s Revolving A Credit Commitment Percentage of the aggregate principal amount of Revolving A Credit Loans

 

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requested on such occasion.  Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Revolving A Credit Loans hereunder until the Revolving A Credit Maturity Date.

 

(b)                                 Subject to the terms and conditions of this Agreement and the other Loan Documents, and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, each Revolving B Credit Lender severally agrees to make Revolving B Credit Loans to the Borrower from time to time from the Closing Date to, but not including, the Revolving B Credit Maturity Date as requested by the Borrower in accordance with the terms of Section 2.3; provided, that (a) the Revolving B Credit Outstandings shall not exceed the Revolving B Credit Commitment and (b) the Revolving B Credit Exposure of any Revolving B Credit Lender shall not at any time exceed such Revolving B Credit Lender’s Revolving B Credit Commitment.  Each Revolving B Credit Loan by a Revolving B Credit Lender shall be in a principal amount equal to such Revolving B Credit Lender’s Revolving B Credit Commitment Percentage of the aggregate principal amount of Revolving B Credit Loans requested on such occasion.  Subject to the terms and conditions hereof, the Borrower may borrow, repay and reborrow Revolving B Credit Loans hereunder until the Revolving B Credit Maturity Date.

 

Section 2.2                                    Swingline Loans.

 

(a)                                 Availability.  Subject to the terms and conditions of this Agreement and the other Loan Documents, including, without limitation, Section 4.2(d), and in reliance upon the representations and warranties set forth in this Agreement and the other Loan Documents, the Swingline Lender shall make Swingline Loans to the Borrower from time to time from the Closing Date to, but not including, the Revolving B Credit Maturity Date; provided, that (i) after giving effect to any amount requested, the Revolving B Credit Outstandings shall not exceed the Revolving B Credit Commitment and (ii) the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any amount requested) shall not exceed the Swingline Commitment.

 

(b)                                 Refunding.

 

(i)                                     The Swingline Lender, at any time and from time to time in its sole and absolute discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to act on its behalf), by written notice given no later than 11:00 a.m. on any Business Day request each Revolving B Credit Lender to make, and each Revolving B Credit Lender hereby agrees to make, a Revolving B Credit Loan as a Base Rate Loan in an amount equal to such Revolving B Credit Lender’s Revolving B Credit Commitment Percentage of the aggregate amount of the Swingline Loans outstanding on the date of such notice, to repay the Swingline Lender.  Each Revolving B Credit Lender shall make the amount of such Revolving B Credit Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such notice.  The proceeds of such Revolving B Credit Loans shall be immediately made available by the Administrative Agent to the Swingline Lender for application by the Swingline Lender to the repayment of the Swingline Loans.  No Revolving B Credit Lender’s obligation to fund its respective Revolving B Credit Commitment Percentage of a Swingline Loan shall be affected by any other Revolving B Credit Lender’s failure to fund its Revolving B Credit Commitment Percentage of a Swingline Loan, nor shall any Revolving B Credit Lender’s Revolving B Credit Commitment Percentage be increased as a result of any such failure of any other

 

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Revolving B Credit Lender to fund its Revolving B Credit Commitment Percentage of a Swingline Loan.

 

(ii)                                  The Borrower shall pay to the Swingline Lender on demand, and in any event on the Revolving B Credit Maturity Date, in immediately available funds the amount of such Swingline Loans to the extent amounts received from the Revolving B Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded.  In addition, the Borrower irrevocably authorizes the Administrative Agent to charge any account maintained by the Borrower with the Swingline Lender (up to the amount available therein) in order to immediately pay the Swingline Lender the amount of such Swingline Loans to the extent amounts received from the Revolving B Credit Lenders are not sufficient to repay in full the outstanding Swingline Loans requested or required to be refunded.  If any portion of any such amount paid to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the amount so recovered shall be ratably shared among all the Revolving B Credit Lenders in accordance with their respective Revolving B Credit Commitment Percentages.

 

(iii)                               If for any reason any Swingline Loan cannot be refinanced with a Revolving B Credit Loan pursuant to Section 2.2(b)(i), each Revolving B Credit Lender shall, on the date such Revolving B Credit Loan was to have been made pursuant to the notice referred to in Section 2.2(b)(i), purchase for cash an undivided participating interest in the then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline Participation Amount”) equal to such Revolving B Credit Lender’s Revolving B Credit Commitment Percentage of the aggregate principal amount of Swingline Loans then outstanding.  Each Revolving B Credit Lender will immediately transfer to the Swingline Lender, in immediately available funds, the amount of its Swingline Participation Amount.  Whenever, at any time after the Swingline Lender has received from any Revolving B Credit Lender such Revolving B Credit Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of the Swingline Loans, the Swingline Lender will distribute to such Revolving B Credit Lender its Swingline Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s participating interest was outstanding and funded and, in the case of principal and interest payments, to reflect such Revolving B Credit Lender’s pro rata portion of such payment if such payment is not sufficient to pay the principal of and interest on all Swingline Loans then due); provided that in the event that such payment received by the Swingline Lender is required to be returned, such Revolving B Credit Lender will return to the Swingline Lender any portion thereof previously distributed to it by the Swingline Lender.

 

(iv)                              Each Revolving B Credit Lender’s obligation to make the Revolving B Credit Loans referred to in Section 2.2(b)(i) and to purchase participating interests pursuant to Section 2.2(b)(iii) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Revolving B Credit Lender or the Borrower may have against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the other conditions specified in Article IV, (C) any adverse change in the condition (financial or otherwise) of the Borrower, (D) any breach of this Agreement or any other Loan Document by the Borrower, any other Credit Party or any

 

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other Revolving B Credit Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

(v)                                 If any Revolving B Credit Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving B Credit Lender pursuant to the foregoing provisions of this Section 2.2(b) by the time specified in Section 2.2(b)(i), the Swingline Lender shall be entitled to recover from such Revolving B Credit Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the applicable Federal Funds Rate, plus any administrative, processing or similar fees customarily charged by the Swingline Lender in connection with the foregoing.  If such Revolving B Credit Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Revolving B Credit Lender’s Revolving B Credit Loan or Swingline Participation Amount, as the case may be.  A certificate of the Swingline Lender submitted to any Revolving B Credit Lender (through the Administrative Agent) with respect to any amounts owing under this clause (v) shall be conclusive absent manifest error.

 

(c)                                  Defaulting Lenders.  Notwithstanding anything to the contrary contained in this Agreement, this Section 2.2 shall be subject to the terms and conditions of Section 3.13.

 

Section 2.3                                    Procedure for Advances of Revolving Credit Loans and Swingline Loans.

 

(a)                                 Requests for Borrowing.  The Borrower shall give the Administrative Agent irrevocable prior written notice substantially in the form of Exhibit B (a “Notice of Borrowing”) not later than (i) 11:00 a.m. on the same Business Day as each Base Rate Loan, (ii) 2:00 p.m. on the same Business Day as each Swingline Loan and (iii) 11:00 a.m. at least three (3) Business Days before each LIBOR Rate Loan, of its intention to borrow, specifying (A) the date of such borrowing, which shall be a Business Day, (B) the amount of such borrowing, which shall be, (x) with respect to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (z) with respect to Swingline Loans in an aggregate principal amount of $500,000 or a whole multiple of $100,000 in excess thereof, (C) whether such Loan is to be a Revolving A Credit Loan, a Revolving B Credit Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan, whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such borrowing, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them.  Not later than 10:00 a.m. at least three (3) Business Days before the requested date of such borrowing, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the relevant Lenders.  If the Borrower fails to specify a type of Loan in a Notice of Borrowing, then the applicable Loans shall be made as Base Rate Loans.  If the Borrower requests a borrowing of LIBOR Rate Loans in any such Notice of Borrowing, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  A Notice of Borrowing received after 11:00 a.m. (or

 

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2:00 p.m. with respect to a Notice of Borrowing for any Swingline Loan) shall be deemed received on the next Business Day.  The Administrative Agent shall promptly notify the Revolving A Credit Lenders or the Revolving B Credit Lenders, as applicable, of each Notice of Borrowing.

 

(b)                                 Disbursement of Revolving Credit Loans and Swingline Loans.  Not later than 1:00 p.m. on the proposed borrowing date, each Revolving A Credit Lender or Revolving B Credit Lender, as applicable, will make available to the Administrative Agent, for the account of the Borrower, at the office of the Administrative Agent in funds immediately available to the Administrative Agent, such Revolving A Credit Lender’s Revolving A Credit Commitment Percentage of the Revolving A Credit Loans to be made on such borrowing date or such Revolving B Credit Lender’s Revolving B Credit Commitment Percentage of the Revolving B Credit Loans to be made on such borrowing date, as applicable.  Not later than 4:00 p.m. on the proposed borrowing date, the Swingline Lender will make available to the Administrative Agent, for the account of the Borrower, at the office of the Administrative Agent in funds immediately available to the Administrative Agent, the Swingline Loans to be made on such borrowing date.  The Borrower hereby irrevocably authorizes the Administrative Agent to disburse the proceeds of each borrowing requested pursuant to this Section in immediately available funds by crediting or wiring such proceeds to the deposit account of the Borrower identified in the most recent notice substantially in the form attached as Exhibit C (a “Notice of Account Designation”) delivered by the Borrower to the Administrative Agent or as may be otherwise agreed upon by the Borrower and the Administrative Agent from time to time.  Subject to Section 3.7 hereof, the Administrative Agent shall not be obligated to disburse the portion of the proceeds of any (i) Revolving A Credit Loan requested pursuant to this Section to the extent that any Revolving A Credit Lender has not made available to the Administrative Agent its Revolving A Credit Commitment Percentage of such Revolving A Credit Loan, or (ii) Revolving B Credit Loan requested pursuant to this Section to the extent that any Revolving B Credit Lender has not made available to the Administrative Agent its Revolving B Credit Commitment Percentage of such Revolving B Credit Loan.  Revolving B Credit Loans to be made for the purpose of refunding Swingline Loans shall be made by the Revolving B Credit Lenders as provided in Section 2.2(b).

 

Section 2.4                                    Repayment and Prepayment of Revolving Credit and Swingline Loans.

 

(a)                                 Repayment on Termination Date.  The Borrower hereby agrees to repay the outstanding principal amount of (i) all Revolving A Credit Loans in full on the Revolving A Credit Maturity Date, (ii) all Revolving B Credit Loans in full on the Revolving B Credit Maturity Date and (iii) all Swingline Loans in accordance with Section 2.2(b) (but, in any event, no later than the Revolving B Credit Maturity Date), together, in each case, with all accrued but unpaid interest thereon.

 

(b)                                 Mandatory Prepayments.  If at any time the Revolving A Credit Outstandings exceed the Revolving A Credit Commitment, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving A Credit Lenders, Extensions of Credit in an amount equal to such excess with each such repayment applied to the principal amount of outstanding Revolving A Credit Loans.  If at any time the Revolving B Credit Outstandings exceed the Revolving B Credit Commitment, the Borrower agrees to repay immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for the account of the Revolving B Credit Lenders and the Swingline Lender, as applicable, Extensions of Credit in an amount equal to such excess with each such repayment applied first, to the principal amount of outstanding Swingline Loans, and second to the principal amount of outstanding Revolving B Credit Loans.

 

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(c)                                  Optional Prepayments.  The Borrower may at any time and from time to time prepay Revolving A Credit Loans, Revolving B Credit Loans and Swingline Loans, in whole or in part, without premium or penalty (subject to Section 3.9), with prior written notice to the Administrative Agent substantially in the form attached as Exhibit D (a “Notice of Prepayment”) given not later than (i) 11:00 a.m. on the same Business Day as each Base Rate Loan, (ii) 2:00 p.m. on the same Business Day as each Swingline Loan and (iii) 11:00 a.m. at least three (3) Business Days before each LIBOR Rate Loan, specifying the date and amount of prepayment and whether the prepayment is of Revolving A Credit Loans (and to LIBOR Rate Loans or Base Rate Loans comprising such Revolving A Credit Loans), Revolving B Credit Loans (and to LIBOR Rate Loans or Base Rate Loans comprising such Revolving B Credit Loans), Swingline Loans or a combination thereof, and, if of a combination thereof, the amount allocable to each.  Upon receipt of such notice, the Administrative Agent shall promptly notify each Revolving A Credit Lender or Revolving B Credit Lender, as applicable.  If any such notice is given, the amount specified in such notice shall be due and payable on the date set forth in such notice, provided that a notice of optional prepayment may state that such notice is conditional upon the effectiveness of any facility or instrument refinancing all or a portion of the outstanding Revolving A Credit Commitments and/or the Revolving B Credit Commitments, as applicable, or upon the consummation of any other transaction or event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied.  Partial prepayments shall be in an aggregate amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to Base Rate Loans (other than Swingline Loans), $5,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans and $500,000 or a whole multiple of $100,000 in excess thereof with respect to Swingline Loans.  A Notice of Prepayment received after 11:00 a.m. (or 2:00 p.m. with respect to a Notice of Prepayment for any Swingline Loan) shall be deemed received on the next Business Day.  Each such repayment shall be accompanied by any amount required to be paid pursuant to Section 3.9 hereof.

 

(d)                                 Limitation on Prepayment of LIBOR Rate Loans.  The Borrower may not prepay any LIBOR Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless such prepayment is accompanied by any amount required to be paid pursuant to Section 3.9 hereof.

 

Section 2.5                                    Permanent Reduction of the Revolving A Credit Commitment and/or the Revolving B Credit Commitment.

 

(a)                                 Voluntary Reduction.  The Borrower shall have the right at any time and from time to time, upon at least three (3) Business Days prior written notice to the Administrative Agent, to permanently reduce, without premium or penalty, (i) the entire Revolving A Credit Commitment at any time and/or the entire Revolving B Credit Commitment at any time or (ii) portions of the Revolving A Credit Commitment and/or the Revolving B Credit Commitment, from time to time, in an aggregate principal amount not less than $3,000,000 or any whole multiple of $1,000,000 in excess thereof, provided that a notice of voluntary reduction of the Revolving A Credit Commitment or the Revolving B Credit Commitment may state that such notice is conditional upon the effectiveness of any facility or instrument refinancing all or a portion of the outstanding Revolving A Credit Commitments and/or Revolving B Credit Commitments, as applicable, or upon the consummation of any other transaction or event, in which case such notice of voluntary reduction may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified prepayment date) if such condition is not satisfied.  Any reduction of the Revolving A Credit Commitment shall be applied to the Revolving A Credit Commitment of each Revolving A Credit Lender according to its Revolving

 

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A Credit Commitment Percentage.  Any reduction of the Revolving B Credit Commitment shall be applied to the Revolving B Credit Commitment of each Revolving B Credit Lender according to its Revolving B Credit Commitment Percentage.  All Revolving A Commitment Fees accrued until the effective date of any termination of the Revolving A Credit Commitment shall be paid on the effective date of such termination.  All Revolving B Commitment Fees accrued until the effective date of any termination of the Revolving B Credit Commitment shall be paid on the effective date of such termination.

 

(b)                                 Corresponding Payment.  Each permanent reduction permitted pursuant to this Section shall be accompanied by a payment of principal sufficient to reduce the aggregate outstanding Revolving A Credit Loans and/or the aggregate outstanding Revolving B Credit Loans and the aggregate outstanding Swingline Loans, as applicable, after such reduction to the Revolving A Credit Commitment and/or Revolving B Credit Commitment, as applicable, as so reduced.  Any reduction of the Revolving A Credit Commitment or the Revolving B Credit Commitment to zero shall be accompanied by payment of all outstanding Revolving A Credit Loans or Revolving B Credit Loans and Swingline Loans, as applicable, and shall result in the termination of the Revolving A Credit Commitment or the Revolving B Credit Commitment and the Swingline Commitment, as applicable, and the Revolving A Credit Facility or the Revolving B Credit Facility, as applicable.  If the reduction of the Revolving A Credit Commitment or the Revolving B Credit Commitment, as applicable, requires the repayment of any LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to Section 3.9 hereof.

 

Section 2.6                                    Termination of Credit Facilities.  The Revolving A Credit Facility and the Revolving A Credit Commitments shall terminate on the Revolving A Credit Maturity Date.  The Revolving B Credit Facility, the Revolving B Credit Commitments and the Swingline Facility shall terminate on the Revolving B Credit Maturity Date.

 

Section 2.7                                    Optional Extensions of Commitments.

 

(a)                                 Extension of Revolving A Credit Commitment.

 

(i)                                     Requests for Extension.  The Borrower may, by sending an Extension Letter to the Administrative Agent (in which case the Administrative Agent shall promptly deliver a copy to each of the Revolving A Credit Lenders), no earlier than sixty (60) days and no later than forty-five (45) days prior to each of the first and second anniversaries of the Closing Date (each of such first and second anniversaries, an “Anniversary Date”), request that each Revolving A Credit Lender extend such Lender’s then existing Scheduled Revolving A Credit Maturity Date (the “Current Revolving A Credit Maturity Date”) for one year.

 

(ii)                                  Lender Elections to Extend.  Each Revolving A Credit Lender, acting in its sole discretion, shall, by notice to the Administrative Agent given promptly after such Lender’s receipt of an Extension Letter and, in any event, no later than thirty (30) days prior to the applicable Anniversary Date (the “Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such extension (each Revolving A Credit Lender that determines not to so extend its Scheduled Revolving A Credit Maturity Date being referred to herein as a “Non-Extending Revolving A Credit Lender”); provided, that any Revolving A Credit Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Revolving A Credit Lender.  The election of any Revolving A Credit Lender to agree to such extension shall

 

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not obligate any other Revolving A Credit Lender to so agree.  For the avoidance of doubt, each Non-Extending Revolving A Credit Lender shall be required to maintain its original Revolving A Credit Commitment pursuant to the terms and conditions contained herein to and including the Revolving A Credit Maturity Date then in effect and applicable to such Non-Extending Revolving A Credit Lender (without giving effect to such extension).

 

(iii)                               Notification by Administrative Agent.  The Administrative Agent shall notify the Borrower of each Revolving A Credit Lender’s determination under this Section 2.7(a) no later than the date twenty-five (25) days prior to the applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business Day).

 

(iv)                              Minimum Extension Requirement.  If (and only if) the total of the Revolving A Credit Commitments of the Revolving A Credit Lenders that have agreed so to extend their Current Revolving A Credit Maturity Date (each, an “Extending Revolving A Credit Lender”) shall be more than 50% of the Revolving A Credit Commitment in effect immediately prior to the applicable Anniversary Date, then, subject to the satisfaction of the conditions set forth in Section 2.7(a)(vi), effective as of the applicable Anniversary Date, the Scheduled Revolving A Credit Maturity Date of each Extending Revolving A Credit Lender shall be extended to the date falling one year after the Current Revolving A Credit Maturity Date of such Extending Revolving A Credit Lender (except that, if such date is not a Business Day, such Scheduled Revolving A Credit Maturity Date as so extended shall be the next preceding Business Day).

 

(v)                                 Replacement of Non-Extending Revolving A Credit Lenders.  Subject to the satisfaction of the minimum extension requirement in Section 2.7(a)(iv) and the other conditions to the effectiveness of any such extension set forth in Section 2.7(a)(vi), the Borrower shall have the right (but not the obligation), in its sole discretion, to, no later than the date that occurs sixty (60) days following the applicable Anniversary Date, elect to replace any Non-Extending Revolving A Credit Lender pursuant to Section 3.12(b) by causing such Non-Extending Revolving A Credit Lender to assign and delegate, without recourse, its interests, rights and obligations as a Revolving A Credit Lender under this Agreement and the related Loan Documents to one or more existing Lenders or Eligible Assignees (provided, that the applicable existing Lender or Eligible Assignee agrees to the extension of the Scheduled Revolving A Credit Maturity Date requested by the Borrower in the applicable Extension Letter).

 

(vi)                              Conditions to Effectiveness of Extensions.  Notwithstanding the foregoing, the extension of the Scheduled Revolving A Credit Maturity Date of each Extending Revolving A Credit Lender pursuant to this Section 2.7(a) shall not be effective with respect to any Extending Revolving A Credit Lender unless, on the applicable Anniversary Date: (i) no Default or Event of Default shall exist or be continuing either prior to or after giving effect thereto; and (ii) the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of

 

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such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

(b)                                 Extension of Revolving B Credit Commitment.

 

(i)                                     Requests for Extension.  The Borrower may, by sending an Extension Letter to the Administrative Agent (in which case the Administrative Agent shall promptly deliver a copy to each of the Revolving B Credit Lenders), no earlier than sixty (60) days and no later than forty-five (45) days prior to each Anniversary Date (which, for the avoidance of doubt, is limited to the first and second anniversaries of the Closing Date) request that each Revolving B Credit Lender extend such Lender’s then existing Scheduled Revolving B Credit Maturity Date (the “Current Revolving B Credit Maturity Date”) for one year.

 

(ii)                                  Lender Elections to Extend.  Each Revolving B Credit Lender, acting in its sole discretion, shall, by notice to the Administrative Agent given promptly after such Lender’s receipt of an Extension Letter and, in any event, no later than thirty (30) days prior to the Notice Date, advise the Administrative Agent whether or not such Lender agrees to such extension (each Revolving B Credit Lender that determines not to so extend its Scheduled Revolving B Credit Maturity Date being referred to herein as a “Non-Extending Revolving B Credit Lender”); provided, that any Revolving B Credit Lender that does not so advise the Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Revolving B Credit Lender.  The election of any Revolving B Credit Lender to agree to such extension shall not obligate any other Revolving B Credit Lender to so agree.  For the avoidance of doubt, each Non-Extending Revolving B Credit Lender shall be required to maintain its original Revolving B Credit Commitment pursuant to the terms and conditions contained herein to and including the Revolving B Credit Maturity Date then in effect and applicable to such Non-Extending Revolving B Credit Lender (without giving effect to such extension).

 

(iii)                               Notification by Administrative Agent.  The Administrative Agent shall notify the Borrower of each Revolving B Credit Lender’s determination under this Section 2.7(b) no later than the date twenty-five (25) days prior to the applicable Anniversary Date (or, if such date is not a Business Day, on the next preceding Business Day).

 

(iv)                              Minimum Extension Requirement.  If (and only if) the total of the Revolving B Credit Commitments of the Revolving B Credit Lenders that have agreed so to extend their Current Revolving B Credit Maturity Date (each, an “Extending Revolving B Credit Lender”) shall be more than 50% of the Revolving B Credit Commitment in effect immediately prior to the applicable Anniversary Date, then, subject to the satisfaction of the conditions set forth in Section 2.7(b)(vi), effective as of the applicable Anniversary Date, the Scheduled Revolving B Credit Maturity Date of each Extending Revolving B Credit Lender shall be extended to the date falling one year after the Current Revolving B Credit Maturity Date of such Extending Revolving B Credit Lender (except that, if such date is not a Business Day, such Scheduled Revolving B Credit Maturity Date as so extended shall be the next preceding Business Day).

 

(v)                                 Replacement of Non-Extending Revolving B Credit Lenders.  Subject to the satisfaction of the minimum extension requirement in Section 2.7(b)(iv) and the other

 

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conditions to the effectiveness of any such extension set forth in Section 2.7(b)(vi), the Borrower shall have the right (but not the obligation), in its sole discretion, to, no later than the date that occurs sixty (60) days following the applicable Anniversary Date, elect to replace any Non-Extending Revolving B Credit Lender pursuant to Section 3.12(b) by causing such Non-Extending Revolving B Credit Lender to assign and delegate, without recourse, its interests, rights and obligations as a Revolving B Credit Lender under this Agreement and the related Loan Documents to one or more existing Lenders or Eligible Assignees (provided, that the applicable existing Lender or Eligible Assignee agrees to the extension of the Scheduled Revolving B Credit Maturity Date requested by the Borrower in the applicable Extension Letter).

 

(vi)                              Conditions to Effectiveness of Extensions.  Notwithstanding the foregoing, the extension of the Scheduled Revolving B Credit Maturity Date of each Extending Revolving B Credit Lender pursuant to this Section 2.7(b) shall not be effective with respect to any Extending Revolving B Credit Lender unless, on the applicable Anniversary Date: (i) no Default or Event of Default shall exist or be continuing either prior to or after giving effect thereto; and (ii) the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

(c)                                  Conflicting Provisions.  This Section 2.7 shall supersede any provisions in Section 3.6 or Section 11.2 to the contrary.

 

ARTICLE III.

 

GENERAL LOAN PROVISIONS

 

Section 3.1                                    Interest.

 

(a)                                 Interest Rate Options.  Subject to the provisions of this Section, at the election of the Borrower, (i) Revolving A Credit Loans and Revolving B Credit Loans shall bear interest at (A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the Applicable Margin (provided that the LIBOR Rate shall not be available until three (3) Business Days (or four (4) Business Days with respect to a LIBOR Rate based on a twelve month Interest Period) after the Closing Date unless the Borrower has delivered to the Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the manner set forth in Section 3.9 of this Agreement) and (ii) any Swingline Loan shall bear interest at the Base Rate plus the Applicable Margin.  The Borrower shall select the rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of Borrowing is given or at the time a Notice of Conversion/Continuation is given pursuant to Section 3.2.

 

(b)                                 Default Rate.  Subject to Section 8.3, to the fullest extent permitted by Applicable Law (i) immediately upon the occurrence and during the continuance of an Event of

 

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Default under Section 8.1(a), (b), (h) or (i), or (ii) at the election of the Required Lenders, upon the occurrence and during the continuance of any other Event of Default, (A) all outstanding LIBOR Rate Loans shall bear interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to LIBOR Rate Loans until the end of the applicable Interest Period and thereafter at a rate equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans, (B) all outstanding Base Rate Loans and other Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan Document and (C) all accrued and unpaid interest shall be due and payable on demand of the Administrative Agent.  To the fullest extent permitted by Applicable Law, interest shall continue to accrue on the Obligations after the filing by or against the Borrower of any petition seeking any relief in bankruptcy or under any Debtor Relief Law.

 

(c)                                  Interest Payment and Computation.  Interest on each Base Rate Loan shall be due and payable in arrears on the last Business Day of each calendar quarter commencing with the first calendar quarter end occurring after the Closing Date; and interest on each LIBOR Rate Loan shall be due and payable on the last day of each Interest Period applicable thereto, and if such Interest Period extends over three (3) months, at the end of each three (3) month interval during such Interest Period.  All computations of interest for Base Rate Loans when the Base Rate is determined by the Prime Rate shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest provided hereunder shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365/366-day year).

 

(d)                                 Maximum Rate.  In no contingency or event whatsoever shall the aggregate of all amounts deemed interest under this Agreement charged or collected pursuant to the terms of this Agreement exceed the highest rate permissible under any Applicable Law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto.  In the event that such a court determines that the Lenders have charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders shall at the Administrative Agent’s option (i) promptly refund to the Borrower any interest received by the Lenders in excess of the maximum lawful rate or (ii) apply such excess to the principal balance of the Obligations.  It is the intent hereof that the Borrower not pay or contract to pay, and that neither the Administrative Agent nor any Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of that which may be paid by the Borrower under Applicable Law.

 

Section 3.2                                    Notice and Manner of Conversion or Continuation of Loans.  Provided that no Default or Event of Default has occurred and is then continuing, the Borrower shall have the option to (a) convert at any time all or any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a principal amount equal to $3,000,000 or a whole multiple of $1,000,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans.  Whenever the Borrower desires to convert or continue Loans as provided above, the Borrower shall give the Administrative Agent irrevocable prior written notice in the form attached as Exhibit E (a “Notice of Conversion/Continuation”) not later than 11:00 a.m. three (3) Business Days before the day on which a proposed conversion or continuation of such Loan is to be effective specifying (A) the Loans to be converted or continued, and, in the case of any LIBOR Rate Loan

 

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to be converted or continued, the last day of the Interest Period therefor, (B) the effective date of such conversion or continuation (which shall be a Business Day), (C) the principal amount of such Loans to be converted or continued, and (D) the Interest Period to be applicable to such converted or continued LIBOR Rate Loan; provided that if the Borrower wishes to request LIBOR Rate Loans having an Interest Period of twelve months in duration, such notice must be received by the Administrative Agent not later than 11:00 a.m. four (4) Business Days prior to the requested date of such conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the applicable Lenders of such request and determine whether the requested Interest Period is acceptable to all of them, in which case, not later than 10:00 a.m. at least three (3) Business Days before the requested date of such conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the relevant Lenders.  If the Borrower fails to give a timely Notice of Conversion/Continuation prior to the end of the Interest Period for any LIBOR Rate Loan, then the applicable LIBOR Rate Loan shall be converted to a Base Rate Loan.  Any such automatic conversion to a Base Rate Loan shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loan.  If the Borrower requests a conversion to, or continuation of, LIBOR Rate Loans, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.  Notwithstanding anything to the contrary herein, a Swingline Loan may not be converted to a LIBOR Rate Loan.  The Administrative Agent shall promptly notify the affected Lenders of any such Notice of Conversion/Continuation.

 

Section 3.3                                    Fees.

 

(a)                                 Commitment Fees.

 

(i)                                     Revolving A Commitment Fee.  Commencing on the Closing Date, subject to Section 3.13(a)(iii), the Borrower shall pay to the Administrative Agent, for the account of the Revolving A Credit Lenders, a non-refundable commitment fee (the “Revolving A Commitment Fee”) at a rate per annum equal to the Applicable Margin on the average daily unused portion of the Revolving A Credit Commitment of the Revolving A Credit Lenders (other than the Defaulting Lenders, if any).  The Revolving A Commitment Fee shall be payable in arrears on the last Business Day of each calendar quarter during the term of this Agreement commencing with the first calendar quarter end occurring after the Closing Date and ending on the date upon which all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving A Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full and the Revolving A Credit Commitment has been terminated.  The Revolving A Commitment Fee shall be distributed by the Administrative Agent to the Revolving A Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such Revolving A Credit Lenders’ respective Revolving A Credit Commitment Percentages.

 

(ii)                                  Revolving B Commitment Fee.  Commencing on the Closing Date, subject to Section 3.13(a)(iii), the Borrower shall pay to the Administrative Agent, for the account of the Revolving B Credit Lenders, a non-refundable commitment fee (the “Revolving B Commitment Fee”) at a rate per annum equal to the Applicable Margin (determined by reference to the Utilization Percentage in effect on each day during the applicable period) on the average daily unused portion of the Revolving B Credit Commitment of the Revolving B Credit Lenders (other than the Defaulting Lenders, if any); provided, that the amount of outstanding Swingline Loans shall not be considered usage of the Revolving B Credit Commitment for the purpose of calculating the Revolving B Commitment Fee.  The Revolving B Commitment Fee shall be payable in arrears on the last Business Day of each calendar quarter during the term of this

 

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Agreement commencing with the first calendar quarter end occurring after the Closing Date and ending on the date upon which all Obligations (other than contingent indemnification obligations not then due) arising under the Revolving B Credit Facility shall have been indefeasibly and irrevocably paid and satisfied in full and the Revolving B Credit Commitment has been terminated.  The Revolving B Commitment Fee shall be distributed by the Administrative Agent to the Revolving B Credit Lenders (other than any Defaulting Lender) pro rata in accordance with such Revolving B Credit Lenders’ respective Revolving B Credit Commitment Percentages.

 

(b)                                 Other Fees.  The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times specified in the Fee Letter.  The Borrower shall pay to the Arrangers and the Lenders such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified.

 

Section 3.4                                    Manner of Payment.  Each payment by the Borrower on account of the principal of or interest on the Loans or of any fee, commission or other amounts payable to the Lenders under this Agreement shall be made not later than 2:00 p.m. on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent’s Office for the account of the Lenders entitled to such payment in Dollars, in immediately available funds and shall be made without any set off, counterclaim or deduction, except as otherwise provided in Section 3.11.  Any payment received after 2:00 p.m. shall be deemed to have been made on the next succeeding Business Day.  Upon receipt by the Administrative Agent of each such payment, the Administrative Agent shall distribute to each such Lender at its address for notices set forth herein its Commitment Percentage in respect of the relevant Credit Facility (or other applicable share as provided herein) of such payment and shall wire advice of the amount of such credit to each Lender.  Each payment to the Administrative Agent on account of the principal of or interest on the Swingline Loans or of any fee, commission or other amounts payable to the Swingline Lender shall be made in like manner, but for the account of the Swingline Lender.  Each payment to the Administrative Agent of Administrative Agent’s fees or expenses shall be made for the account of the Administrative Agent and any amount payable to any Lender under Sections 3.9, 3.10, 3.11 or 11.3 shall be paid to the Administrative Agent for the account of the applicable Lender.  Subject to the definition of Interest Period, if any payment under this Agreement shall be specified to be made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a Business Day and such extension of time shall in such case be included in computing any interest if payable along with such payment.  Notwithstanding the foregoing, if there exists a Defaulting Lender each payment by the Borrower to such Defaulting Lender hereunder shall be applied in accordance with Section 3.13(a)(ii).

 

Section 3.5                                    Evidence of Indebtedness.

 

(a)                                 Extensions of Credit.  The Extensions of Credit made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Extensions of Credit made by the Lenders to the Borrower and its Subsidiaries and the interest and payments thereon.  Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.  Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Revolving Credit Note and/or Swingline Note, as applicable, which shall evidence such

 

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Lender’s Revolving Credit Loans and/or Swingline Loans, as applicable, in addition to such accounts or records.  Each Lender may attach schedules to its Notes and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

 

(b)                                 Participations.  In addition to the accounts and records referred to in clause (a), each Revolving B Credit Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Revolving B Credit Lender of participations in Swingline Loans.  In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Revolving B Credit Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

 

Section 3.6                                    Sharing of Payments by Lenders.  If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender’s receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations (other than pursuant to Sections 3.9, 3.10, 3.11 or 11.3) greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

 

(i)                                     if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and

 

(ii)                                  the provisions of this paragraph shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Swingline Loans to any assignee or participant.

 

Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.

 

Section 3.7                                    Administrative Agent’s Clawback.

 

(a)                                 Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have received notice from a Lender (i) in the case of Base Rate Loans, not later than 12:00 noon on the date of any proposed borrowing and (ii) otherwise, prior to the proposed date of any borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.3(b) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for

 

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each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the daily average Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such borrowing.  Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

(b)                                 Payments by the Borrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the Swingline Lender hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Swingline Lender, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Swingline Lender, as the case maybe, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Swingline Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

(c)                                  Nature of Obligations of Lenders Regarding Extensions of Credit.  The obligations of the Lenders under this Agreement to make the Loans are several and are not joint or joint and several.  The failure of any Lender to make available its Commitment Percentage of any Loan requested by the Borrower shall not relieve it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of such Loan available on the borrowing date, but no Lender shall be responsible for the failure of any other Lender to make its Commitment Percentage of such Loan available on the borrowing date.

 

Section 3.8                                    Changed Circumstances.

 

(a)                                 Circumstances Affecting LIBOR Rate Availability.  Unless and until a Replacement Rate is implemented in accordance with clause (c) below, in connection with any request for a LIBOR Rate Loan or a conversion to or continuation thereof or otherwise, if for any reason (i) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that Dollar deposits are not being offered to banks in the London interbank Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the Administrative Agent shall determine (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for ascertaining the LIBOR Rate for such Interest Period with respect to a proposed LIBOR Rate Loan or (iii) the Required Lenders shall determine (which determination shall be conclusive and binding absent manifest error) that the LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrower.  Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, the 

 

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obligation of the Lenders to make LIBOR Rate Loans and the right of the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and the Borrower shall either (A) repay in full (or cause to be repaid in full) the then outstanding principal amount of each such LIBOR Rate Loan together with accrued interest thereon (subject to Section 3.1(d)), on the last day of the then current Interest Period applicable to such LIBOR Rate Loan; or (B) convert the then outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of such Interest Period.

 

(b)                                 Laws Affecting LIBOR Rate Availability.  If, after the date hereof, the introduction of, or any change in, any Applicable Law or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any of the Lenders (or any of their respective Lending Offices) with any request or directive (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower and the other Lenders.  Thereafter, until the Administrative Agent notifies the Borrower that such circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans, and the right of the Borrower to convert any Loan to a LIBOR Rate Loan or continue any Loan as a LIBOR Rate Loan shall be suspended and thereafter the Borrower may select only Base Rate Loans and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of the then current Interest Period applicable thereto, the applicable Loan shall immediately be converted to a Base Rate Loan for the remainder of such Interest Period.

 

(c)                                  Alternative Rate of Interest.  Notwithstanding anything to the contrary in Section 3.8(a) above, if the Administrative Agent has made the determination (which determination shall be conclusive absent manifest error, it being agreed, however, that the Administrative Agent shall not unreasonably refuse to make such determination if the Borrower so requests in writing) that (i) the circumstances described in Section 3.8(a)(i) or (a)(ii) above have arisen and that such circumstances are unlikely to be temporary, (ii) any applicable interest rate specified herein is no longer a widely recognized benchmark rate for newly originated loans in the syndicated loan market in dollars or (iii) the applicable supervisor or administrator (if any) of any applicable interest rate specified herein or any Governmental Authority having, or purporting to have, jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which any applicable interest rate specified herein shall no longer be used for determining interest rates for loans in the syndicated loan market in dollars, then the Administrative Agent and the Borrower may amend this Agreement to establish an alternate benchmark reference rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that gives due consideration to the then prevailing market convention for determining a benchmark reference rate for syndicated loans in the United States at such time (the “Replacement Rate”), in which case, the Replacement Rate shall, subject to the next sentences, replace such applicable interest rate for all purposes under the Loan Documents unless and until (A) an event described in Section 3.8(a)(i), (a)(ii), (c)(i), (c)(ii) or (c)(iii) occurs with respect to the Replacement Rate or (B) the Administrative Agent (at the direction of the Required Lenders) notifies the Borrower that the Replacement Rate does not adequately and fairly reflect the cost to the Lenders of funding the Loans bearing interest at the Replacement Rate.  In connection with the establishment and application of the Replacement Rate, this Agreement and the other Loan Documents shall be amended solely with the consent of the Administrative Agent and the Borrower, as may be necessary or appropriate, in the opinion of the Administrative Agent and the

 

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Borrower, to effect the provisions of this Section 3.8(c), including, as applicable, any proposed conforming changes to the definition of “Base Rate,” “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, as agreed between the Administrative Agent and the Borrower, to reflect the adoption of such Replacement Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Replacement Rate yet exists, in such other manner of administration as the Administrative Agent determines with the consent of the Borrower).  Notwithstanding anything to the contrary in this Agreement or the other Loan Documents (including, without limitation, Section 11.2), such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the delivery of such amendment to the Lenders, written notices from such Lenders that in the aggregate constitute Required Lenders, with each such notice stating that such Lender objects to such amendment (which such notice shall note with specificity the particular provisions of the amendment to which such Lender objects).  Notwithstanding the foregoing, if such Replacement Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

Section 3.9                                    Indemnity.  The Borrower hereby indemnifies each of the Lenders against any loss or expense (including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain a LIBOR Rate Loan or from fees payable to terminate the deposits from which such funds were obtained) which may arise or be attributable to each Lender’s obtaining, liquidating or employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a consequence of any failure by the Borrower to make any payment when due of any amount due hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow, continue or convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the last day of the Interest Period therefor.  The amount of such loss or expense shall be determined, in the applicable Lender’s sole discretion, based upon the assumption that such Lender funded its Commitment Percentage of the LIBOR Rate Loans in the London interbank market and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical.  A certificate of such Lender setting forth the basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct save for manifest error.  The Credit Parties’ obligations under this Section 3.9 shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

Section 3.10                             Increased Costs.

 

(a)                                 Increased Costs Generally.  If any Change in Law shall:

 

(i)                                     impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or advances, loans or other credit extended or participated in by, any Lender (except any reserve requirement reflected in the LIBOR Rate);

 

(ii)                                  subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments,

 

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or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)                               impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or LIBOR Rate Loans made by such Lender;

 

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or any other amount) then, upon written request of such Lender or other Recipient, the Borrower shall promptly pay to any such Lender or other Recipient, not in duplication of amounts payable under Section 3.11, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)                                 Capital Requirements.  If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Swingline Loans held by, such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time upon written request of such Lender the Borrower shall promptly pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

 

(c)                                  Certificates for Reimbursement.  A certificate of a Lender or such other Recipient setting forth the amount or amounts necessary to compensate such Lender, such other Recipient or any of their respective holding companies, as the case may be, as specified in clause (a) or (b) of this Section and delivered to the Borrower, shall be conclusive absent manifest error.  The Borrower shall pay such Lender or such other Recipient, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof.

 

(d)                                 Delay in Requests.  Failure or delay on the part of any Lender or such other Recipient to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or such other Recipient’s right to demand such compensation; provided that the Borrower shall not be required to compensate any Lender or any other Recipient pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or such other Recipient, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s or such other Recipient’s intention to claim compensation therefor (except that if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

 

(e)                                  Survival.  The Credit Parties’ obligations under this Section 3.10 shall survive the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

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Section 3.11                             Taxes.

 

(a)                                 Defined Terms.  For purposes of this Section 3.11, the term “Applicable Law” includes FATCA.

 

(b)                                 Payments Free of Taxes.  Any and all payments by or on account of any obligation of any Credit Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by Applicable Law.  If any Applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Credit Party shall be increased as necessary so that, after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

(c)                                  Payment of Other Taxes by the Credit Parties.  The Credit Parties shall timely pay to the relevant Governmental Authority in accordance with Applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes.

 

(d)                                 Indemnification by the Credit Parties.  The Credit Parties shall jointly and severally indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Recipient (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.

 

(e)                                  Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 3.11, such Credit Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(f)                                   Status of Lenders.

 

(i)                                     Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by Applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is

 

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subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.11(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

(ii)                                  Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person:

 

(A)                               any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from United States federal backup withholding tax;

 

(B)                               any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

 

(1)                                 in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of  IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document,  IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, United States federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(2)                                 executed copies of IRS Form W-8ECI;

 

(3)                                 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 substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of  IRS Form W-8BEN or IRS Form W-8BEN-E; or

 

(4)                                 to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax 

 

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Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;

 

(C)                               any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by Applicable Law as a basis for claiming exemption from or a reduction in United States federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

 

(D)                               if a payment made to a Lender under any Loan Document would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by Applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(g)                                  Treatment of Certain Refunds.  If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.11 (including by the payment of additional amounts pursuant to this Section 3.11), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund).  Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this

 

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clause (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this clause (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(h)                                 Indemnification of the Administrative Agent.  Each Lender shall severally indemnify the Administrative Agent within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Credit Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Credit Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.9(d) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this clause (h).  The agreements in clause (h) shall survive the resignation and/or replacement of the Administrative Agent.

 

(i)                                     Survival.  Each party’s obligations under this Section 3.11 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

 

Section 3.12                             Mitigation Obligations; Replacement of Lenders.

 

(a)                                 Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.10, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.11, then such Lender shall, at the request of the Borrower, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.10 or Section 3.11, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)                                 Replacement of Lenders.  If any Lender requests compensation under Section 3.10, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to

 

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Section 3.11, and, in each case, such Lender has declined or is unable to designate a different Lending Office in accordance with Section 3.12(a), or if any Lender is a Defaulting Lender or a Non-Consenting Lender, or, subject to Section 2.7(a), any Lender is a Non-Extending Revolving A Credit Lender, or, subject to Section 2.7(b), any Lender is a Non-Extending Revolving B Credit Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.9), all of its interests, rights (other than its existing rights to payments pursuant to Section 3.10 or Section 3.11) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

 

(i)                                     the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.9;

 

(ii)                                  such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and funded participation in Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.9) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts);

 

(iii)                               in the case of any such assignment resulting from a claim for compensation under Section 3.10 or payments required to be made pursuant to Section 3.11, such assignment will result in a reduction in such compensation or payments thereafter;

 

(iv)                              such assignment does not conflict with Applicable Law; and

 

(v)                                 in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

 

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.  Each Lender agrees that, if the Borrower elects to replace such Lender in accordance with this Section 3.12(b), it shall promptly execute and deliver to the Administrative Agent an Assignment and Assumption to evidence the assignment and shall deliver to the Administrative Agent any Note (if Notes have been issued in respect of such Lender’s Loans) subject to such Assignment and Assumption; provided that the failure of any such Lender to execute an Assignment and Assumption shall not render such assignment invalid and such assignment shall be recorded in the Register.

 

Section 3.13                             Defaulting Lenders.

 

(a)                                 Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:

 

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(i)                                     Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders and Section 11.2.

 

(ii)                                  Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Swingline Lender hereunder; third, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan or funded participation in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fourth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans and funded participations under this Agreement; fifth, to the payment of any amounts owing to the Lenders or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; sixth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such 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 funded participations in Swingline Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (2) such Loans were made or the related Swingline Loans were issued at a time when the conditions set forth in Section 4.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and funded participations in Swingline Loans owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or funded participations in Swingline Loans owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Swingline Loans are held by the Lenders pro rata in accordance with the Revolving B Credit Commitments under the Revolving B Credit Facility without giving effect to Section 3.13(a)(iv).

 

(iii)                               Certain Fees.  No Defaulting Lender shall be entitled to receive any Revolving A Commitment Fee or any Revolving B Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(iv)                              Reallocation of Participations.  All or any part of such Defaulting Lender’s participation in Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Revolving B Credit Commitment Percentages (calculated without regard to such Defaulting Lender’s Revolving B Credit Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving B Credit Exposure of any Non-Defaulting Lender to exceed such Non-

 

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Defaulting Lender’s Revolving B Credit Commitment.  Subject to Section 11.21, 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.

 

(v)                                 Repayment of Swingline Loans.  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, repay any outstanding Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure.

 

(b)                                 Defaulting Lender Cure.  If the Borrower, the Administrative Agent and the Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, such Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Swingline Loans to be held pro rata by the Lenders in accordance with the Commitments under the applicable Credit Facility (without giving effect to Section 3.13(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent 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 3.14                                                     Increase in Revolving A Credit Commitment and/or Revolving B Credit Commitment.

 

The Borrower shall have the right, at any time after the Closing Date, by written notice to the Administrative Agent, to increase the Revolving A Credit Commitment and/or the Revolving B Credit Commitment by up to $300,000,000 in the aggregate for all such increases; provided, that:

 

(a)                                 after giving effect to all such increases, the sum of the Revolving A Credit Commitment, plus the Revolving B Credit Commitment, shall not exceed $1,800,000,000;

 

(b)                                 no Default or Event of Default shall exist immediately prior to the effective date of such increase or after giving effect to such increase;

 

(c)                                  such increase shall be in a minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as agreed by the Administrative Agent);

 

(d)                                 no existing Lender shall be under any obligation to increase its Revolving A Credit Commitment or its Revolving B Credit Commitment, as applicable, and any such decision whether to increase any of its Commitments shall be in such Lender’s sole and absolute discretion;

 

(e)                                  any new Lender shall join this Agreement by executing such joinder documents as are required by the Administrative Agent and/or any existing Lender electing to increase any

 

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of its Commitments shall have executed a commitment agreement satisfactory to the Administrative Agent;

 

(f)                                   the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of the effective date of such increase with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

(g)                                  the Borrower shall be in Pro Forma Compliance after giving effect to such increase (and assuming for such purposes that such increase in the Revolving A Credit Commitment and/or the Revolving B Credit Commitment is fully drawn);

 

(h)                                 the Administrative Agent shall have received (i) resolutions of the board of directors of the Credit Parties and (ii) opinions of counsel to the Credit Parties as to such matters it may reasonably request in form and substance reasonably satisfactory to the Administrative Agent, in each case, relating to the corporate or other necessary authority for such increase and the validity of such increase, and any other matters relevant thereto; and

 

(i)                                     (i) in connection with any such increase in the Revolving A Credit Commitment, if any Revolving A Credit Loans are outstanding at the time of such increase, the Borrower shall, if applicable, prepay one or more existing Revolving A Credit Loans (such prepayment to be subject to Section 3.9) in an amount necessary such that after giving effect to such increase, each Lender will hold its pro rata share (based on its Revolving A Credit Commitment Percentage of the increased Revolving A Credit Commitment) of outstanding Revolving A Credit Loans, and (ii) in connection with any such increase in the Revolving B Credit Commitment, if any Revolving B Credit Loans are outstanding at the time of such increase, the Borrower shall, if applicable, prepay one or more existing Revolving B Credit Loans (such prepayment to be subject to Section 3.9) in an amount necessary such that after giving effect to such increase, each Lender will hold its pro rata share (based on its Revolving B Credit Commitment Percentage of the increased Revolving B Credit Commitment) of outstanding Revolving B Credit Loans.

 

Except to the extent provided in this Section 3.14, all of the terms and conditions applicable to any increase in the Revolving A Credit Commitment or the Revolving B Credit Commitment shall be identical to the terms and conditions applicable to the Revolving A Credit Commitment or the Revolving B Credit Facility, as applicable.

 

ARTICLE IV.

 

CONDITIONS OF CLOSING AND BORROWING

 

Section 4.1                                    Conditions to Closing and Initial Extensions of Credit.  The obligation of the Lenders to close this Agreement and to make the initial Loans, if any, is subject to the satisfaction of each of the following conditions:

 

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(a)                                 Executed Loan Documents.  This Agreement, a Revolving Credit Note in favor of each Revolving A Credit Lender and Revolving B Credit Lender requesting a Revolving Credit Note, a Swingline Note in favor of the Swingline Lender, if requested thereby, together with any other applicable Loan Documents, shall have been duly authorized, executed and delivered to the Administrative Agent by the parties thereto, shall be in full force and effect and no Default or Event of Default shall exist hereunder or thereunder.

 

(b)                                 Closing Certificates; Etc.  The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent:

 

(i)                                     Officer’s Certificate.  A certificate from a Responsible Officer of the Borrower certifying that (A) all representations and warranties of the Credit Parties contained in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects); (B) after giving effect to the transactions contemplated hereby on the Closing Date, no Default or Event of Default has occurred and is continuing; and (C) since December 31, 2017, no event has occurred or condition arisen, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

 

(ii)                                  Certificate of Secretary of each Credit Party.  A certificate of a Responsible Officer of each Credit Party certifying as to the incumbency and genuineness of the signature of each officer of such Credit Party executing Loan Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the articles or certificate of incorporation or formation (or equivalent), as applicable, of such Credit Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, (B) the bylaws or other governing document of such Credit Party as in effect on the Closing Date, (C) resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and (D) each certificate required to be delivered pursuant to Section 4.1(b)(iii).

 

(iii)                               Certificates of Good Standing.  Certificates as of a recent date of the good standing of each Credit Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable.

 

(iv)                              Opinions of Counsel.  Opinions of counsel to the Credit Parties addressed to the Administrative Agent and the Lenders with respect to the Credit Parties, the Loan Documents and such other matters as the Administrative Agent shall request (which such opinions shall expressly permit reliance by permitted successors and assigns of the Administrative Agent and the Lenders).

 

(c)                                  Financial Matters.

 

(i)                                     Solvency Certificate.  The Borrower shall have delivered to the Administrative Agent a solvency certificate, signed by the chief financial officer of the Borrower, in form and substance satisfactory to the Administrative Agent.

 

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(ii)                                  Payment at Closing.  The Borrower shall have paid or made arrangements to pay contemporaneously with closing (A) to the Administrative Agent, the Arrangers and the Lenders the fees set forth or referenced in Section 3.3 and any other accrued and unpaid fees or commissions due hereunder, and (B) all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent accrued and unpaid prior to or on the Closing Date and invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall 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 shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

 

(d)                                 Miscellaneous.

 

(i)                                     Notice of Account Designation.  The Administrative Agent shall have received a Notice of Account Designation specifying the account or accounts to which the proceeds of any Loans made on or after the Closing Date are to be disbursed.

 

(ii)                                  Existing Credit Agreement.  All Indebtedness under the Existing Credit Agreement shall be repaid in full, all commitments (if any) in respect thereof shall have been terminated and all guarantees therefor and security therefor shall be released, and the Administrative Agent shall have received a pay-off letter in form and substance satisfactory to it evidencing such repayment, termination and release.

 

(iii)                               PATRIOT Act, etc.  Each Credit Party shall have provided to the Administrative Agent and the Lenders the documentation and other information requested by the Administrative Agent in order to comply with requirements of the PATRIOT Act, applicable “know your customer” and anti-money laundering rules and regulations.

 

(iv)                              Beneficial Ownership Certification.  At least five (5) days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to the Borrower.

 

(v)                                 Other Documents.  All opinions, certificates and other instruments and all proceedings in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Administrative Agent.  The Administrative Agent shall have received copies of all other documents, certificates and instruments reasonably requested thereby, with respect to the transactions contemplated by this Agreement.

 

Without limiting the generality of the provisions of Section 9.3(c), for purposes of determining compliance with the conditions specified in this Section 4.1, the Administrative Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

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Section 4.2                                    Conditions to All Extensions of Credit.  The obligations of the Lenders to make or participate in any Extensions of Credit (including the initial Extension of Credit) are subject to the satisfaction of the following conditions precedent on the relevant borrowing or extension date:

 

(a)                                 Continuation of Representations and Warranties.  The representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of such borrowing or extension date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

(b)                                 No Existing Default.  No Default or Event of Default shall have occurred and be continuing on the borrowing date with respect to such Loan or after giving effect to the Loans to be made on such date.

 

(c)                                  Notices.  The Administrative Agent shall have received a Notice of Borrowing from the Borrower in accordance with Section 2.3(a).

 

(d)                                 New Swingline Loans.  So long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan.

 

ARTICLE V.

 

REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES

 

To induce the Administrative Agent and Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the Credit Parties hereby represent and warrant to the Administrative Agent and the Lenders both before and after giving effect to the transactions contemplated hereunder, which representations and warranties shall be deemed made on the Closing Date and as otherwise set forth in Section 4.2, that:

 

Section 5.1                                    Organization; Power; Qualification.  Each Credit Party and each Material Subsidiary (a) is duly organized, validly existing and (except to the extent such concept is not applicable in the jurisdiction of incorporation or formation of the relevant Subsidiary) in good standing under the laws of the jurisdiction of its incorporation or formation, (b) has the power and authority to own its Properties and to carry on its business as now being and hereafter proposed to be conducted and (c) is duly qualified and authorized to do business in each jurisdiction in which the character of its Properties or the nature of its business requires such qualification and authorization, except in jurisdictions where the failure to be so qualified or in good standing could not reasonably be expected to result in a Material Adverse Effect.

 

Section 5.2                                    Ownership.  Each Subsidiary of each Credit Party as of the Closing Date, and its state of incorporation or organization, is listed on Schedule 5.2.

 

Section 5.3                                    Authorization; Enforceability.  Each Credit Party and each Subsidiary thereof has the right, power and authority and has taken all necessary corporate and other action to authorize the

 

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execution, delivery and performance of this Agreement and each of the other Loan Documents to which it is a party in accordance with their respective terms.  This Agreement and each of the other Loan Documents have been duly executed and delivered by the duly authorized officers of each Credit Party and each Subsidiary thereof that is a party thereto, and each such document constitutes the legal, valid and binding obligation of each Credit Party and each Subsidiary thereof that is a party thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.

 

Section 5.4                                    Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc.  The execution, delivery and performance by each Credit Party and each Subsidiary thereof of the Loan Documents to which each such Person is a party, in accordance with their respective terms, the Extensions of Credit hereunder and the transactions contemplated hereby or thereby do not and will not, by the passage of time, the giving of notice or otherwise, (a) require any Governmental Approval or violate any Applicable Law relating to any Credit Party or any Subsidiary thereof where the failure to obtain such Governmental Approval or such violation could reasonably be expected to have a Material Adverse Effect, (b) conflict with, result in a breach of or constitute a default under the articles of incorporation, bylaws or other organizational documents of any Credit Party or any Subsidiary thereof, (c) conflict with, result in a breach of or constitute a default under any indenture, agreement or other instrument to which such Person is a party or by which any of its properties may be bound or any Governmental Approval relating to such Person, which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or (d) require any consent or authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority and no consent of any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, other than consents, authorizations, filings or other acts or consents for which the failure to obtain or make could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

 

Section 5.5                                    Compliance with Law; Governmental Approvals.  Each Credit Party and each Subsidiary thereof (a) has all Governmental Approvals required by any Applicable Law for it to conduct its business, each of which is in full force and effect, is final and not subject to review on appeal and is not the subject of any pending or, to its knowledge, threatened attack by direct or collateral proceeding, and (b) is in compliance with each Governmental Approval applicable to it and in compliance with all other Applicable Laws relating to it or any of its respective properties, except in each case where the failure to have, comply or file could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.6                                    Tax Returns and Payments.  Each Credit Party and each Subsidiary thereof has duly filed or caused to be filed all United States federal income and other material tax returns required by Applicable Law to be filed, and has paid, or made adequate provision for the payment of, all federal income and other material amounts of taxes, assessments and governmental charges or levies upon it and its property, income, profits and assets which are due and payable (other than any amount the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided for on the books of the relevant Credit Party), except to the extent that the failure to pay such amounts could not reasonably be expected to have a Material Adverse Effect.  Such returns accurately reflect in all material respects all liability for taxes of any Credit Party or any Subsidiary thereof for the periods covered thereby.

 

Section 5.7                                    Intellectual Property Matters.  Each Credit Party and each Subsidiary thereof owns or possesses rights to use (i) all Core Intellectual Property reasonably necessary to conduct its business and (ii) except to the extent the failure to own or possess such rights could not reasonably be expected to have a Material Adverse Effect, all other franchises, licenses, copyrights, copyright

 

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applications, patents, patent rights or licenses, patent applications, trademarks, trademark rights, service mark, service mark rights, trade names, trade name rights, copyrights and other rights with respect to the foregoing which are reasonably necessary to conduct its business.  Except as could not reasonably be expected to have a Material Adverse Effect, (x) no event has occurred which permits, or after notice or lapse of time or both would permit, the revocation or termination of any such rights, and (y) no Credit Party nor any Subsidiary thereof is liable to any Person for infringement under Applicable Law with respect to any such rights as a result of its business operations.

 

Section 5.8                                    Environmental Matters.  Except as could not reasonably be expected to have a Material Adverse Effect:

 

(a)                                 the properties owned, leased or operated by each Credit Party and each Subsidiary thereof now or in the past do not contain, and to their knowledge have not previously contained, any Hazardous Materials in amounts or concentrations which constitute or constituted a material violation of applicable Environmental Laws;

 

(b)                                 to its knowledge, each Credit Party and each Subsidiary thereof and such properties and all operations conducted in connection therewith are in compliance and have been in compliance with all applicable Environmental Laws, and there is no contamination at, under or about such properties or such operations which could interfere with the continued operation of such properties or impair the fair saleable value thereof;

 

(c)                                  to its knowledge, Hazardous Materials have not been transported or disposed of to or from the properties owned, leased or operated by any Credit Party or any Subsidiary thereof in violation of, or in a manner or to a location which could give rise to liability under, Environmental Laws, nor have any Hazardous Materials been generated, treated, stored or disposed of at, on or under any of such properties in violation of, or in a manner that could give rise to liability under, any applicable Environmental Laws;

 

(d)                                 no judicial proceedings or governmental or administrative action is pending, or, to the knowledge of the Borrower, threatened, under any Environmental Law to which any Credit Party or any Subsidiary thereof is or will be named as a potentially responsible party, nor are there any consent decrees or other decrees, consent orders, administrative orders or other orders, or other administrative or judicial requirements outstanding under any applicable Environmental Law with respect to any Credit Party, any Subsidiary thereof, with respect to any real property owned, leased or operated by any Credit Party or any Subsidiary thereof or operations conducted in connection therewith; and

 

(e)                                  there has been no release of Hazardous Materials at or from properties owned, leased or operated by any Credit Party or any Subsidiary, now or in the past, in violation of or in amounts or in a manner that could give rise to liability under applicable Environmental Laws.

 

Section 5.9                                    Employee Benefit Matters.

 

(a)                                 As of the Closing Date, no Credit Party nor any ERISA Affiliate maintains or contributes to, or has any obligation under, any Pension Plans or Multiemployer Plans other than those identified on Schedule 5.9.

 

(b)                                 Each Credit Party and each ERISA Affiliate is in compliance with all applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans except for any required amendments for which the remedial

 

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amendment period as defined in Section 401(b) of the Code has not yet expired and except where a failure to so comply could not reasonably be expected to have a Material Adverse Effect.  Each Employee Benefit Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be so qualified, and each trust related to such plan has been determined to be exempt under Section 501(a) of the Code except for such plans that have not yet received determination letters but for which the remedial amendment period for submitting a determination letter has not yet expired.  No liability has been incurred by any Credit Party or any ERISA Affiliate which remains unsatisfied for any taxes or penalties assessed with respect to any Employee Benefit Plan or any Multiemployer Plan except for a liability that could not reasonably be expected to have a Material Adverse Effect.

 

(c)                                  As of the Closing Date, no Pension Plan has been terminated, nor has any Pension Plan become subject to funding based benefit restrictions under Section 436 of the Code, nor has any funding waiver from the IRS been received or requested with respect to any Pension Plan, nor has any Credit Party or any ERISA Affiliate failed to make any contributions or to pay any amounts due and owing as required by Sections 412 or 430 of the Code, Section 302 of ERISA or the terms of any Pension Plan on or prior to the due dates of such contributions under Sections 412 or 430 of the Code or Section 302 of ERISA, nor has there been any event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan.

 

(d)                                 Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no Credit Party nor any ERISA Affiliate has: (i) engaged in a nonexempt prohibited transaction described in Section 406 of the ERISA or Section 4975 of the Code, (ii) incurred any liability to the PBGC which remains outstanding other than the payment of premiums and there are no premium payments which are due and unpaid, (iii) failed to make a required contribution or payment to a Multiemployer Plan, or (iv) failed to make a required installment or other required payment under Sections 412 or 430 of the Code.

 

(e)                                  No Termination Event has occurred or is reasonably expected to occur, in each case that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

(f)                                   Except where the failure of any of the following representations to be correct could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, no proceeding, claim (other than a benefits claim in the ordinary course of business), lawsuit and/or investigation is existing or, to its knowledge, threatened concerning or involving (i) any employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently maintained or contributed to by any Credit Party or any ERISA Affiliate, (ii) any Pension Plan or (iii) any Multiemployer Plan.

 

(g)                                  No Credit Party nor any Subsidiary thereof is a party to any contract, agreement or arrangement that could, solely as a result of the delivery of this Agreement or the consummation of transactions contemplated hereby, result in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.

 

(h)                                 The Borrower is not and will not be using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments.

 

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Section 5.10                             Margin Stock.  No Credit Party nor any Subsidiary thereof is engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of the Board of Governors of the Federal Reserve System).  No part of the proceeds of any of the Loans will be used in a manner that would violate Regulation T, U or X of such Board of Governors.

 

Section 5.11                             Government Regulation.  No Credit Party is an “investment company” or a company “controlled” by an “investment company” (as each such term is defined or used in the Investment Company Act of 1940).

 

Section 5.12                             Financial Statements.  The Borrower has furnished to the Lenders (i) the audited Consolidated balance sheet of the Borrower and its Subsidiaries as of December 31, 2017 and the related audited Consolidated statements of operations, stockholders equity and cash flows for the Fiscal Year then ended and (ii) unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of the fiscal quarter ending March 31, 2018 and related Consolidated unaudited interim statements of operations and cash flows.  Such financial statements and each of the financial statements delivered pursuant to Sections 6.1(a) and 6.1(b) fairly present on a Consolidated basis the assets, liabilities and financial position of the Borrower and its Subsidiaries as at such dates, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements and, as applicable, the absence of footnotes from unaudited financial statements).  All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP.

 

Section 5.13                             No Material Adverse Effect.  Since December 31, 2017, no event has occurred or condition arisen, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect.

 

Section 5.14                             Solvency.  The Credit Parties, on a Consolidated basis, are Solvent.

 

Section 5.15                             Title to Properties.  Each Credit Party and each Material Subsidiary thereof has such title to the real property owned or leased by it as is necessary or desirable to the conduct of its business and valid and legal title to all of its personal property and assets, except those which have been disposed of by the Credit Parties and their Subsidiaries subsequent to such date which dispositions have been in the ordinary course of business or as otherwise expressly permitted hereunder and except for such defects in title that could not reasonably be expected to have a Material Adverse Effect.

 

Section 5.16                             Litigation.  There are no actions, suits or proceedings pending nor, to its knowledge, threatened against or in any other way relating adversely to or affecting any Credit Party or any Subsidiary thereof or any of their respective properties in any court or before any arbitrator of any kind or before or by any Governmental Authority that could reasonably be expected to have a Material Adverse Effect.

 

Section 5.17                             Anti-Corruption Laws and Sanctions.  None of the Borrower, any Subsidiary, or to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers, employees or affiliates, (i) is a Sanctioned Person or currently the subject or target of any Sanctions or (ii) has taken any action, directly or indirectly, that would result in a violation, in any material respect, by the Borrower or any of its Subsidiaries, of any Anti-Corruption Laws.  None of the Borrower, any Subsidiary, or to the knowledge of the Borrower or such Subsidiary, any of their respective directors or officers, is operating, organized or resident in any Sanctioned Country.

 

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Section 5.18                             Absence of Defaults.  No Default or Event of Default has occurred and is continuing.

 

Section 5.19                             Disclosure.  No material report, material certificate or other material written information  (excluding any information of a general economic or industry nature) furnished by or on behalf of any Credit Party or any Subsidiary thereof to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished), taken together as a whole, together with any disclosures made by the Borrower in filings with the SEC (that are made available or deemed made available to the Lenders pursuant to the terms of this Agreement), contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, pro forma financial information, estimated financial information and other projected, estimated or forward-looking information, such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being recognized by the Lenders that projections are not to be viewed as facts and that the actual results during the period or periods covered by such projections may materially vary from such projections).  As of the Closing Date, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects.

 

Section 5.20                             No EEA Financial Institution.  No Credit Party is an EEA Financial Institution.

 

ARTICLE VI.

 

AFFIRMATIVE COVENANTS

 

Until all of the Obligations (other than contingent indemnification obligations not then due) have been paid and satisfied in full in cash and the Commitments terminated, each Credit Party will, and will cause each of its Subsidiaries to:

 

Section 6.1                                    Financial Statements.  Deliver to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                                 Annual Financial Statements.  As soon as available and in any event within ninety (90) days after the end of each Fiscal Year (commencing with the Fiscal Year ended December 31, 2018), an audited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of operations, stockholders equity and cash flows including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the preceding Fiscal Year and prepared in accordance with GAAP.  Such annual financial statements shall be audited by an independent certified public accounting firm of recognized national standing, and accompanied by a report and opinion thereon by such certified public accountants prepared in accordance with generally accepted auditing standards that is not subject to any “going concern” or similar qualification or exception or any qualification as to the scope of such audit or with respect to accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with GAAP.

 

(b)                                 Quarterly Financial Statements.  As soon as practicable and in any event within forty-five (45) days after the end of the first three fiscal quarters of each Fiscal Year (commencing with the fiscal quarter ended June 30, 2018), an unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated statements of operations and cash flows and a report containing management’s

 

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discussion and analysis of such financial statements for the fiscal quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all in reasonable detail setting forth in comparative form the corresponding figures as of the end of and for the corresponding period in the preceding Fiscal Year and prepared by the Borrower in accordance with GAAP, and certified by the chief financial officer of the Borrower to present fairly in all material respects the financial condition of the Borrower and its Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments and, as applicable, the absence of footnotes.

 

Section 6.2                                    Certificates; Other Reports.  Deliver to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                                 at each time financial statements are delivered pursuant to Sections 6.1(a) or (b), a duly completed Officer’s Compliance Certificate signed by the chief financial officer or treasurer of the Borrower and a report containing management’s discussion and analysis of such financial statements;

 

(b)                                 promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, or with any national securities exchange, and in any case not otherwise required to be delivered to the Administrative Agent pursuant hereto;

 

(c)                                  promptly, and in any event within five (5) Business Days after receipt thereof by any Credit Party or any Subsidiary thereof, copies of each material notice or other material correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any material investigation or other material inquiry by such agency regarding financial or other operational results of any Credit Party or any Subsidiary thereof;

 

(d)                                 promptly upon the request thereof, such other information and documentation required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation), as from time to time reasonably requested by the Administrative Agent or any Lender; and

 

(e)                                  such other information regarding the operations, business affairs and financial condition of any Credit Party or any Subsidiary thereof as the Administrative Agent (including at the request of any Lender) may reasonably request.

 

Documents required to be delivered pursuant to Section 6.1(a) or (b) or (to the extent any such documents are included in materials otherwise filed with the SEC) Section 6.2(b) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet at the website address listed in Section 11.1; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender.  Notwithstanding anything contained herein, in

 

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every instance the Borrower shall be required to provide paper copies of the Officer’s Compliance Certificates required by Section 6.2 to the Administrative Agent.  Except for such Officer’s Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

 

The Borrower hereby acknowledges that (1) the Administrative Agent and/or the Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (2) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 11.10); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.”  Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC”.

 

Section 6.3                                    Notice of Litigation and Other Matters.  Promptly (but in no event later than ten (10) days after any Responsible Officer of any Credit Party obtains knowledge thereof) notify the Administrative Agent in writing of (which shall promptly make such information available to the Lenders in accordance with its customary practice):

 

(a)                                 the occurrence of any Default or Event of Default;

 

(b)                                 the commencement of all proceedings and investigations by or before any Governmental Authority and all actions and proceedings in any court or before any arbitrator against or involving any Credit Party or any Subsidiary thereof or any of their respective properties, assets or businesses in each case that could reasonably be expected to result in a Material Adverse Effect; and

 

(c)                                  any notice of any violation received by any Credit Party or any Subsidiary thereof from any Governmental Authority including, without limitation, any notice of violation of applicable Environmental Laws which in any such case could reasonably be expected to have a Material Adverse Effect.

 

Each notice pursuant to Section 6.3 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto.  Each notice pursuant to Section 6.3(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

 

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Section 6.4                                    Preservation of Corporate Existence and Related Matters.  Except as permitted by Section 7.4, (a) preserve and maintain its separate corporate existence except, in the case of any Non- Guarantor Subsidiary, to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Effect, (b) maintain all rights, franchises, licenses and privileges necessary to the conduct of its business except to the extent that failure to do so could not reasonably be expected to result in a Material Adverse Effect, and (c) qualify and remain qualified as a foreign corporation or other entity and authorized to do business in each jurisdiction where the nature and scope of its activities require it to so qualify under Applicable Law in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect.

 

Section 6.5                                    Maintenance of Property and Licenses.

 

(a)                                 Protect and preserve all Properties necessary in and material to its business, including copyrights, patents, trade names, service marks and trademarks; maintain in good working order and condition, ordinary wear and tear excepted, all buildings, equipment and other tangible real and personal property; and from time to time make or cause to be made all repairs, renewals and replacements thereof and additions to such Property necessary for the conduct of its business, so that the business carried on in connection therewith may be conducted in a commercially reasonable manner, in each case except as such action or inaction would not reasonably be expected to result in a Material Adverse Effect.

 

(b)                                 Maintain, in full force and effect in all material respects, each and every license, permit, certification, qualification, approval or franchise issued by any Governmental Authority required for each of them to conduct their respective businesses as presently conducted, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.6                                    Insurance.  Maintain insurance with financially sound and reputable insurance companies against at least such risks and in at least such amounts, in each case in all material respects, as are customarily maintained by similar businesses and as may be required by Applicable Law (including, without limitation, hazard and business interruption insurance).

 

Section 6.7                                    Accounting Methods and Financial Records.  Maintain a system of accounting, and keep proper books, records and accounts (which shall be true and correct in all material respects) as may be required or as may be necessary to permit the preparation of financial statements in accordance with GAAP and in material compliance with the regulations of any Governmental Authority having jurisdiction over it or any of its Properties.

 

Section 6.8                                    Payment of Taxes.  Pay all federal income and other material taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its Property, other than (a) any such item that the Borrower or such Subsidiary is contesting in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP, or (b) to the extent that the failure to pay such amounts could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.9                                    Compliance with Laws and Approvals.  Observe and remain in compliance with all Applicable Laws and maintain in full force and effect all Governmental Approvals, in each case applicable to the conduct of its business, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

 

Section 6.10                             Environmental Laws.  In addition to and without limiting the generality of Section 6.9, except where the failure to so comply could not reasonably be expected to have a Material Adverse Effect (a) comply with, and ensure such compliance by all tenants and subtenants with all

 

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applicable Environmental Laws and obtain and comply with and maintain, and ensure that all tenants and subtenants, if any, obtain and comply with and maintain, any and all licenses, approvals, notifications,  registrations or permits required by applicable Environmental Laws and (b) conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other actions required under applicable Environmental Laws, and promptly comply with all lawful orders and directives of any Governmental Authority regarding applicable Environmental Laws.

 

Section 6.11                             Compliance with ERISA.  In addition to and without limiting the generality of Section 6.9, (a) except where the failure to so comply could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with applicable provisions of ERISA, the Code and the regulations and published interpretations thereunder with respect to all Employee Benefit Plans, (ii) not take any action or fail to take action the result of which could reasonably be expected to result in a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and (iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability under Section 4980B of the Code or any liability to any qualified beneficiary as defined in Section 4980B of the Code and (b) furnish to the Administrative Agent upon the Administrative Agent’s request such additional information about any Employee Benefit Plan as may be reasonably requested by the Administrative Agent.

 

Section 6.12                             Visits and Inspections.  Permit representatives of the Administrative Agent (accompanied, to the extent requested by the Lenders, by a reasonable number of representatives of the Lenders), from time to time upon prior reasonable notice and at such times during normal business hours, all at the expense of the Borrower, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects; provided that excluding any such visits and inspections during the continuation of an Event of Default, the Administrative Agent shall not exercise such rights more often than one (1) time during any calendar year at the Borrower’s expense; provided further that upon the occurrence and during the continuance of an Event of Default, the Administrative Agent or any Lender may do any of the foregoing at the expense of the Borrower at any time without advance notice.

 

Section 6.13                             Additional Subsidiaries.  Promptly after the creation or acquisition of any Domestic Subsidiary that is a Material Subsidiary, or the designation by the Borrower of any Domestic Subsidiary as a Material Subsidiary pursuant to this Agreement (and, in any event, within thirty (30) days after such creation, acquisition or designation, as such time period may be extended by the Administrative Agent in its sole discretion) cause such Person to (a) become a Guarantor by delivering to the Administrative Agent a duly executed Joinder Agreement or such other document as the Administrative Agent shall deem appropriate for such purpose, and (b) deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 4.1 as may be reasonably requested by the Administrative Agent; provided, however, that no FSHCO shall be required to become a Guarantor.

 

Section 6.14                             Use of Proceeds.

 

(a)                                 The Borrower shall use the proceeds of the Extensions of Credit (i) to refinance certain existing Indebtedness of the Borrower and its Subsidiaries (including Indebtedness arising under the Existing Credit Agreement), (ii) pay the fees, costs and expenses incurred in connection with the transactions contemplated hereby, and/or (iii) for working capital and other general corporate purposes of the Borrower and its Subsidiaries.

 

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(b)                                 The Borrower will not request any Extension of Credit, and the Borrower shall not use, and shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Extension of Credit (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned Country, except to the extent that such activity, business or transaction is expressly authorized by the relevant Sanctions authority by a general or specific license, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

 

Section 6.15                             Compliance with Anti-Corruption Laws and Sanctions.  The Borrower will maintain in effect and enforce policies and procedures designed to promote and achieve compliance by the Borrower and its Subsidiaries with Anti-Corruption Laws and applicable Sanctions.

 

Section 6.16                             Further Assurances.  Execute any and all further documents, agreements and instruments, and take all such further actions, which the Administrative Agent or the Required Lenders may reasonably request to effectuate the transactions contemplated by the Loan Documents.

 

ARTICLE VII.

 

NEGATIVE COVENANTS

 

Until all of the Obligations (other than contingent, indemnification obligations not then due) have been paid and satisfied in full in cash and the Commitments terminated, the Credit Parties will not, and will not permit any of their respective Subsidiaries to:

 

Section 7.1                                    Indebtedness.  Create, incur, assume or suffer to exist any Indebtedness except:

 

(a)                                 Indebtedness under the Loan Documents;

 

(b)                                 Indebtedness (i) owing under Hedge Agreements which are not entered into for speculative purposes or (ii) owing under Cash Management Agreements entered into in the ordinary course of business;

 

(c)                                  Indebtedness existing (or pursuant to commitments existing) on the Closing Date and, with respect to any such Indebtedness that exceeds the Threshold Amount, listed on Schedule 7.1 and any refinancings, refundings, renewals or extensions thereof up to the principal amount of such Indebtedness being refinanced, refunded, renewed or extended;

 

(d)                                 intercompany Indebtedness:

 

(i)                                     owed by any Credit Party to another Credit Party;

 

(ii)                                  owed by any Credit Party to any Non-Guarantor Subsidiary (provided that such Indebtedness shall be unsecured and subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent);

 

(iii)                               owed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary; and

 

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(iv)                              owed by any Non-Guarantor Subsidiary to any Credit Party to the extent permitted pursuant to Section 7.3;

 

(e)                                  Indebtedness in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of funds, in each case in the ordinary course of business;

 

(f)                                   Indebtedness in respect of Capital Lease Obligations or for the acquisition, construction or improvement of fixed or capital assets; provided that after giving effect to the incurrence of any such Indebtedness, the aggregate outstanding principal amount of all such Indebtedness incurred under this clause (f) shall not exceed an amount equal to the greater of (i) $100,000,000 and (ii) 5% of Consolidated Net Tangible Assets;

 

(g)                                  to the extent constituting Indebtedness, bona fide purchase price adjustments, obligations in respect of earn-outs, indemnification obligations, obligations under deferred compensation or similar arrangements and similar obligations incurred in connection with acquisitions and Asset Dispositions not prohibited by Section 7.3 or 7.5, as applicable;

 

(h)                                 Indebtedness in respect of bid, performance, surety, stay, customs, appeal or replevin bonds or performance and completion guarantees and similar obligations issued or incurred, or in respect of workers’ compensation claims incurred, in the ordinary course of business;

 

(i)                                     Indebtedness owed to any Person providing workers’ compensation, health, disability or other employee benefits (including contractual and statutory benefits) or property, casualty, liability or credit insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary course of business;

 

(j)                                    contingent liabilities arising out of the endorsement of negotiable instruments in the ordinary course of collection or similar transactions in the ordinary course of business;

 

(k)                                 Indebtedness of the Credit Parties; provided that (i) such Indebtedness is unsecured, and (ii) the Borrower shall be in Pro Forma Compliance after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof;

 

(l)                                     Priority Indebtedness; provided that (i) no Event of Default shall have occurred and be continuing, or would result from such Indebtedness, and (ii) after giving effect to the incurrence of such Indebtedness and the application of the proceeds thereof, the aggregate outstanding amount of Priority Indebtedness incurred pursuant to this clause (l) would not exceed 7.5% of Consolidated Net Tangible Assets; and

 

(m)                             Indebtedness of a Person acquired after the Closing Date to the extent such acquisition is an Investment permitted pursuant to Section 7.3 and to the extent such Indebtedness is existing at the time of such acquisition (and any refinancings, refundings, renewals or extensions thereof up to the principal amount of such Indebtedness being refinanced, refunded, renewed or extended); provided that such Indebtedness was not incurred in connection with, or in contemplation of, such acquisition.

 

Section 7.2                                    Liens.  Create, incur, assume or suffer to exist, any Lien on or with respect to any of its Property, whether now owned or hereafter acquired, except:

 

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(a)                                 Liens created pursuant to the Loan Documents;

 

(b)                                 Liens in existence on the Closing Date and, with respect to any such Liens in an amount that exceeds the Threshold Amount, described on Schedule 7.2, and the replacement, renewal or extension thereof (to the extent that any such replacement, renewal or extension shall not cause the scope of any such Lien to be increased or otherwise expanded to cover any additional property or type of asset beyond that in existence as of the Closing Date, other than the products and proceeds of the foregoing);

 

(c)                                  Liens for taxes, assessments and other governmental charges or levies (i) not overdue for a period for more than thirty (30) days or (ii) which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;

 

(d)                                 Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 7.1(f), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other assets of the Borrower or any Subsidiary other than the assets financed by such Indebtedness (and proceeds thereof and any ordinary course additions and accessions to such assets);

 

(e)                                  the claims of materialmen, mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or rentals incurred in the ordinary course of business, which are not overdue for a period of more than thirty (30) days, or if more than thirty (30) days overdue, no action has been taken to enforce such Liens and such Liens are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP;

 

(f)                                   deposits or pledges made in connection with, or to secure payment of, obligations under workers’ compensation, unemployment insurance and other types of social security or similar legislation, or to secure the performance of bids, trade contracts and 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 incurred, in each case, in the ordinary course of business;

 

(g)                                  easements, rights-of-way, restrictions and other similar encumbrances affecting of real property, which in the aggregate, are not substantial in amount and which do not, in any case, materially detract from the value of such property or materially impair the use thereof in the ordinary conduct of business;

 

(h)                                 Liens arising from the filing of precautionary UCC financing statements relating solely to personal property leased pursuant to operating leases entered into in the ordinary course of business of the Borrower and its Subsidiaries;

 

(i)                                     Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.1(l) or securing appeal or other surety bonds relating to such judgments;

 

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(j)                                    (i) Liens of a collecting bank arising in the ordinary course of business under Section 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights of set-off and recoupment with respect to any deposit account of the Borrower or any Subsidiary thereof;

 

(k)                                 (i) contractual or statutory Liens of landlords to the extent relating to the property and assets relating to any lease agreements with such landlord, and (ii) contractual Liens of suppliers (including sellers of goods) or customers granted in the ordinary course of business to the extent limited to the property or assets relating to such contract;

 

(l)                                     any interest or title of a licensor, sublicensor, lessor or sublessor with respect to any assets under any license or lease agreement entered into in the ordinary course of business that do not (i) interfere in any material respect with the business of the Borrower or its Subsidiaries or materially detract from the value of the relevant assets of the Borrower or its Subsidiaries or (ii) secure any Indebtedness;

 

(m)                             leases, subleases, licenses and sublicenses in respect of Property of the Borrower and its Subsidiaries permitted by Section 7.5 and not securing any Indebtedness;

 

(n)                                 Liens contained in purchase and sale agreements or lease agreements permitted hereunder that limit the transfer of assets pending the closing of the transactions contemplated thereby or the termination of the lease, respectively;

 

(o)                                 Liens securing Priority Indebtedness permitted under Section 7.1(l); provided such Liens shall not encumber Core Intellectual Property;

 

(p)                                 Liens existing on property at the time of its acquisition or existing on the property of a Person acquired after the Closing Date to the extent such acquisition is an Investment permitted pursuant to Section 7.3 and to the extent such Liens exist at the time of such acquisition (including any replacements, renewals or extensions thereof); provided that (i) such Liens were not created in connection with, or in contemplation of, such acquisition, (ii) such Liens cover solely the property so acquired or the property of the Person acquired, as applicable, and are not expanded (including in connection with any replacement, renewal or extension thereof) to cover additional property (other than proceeds and products thereof and accessions thereto), and (iii) such Liens shall secure only those obligations secured on the date of such acquisition (and any refinancings, refundings, renewals or extensions thereof up to the principal amount of such obligations being refinanced, refunded, renewed or extended);

 

(q)                                 (i) Liens solely on cash earnest money deposits made by the Borrower or a Subsidiary in connection with any letter of intent or purchase agreement entered into in connection with any Acquisition permitted hereunder and (ii) Liens on escrow deposits in connection with any sale of assets or acquisition permitted hereunder; and

 

(r)                                    other Liens with respect to property or assets of the Borrower or any Subsidiary securing obligations (other than Indebtedness for borrowed money); provided that the aggregate amount of obligations secured pursuant to the Liens described in this clause (s) shall not, at any time, exceed $75,000,000.

 

Section 7.3                                    Investments.  Purchase, own, invest in or otherwise acquire (in one transaction or a series of transactions), directly or indirectly, any Equity Interests in any other Person, any interests in

 

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any partnership or joint venture (including, without limitation, the creation or capitalization of any Subsidiary), any evidence of Indebtedness or other security of any other Person, substantially all or a portion constituting a business unit of the business or assets of any other Person (including without limitation, any Acquisition), or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or make any other investment in cash or by delivery of Property in, or Guarantee any Indebtedness of, any other Person, (all the foregoing, “Investments”) except:

 

(a)                                 (i)                                     Investments existing on the Closing Date;

 

(ii)                                  Investments made after the Closing Date by any Credit Party in any other Credit Party;

 

(iii)                               Investments made after the Closing Date by any Non-Guarantor Subsidiary in any other Non-Guarantor Subsidiary; and

 

(iv)                              Investments made after the Closing Date by any Non-Guarantor Subsidiary in any Credit Party;

 

(b)                                 Investments in cash and Cash Equivalents;

 

(c)                                  Hedge Agreements permitted pursuant to Section 7.1;

 

(d)                                 Guarantees permitted pursuant to Section 7.1;

 

(e)                                  Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

 

(f)                                   Investments consisting of deposits permitted under Section 7.2;

 

(g)                                  endorsement of negotiable instruments and other payment items for collection or deposit in the ordinary course of business;

 

(h)                                 advances (x) of payroll payments to employees, officers and managers of the Borrower and its Subsidiaries in the ordinary course of business or (y) in connection with purchases of goods and services in the ordinary course of business; and

 

(i)                                     other Investments not otherwise permitted pursuant to this Section; provided that the Borrower shall be in Pro Forma Compliance after giving effect to such Investment (including the incurrence of any Indebtedness in connection therewith).

 

Section 7.4                                    Fundamental Changes.  Merge, consolidate or enter into any similar combination with, or enter into any disposition of all or substantially all of its assets (whether in a single transaction or a series of transactions) with, any other Person or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution) except:

 

(a)                                 (i) any Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into the Borrower (provided that the Borrower shall be the continuing or surviving entity) or (ii) any Subsidiary of the Borrower may be merged, amalgamated or consolidated with or into any other Subsidiary (provided that if a Guarantor is a party to such transaction, the continuing or

 

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surviving entity shall be, or simultaneously with such transaction, the continuing or surviving entity shall become, a Guarantor);

 

(b)                                 (i) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to the Borrower or any Guarantor; provided that, with respect to any such disposition by any Non-Guarantor Subsidiary, the consideration for such disposition shall not exceed the fair value of such assets as determined in good faith at the time of such disposition and (ii) any Non-Guarantor Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) to any other Non-Guarantor Subsidiary;

 

(c)                                  (i) any Subsidiary may dispose of all or substantially all of its assets (upon voluntary liquidation, dissolution, winding up or otherwise) so long as such disposition is permitted by Section 7.5 and (ii) any Subsidiary may merge into or consolidate with any other Person in connection with a disposition of such Subsidiary permitted by Section 7.5; and

 

(d)                                 any Person may merge into the Borrower or any of its Subsidiaries in connection with an Acquisition permitted pursuant to Section 7.3; provided that in the case of a merger involving the Borrower or a Guarantor, the continuing or surviving Person shall be the Borrower or a Guarantor.

 

Section 7.5                                    Asset Dispositions.  Make any Asset Disposition except:

 

(a)                                 the sale of obsolete, worn-out or surplus assets no longer used or usable in the business of the Borrower or any of its Subsidiaries;

 

(b)                                 Asset Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Asset Disposition are reasonably promptly applied to the purchase price of such replacement property or to Indebtedness incurred to acquire such replacement property;

 

(c)                                  leases, subleases, licenses or sublicenses of real or personal property (excluding intellectual property rights) granted by the Borrower or any of its Subsidiaries to others in the ordinary course of business not interfering in any material respect with the business of the Borrower or any of its Subsidiaries;

 

(d)                                 non-exclusive licenses and sublicenses of intellectual property rights in the ordinary course of business, or entered into in connection with the settlement of patent litigation, in each case not interfering, individually or in the aggregate, in any material respect with the conduct of the business of the Borrower and its Subsidiaries;

 

(e)                                  the abandonment of intellectual property rights which a Credit Party may reasonably determine are uneconomical, negligible, obsolete or otherwise not material in the conduct of its business;

 

(f)                                   the disposition of assets subject to or in connection with any settlement of, or payment in respect of, any property or casualty insurance claim or any condemnation proceeding related to any asset of the Borrower or any Subsidiary;

 

(g)                                  the disposition of Equity Interests in any Subsidiary in order to qualify members of the governing body of such Subsidiary if and to the extent required by applicable law;

 

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(h)                                 any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;

 

(i)                                     Asset Dispositions in connection with transactions permitted by Section 7.3, 7.4 (other than clause (c) thereof) or 7.6; and

 

(j)                                    Asset Dispositions not otherwise permitted pursuant to this Section; provided that (i) at the time of such Asset Disposition, no Event of Default shall exist or would result from such Asset Disposition, and (ii) the aggregate book value of all property disposed of in reliance on this clause (j) shall not (A) in any Fiscal Year, exceed 25% of Consolidated Net Tangible Assets (as reflected in the financial statements of the Borrower delivered pursuant to Section 6.1(a) for the prior Fiscal Year), and (B) over the term of this Agreement, exceed 40% of Consolidated Net Tangible Assets (as reflected in the financial statements of the Borrower for the Fiscal Year ending December 31, 2017).

 

Section 7.6                                    Restricted Payments.  Declare or pay any dividend on, or make any payment or other distribution on account of, or purchase, redeem, retire or otherwise acquire (directly or indirectly), or set apart assets for a sinking or other analogous fund for the purchase, redemption, retirement or other acquisition of, any class of Equity Interests of any Credit Party or any Subsidiary thereof, or make any distribution of cash, property or assets to the holders of shares of any Equity Interests of any Credit Party or any Subsidiary thereof or make any payment in cash to holders of convertible Indebtedness in excess of the original principal (or notional) amount thereof and interest thereon (all of the foregoing, “Restricted Payments”) provided that:

 

(a)                                 the Borrower or any of its Subsidiaries may make Restricted Payments in shares of its own Qualified Equity Interests;

 

(b)                                 any Subsidiary of the Borrower may pay cash dividends to holders of its outstanding Equity Interests on a pro rata basis;

 

(c)                                  the Borrower may pay any dividend or consummate any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have been permitted by clause (e) below;

 

(d)                                 the Borrower or any of its Subsidiaries may make cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for capital stock of the Borrower or such Subsidiary;

 

(e)                                  the Borrower and any of its Subsidiaries may pay withholding or similar taxes payable by any future, present or former employee, director or officer (or any spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees of any of the foregoing) in connection with any repurchases of Equity Interests or the exercise of stock options; and

 

(f)                                   the Borrower may declare and make other Restricted Payments; provided that the Borrower shall be in Pro Forma Compliance after giving effect to such Restricted Payment (including the incurrence of any Indebtedness in connection therewith).

 

Section 7.7                                    Transactions with Affiliates.  Directly or indirectly enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of Property, the rendering of any 

 

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service or the payment of any management, advisory or similar fees, with any Affiliate of the Borrower or any of its Subsidiaries, other than:

 

(i)                                     transactions permitted by Sections 7.1, 7.3, 7.4, 7.5, and 7.6;

 

(ii)                                  transactions existing on the Closing Date, and renewals, extensions and replacements thereof on terms not less favorable to the Credit Parties in any material respect than such transaction as in effect on the Closing Date;

 

(iii)                               transactions among Credit Parties and/or their Subsidiaries;

 

(iv)                              other transactions on terms substantially as favorable as would be obtained by it on a comparable arm’s-length transaction with an independent, unrelated third party as determined in good faith by the Borrower;

 

(v)                                 employment and severance arrangements (including equity incentive plans and employee benefit plans and arrangements) with their respective officers and employees; and

 

(vi)                              payment or reimbursement of customary out of pocket costs to, and indemnities for the benefit of, directors, officers and employees of the Borrower and its Subsidiaries and payment of board service fees to non-employee directors in accordance with the Borrower’s then-current director compensation program.

 

Section 7.8                                    Burdensome Agreements.  Create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Non-Guarantor Subsidiary or any Subsidiary thereof to pay dividends or make any other distributions to any Credit Party or any Subsidiary on its Equity Interests, except for such encumbrances or restrictions existing under or by reason of (a) this Agreement and the other Loan Documents and (b) Applicable Law; provided, however, that, in any case, the following shall be permitted notwithstanding the foregoing: (i) any Lien permitted pursuant to Section 7.2 or any restrictions pursuant to document or instrument governing such Lien, provided that any such restriction contained therein relates only to the asset or assets subject to such Lien, (ii) customary restrictions and conditions contained in any agreement relating to the disposition of any property permitted under Section 7.5, provided that such restrictions apply only to the property that is to be disposed in connection with such disposition, (iii) customary provisions restricting assignments, subletting or other transfers contained in leases, licenses, joint venture agreements and other agreements entered into in the ordinary course of business, (iv) restrictions applicable to Indebtedness, assets or Equity Interests of a Person acquired by a Credit Party or any Subsidiary as in effect at the time of acquisition, provided that (A) such Indebtedness is permitted to be incurred under Section 7.1 and (B) such restrictions were not incurred in connection with, or in contemplation of, such acquisition, and (v) restrictions under any agreement with respect to Priority Indebtedness applicable to any such Non-Guarantor Subsidiary obligated on such Indebtedness and which are determined by the Borrower in good faith to be customary for the relevant type of Indebtedness.

 

Section 7.9                                    Nature of Business.  Engage to any material extent in any business other than the business conducted by the Borrower and its Subsidiaries as of the Closing Date and business activities reasonably related or ancillary thereto or that are reasonable extensions thereof.

 

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Section 7.10                             Financial Covenants.

 

(a)               Consolidated Total Leverage Ratio.  As of the last day of any fiscal quarter, permit the Consolidated Total Leverage Ratio to be greater than 2.50 to 1.00.

 

(b)               Consolidated Interest Coverage Ratio.  As of the last day of any fiscal quarter, permit the Consolidated Interest Coverage Ratio to be less than 3.00 to 1.00.

 

ARTICLE VIII.

 

DEFAULT AND REMEDIES

 

Section 8.1                                    Events of Default.  Each of the following shall constitute an Event of Default:

 

(a)                                 Default in Payment of Principal of Loans.  The Borrower shall default in any payment of principal of any Loan when and as due (whether at maturity, by reason of acceleration or otherwise).

 

(b)                                 Other Payment Default.  The Borrower shall default in the payment when and as due (whether at maturity, by reason of acceleration or otherwise) of interest on any Loan or the payment of any other Obligation, and such default shall continue for a period of five (5) Business Days.

 

(c)                                  Misrepresentation.  Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement or in any other Loan Document that is subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any respect when made or deemed made or any representation, warranty, certification or statement of fact made or deemed made by or on behalf of any Credit Party or any Subsidiary thereof in this Agreement or any other Loan Document that is not subject to materiality or Material Adverse Effect qualifications, shall be incorrect or misleading in any material respect when made or deemed made.

 

(d)                                 Default in Performance of Certain Covenants.  Any Credit Party or any Subsidiary thereof shall default in the performance or observance of any covenant or agreement contained in (i) Sections 6.3(a), 6.4(a) (with respect to any Credit Party), 6.13, 6.14 or Article VII; or (ii) Sections 6.1 or 6.2(a), and in the case of this clause (ii), such default shall continue for a period of five (5) Business Days.

 

(e)                                  Default in Performance of Other Covenants and Conditions.  Any Credit Party or any Subsidiary thereof shall default in the performance or observance of any term, covenant, condition or agreement contained in this Agreement (other than as specifically provided for in this Section) or any other Loan Document and such default shall continue for a period of thirty (30) days after the earlier of (i) the Administrative Agent’s delivery of written notice thereof to the Borrower and (ii) a Responsible Officer of any Credit Party having obtained knowledge thereof.

 

(f)                                   Indebtedness Cross-Default.  Any Credit Party or any Subsidiary thereof shall (i) default in the payment of any Indebtedness (other than the Loans) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount beyond the period of grace if any, provided in the instrument or agreement under which such Indebtedness was 

 

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created, or (ii) default in the observance or performance of any other agreement or condition relating to any Indebtedness (other than the Loans) the aggregate principal amount (including undrawn committed or available amounts), or with respect to any Hedge Agreement, the Hedge Termination Value, of which is in excess of the Threshold Amount (such Indebtedness, “Material Indebtedness”) or contained in any instrument or agreement evidencing, securing or relating thereto or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Material Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, with the giving of notice, if required, such Material Indebtedness to become due prior to its stated maturity, any applicable grace period having expired (not including (x) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or as a result of a casualty event effecting such property or assets or (y) customary events triggering conversion rights in respect of convertible debt securities (not including conversion rights as a result of any change of control, fundamental change or similar event or any adverse event occurring or condition existing related to creditworthiness, financial performance or financial condition of the Borrower or any Subsidiary)).

 

(g)                                  Change in Control.  Any Change in Control shall occur.

 

(h)                                 Voluntary Bankruptcy Proceeding.  Any Credit Party or any Material Subsidiary thereof shall (i) commence a voluntary case under any Debtor Relief Laws, (ii) file a petition seeking to take advantage of any Debtor Relief Laws, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed against it in an involuntary case under any Debtor Relief Laws, (iv) apply for or consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii) take any corporate action for the purpose of authorizing any of the foregoing.

 

(i)                                     Involuntary Bankruptcy Proceeding.  A case or other proceeding shall be commenced against any Credit Party or any Material Subsidiary thereof in any court of competent jurisdiction seeking (i) relief under any Debtor Relief Laws, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the like for any Credit Party or any Material Subsidiary thereof or for all or any substantial part of their respective assets, domestic or foreign, and such case or proceeding shall continue without dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief requested in such case or proceeding (including, but not limited to, an order for relief under such federal bankruptcy laws) shall be entered.

 

(j)                                    Failure of Agreements.  Any material provision of this Agreement or any material provision of any other Loan Document shall for any reason cease to be valid and binding on any Credit Party or any Subsidiary thereof party thereto or any such Person shall so state in writing, other than in accordance with the express terms hereof or thereof.

 

(k)                                 ERISA Events.  The occurrence of any of the following events: (i) any Credit Party or any ERISA Affiliate fails to make full payment when due of all amounts which, under the provisions of any Pension Plan or Sections 412 or 430 of the Code, any Credit Party or any ERISA Affiliate is required to pay as contributions thereto and such unpaid amounts are in excess of the Threshold Amount, (ii) a Termination Event or (iii) any Credit Party or any ERISA Affiliate as employers under one or more Multiemployer Plans makes a complete or partial withdrawal from any such Multiemployer Plan and the plan sponsor of such Multiemployer Plans

 

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notifies such withdrawing employer that such employer has incurred a withdrawal liability requiring payments in an amount exceeding the Threshold Amount.

 

(l)                                     Judgment.  One or more judgments, orders or decrees shall be entered against any Credit Party or any Subsidiary thereof by any court and continues without having been discharged, vacated or stayed for a period of thirty (30) consecutive days after the entry thereof and such judgments, orders or decrees are either (i) for the payment of money, individually or in the aggregate (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage), equal to or in excess of the Threshold Amount or (ii) for injunctive relief and could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

 

Section 8.2                                    Remedies.  Upon the occurrence and during the continuance of an Event of Default, with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower:

 

(a)                                 Acceleration; Termination of Credit Facilities.  Terminate the Revolving A Credit Commitment and the Revolving B Credit Commitment and declare the principal of and interest on the Loans at the time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under this Agreement or any of the other Loan Documents and all other Obligations, to be forthwith due and payable, whereupon the same shall immediately become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement or the other Loan Documents to the contrary notwithstanding, and terminate the Credit Facilities and any right of the Borrower to request borrowings thereunder; provided, that upon the occurrence of an Event of Default with respect to the Borrower specified in Section 8.1(h) or (i), the Credit Facilities shall be automatically terminated and all Obligations shall automatically become due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly waived by each Credit Party, anything in this Agreement or in any other Loan Document to the contrary notwithstanding.

 

(b)                                 General Remedies.  Exercise on behalf of the Guaranteed Parties all of its other rights and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy all of the Guaranteed Obligations.

 

Section 8.3                                    Rights and Remedies Cumulative; Non-Waiver; etc.

 

(a)                                 The enumeration of the rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be cumulative, and shall be in addition to any other right or remedy given hereunder or under the other Loan Documents or that may now or hereafter exist at law or in equity or by suit or otherwise.  No delay or failure to take action on the part of the Administrative Agent or any Lender in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver of any Event of Default.  No course of dealing between the Borrower, the Administrative Agent and the Lenders or their respective agents or employees shall be effective to change, modify or discharge any provision of this Agreement or any of the other Loan Documents or to constitute a waiver of any Event of Default.

 

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(b)                                 Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Credit Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.2 for the benefit of all the Lenders; provided that the foregoing shall not prohibit (i) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (ii) the Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as the Swingline Lender) hereunder and under the other Loan Documents, (iii) any Lender from exercising setoff rights in accordance with Section 11.4 (subject to the terms of Section 3.6), or (iv) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Credit Party under any Debtor Relief Law; and  provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (A) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.2 and (B) in addition to the matters set forth in clauses (ii), (iii) and (iv) of the preceding proviso and subject to Section 3.6, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

 

Section 8.4                                    Crediting of Payments and Proceeds.  In the event that the Obligations have been accelerated pursuant to Section 8.2 or the Administrative Agent or any Lender has exercised any remedy set forth in this Agreement or any other Loan Document, all payments received on account of the Guaranteed Obligations and all net proceeds from the enforcement of the Guaranteed Obligations shall be applied by the Administrative Agent as follows:

 

First, to payment of that portion of the Guaranteed Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agent in its capacity as such, and the Swingline Lender in its capacity as such, ratably among the Administrative Agent and Swingline Lender in proportion to the respective amounts described in this clause First payable to them;

 

Second, to payment of that portion of the Guaranteed Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Loan Documents, including attorney fees, ratably among the Lenders in proportion to the respective amounts described in this clause Second payable to them;

 

Third, to payment of that portion of the Guaranteed Obligations constituting accrued and unpaid interest on the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause Third payable to them;

 

Fourth, to payment of that portion of the Guaranteed Obligations constituting unpaid principal of the Loans and payment obligations then owing under Guaranteed Hedge Agreements and Guaranteed Cash Management Agreements, ratably among the Lenders, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause Fourth payable to them; and

 

Last, the balance, if any, after all of the Guaranteed Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Applicable Law.

 

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Notwithstanding the foregoing, Guaranteed Obligations arising under Guaranteed Cash Management Agreements and Guaranteed Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.  Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX for itself and its Affiliates as if a “Lender” party hereto.

 

Section 8.5                                    Administrative Agent May File Proofs of Claim.  In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

 

(a)                                 to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Guaranteed Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 3.3 and 11.3) allowed in such judicial proceeding; and

 

(b)                                 to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 3.3 and 11.3.

 

ARTICLE IX.

 

THE ADMINISTRATIVE AGENT

 

Section 9.1                                    Appointment and Authority.  Each of the Lenders hereby irrevocably appoints Wells Fargo to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  The provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders and neither the Borrower nor any Subsidiary thereof shall have rights as a third-party beneficiary of any of such provisions.  It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any Applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

 

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Section 9.2                                    Rights as a Lender.  The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

 

Section 9.3                                    Exculpatory Provisions.

 

(a)                                 The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder and thereunder shall be administrative in nature.  Without limiting the generality of the foregoing, the Administrative Agent:

 

(i)                                     shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

 

(ii)                                  shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or Applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

 

(iii)                               shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries or Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity.

 

(b)                                 The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 11.2 and Section 8.2) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final nonappealable judgment.  The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower or a Lender.

 

(c)                                  The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or

 

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other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) 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 the Administrative Agent.

 

Section 9.4                                    Reliance by the Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

Section 9.5                                    Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the Credit Facilities as well as activities as Administrative Agent.  The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

 

Section 9.6                                    Resignation of Administrative Agent.

 

(a)                                 The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower.  Upon receipt of any such notice of resignation, the Required Lenders shall have the right, subject to the consent of the Borrower (provided no Event of Default has occurred and is continuing at the time of such resignation), which consent shall not be unreasonably withheld or delayed, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that in no event shall any such successor Administrative Agent be a Defaulting Lender.  Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

 

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(b)                                 If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by notice in writing to the Borrower and such Person, remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor.  If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

 

(c)                                  With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents.  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section 11.3 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

 

(d)                                 Any resignation by, or removal of, Wells Fargo as Administrative Agent pursuant to this Section shall also constitute its resignation as the Swingline Lender.  Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the Swingline Lender, and (ii) the retiring Swingline Lender shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents.

 

Section 9.7                                    Non-Reliance on Administrative Agent and Other Lenders.  Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

Section 9.8                                    No Other Duties, Etc.  Anything herein to the contrary notwithstanding, none of the syndication agents, documentation agents, co-agents, arrangers or bookrunners listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder.

 

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Section 9.9                                    Guaranty Matters.  Each of the Lenders (including in its or any of its Affiliate’s capacities as a potential Hedge Bank or Cash Management Bank) irrevocably authorize the Administrative Agent to release any Guarantor from its obligations under any Loan Documents in accordance with Section 11.24.

 

Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from its obligations under this Agreement pursuant to this Section 9.9.  In each case as specified in this Section 9.9, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Credit Party such documents as such Credit Party may reasonably request to release such Guarantor from its obligations under this Agreement in accordance with the terms of this Section 9.9.

 

Section 9.10                             Guaranteed Hedge Agreements and Guaranteed Cash Management Agreements.  No Cash Management Bank or Hedge Bank that obtains the benefits of Section 8.4 by virtue of the provisions hereof 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 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, Guaranteed Cash Management Agreements or Guaranteed Hedge Agreements unless the Administrative Agent has received written notice of such Guaranteed Cash Management Agreements and Guaranteed Hedge Agreements, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.

 

ARTICLE X.

 

GUARANTY

 

Section 10.1                             The Guaranty.  Each of the Guarantors hereby jointly and severally guarantees to each Guaranteed Party as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Guaranteed Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that if any of the Guaranteed Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

 

Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, Guaranteed Hedge Agreements or Guaranteed Cash Management Agreements, the obligations of each Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state law.

 

Section 10.2                             Obligations Unconditional.

 

The obligations of the Guarantors under Section 10.1 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Guaranteed Hedge Agreements or Guaranteed Cash Management Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of

 

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any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than the defense of payment or satisfaction of the applicable Guaranteed Obligations), it being the intent of this Section 10.2 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances.  Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this Article X until such time as the Guaranteed Obligations under the Loan Documents (other than contingent indemnification and expense reimbursement obligations not then due or asserted) have been paid in full and the Revolving A Credit Commitments and the Revolving B Credit Commitments have expired or terminated.  Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

 

(a)                                 at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

 

(b)                                 any of the acts mentioned in any of the provisions of any of the Loan Documents, any Hedge Agreement between any Credit Party or any Subsidiary and any Hedge Bank, or any Cash Management Agreement between any Credit Party or any Subsidiary and any Cash Management Bank, or any other agreement or instrument referred to in the Loan Documents, such Hedge Agreements or such Cash Management Agreements shall be done or omitted;

 

(c)                                  the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, any Hedge Agreement between any Credit Party or any Subsidiary and any Hedge Bank or any Cash Management Agreement between any Credit Party or any Subsidiary and any Cash Management Bank, or any other agreement or instrument referred to in the Loan Documents, such Hedge Agreements or such Cash Management Agreements shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with; or

 

(d)                                 any of the Guaranteed Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).

 

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents, any Hedge Agreement between any Credit Party or any Subsidiary and any Hedge Bank or any Cash Management Agreement between any Credit Party or any Subsidiary and any Cash Management Bank, or any other agreement or instrument referred to in the Loan Documents, such Hedge Agreements or such Cash Management Agreements, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.

 

Section 10.3                             Reinstatement.  The obligations of the Guarantors under this Article X shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person

 

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in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including, without limitation, the fees, charges and disbursements of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

 

Section 10.4                             Certain Additional Waivers.  Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Guaranteed Obligations, except through the exercise of rights of subrogation pursuant to Section 10.2 and through the exercise of rights of contribution pursuant to Section 10.6.

 

Section 10.5                             Remedies.  The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Guaranteed Obligations may be declared to be forthwith due and payable as provided in Section 8.2 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 8.2) for purposes of Section 10.1 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Guaranteed Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Guaranteed Obligations being deemed to have become automatically due and payable), the Guaranteed Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 10.1.

 

Section 10.6                             Rights of Contribution.  The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law.  Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Loan Documents and no Guarantor shall exercise such rights of contribution until all Guaranteed Obligations under the Loan Documents (other than contingent indemnification and expense reimbursement obligations not then due or asserted) have been paid in full and the Revolving A Credit Commitments and Revolving B Credit Commitments have terminated.

 

Section 10.7                             Guarantee of Payment; Continuing Guarantee.  The guarantee in this Article X is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.

 

Section 10.8                             Keepwell.  Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each Specified Credit Party to honor all of such Specified Credit Party’s obligations under the Guaranty in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.8 for the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations under this Section 10.8 voidable under Debtor Relief Laws, and not for any greater amount).  The obligations of each Qualified ECP Guarantor under this Section 10.8 shall remain in full force and effect until such time as the Guaranteed Obligations under the Loan Documents (other than contingent indemnification and expense reimbursement obligations not then due or asserted) have been paid in full and the Revolving A Credit Commitments and Revolving B Credit Commitments have expired or terminated.  Each Qualified ECP Guarantor intends that this Section 10.8 constitute, and this Section 10.8 shall be deemed to

 

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constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

ARTICLE XI.

 

MISCELLANEOUS

 

Section 11.1                             Notices.

 

(a)                                 Notices Generally.  Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows:

 

If to the Borrower:

 

United Therapeutics Corporation

1040 Spring Street

Silver Spring, Maryland  20910

Attention:  James Edgemond

Telephone:  (240) 821-1991

Fax:  (301) 608-0159

Email:  jedgemond@unither.com
 Website: http://ir.unither.com

 

with copies to:

 

United Therapeutics Corporation

1735 Connecticut Avenue, N.W.

Washington, District of Columbia 20009

Attention:  General Counsel

Telephone:  (202) 483-7000

Fax:  (202) 483-4005

Email:  legal@unither.com

 

If to Wells Fargo as Administrative Agent:

 

For Notices of Borrowing, Notices of Conversion/Continuation, Notices of Prepayment and Assignment and Assumptions:

 

Wells Fargo Bank, National Association

MAC D1109-019

1525 West W.T. Harris Blvd.

Charlotte, NC  28262

Attention of:  Syndication Agency Services

Telephone No.:  (704) 590-2706

Facsimile No.:  (704) 715-0017

E-mail:  agencyservices.requests@wellsfargo.com

 

For all other notices and communications:

 

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Wells Fargo Bank, National Association

301 South College Street, 14th Floor

Charlotte, NC 28202

Attention of: Kirk Tesch

Telephone No.: (704) 715-1708

Facsimile No.: (704) 715-1438

E-mail:  kirk.tesch@wellsfargo.com

 

If to any Lender:

 

To the address of such Lender set forth on the Register

 

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient).  Notices delivered through electronic communications to the extent provided in clause (b) below, shall be effective as provided in said clause (b).

 

(b)                                 Electronic Communications.  Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article II if such Lender has notified the Administrative Agent that is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or other communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

 

(c)                                  Administrative Agent’s Office.  The Administrative Agent hereby designates its office located at the address set forth above, or any subsequent office which shall have been specified for such purpose by written notice to the Borrower and Lenders, as the Administrative Agent’s Office referred to herein, to which payments due are to be made and at which Loans will be disbursed.

 

(d)                                 Change of Address, Etc.  Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto.

 

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(e)                                  Platform.

 

(i)                                     Each Credit Party agrees that the Administrative Agent may, but shall not be obligated to, make the Borrower Materials available to the Lenders by posting the Borrower Materials on the Platform.

 

(ii)                                  The Platform is provided “as is” and “as available.”  The Agent Parties (as defined below) do not warrant the accuracy or completeness of the Borrower Materials or the adequacy of the Platform, and expressly disclaim liability for errors or omissions in the Borrower Materials.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Borrower Materials or the Platform.  In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Credit Party, any Lender or any other Person or entity for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Credit Party’s or the Administrative Agent’s transmission of communications through the Internet (including, without limitation, the Platform), except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided that in no event shall any Agent Party have any liability to any Credit Party, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages, losses or expenses (as opposed to actual damages, losses or expenses).

 

Section 11.2                             Amendments, Waivers and Consents.  Except as set forth below or as specifically provided in any Loan Document, any term, covenant, agreement or condition of this Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing signed by the Required Lenders (or by the Administrative Agent with the consent of the Required Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the Borrower; provided, that no amendment, waiver or consent shall:

 

(a)                                 increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.2) or the amount of Loans of any Lender, in any case, without the written consent of such Lender;

 

(b)                                 waive, extend or 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 any other Loan Document without the written consent of each Lender directly and adversely affected thereby;

 

(c)                                  reduce the principal of, or the rate of interest specified herein on, any Loan, or (subject to clause (iii) and (v) of the proviso set forth in the paragraph below) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby; provided that only the consent of the Required Lenders shall be necessary (i) to waive any obligation of the Borrower to pay interest at the rate set forth in Section 3.1(b) during the continuance of an Event of Default or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such

 

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amendment would be to reduce the rate of interest on any Loan or to reduce any fee payable hereunder;

 

(d)                                 change Section 3.6 or Section 8.4 in a manner that would alter the pro rata sharing of payments or order of application required thereby without the written consent of each Lender directly and adversely affected thereby;

 

(e)                                  change any provision of this Section or reduce the percentages specified in the definitions of “Required Lenders”, “Required Revolving A Credit Lenders” or “Required Revolving B Credit 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, without the written consent of each Lender directly affected thereby;

 

(f)                                   consent to the assignment or transfer by any Credit Party of such Credit Party’s rights and obligations under any Loan Document to which it is a party (except as permitted pursuant to Section 7.4), in each case, without the written consent of each Lender;

 

(g)                                  release Guarantors comprising substantially all of the credit support for the Guaranteed Obligations (other than as authorized in Section 9.9), without the written consent of each Lender;

 

(h)                                 (i) without the prior written consent of the Required Revolving A Credit Lenders, amend, modify or waive Section 4.2 or any other provision of this Agreement if the effect of such amendment, modification or waiver is to require the Revolving A Credit Lenders (pursuant to, in the case of any such amendment to a provision hereof other than Section 4.2, any substantially concurrent request by the Borrower for a borrowing of Revolving A Credit Loans) to make Revolving A Credit Loans when such Revolving A Credit Lenders would not otherwise be required to do so; or (ii) without the prior written consent of the Required Revolving B Credit Lenders, amend, modify or waive Section 4.2 or any other provision of this Agreement if the effect of such amendment, modification or waiver is to require the Revolving B Credit Lenders (pursuant to, in the case of any such amendment to a provision hereof other than Section 4.2, any substantially concurrent request by the Borrower for a borrowing of Revolving B Credit Loans) to make Revolving B Credit Loans when such Revolving B Credit Lenders would not otherwise be required to do so;

 

(i)                                     without the prior written consent of the Required Revolving B Credit Lenders amend, modify or waive the amount of the Swingline Commitment; or

 

(j)                                    (i) make any change that adversely effects the rights or duties under this Agreement of the Revolving A Credit Lenders in a manner different than such change affects the Revolving B Credit Lenders, without the consent of the Required Revolving A Credit Lenders, and (ii) make any change that adversely effects the rights or duties under this Agreement of the Revolving B Credit Lenders in a manner different than such change affects the Revolving A Credit Lenders, without the consent of the Required Revolving B Credit Lenders.

 

provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or duties of the Swingline Lender under this Agreement; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan

 

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Document; (iii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (iv) the Administrative Agent and the Borrower shall be permitted to amend any provision of the Loan Documents (and such amendment shall become effective without any further action or consent of any other party to any Loan Document) if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical or immaterial nature in any such provision, (v) the Administrative Agent may, without the consent of any Lender, enter into amendments or modifications to this Agreement or any of the other Loan Documents or enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to implement any Replacement Rate or otherwise effectuate the terms of Section 3.8(c) in accordance with the terms of Section 3.8(c), and (vi) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of Lenders holding Loans or Commitments of a particular Class (but not the Lenders holding Loans or Commitments of any other Class) may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite percentage in interest of the affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time.  Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that (x) the Commitments of such Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects such Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

 

Notwithstanding anything in this Agreement to the contrary, each Lender hereby irrevocably authorizes the Administrative Agent on its behalf, and without further consent, to enter into amendments or modifications to this Agreement (including, without limitation, amendments to this Section 11.2) or any of the other Loan Documents or to enter into additional Loan Documents as the Administrative Agent reasonably deems appropriate in order to effectuate the terms of Section 3.14; provided that no amendment or modification shall result in any increase in the amount of any Commitment of any Lender or result in any increase in any Commitment Percentage of any Lender, in each case, without the written consent of such affected Lender.

 

Section 11.3                             Expenses; Indemnity.

 

(a)                                 Costs and Expenses.  The Borrower and any other Credit Party, jointly and severally, shall pay (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent) in connection with the syndication of the Credit Facilities, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out of pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender) in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans; provided that such fees, charges and disbursements of counsel payable pursuant to the foregoing shall be limited to one primary firm of counsel to the Administrative Agent and its Affiliates taken as a whole (in the case of the immediately preceding clause (i)) and the Administrative Agent and the Lenders taken as a whole (in the case of the immediately preceding clause (ii)), 

 

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(and, in each case, if deemed reasonably necessary by the Administrative Agent, one firm of special healthcare counsel and one firm of local counsel in each relevant jurisdiction), and, in the case of an actual or perceived conflict of interest, one additional firm of counsel to the affected persons similarly-situated taken as a whole.

 

(b)                                 Indemnification by the Borrower.  The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Arranger and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for, any and all losses, claims (including, without limitation, any Environmental Claims), penalties, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Credit Party), arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Credit Party or any Subsidiary thereof, or any Environmental Claim related in any way to any Credit Party or any Subsidiary, (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Credit Party or any Subsidiary thereof, and regardless of whether any Indemnitee is a party thereto, or (v) any claim (including, without limitation, any Environmental Claims), investigation, litigation or other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the prosecution and defense thereof, arising out of or in any way connected with the Loans, this Agreement, any other Loan Document, or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby, including without limitation, reasonable attorneys and consultant’s fees, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (B) result from a claim brought by any Credit Party or any Subsidiary thereof against an Indemnitee for a material breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Credit Party or such Subsidiary has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; provided further that each Indemnitee shall (A) notify the Borrower in writing as soon practicable in connection with any loss, claim, damage or liability required to be indemnified hereunder, and (B) keep the Borrower reasonably informed of material developments with respect thereto; provided that the failure of any Indemnitee to comply with the foregoing shall not affect the indemnity obligations of the Borrower under this Section 11.3(b).  This Section 11.3(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

(c)                                  Reimbursement by Lenders.  To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the Swingline Lender or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure at such time, or if

 

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the Total Credit Exposure has been reduced to zero, then based on such Lender’s share of the Total Credit Exposure immediately prior to such reduction) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided, that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or the Swingline Lender in connection with such capacity.  The obligations of the Lenders under this clause (c) are subject to the provisions of Section 3.7.

 

(d)                                 Waiver of Consequential Damages, Etc.  To the fullest extent permitted by Applicable Law, the Borrower and each other Credit Party shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby or any Loan or the use of the proceeds thereof.  No Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.

 

(e)                                  Payments.  All amounts due under this Section shall be payable promptly after demand therefor.

 

(f)                                   Survival.  Each party’s obligations under this Section shall survive the termination of the Loan Documents and payment of the obligations hereunder.

 

Section 11.4                             Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, the Swingline Lender and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, the Swingline Lender or any such Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the Swingline Lender or any of their respective Affiliates, irrespective of whether or not such Lender, the Swingline Lender or any such Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Lender, the Swingline Lender or such Affiliate different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 8.4 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the Swingline Lender and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.  The rights of each Lender, the Swingline Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Swingline Lender or their respective Affiliates may have.  Each Lender and the Swingline Lender

 

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agree to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

 

Section 11.5                             Governing Law; Jurisdiction, Etc.

 

(a)                                 Governing Law.  This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.

 

(b)                                 Submission to Jurisdiction.  The Borrower and each other Credit Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against the Administrative Agent, any Lender, the Swingline Lender, or any Related Party of the foregoing in any way relating to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by Applicable Law, in such federal court.  Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement or in any other Loan Document shall affect any right that the Administrative Agent, any Lender or the Swingline Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against the Borrower or any other Credit Party or its properties in the courts of any jurisdiction.

 

(c)                                  Waiver of Venue.  The Borrower and each other Credit Party irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in clause (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(d)                                 Service of Process.  Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 11.1.  Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by Applicable Law.

 

Section 11.6                             Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)

 

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ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

Section 11.7                             Reversal of Payments.  To the extent any Credit Party makes a payment or payments to the Administrative Agent for the ratable benefit of the Lenders which payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law, other Applicable Law or equitable cause, then, to the extent of such payment repaid, the Guaranteed Obligations or part thereof intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been received by the Administrative Agent, and each Lender severally agrees to pay to the Administrative Agent upon demand its applicable ratable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent plus interest thereon at a per annum rate equal to the Federal Funds Rate from the date of such demand to the date such payment is made to the Administrative Agent.

 

Section 11.8                             Injunctive Relief.  The Borrower recognizes that, in the event the Borrower fails to perform, observe or discharge any of its obligations or liabilities under this Agreement, any remedy of law may prove to be inadequate relief to the Lenders.  Therefore, the Borrower agrees that the Lenders, at the Lenders’ option, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.

 

Section 11.9                             Successors and Assigns; Participations.

 

(a)                                 Successors and Assigns Generally.  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of clause (b) of this Section, (ii) by way of participation in accordance with the provisions of clause (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of clause (e) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)                                 Assignments by Lenders.  Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Revolving A Credit Commitment, its Revolving B Credit Commitment and the Loans at the time owing to it); provided that, in each case with respect to any Credit Facility, any such assignment shall be subject to the following conditions:

 

(i)                                     Minimum Amounts.

 

(A)                               In the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and/or the Loans at the time owing to it (in each case with respect to any Credit Facility) or contemporaneous assignments to related Approved Funds (determined after giving effect to such assignments) that

 

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equal at least the amount specified in clause (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned.

 

(B)                               In any case not described in clause (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided that the Borrower shall be deemed to have given its consent ten (10) Business Days after the date written notice thereof has been delivered by the assigning Lender (through the Administrative Agent) unless such consent is expressly refused by the Borrower prior to such tenth (10th) Business Day.

 

(ii)                                  Proportionate Amounts.  Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned.

 

(iii)                               Required Consents.  No consent shall be required for any assignment except to the extent required by clause (b)(i)(B) of this Section and, in addition:

 

(A)                               the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided, that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;

 

(B)                               the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of the Revolving A Credit Facility and the Revolving B Credit Facility if such assignment is to a Person that is not a Lender with a Revolving A Credit Commitment or Revolving B Credit Commitment, as applicable, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and

 

(C)                               the consent of the Swingline Lender shall be required for any assignment in respect of the Revolving B Credit Facility.

 

(iv)                              Assignment and Assumption.  The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 for each assignment; provided that (A) only one such fee will be payable in connection with simultaneous assignments to two or more related Approved Funds by a Lender and (B) the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any

 

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assignment.  The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

 

(v)                                 No Assignment to Certain Persons.  No such assignment shall be made to (A) the Borrower or any of its Subsidiaries or Affiliates or (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).

 

(vi)                              No Assignment to Natural Persons.  No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person).

 

(vii)                           Certain Additional Payments.  In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested, but not funded by, the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (A) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the Swingline Lender and each other Lender hereunder (and interest accrued thereon), and (B) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Swingline Loans in accordance with its Revolving A Credit Commitment Percentage or Revolving B Credit Commitment Percentage, as applicable.  Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under Applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

 

Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.8, 3.9, 3.10, 3.11 and 11.3 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (d) of this Section (other than a purported assignment to a natural Person or the Borrower or any of the Borrower’s Subsidiaries or Affiliates, which shall be null and void.)

 

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(c)                                  Register.  The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and each joinder agreement delivered to it pursuant to Section 3.14 and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amounts of (and stated interest on) the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrower and any Lender (but only to the extent of entries in the Register that are applicable to such Lender), at any reasonable time and from time to time upon reasonable prior notice.

 

(d)                                 Participations.  Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person), or the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Swingline Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.3(c) with respect to any payments made by such Lender to its Participant(s).

 

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 11.2(a), (b), (c) or (d) that directly and adversely affects such Participant.  The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.9, 3.10 and 3.11 (subject to the requirements and limitations therein, including the requirements under Section 3.11(f) (it being understood that the documentation required under Section 3.11(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 3.12 as if it were an assignee under clause (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 3.10 or 3.11, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation.  Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.12(b) with respect to any Participant.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 11.4 as though it were a Lender; provided that such Participant agrees to be subject to Section 3.6 as though it were a Lender.

 

Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of

 

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each Participant and the principal amounts of (and stated interest on) each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

(e)                                  Certain Pledges.  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

(f)                                   Cashless Settlement.  Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender.

 

Section 11.10                      Treatment of Certain Information; Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Related Parties in connection with the Credit Facilities, this Agreement, the transactions contemplated hereby or in connection with marketing of services by such Affiliate or Related Party to the Borrower or any of its Subsidiaries (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by, or required to be disclosed to, any regulatory or similar authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) as to the extent required by Applicable Laws or regulations or in any legal, judicial, administrative or other compulsory process, (d) to any other party hereto, (e) in connection with the exercise of any remedies under this Agreement, under any other Loan Document or under any Guaranteed Hedge Agreement or Guaranteed Cash Management Agreement, or any action or proceeding relating to this Agreement, any other Loan Document or any Guaranteed Hedge Agreement or Guaranteed Cash Management Agreement, or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (iii) to an investor or prospective investor in an Approved Fund that also agrees that Information shall be used solely for the purpose of evaluating an investment in such Approved Fund, (iv) to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in an Approved Fund in connection with the administration, servicing and reporting on the assets serving as collateral for an Approved Fund, or (v) to

 

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a nationally recognized rating agency that requires access to information regarding the Borrower and its Subsidiaries, the Loans and the Loan Documents in connection with ratings issued with respect to an Approved Fund, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the Credit Facilities or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Credit Facilities, (h) with the consent of the Borrower, (i) deal terms and other information customarily reported to Thomson Reuters, other bank market data collectors and similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of the Loan Documents, (j) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent, any Lender or any of their respective Affiliates from a third party that is not, to such Person’s knowledge, subject to confidentiality obligations to the Borrower, (k) to governmental regulatory authorities in connection with any regulatory examination of the Administrative Agent or any Lender or in accordance with the Administrative Agent’s or any Lender’s regulatory compliance policy if the Administrative Agent or such Lender deems necessary for the mitigation of claims by those authorities against the Administrative Agent or such Lender or any of its subsidiaries or affiliates, (l) to the extent that such information is independently developed by such Person, or (m) for purposes of establishing a “due diligence” defense.  For purposes of this Section, “Information” means all information received from any Credit Party or any Subsidiary thereof relating to any Credit Party or any Subsidiary thereof or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit Party or any Subsidiary thereof; provided that, in the case of information received from a Credit Party or any Subsidiary thereof after the date hereof, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

Section 11.11                      Performance of Duties.  Each of the Credit Party’s obligations under this Agreement and each of the other Loan Documents shall be performed by such Credit Party at its sole cost and expense.

 

Section 11.12                      All Powers Coupled with Interest.  All powers of attorney and other authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of the Obligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit Facilities have not been terminated.

 

Section 11.13                      Survival.

 

(a)                                 All representations and warranties set forth in Article V and all representations and warranties contained in any certificate, or any of the Loan Documents (including, but not limited to, any such representation or warranty made in or in connection with any amendment thereto) shall constitute representations and warranties made under this Agreement.  All representations and warranties made under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those that are expressly made as of a specific date), shall survive the Closing Date and shall not be waived by the execution and delivery of this Agreement, any investigation made by or on behalf of the Lenders or any borrowing hereunder.

 

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(b)                                 Notwithstanding any termination of this Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the provisions of this Article XI and any other provision of this Agreement and the other Loan Documents shall continue in full force and effect and shall protect the Administrative Agent and the Lenders against events arising after such termination as well as before.

 

Section 11.14                      Titles and Captions.  Titles and captions of Articles, Sections and subsections in, and the table of contents of, this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement.

 

Section 11.15                      Severability of Provisions.  Any provision of this Agreement or any other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remainder of such provision or the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.  In the event that any provision is held to be so prohibited or unenforceable in any jurisdiction, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such provision to preserve the original intent thereof in such jurisdiction (subject to the approval of the Required Lenders).

 

Section 11.16                      Counterparts; Integration; Effectiveness; Electronic Execution.

 

(a)                                 Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, the Swingline Lender and/or the Arrangers, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

 

(b)                                 Electronic Execution of Assignments.  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as 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.

 

Section 11.17                      Term of Agreement.  This Agreement shall remain in effect from the Closing Date through and including the date upon which all Obligations (other than contingent indemnification obligations not then due) arising hereunder or under any other Loan Document shall have been indefeasibly and irrevocably paid and satisfied in full and the Revolving A Credit Commitment and Revolving B Credit Commitment has been terminated.  No termination of this Agreement shall affect the rights and obligations of the parties hereto arising prior to such termination or in respect of any provision of this Agreement which survives such termination.

 

99











 

Section 11.18                      USA PATRIOT Act.  The Administrative Agent and each Lender hereby notifies the Borrower that pursuant to the requirements of the PATRIOT Act, each of them is required to obtain, verify and record information that identifies each Credit Party, which information includes the name and address of each Credit Party and other information that will allow such Lender to identify each Credit Party in accordance with the PATRIOT Act.

 

Section 11.19                      Independent Effect of Covenants.  The Borrower expressly acknowledges and agrees that each covenant contained in Articles VI or VII hereof shall be given independent effect.  Accordingly, the Borrower shall not engage in any transaction or other act otherwise permitted under any covenant contained in Articles VI or VII, before or after giving effect to such transaction or act, the Borrower shall or would be in breach of any other covenant contained in Articles VI or VII.

 

Section 11.20                      No Advisory or Fiduciary Responsibility.

 

(a)                                 In connection with all aspects of each transaction contemplated hereby, each Credit Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that (i) the facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document) are an arm’s-length commercial transaction between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and the Lenders, on the other hand, and the Borrower is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents (including any amendment, waiver or other modification hereof or thereof), (ii) in connection with the process leading to such transaction, each of the Administrative Agent, the Arrangers and the Lenders is and has been acting solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any of its Affiliates, stockholders, creditors or employees or any other Person, (iii) none of the Administrative Agent, the Arrangers or the Lenders has assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower with respect to any of the transactions contemplated hereby or the process leading thereto, including with respect to any amendment, waiver or other modification hereof or of any other Loan Document (irrespective of whether any Arranger or Lender has advised or is currently advising the Borrower or any of its Affiliates on other matters) and none of the Administrative Agent, the Arrangers or the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the financing transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents, (iv) the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from, and may conflict with, those of the Borrower and its Affiliates, and none of the Administrative Agent, the Arrangers or the Lenders has any obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship and (v) the Administrative Agent, the Arrangers and the Lenders have not provided and will not provide any legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated hereby (including any amendment, waiver or other modification hereof or of any other Loan Document) and the Credit Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent they have deemed appropriate.

 

(b)                                 Each Credit Party acknowledges and agrees that each Lender, the Arrangers and any Affiliate thereof may lend money to, invest in, and generally engage in any kind of business with, any of the Borrower, any Affiliate thereof or any other person or entity that may do business with or own securities of any of the foregoing, all as if such Lender, Arranger or Affiliate thereof were not a Lender or Arranger or an Affiliate thereof (or an agent or any other person with any similar role under the Credit Facilities) and without any duty to account therefor to any other

 

100












 

Lender, the Arrangers, the Borrower or any Affiliate of the foregoing.  Each Lender, the Arrangers and any Affiliate thereof may accept fees and other consideration from the Borrower or any Affiliate thereof for services in connection with this Agreement, the Credit Facilities or otherwise without having to account for the same to any other Lender, the Arrangers, the Borrower or any Affiliate of the foregoing.

 

Section 11.21       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 Lender that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

 

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

 

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

 

(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 11.22       Inconsistencies with Other Documents.  In the event there is a conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall control.

 

Section 11.23       Certain ERISA Matters.

 

(a)           Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that at least one of the following is and will be true:

 

(i)            such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Benefit Plans in connection with the Loans or the Commitments;

 

(ii)           the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions

 

101











 

involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement;

 

(iii)          (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement; or

 

(iv)          such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

(b)           In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Credit Party, that:

 

(i)            none of the Administrative Agent or the Arrangers or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto);

 

(ii)           the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each case as described in 29 CFR § 2510.3-21(c)(1)(A)-(E);

 

(iii)          the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations);

 

(iv)          the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the

 

102











 

Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder; and

 

(v)           no fee or other compensation is being paid directly to the Administrative Agent or the Arrangers or any their respective Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.

 

(c)           The Administrative Agent and each Arranger hereby informs the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

 

Section 11.24       Release of Guarantors.

 

Upon the request of the Borrower, the Administrative Agent shall (without notice to, or vote or consent of, any Lender), at the expense of the Borrower, take such actions as shall be required to release any Guarantor from its obligations under the Loan Documents if (a) such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents or (b) (i) such Person is an Immaterial Subsidiary at the time such written notice is delivered and at the time such Guarantor is released from its obligations under the Loan Documents and (ii) after giving effect to such release, the Borrower is not  required to designate one or more Immaterial Subsidiaries as Material Subsidiaries pursuant to the proviso in the definition of “Material Subsidiary” in Section 1.1.

 

[Signature pages to follow]

 

103











 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by their duly authorized officers, all as of the day and year first written above.

 

	
BORROWER:
    	
UNITED THERAPEUTICS   CORPORATION,
    
	
 
    	
a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ James Edgemond
    
	
 
    	
Name:
    	
James   Edgemond
    
	
 
    	
Title:
    	
Chief   Financial Officer and Treasurer
    
	
 
    	
 
    
	
GUARANTORS:
    	
LUNG   BIOTECHNOLOGY PBC,
    
	
 
    	
a   Delaware public benefit corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   James Edgemond
    
	
 
    	
Name:
    	
James   Edgemond
    
	
 
    	
Title:
    	
Chief   Financial Officer and Treasurer
    


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
AGENTS AND LENDERS:
    	
WELLS FARGO BANK,   NATIONAL ASSOCIATION,
    
	
 
    	
as Administrative   Agent,
    
	
 
    	
Swingline Lender and   Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jessica DeLorm
    
	
 
    	
Name:
    	
Jessica DeLorm
    
	
 
    	
Title:
    	
Vice President
    


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
 
    	
BANK OF AMERICA, N.A.,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ H. Hope Walker
    
	
 
    	
Name:
    	
H. Hope Walker
    
	
 
    	
Title:
    	
Senior Vice President
    


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
 
    	
DNB CAPITAL LLC,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kristie Li
    
	
 
    	
Name:
    	
Kristie Li
    
	
 
    	
Title:
    	
Senior Vice President
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Thomas Tangen
    
	
 
    	
Name:
    	
Thomas Tangen
    
	
 
    	
Title:
    	
Senior Vice President
    
	
 
    	
 
    	
Head of Healthcare
    
				


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
 
    	
MUFG BANK, LTD.,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Kevin Wood
    
	
 
    	
Name:
    	
Kevin Wood
    
	
 
    	
Title:
    	
Director
    
				


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
 
    	
PNC BANK, NATIONAL   ASSOCIATION,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Carolyn L. West
    
	
 
    	
Name:
    	
Carolyn L. West
    
	
 
    	
Title:
    	
Senior Vice President
    


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 











 

	
 
    	
CITIBANK, N.A.,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Pranjal Gambhir
    
	
 
    	
Name:
    	
Pranjal Gambhir
    
	
 
    	
Title:
    	
Vice President
    


 

UNITED THERAPEUTICS CORPORATION

CREDIT AGREEMENT

 












 

	
 
    	
BARCLAYS BANK PLC,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Jonathan Stone
    
	
 
    	
Name:
    	
Jonathan Stone
    
	
 
    	
Title:
    	
Director
    	
6-22-18
    


 











 

	
 
    	
HSBC BANK USA, NATIONAL   ASSOCIATION,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ John Treadwell
    
	
 
    	
Name:
    	
John P.   Treadwell, Jr.
    
	
 
    	
Title:
    	
SVP
    


 











 

	
 
    	
STATE BANK OF INDIA,   NEW YORK,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Niraj Kumar Panda
    
	
 
    	
Name:
    	
Mr. Niraj Kumar   Panda
    	
[SEAL]
    
	
 
    	
Title:
    	
Vice   President & Head (Credit)
    


 











 

	
 
    	
JPMORGAN CHASE BANK,   N.A.,
    
	
 
    	
as Lender
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Helene P. Sprung
    
	
 
    	
Name:
    	
Helene P. Sprung
    
	
 
    	
Title:
    	
Managing Director
    


 












 

Schedule 1.1

 

Commitments and Commitment Percentages

 

	
Lender
    	
 
    	
Revolving A
   Credit
   Commitment
    	
 
    	
Revolving A Credit
   Commitment
   Percentage
    	
 
    	
Revolving
   B Credit
   Commitment
    	
 
    	
Revolving B Credit
   Commitment
   Percentage
    	
 
    	
Total Commitment
    	
 
    
	
Wells Fargo Bank, National Association
    	
 
    	
$
    	
127,000,000.00
    	
 
    	
12.700000000
    	
%
    	
$
    	
100,000,000.00
    	
 
    	
20.000000000
    	
%
    	
$
    	
227,000,000.00
    	
 
    
	
Bank of America, N.A.
    	
 
    	
$
    	
127,000,000.00
    	
 
    	
12.700000000
    	
%
    	
$
    	
100,000,000.00
    	
 
    	
20.000000000
    	
%
    	
$
    	
227,000,000.00
    	
 
    
	
DNB Capital LLC
    	
 
    	
$
    	
127,000,000.00
    	
 
    	
12.700000000
    	
%
    	
$
    	
100,000,000.00
    	
 
    	
20.000000000
    	
%
    	
$
    	
227,000,000.00
    	
 
    
	
MUFG Bank, Ltd.
    	
 
    	
$
    	
127,000,000.00
    	
 
    	
12.700000000
    	
%
    	
$
    	
100,000,000.00
    	
 
    	
20.000000000
    	
%
    	
$
    	
227,000,000.00
    	
 
    
	
PNC Bank, National Association
    	
 
    	
$
    	
127,000,000.00
    	
 
    	
12.700000000
    	
%
    	
$
    	
100,000,000.00
    	
 
    	
20.000000000
    	
%
    	
$
    	
227,000,000.00
    	
 
    
	
Citibank, N.A.
    	
 
    	
$
    	
150,000,000.00
    	
 
    	
15.000000000
    	
%
    	
—
    	
 
    	
—
    	
 
    	
$
    	
150,000,000.00
    	
 
    
	
Barclays Bank PLC
    	
 
    	
$
    	
75,000,000.00
    	
 
    	
7.500000000
    	
%
    	
—
    	
 
    	
—
    	
 
    	
$
    	
75,000,000.00
    	
 
    
	
HSBC Bank USA, National Association
    	
 
    	
$
    	
50,000,000.00
    	
 
    	
5.000000000
    	
%
    	
—
    	
 
    	
—
    	
 
    	
$
    	
50,000,000.00
    	
 
    
	
State Bank of India, New York
    	
 
    	
$
    	
50,000,000.00
    	
 
    	
5.000000000
    	
%
    	
—
    	
 
    	
—
    	
 
    	
$
    	
50,000,000.00
    	
 
    
	
JPMorgan Chase Bank, N.A.
    	
 
    	
$
    	
40,000,000.00
    	
 
    	
4.000000000
    	
%
    	
—
    	
 
    	
—
    	
 
    	
$
    	
40,000,000.00
    	
 
    
	
TOTALS
    	
 
    	
$
    	
1,000,000,000.00
    	
 
    	
100.000000000
    	
%
    	
$
    	
500,000,000.00
    	
 
    	
100.000000000
    	
%
    	
$
    	
1,500,000,000.00
    	
 
    


 











 

Schedule 5.2

 

Subsidiaries

 

	
1.
    	
 
    	
EvoLung Inc., a Delaware Corporation
    
	
2.
    	
 
    	
Lung Biotechnology Hong Kong Limited, a Hong Kong   Company
    
	
3.
    	
 
    	
Lung Biotechnology PBC, a Delaware Public Benefit   Corporation
    
	
4.
    	
 
    	
Lung Rx Limited, a United Kingdom Company
    
	
5.
    	
 
    	
Revivicor, Inc., a Delaware Corporation
    
	
6.
    	
 
    	
United Therapeutics Europe, Ltd., a United   Kingdom Company
    
	
7.
    	
 
    	
Unither Biotech Inc., a Canadian Corporation
    
	
8.
    	
 
    	
Unither Pharma, LLC, a Delaware Limited Liability   Company
    
	
9.
    	
 
    	
Unither Pharmaceuticals, LLC, a Delaware Limited   Liability Company
    
	
10.
    	
 
    	
Unither Telmed, Ltd., a Delaware Corporation
    
	
11.
    	
 
    	
Unither Therapeutik GmbH, a German Company
    
	
12.
    	
 
    	
Unither.com, Inc., a Delaware Corporation
    
	
13.
    	
 
    	
UTASIA Inc., a Delaware Corporation
    
	
14.
    	
 
    	
UTASIA Inc. Shanghai Representative Office, a   Chinese Representative Office
    
	
15.
    	
 
    	
1109 Spring Holdings, LLC, a Delaware Limited   Liability Company
    
	
16.
    	
 
    	
1109 Spring Managing Member, LLC, a Delaware Limited   Liability Company
    
	
17.
    	
 
    	
Unither Bioelectronics Inc., a Quebec Company
    
	
18.
    	
 
    	
Daniel 24043 Acquisition Corp., an Israeli   Corporation
    


 











 

Schedule 5.9

 

ERISA Plans

 

None.

 











 

Schedule 7.1

 

Existing Indebtedness

 

None.

 











 

Schedule 7.2

 

Existing Liens

 

None.

 












 

EXHIBIT A-1

 

FORM OF REVOLVING CREDIT NOTE

 

                  , 20      

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to                 or its registered assigns (the “Lender”), at the place and times provided in the Credit Agreement referred to below, the unpaid principal amount of all Revolving Credit Loans made by the Lender from time to time pursuant to that certain Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

The unpaid principal amount of this Revolving Credit Note from time to time outstanding is payable as provided in the Credit Agreement and shall bear interest as provided in the Credit Agreement. All payments of principal and interest on this Revolving Credit Note shall be payable in Dollars in immediately available funds as provided in the Credit Agreement.

 

This Revolving Credit Note is entitled to the benefits of, and evidences Obligations incurred under, the Credit Agreement, to which reference is made for a statement of the terms and conditions on which the Borrower is permitted and required to make prepayments and repayments of principal of the Obligations evidenced by this Revolving Credit Note and on which such Obligations may be declared to be immediately due and payable.

 

THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

The Borrower hereby waives all requirements as to diligence, presentment, demand of payment, protest and (except as required by the Credit Agreement) notice of any kind with respect to this Revolving Credit Note.

 

[Signature Page Follows]

 











 

IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit Note as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT A-2

 

FORM OF SWINGLINE NOTE

 

                , 20      

 

FOR VALUE RECEIVED, the undersigned (the “Borrower”) promises to pay to WELLS FARGO BANK, NATIONAL ASSOCIATION (the “Lender”), at the place and times provided in the Credit Agreement referred to below, the unpaid principal amount of all Swingline Loans made by the Lender from time to time pursuant to that certain Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

The unpaid principal amount of this Swingline Note from time to time outstanding is payable as provided in the Credit Agreement and shall bear interest as provided in the Credit Agreement. Swingline Loans refunded as Revolving Credit Loans in accordance with Section 2.2(b) of the Credit Agreement shall be payable by the Borrower as Revolving B Credit Loans pursuant to the terms of the Credit Agreement, and shall not be payable under this Swingline Note as Swingline Loans. All payments of principal and interest on this Swingline Note shall be payable in Dollars in immediately available funds as provided in the Credit Agreement.

 

This Swingline Note is entitled to the benefits of, and evidences Obligations incurred under, the Credit Agreement, to which reference is made for a statement of the terms and conditions on which the Borrower is permitted and required to make prepayments and repayments of principal of the Obligations evidenced by this Swingline Note and on which such Obligations may be declared to be immediately due and payable.

 

THIS SWINGLINE NOTE SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

The Borrower hereby waives all requirements as to diligence, presentment, demand of payment, protest and (except as required by the Credit Agreement) notice of any kind with respect to this Swingline Note.

 

[Signature Page Follows]

 











 

IN WITNESS WHEREOF, the undersigned has executed this Swingline Note as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT B

 

FORM OF NOTICE OF BORROWING

 

Dated as of:                     

 

Wells Fargo Bank, National Association, as Administrative Agent 

 

Ladies and Gentlemen:

 

This irrevocable Notice of Borrowing is delivered to you pursuant to Section 2.3 of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender.

 

1.                                      The Borrower hereby requests that [the Lenders make a Revolving A Credit Loan] [the Lenders make a Revolving B Credit Loan] [the Swingline Lender makes a Swingline Loan] to the Borrower in the aggregate principal amount of $               .

 

2.                                       The Borrower hereby requests that such Loan(s) be made on the following Business Day:                     .

 

3.                                      The Borrower hereby requests that such Loan(s) bear interest at the following interest rate, plus the Applicable Rate, as set forth below:

 


	
Component of Loan(1)
    	
 
    	
Interest Rate
    	
 
    	
Interest Period (LIBOR Rate only)
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
[Base Rate or LIBOR Rate](2)
    	
 
    	
 
    




 

4.                                      The aggregate principal amount of all Loans outstanding as of the date hereof (including the Loan(s) requested herein) does not exceed the maximum amount permitted to be outstanding pursuant to the terms of the Credit Agreement.

 

5.                                      All of the conditions applicable to the Loan(s) requested herein as set forth in the Credit Agreement have been satisfied as of the date hereof and will remain satisfied to the date of such Loan.

 

[Signature Page Follows]

 




(1) Complete with the Dollar amount of that portion of the overall Loan requested that is to bear interest at the selected interest rate and/or Interest Period.

(2) Complete with (i) the Base Rate or the LIBOR Rate for Revolving Credit Loans or (ii) the Base Rate for Swingline Loans.

 











 

IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT C

 

FORM OF NOTICE OF ACCOUNT DESIGNATION

 

Dated as of:             

 

Wells Fargo Bank, National Association, as Administrative Agent 

 

Ladies and Gentlemen:

 

This Notice of Account Designation is delivered to you pursuant to Section 2.3(b) of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

1.                                      The Administrative Agent is hereby authorized to disburse all Loan proceeds into the following account(s):

 

 

ABA Routing Number:             

Account Number:                      

 

2.                                      This authorization shall remain in effect until revoked or until a subsequent Notice of Account Designation is provided to the Administrative Agent.

 

[Signature Page Follows]

 











 

IN WITNESS WHEREOF, the undersigned has executed this Notice of Account Designation as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT D

 

FORM OF NOTICE OF PREPAYMENT

 

Dated as of:                 

 

Wells Fargo Bank, National Association, as Administrative Agent 

 

Ladies and Gentlemen:

 

This Notice of Prepayment is delivered to you pursuant to Section 2.4(c) of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

1.                                      The Borrower hereby provides notice to the Administrative Agent that it shall repay the following [Base Rate Loans][LIBOR Rate Loans][Swingline Loans]:                                        . (Complete with an amount in accordance with Section 2.4 of the Credit Agreement.)

 

2.                                      The Loan(s) to be prepaid consist of:

 

o                               a Swingline Loan

 

o                               a Revolving A Credit Loan 

 

o                               a Revolving B Credit Loan

 

3.                                      The Borrower shall repay the above-referenced Loans on the following Business Day:                        . (Complete with a date no earlier than (i) the same Business Day as of the date of this Notice of Prepayment with respect to any Swingline Loan or Base Rate Loan and (ii) three (3) Business Days subsequent to date of this Notice of Prepayment with respect to any LIBOR Rate Loan.)

 

[4.                             This is a conditional Notice of Prepayment. Prepayment of the Loans in accordance with this Notice of Prepayment is conditional upon: [please describe relevant event in accordance with Section 2.4(c) of the Credit Agreement.]

 

[Signature Page Follows]

 











 

IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 












 

EXHIBIT E

 

FORM OF NOTICE OF CONVERSION/CONTINUATION

 

Dated as of:

 

Wells Fargo Bank, National Association, as Administrative Agent 

 

Ladies and Gentlemen:

 

This irrevocable Notice of Conversion/Continuation (this “Notice”) is delivered to you pursuant to Section 3.2 of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

1.           The Loan to which this Notice relates is a [Revolving A Credit Loan] [Revolving B Credit Loan].

 

2.           This Notice is submitted for the purpose of: (Check one and complete applicable information in accordance with the Credit Agreement.)

 

o            Converting all or a portion of a Base Rate Loan into a LIBOR Rate Loan

 

	
Outstanding principal balance:
    	
 
    	
$                                      
    
	
 
    	
 
    	
 
    
	
Principal amount to be converted:
    	
 
    	
$                                      
    
	
 
    	
 
    	
 
    
	
Requested effective date of conversion:
    	
 
    	
                                         
    
	
 
    	
 
    	
 
    
	
Requested new Interest Period:
    	
 
    	
                                         
    


 

o            Converting a portion of a LIBOR Rate Loan into a Base Rate Loan

 

	
Outstanding principal balance:
    	
 
    	
$                                      
    
	
 
    	
 
    	
 
    
	
Principal amount to be converted:
    	
 
    	
$                                      
    
	
 
    	
 
    	
 
    
	
Last day of the current Interest Period:
    	
 
    	
                                         
    
	
 
    	
 
    	
 
    
	
Requested effective date of conversion:
    	
 
    	
                                         
    


 

o            Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate Loan

 

	
Outstanding principal balance:
    	
 
    	
$                                      
    
	
 
    	
 
    	
 
    
	
Principal amount to be continued:
    	
 
    	
$                                      
    


 











 

	
Last day of the current Interest Period:
    	
 
    	
                                         
    
	
 
    	
 
    	
 
    
	
Requested effective date of continuation:
    	
 
    	
                                         
    
	
 
    	
 
    	
 
    
	
Requested new Interest Period:
    	
 
    	
                                         
    


 

3.           The aggregate principal amount of all Loans outstanding as of the date hereof does not exceed the maximum amount permitted to be outstanding pursuant to the terms of the Credit Agreement.

 

[Signature Page Follows]

 











 

IN WITNESS WHEREOF, the undersigned has executed this Notice of Conversion/Continuation as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT F

 

FORM OF OFFICER’S COMPLIANCE CERTIFICATE

 

Dated as of:                   

 

The undersigned, on behalf of United Therapeutics Corporation, a Delaware corporation (the “Borrower”), hereby certifies to the Administrative Agent and the Lenders, each as defined in the Credit Agreement referred to below, as follows:

 

1.             This certificate is delivered to you pursuant to Section 6.2 of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

[2.           I have reviewed the financial statements of the Borrower and its Subsidiaries dated as of                          and for the                         period[s] then ended and such statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries on a Consolidated basis as of their respective dates and the results of operations of the Borrower and its Subsidiaries for the respective periods then ended, subject to normal year-end adjustments and the absence of footnotes.](1)

 

[2.][3.] I have reviewed the terms of the Credit Agreement, and the related Loan Documents and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and the condition of the Borrower and its Subsidiaries during the accounting period covered by the financial statements [referred to in Paragraph 2 above][of the Borrower and its Subsidiaries dated as of                         and for the                         Fiscal Year]. Such review has not disclosed the existence during or at the end of such accounting period of any condition or event that constitutes a Default or an Event of Default, nor do I have any knowledge of the existence of any such condition or event as at the date of this certificate [except, if such condition or event existed or exists, describe the nature and period of existence thereof and what action the Borrower has taken, is taking and proposes to take with respect thereto].

 

[3.][4.] As of the date of this certificate, the Borrower and its Subsidiaries are in compliance with the financial covenants contained in Section 7.10 of the Credit Agreement as shown on such Schedule 1  and the Borrower and its Subsidiaries are in compliance with the other covenants and restrictions contained in the Credit Agreement.

 

[4.][5.] Attached hereto as Schedule 2 is a report containing management’s discussion and analysis of the financial statements [referred to in Paragraph 2 above][of the Borrower and its Subsidiaries dated as of                         and for the                         Fiscal Year].

 

[Signature Page Follows]

 




(1) To be included with respect to unaudited quarterly financial statements delivered under Section 6.1(b) of the Credit Agreement only.

 











 

IN WITNESS WHEREOF, the undersigned has executed this Officer’s Compliance Certificate as of the day and year first above written.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
[Chief Financial   Officer][Treasurer]
    


 




 









 

Schedule 1

 

Capitalized terms used but not defined herein have the meanings set forth in the Credit Agreement. In the event of conflict between the provisions and formulas set forth in this Schedule 1 and the provisions and formulas set forth in the Credit Agreement, the provisions and formulas of the Credit Agreement shall prevail.

 

1.                                      Consolidated Total Leverage Ratio

 

	
(a)
    	
Consolidated Total Indebtedness on such date:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
(i)
    	
all liabilities, obligations and indebtedness for   borrowed money including, but not limited to, obligations evidenced by bonds,   debentures, notes or other similar instruments
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(ii)
    	
all obligations to pay the deferred purchase price   of property or services, except (A) trade payables arising in the   ordinary course of business, (B) any earn-out obligation unless such   obligation is not paid promptly after becoming due and payable and   (C) accruals for payroll or other employee compensation accrued in the   ordinary course of business
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(iii)
    	
all Attributable Indebtedness with respect to   Capital Lease Obligations and Synthetic Leases (regardless of whether   accounted for as indebtedness under GAAP)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(iv)
    	
all obligations under conditional sale or other   title retention agreements relating to property purchased to the extent of   the value of such property (other than customary reservations or retentions   of title under agreements with suppliers entered into in the ordinary course   of business)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(v)
    	
all Indebtedness secured by a Lien on any asset   owned or being purchased (including indebtedness arising under conditional   sales or other title retention agreements except trade payables arising in   the ordinary course of business), whether or not such indebtedness shall have   been assumed or is limited in recourse (but if such Indebtedness has not been   assumed by, and is otherwise non-recourse to, such Person, only to the extent   of the lesser of the fair market value of the assets of such Person subject   to such Lien and the amount of such Indebtedness)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(vi)
    	
all obligations, contingent or otherwise, relative   to the face amount of letters of credit, whether or not drawn, and banker’s   acceptances (to the extent representing outstanding reimbursement obligations   of such person with respect to letters of credit and banker’s acceptances) 
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(vii)
    	
all obligations in respect of Disqualified Equity   Interests
    	
 
    	
$                           
    


 











 

	
 
    	
(viii)
    	
all Guarantees with respect to any of the foregoing   (to the extent relating to Indebtedness of others that would be included in   Consolidated Total Indebtedness if the Borrower were the direct obligor   thereunder)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(ix)
    	
Consolidated Total Indebtedness
    	
 
    	
 
    
	
 
    	
 
    	
[(a)(i) + (a)(ii) + (a)(iii) +   (a)(iv) + (a)(v) + (a)(vi) + (a)(vii) + (a)(viii)]
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
(b)
    	
Consolidated EBITDA for the period of four   (4) consecutive fiscal Quarters ending on or immediately prior to such   date:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(i)
    	
Consolidated Net Income
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
The following, without duplication, to the extent   deducted in determining such Consolidated Net Income:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(ii)
    	
income and franchise taxes
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(iii)
    	
Consolidated Interest Expense
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(iv)
    	
amortization and depreciation
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(v)
    	
stock based compensation expense (including with   respect to stock option, share tracking award and employee stock purchase   plans)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(vi)
    	
non-cash license fee charges
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(vii)
    	
non-cash asset impairment charges 
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(viii)
    	
non-recurring non-cash charges reducing Consolidated   Net Income in such period (excluding any such expenses or charges to the   extent representing an accrual or reserve for any cash charge in any future   period and excluding write-downs of current assets)
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(ix)
    	
non-recurring transaction fees, costs and expenses,   integration, reorganization and restructuring costs and facility   consolidation and closing costs incurred in connection with reorganizations,   restructurings and Investments (including, the incurrence or repayment of Indebtedness   in connection therewith) and Asset Dispositions permitted under the Credit   Agreement(1)
    	
 
    	
$                           
    


 




(1) Provided that (A) such fees, costs and expenses are incurred within twelve (12) months of the occurrence of such applicable triggering event and (B) the aggregate amount of such fees, costs and expenses added back shall not to exceed the greater of (1) 15% of Consolidated EBITDA for the applicable period of four fiscal quarters (prior to giving effect to such adjustments) and (2) $100,000,000 during any such applicable period of four fiscal quarters.

 











 

	
 
    	
 
    	
The following, without duplication, to the extent   included in determining such Consolidated Net Income:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(x)
    	
interest income
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
(xi)
    	
all non-recurring non-cash items increasing   Consolidated Net Income
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
(xii)
    	
Consolidated EBITDA
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
[(b)(i) + (b)(ii) + (b)(iii) +   (b)(iv) + (b)(v) + (b)(vi) + (b)(vii) + (b)(viii) +   (b)(ix) - (b)(x) - (b)(xi)]
    	
 
    	
$                           
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
(c)
    	
 
    	
Consolidated Leverage Ratio 
    	
 
    	
 
    
	
 
    	
 
    	
[(a)(ix) / (b)(xii)]
    	
 
    	
                   :1.0
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Compliance with   Section 7.10(a) of the Credit Agreement:
    	
 
    	
Y o                        N   o
    


 

2.                                      Consolidated Interest Coverage Ratio

 

	
(a)
    	
 
    	
Consolidated EBITDA for the period of four   (4) consecutive fiscal quarters ending on or immediately prior to such   date [1.(b)(xii) above]
    	
 
    	
$                            
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
(b)
    	
 
    	
Consolidated Interest Expense for the period of four   (4) consecutive fiscal quarters ending on or immediately prior to such   date
    	
 
    	
$                            
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
(c)
    	
 
    	
Consolidated Interest Coverage Ratio
    	
 
    	
 
    
	
 
    	
 
    	
[(a) / (b)]
    	
 
    	
                  :1.0
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Compliance with   Section 7.10(b) of the Credit Agreement:
    	
 
    	
Y o                        N   o
    


 












 

Schedule 2

 

Management’s Discussion and Analysis

 











 

EXHIBIT G

 

FORM OF ASSIGNMENT AND ASSUMPTION

 

This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [INSERT NAME OF ASSIGNOR] (the “Assignor”) and [the] [each](1) Assignee identified on the Schedules hereto as “Assignee” or as “Assignees” (collectively, the “Assignees” and each, an “Assignee”). [It is understood and agreed that the rights and obligations of the Assignees(2) hereunder are several and not joint.](3) Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, restated, supplemented or otherwise modified, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

 

For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the [Assignee] [respective Assignees], and [the] [each] Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including without limitation any guarantees and swingline loans included in such facilities) and (ii) to the extent permitted to be assigned under Applicable Law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned to [the] [any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as, [the] [an] “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.

 


	
1.
    	
 
    	
Assignor:
    	
 
    	
[INSERT   NAME OF ASSIGNOR]
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
2.
    	
 
    	
Assignee(s):
    	
 
    	
See Schedules attached hereto
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
3.
    	
 
    	
Borrower:
    	
 
    	
United Therapeutics Corporation, a Delaware   corporation
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
4.
    	
 
    	
Administrative Agent:
    	
 
    	
Wells Fargo Bank, National Association, as the   administrative agent under the Credit Agreement
    




 




(1) For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.

(2) Select as appropriate.

(3) Include bracketed language if there are multiple Assignees.

 











 


	
5.
    	
 
    	
Credit Agreement:
    	
 
    	
The Credit Agreement dated as of June 27, 2018   among the Borrower, the Guarantors party thereto, the Lenders from time to   time party thereto, and Wells Fargo Bank, National Association, as   Administrative Agent and Swingline Lender
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
6.
    	
 
    	
Assigned Interest:
    	
 
    	
See Schedules attached hereto
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
[7.
    	
 
    	
Trade Date:
    	
 
    	
              ](4)
    




 

Effective Date:                          , 20     [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR]

 

[Remainder of Page Intentionally Left Blank]

 




(4) To be completed if the Assignor and the Assignees intend that the minimum assignment amount is to be determined as of the Trade Date.

 











 

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

	
 
    	
ASSIGNOR
    
	
 
    	
 
    
	
 
    	
[NAME OF ASSIGNOR]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
ASSIGNEES
    
	
 
    	
 
    
	
 
    	
See Schedules attached hereto
    
	
 
    	
 
    
	
[Consented to   and](1) Accepted:
    	
 
    
	
 
    	
 
    
	
WELLS FARGO BANK,   NATIONAL ASSOCIATION,
    	
 
    
	
as Administrative Agent   and Swingline Lender
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
[Consented   to:](2)
    	
 
    
	
 
    	
 
    
	
UNITED THERAPEUTICS   CORPORATION,
    	
 
    
	
a Delaware corporation
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 




(1) To be added only if the consent of the Administrative Agent and/or the Swingline Lender is required by the terms of the Credit Agreement. May also use a Master Consent.

(2) To be added only if the consent of the Borrower is required by the terms of the Credit Agreement. May also use a Master Consent.

 











 

SCHEDULE 1

To Assignment and Assumption

 

By its execution of this Schedule, the Assignee identified on the signature block below agrees to the terms set forth in the attached Assignment and Assumption.

 

Assigned Interests:

 

	
Facility Assigned(1)
    	
 
    	
Aggregate Amount
   of Commitment/
   Loans for all
   Lenders(2)
    	
 
    	
Amount of
   Commitment/
   Loans Assigned(3)
    	
 
    	
Percentage
   Assigned of
   Commitment/
   Loans(4)
    	
 
    	
CUSIP Number
    	
 
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    	
 
    	
 
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    	
 
    	
 
    
	
 
    	
 
    	
$
    	
 
    	
 
    	
$
    	
 
    	
 
    	
 
    	
%
    	
 
    	
 
    


 

	
 
    	
[NAME OF   ASSIGNEE](5)
    
	
 
    	
[and is an   Affiliate/Approved Fund of [identify Lender](6)]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 




(1) Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Agreement (e.g. “Revolving A Credit Commitment” or “Revolving B Credit Commitment”)

(2) Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.

(3) Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.

(4) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.

(5) Add additional signature blocks, as needed.

(6) Select as appropriate.

 











 

ANNEX 1

to Assignment and Assumption

 

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION

 

1.                                      Representations and Warranties.

 

1.1                          Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the] [the relevant] Assigned Interest, (ii) [the] [such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

 

1.2.                       Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets the requirements of an Eligible Assignee under the Credit Agreement (subject to such consents, if any, as may be required under Section 11.9(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the] [the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the] [such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the] [such] Assigned Interest, and (vii) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the] [such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the] [any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

 

2.                                      Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the] [each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the] [the relevant] Assignor for amounts which have accrued to but excluding the

 











 

Effective Date and to [the] [the relevant] Assignee for amounts which have accrued from and after the Effective Date.

 

3.                                      General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

 











 

EXHIBIT H-1

 

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

Pursuant to the provisions of Section 3.11 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent (10%) shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable). By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (b) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two (2) calendar years preceding such payments.

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
Date:                      , 20     
    	
 
    


 











 

EXHIBIT H-2

 

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

Pursuant to the provisions of Section 3.11 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (b) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (c) it is not a ten percent (10%) shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (d) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable). By executing this certificate, the undersigned agrees that (a) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (b) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two (2) calendar years preceding such payments.

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
Date:                      , 20     
    	
 
    


 












 

EXHIBIT H-3

 

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

Pursuant to the provisions of Section 3.11 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the participation in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such participation, (c) with respect to such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members is a ten percent (10%) shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable) or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (ii) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two (2) calendar years preceding such payments.

 

	
[NAME OF PARTICIPANT]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
Date:                      , 20     
    	
 
    


 











 

EXHIBIT H-4

 

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

 

Reference is hereby made to the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

Pursuant to the provisions of Section 3.11 of the Credit Agreement, the undersigned hereby certifies that (a) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (b) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (c) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (d) none of its direct or indirect partners/members is a ten percent (10%) shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (e) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

 

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (a) an IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable) or (b) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN (or IRS Form W-8BEN-E, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (i) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent and (ii) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two (2) calendar years preceding such payments.

 

	
[NAME OF LENDER]
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    
	
 
    	
 
    
	
Date:                      , 20     
    	
 
    


 











 

EXHIBIT I

 

FORM OF EXTENSION LETTER

 

Dated as of:              

 

Wells Fargo Bank, National Association, as Administrative Agent

 

This notice shall constitute a request pursuant to Section [2.7(a)(i)] [2.7(b)(i)] of the Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation (the “Borrower”), the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.

 

The undersigned hereby requests that each Lender extend such Lender’s then existing [Scheduled Revolving A Credit Maturity Date] [Scheduled Revolving B Credit Maturity Date] for one year.

 

	
 
    	
UNITED THERAPEUTICS   CORPORATION,
   a Delaware corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 











 

EXHIBIT J

 

FORM OF JOINDER AGREEMENT

 

THIS JOINDER AGREEMENT (this “Agreement”), dated as of [                        ,           ], is by and between [                                         , a                                          ] (the “Subsidiary Guarantor”), and Wells Fargo Bank, National Association, in its capacity as administrative agent (in such capacity, the “Administrative Agent”), under that certain Credit Agreement, dated as of June 27, 2018 (as amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among United Therapeutics Corporation, a Delaware corporation, the Guarantors party thereto, the Lenders from time to time party thereto and Wells Fargo Bank, National Association, as Administrative Agent and Swingline Lender. Capitalized terms used herein but not otherwise defined shall have the meanings provided in the Credit Agreement.

 

The Loan Parties are required by Section 6.13 of the Credit Agreement to cause the Subsidiary Guarantor to become a “Guarantor” thereunder. Accordingly, the Subsidiary Guarantor hereby agrees as follows with the Administrative Agent, for the benefit of the Guaranteed Parties:

 

1.                                      The Subsidiary Guarantor hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the Subsidiary Guarantor will be deemed to be a party to and a “Guarantor” under the Credit Agreement and shall have all of the rights and obligations of a Guarantor thereunder as if it had executed the Credit Agreement as a Guarantor. The Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be bound by, all covenants and other terms, conditions and provisions, to the extent relating to the Subsidiary Guarantor, of the Credit Agreement. Without limiting the generality of the foregoing terms of this Paragraph 1, the Subsidiary Guarantor hereby guarantees, jointly and severally together with the other Guarantors, the prompt payment of the Guaranteed Obligations in accordance with Article X of the Credit Agreement.

 

2.                                      The Subsidiary Guarantor hereby represents and warrants that all of the representations and warranties contained in Credit Agreement or any other Loan Document, to the extent relating to the Subsidiary Guarantor, are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of the date hereof (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date).

 

3.                                      The Subsidiary Guarantor acknowledges and confirms that it has received a copy of the Credit Agreement and the schedules and exhibits thereto and each other Loan Document and the schedules and exhibits thereto. The Subsidiary Guarantor hereby represents and warrants to the Administrative Agent, for the benefit of the Guaranteed Parties, that each Subsidiary of the Subsidiary Guarantor as of the date hereof, and its state of incorporation or organization, is listed on Schedule 1  attached hereto.

 

4.                                      The address and contact information of the Subsidiary Guarantor for purposes of all notices and other communications is [      ].

 











 

5.                                      The Subsidiary Guarantor hereby waives acceptance by the Administrative Agent and the Guaranteed Parties of the guaranty by the Subsidiary Guarantor under Article X of the Credit Agreement upon the execution of this Agreement by the Subsidiary Guarantor.

 

6.                                      The parties hereto confirm and agree that immediately upon the Subsidiary Guarantor becoming a Guarantor the term “Guaranteed Obligations,” as used in the Credit Agreement, shall include all obligations of the Subsidiary Guarantor under the Credit Agreement and under each other Loan Document.

 

7.                                      The Subsidiary Guarantor agrees that at any time and from time to time, upon the written request of the Administrative Agent, it will execute and deliver such further documents and do such further acts as the Administrative Agent may reasonably request in accordance with the terms and conditions of the Credit Agreement and the other Loan Documents in order to effect the purposes of this Agreement.

 

8.                                      This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

 

9.                                      This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. The terms of Sections 11.5 and 11.6 of the Credit Agreement are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 











 

IN WITNESS WHEREOF, the Subsidiary Guarantor has caused this Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the benefit of the Guaranteed Parties, has caused the same to be accepted by its authorized officer, as of the day and year first above written.

 

	
SUBSIDIARY GUARANTOR:
    	
[SUBSIDIARY GUARANTOR]
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
Acknowledged, accepted   and agreed:
    	
 
    
	
 
    	
 
    
	
WELLS FARGO BANK,   NATIONAL ASSOCIATION,
    	
 
    
	
as Administrative Agent
    	
 
    
	
 
    	
 
    
	
By:
    	
 
    	
 
    
	
Name:
    	
 
    	
 
    
	
Title:
    	
 
    	
 
    


 











 

Schedule 1

 

[Subsidiaries]