HMS Holdings Corp.
HMS HOLDINGS CORP (Form: 8-K, Received: 12/21/2017 07:01:13)

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): December 19, 2017

 

 

HMS HOLDINGS CORP.

(Exact name of registrant as specified in its charter)

 

Delaware   0-50194   11-3656261

(State or other jurisdiction

of incorporation)

  (Commission File Number)  

(I.R.S. Employer

Identification No.)

 

5615 High Point Drive, Irving, Texas, 75038

(Address of principal executive offices, Zip Code)

 

Registrant’s telephone number, including area code: (214) 453-3000

 

Not Applicable

(Former name or former address, if changed since last report)

 

 

 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

☐  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company        ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On December 19, 2017, HMS Holdings Corp. (the “Company”) and certain subsidiaries of the Company entered into Amendment No. 2 to Amended and Restated Credit Agreement (the “Amendment”) to amend the Company’s existing credit agreement (the “Existing Credit Agreement”), dated May 3, 2013, as amended, by and among the Company, the subsidiary guarantors party thereto, the lenders party thereto, and Citibank, N.A. as administrative agent. On December 19, 2017, upon the satisfaction of all the conditions set forth in the Amendment, the Existing Credit Agreement, as amended pursuant to the Amendment (the “Amended Credit Agreement”), became effective. Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, JPMorgan Chase Bank, N.A. and Wells Fargo Bank acted as joint lead arrangers and joint bookrunners for the Amendment.

 

The Amended Credit Agreement, among other things, provides for a senior secured revolving facility (the “Revolving Facility”) in an aggregate principal amount equal to $500 million, which includes a $50 million sublimit for the issuance of letters of credit and a $25 million sublimit for swingline loans. The Amended Credit Agreement also contains an accordion feature that permits the Company to increase the Revolving Facility up to the sum of (i) the greater of $120 million and 100% of Consolidated EBITDA (as defined in the Amended Credit Agreement) and (ii) an additional amount, subject to obtaining commitments from lenders therefor and meeting certain other conditions.

 

In connection with the Amendment, the Company used the proceeds of its borrowings under the Revolving Facility to repay its existing loans under the Existing Credit Agreement. Following the effective date of the Amendment, the proceeds of the Revolving Facility may be used to provide working capital from time to time for the Company, and for other general corporate purposes and any other activities permitted by the Amended Credit Agreement.

 

Interest Rates; Fees. Borrowings under the Revolving Facility bear interest at a variable interest rate equal to either a (i) base rate or an (ii) adjusted LIBOR rate, plus an interest margin based on the Company’s Consolidated Leverage Ratio (as defined in the Amended Credit Agreement) for the applicable period.

 

Under the Amended Credit Agreement, the Company will pay an unused commitment fee on the Revolving Facility ranging from 0.375% to 0.25% per annum based on the Company’s Consolidated Leverage Ratio and a letter of credit fronting fee equal to 0.125% per annum on the aggregate face amount of each letter of credit.

 

Maturity Date. The Revolving Facility will mature on December 19, 2022.

 

Representations; Covenants; Events of Default. The Amended Credit Agreement contains various customary representations and warranties by the Company and its subsidiaries, which include customary use of materiality, material adverse effect and knowledge qualifiers. The Amended Credit Agreement also contains (i) certain affirmative covenants that impose certain reporting and/or performance obligations on the Company and its restricted subsidiaries, (ii) certain negative covenants that generally limit, subject to various exceptions, the Company and its restricted subsidiaries from taking certain actions, including, without limitation, incurring indebtedness, creating liens, engaging in mergers and consolidations, disposing of certain assets or property, making certain investments and acquisitions, entering into certain transactions with affiliates, swap agreements or sale-leasebacks, making certain restricted payments, including dividends and share repurchases, changing the Company’s fiscal year or the lines of business conducted by the Company or its restricted subsidiaries to a material extent, and prepaying certain junior indebtedness, (iii) financial covenants consisting of a maximum Consolidated Leverage Ratio and a minimum Interest Coverage Ratio (as defined in the Amended Credit Agreement), and (iv) customary events of default for financings of this type.

 

Under the Amended Credit Agreement, the negative covenants are subject to carve-outs, such as making investments and restricted equity or debt payments based on an available amount calculated with a “starter” basket of $50 million, plus (i) an amount equal to 50% of consolidated net income and (ii) other additional amounts based on returns on investments and equity issuances, in each case, subject to certain additional conditions. The Company also has the ability to make certain unlimited investments and restricted equity and debt payments, provided that the Company’s leverage ratio does not exceed certain agreed levels and no event of default shall have occurred and be continuing.

 

 

 

 

Events of default under the Amended Credit Agreement include, without limitation: non-payment of principal or reimbursement obligation when due; non-payment of interest, fees and other amounts for a period of five business days after the due date; material inaccuracies of representations and warranties; failure to perform or observe covenants, conditions or agreements (subject to any applicable grace periods); cross-defaults to certain indebtedness; inability to pay debts; certain acts of bankruptcy or insolvency; certain ERISA events; failure to pay certain material judgments; and a change of control as defined in the Amended Credit Agreement. The obligations of the Company and certain subsidiaries under the Revolving Facility may be declared due and payable upon the occurrence and during the continuance of an event of default.

 

Amended and Restated Security Agreement. In connection with the Amendment, the Company, certain subsidiaries of the Company and any other subsidiary who may become a party thereto (the “Subsidiary Securing Parties”), and Citibank, N.A., as collateral agent for the lenders party from time to time under the Amended Credit Agreement, entered into the Amended and Restated Security Agreement, dated as of December19, 2017. Pursuant to the Amended and Restated Security Agreement, the Revolving Facility is secured, subject to certain customary carve-outs and exceptions, by a first priority lien and security interest in substantially all tangible and intangible assets of the Company and Subsidiary Securing Parties.

 

The summary set forth above is not intended to be complete and is qualified in its entirety by reference to the full text of the Amendment, the Amended Credit Agreement and the Amended and Restated Security Agreement, attached hereto as Exhibits 10.1, 10.2 and 10.3, respectively.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information included in Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.

 

Item 9.01 Financial Statements and Exhibits.

 

The following agreements have been filed to provide investors with information regarding their respective terms. The agreements are not intended to provide any other actual information about the Company or its business or operations. In particular, the representations, warranties, and covenants contained in the agreements were made only for purposes of the respective agreement and, in certain circumstances, as of specific dates, and were solely for the benefit of the parties to the respective agreement. The assertions embodied in any representations, warranties, and covenants contained in the agreements may be subject to qualifications with respect to knowledge and materiality different from those applicable to investors and may be qualified by information in confidential disclosure schedules not included with the exhibits. These disclosure schedules may contain information that modifies, qualifies and creates exceptions to the representations, warranties and covenants set forth in the agreements. Moreover, certain representations, warranties, and covenants in the agreements may have been used for the purpose of allocating risk between parties, rather than establishing matters as facts. In addition, information concerning the subject matter of the representations, warranties and covenants may have changed after the date of the respective agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. Accordingly, investors should not rely on the representations, warranties and covenants in the agreements as characterizations of the actual state of facts about the Company or its business or operations on the date hereof.

 

 

 

 

(d)        Exhibits.

 

Exhibit No.   Description
     
10.1   Amendment No. 2 to Amended and Restated Credit Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the other Loan Parties party thereto, Citibank, N.A., as Administrative Agent, the Issuing Bank, the Swingline Lender and the other Lenders party thereto.
     
10.2   Amended and Restated Credit Agreement, dated as of May 3, 2013, as amended by Amendment No. 1 to Amended and Restated Credit Agreement dated as of March 8, 2017, and as further amended by Amendment No. 2 to Amended and Restated Credit Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the Guarantors party thereto, the Lenders party thereto and Citibank, N.A., as Administrative Agent.
     
10.3   Amended and Restated Security Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the Subsidiary Securing Parties party thereto and Citibank, N.A., as Collateral Agent.
     

 

 

 

 

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

    HMS HOLDINGS CORP.
     
Date: December 21, 2017   By:  /s/ Jeffrey S. Sherman
      Jeffrey S. Sherman
      Executive Vice President, Chief Financial Officer
      and Treasurer

 

 

 

 

 

 

 

 

EXHIBIT INDEX

 

Exhibit No.   Description
     
10.1   Amendment No. 2 to Amended and Restated Credit Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the other Loan Parties party thereto, Citibank, N.A., as Administrative Agent, the Issuing Bank, the Swingline Lender and the other Lenders party thereto.  
     
10.2   Amended and Restated Credit Agreement, dated as of May 3, 2013, as amended by Amendment No. 1 to Amended and Restated Credit Agreement dated as of March 8, 2017, and as further amended by Amendment No. 2 to Amended and Restated Credit Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the Guarantors party thereto, the Lenders party thereto and Citibank, N.A., as Administrative Agent.
     
10.3  

Amended and Restated Security Agreement, dated as of December 19, 2017, by and among HMS Holdings Corp., the Subsidiary Securing Parties party thereto and Citibank, N.A., as Collateral Agent.

 

 

 

 

 

 

Exhibit 10.1

 

 

 

AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT

 

AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 19, 2017 (this “ Amendment No. 2 ”), among HMS Holdings Corp., a Delaware corporation (the “ Borrower ”), the other Loan Parties (as defined in the Existing Credit Agreement (as defined below)), Citibank, N.A., as administrative agent under the Existing Credit Agreement (in such capacity, the “ Administrative Agent ”), the Issuing Bank, the Swingline Lender, certain Lenders party to the Existing Credit Agreement (as defined therein) (such lenders, the “ Existing Revolving Credit Lenders ”) and the other 2017 Revolving Credit Lenders (as defined below) party hereto.

 

WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of May 3, 2013 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “ Existing Credit Agreement ”), by and among the Borrower, the financial institutions from time to time party thereto, the Administrative Agent and the other agents parties thereto, the Existing Lenders have agreed to make, and have made, certain commitments, loans and other extensions of credit to the Borrower;

 

WHEREAS, pursuant to Section 2.21 and Section 10.05(b) of the Existing Credit Agreement, the Borrower has requested that (i) the termination date of all of the outstanding Revolving Credit Commitments (the “ Existing Revolving Credit Commitments ”; the loans thereunder, the “ Existing Revolving Credit Loans ”; and the Lenders holding such Existing Revolving Credit Commitments, collectively, the “ Existing Revolving Lenders ”) be extended to the date set forth in the Amended Credit Agreement (as defined below) and (ii) the Existing Credit Agreement be further amended as set forth herein and in the form attached hereto as Exhibit A (the Existing Credit Agreement as so amended and restated by this Amendment No. 2 is referred to herein as the “ Amended Credit Agreement ”);

 

WHEREAS, on the date hereof, the Borrower, the Administrative Agent and each Person that has submitted a signature page to this Amendment No. 2 as a “2017 Revolving Credit Lender” (which includes certain Existing Revolving Credit Lenders and other Persons party hereto, collectively, the “ 2017 Revolving Credit Lenders ”) desire to (i) extend the termination date of the Existing Revolving Credit Commitments outstanding immediately prior to the Amendment No. 2 Effective Date (as defined below) to the date set forth in the Amended Credit Agreement and (ii) amend the Existing Credit Agreement in its entirety as set forth herein and in the Amended Credit Agreement;

 

WHEREAS, effective on the date hereof, each 2017 Revolving Credit Lender has delivered its signature page hereto; and

 

WHEREAS, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, JPMorgan Chase Bank, N.A. and Wells Fargo Bank, National Association are acting as joint lead arrangers and joint bookrunners for this Amendment (in such capacity, the “ Amendment No. 2 Lead Arrangers ”);

 

NOW THEREFORE, in consideration of the premises and mutual covenants hereinafter set forth, the parties hereto agree as follows:

 

 

 

Section 1. Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Existing Credit Agreement or the Amended Credit Agreement, as the context may require.

 

Section 2. Amendment of the Existing Credit Agreement.

 

(a)         Part I . Effective as of the Part I Effective Date (as defined below), the Existing Credit Agreement is hereby amended by inserting the following sentence at the end of Section 2.21(d) of the Existing Credit Agreement (such amendment, the “ Part I Amendment ”):

 

“Notwithstanding the foregoing, in connection with Amendment No. 2, (A) the Borrower shall not be required to provide at least ten (10) Business Days’ prior written notice to the Administrative Agent, and (B) any Revolving Credit Lender (each an “ Existing Revolving Credit Lender ” and, collectively, the “ Existing Revolving Credit Lenders ”) that is holding Revolving Credit Commitments (such commitments, the “ Existing Revolving Credit Commitments ”) or Revolving Credit Loans (such loans, the “ Existing Revolving Credit Loans ”) immediately prior to the Amendment No. 2 Effective Date that does not execute Amendment No. 2 as a 2017 Revolving Credit Lender (as defined in Amendment No. 2) as of the Amendment No. 2 Effective Date (any such Lender, a “ Non-Extending Lender ” and, collectively, the “ Non-Extending Lenders ”) shall not be required to sign an Assignment and Assumption with respect to any required assignment of its Existing Revolving Credit Commitments or its Existing Revolving Credit Loans pursuant to this Section 2.21, and the assignment of any Non-Extending Lender’s Existing Revolving Credit Commitments or Existing Revolving Credit Loans to an assignee pursuant to this Section 2.21 shall become effective immediately upon receipt by (i) such Non-Extending Lender of a notice that all Non-Extending Lender’s Existing Revolving Credit Commitments or Existing Revolving Credit Loans are being required to be assigned to the 2017 Revolving Credit Lenders, each as an assignee, in the applicable commitment amounts set forth in Schedule 1.01, which notice shall be signed by the Borrower and the Administrative Agent, on behalf of itself and each of the assignees, and (ii) the Administrative Agent (for the account of each Existing Revolving Credit Lender holding Existing Revolving Credit Loans) of immediately available funds (x) from the net proceeds of the Borrower’s borrowing under the Amended Credit Agreement on the Amendment No. 2 Effective Date, in an amount equal to the principal amount of the Existing Revolving Credit Loans outstanding immediately prior to the Amendment No. 2 Effective Date, and (y) from the Borrower, the amounts required to be paid to the Existing Revolving Credit Lenders pursuant to Section 3(a)(iii) of Amendment No. 2, and such proceeds shall be used by the Administrative Agent on the Amendment No. 2 Effective Date to pay each Existing Revolving Credit Lender an amount equal to such Lenders’ outstanding Existing Revolving Credit Loans, together, with any unpaid and accrued interest and fees required to be paid to such Lender pursuant to Section 3(a)(iii) of Amendment No. 2.”

 

(b)         Part II . After giving effect to the Part I Amendment on the Part I Effective Date, effective as of the Amendment No. 2 Effective Date, the termination date of the Existing Revolving Commitments shall be extended to the date set forth in the Amended Credit Agreement (such commitments, as so extended, the “ 2017 Revolving Credit Commitments ”) and the Existing Credit Agreement (as amended by the Part I Amendment pursuant to Section 2(a) above) is hereby amended as follows (all such amendments, the “ Part II Amendments ”):

 

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(i)        the Existing Credit Agreement is hereby amended in the form of the Amended Credit Agreement as set forth as Exhibit A hereto: (a) by deleting each term thereof which is reflected in strike-through font (indicated textually in the same manner as the following example: stricken text ) and (b) by inserting each term thereof which is reflected in double underlined font (indicated textually in the same manner as the following example: double-underlined text ), in each case in the place where such term appears therein;

 

(ii)        all schedules to the Existing Credit Agreement shall be replaced in the form attached hereto as Schedule I ; and

 

(iii)        all exhibits to the Existing Credit Agreement in the forms thereof immediately prior to the Amendment No. 2 Effective Date, shall be replaced in the form attached hereto as Schedule II.

 

Section 3. Effectiveness.

 

(a)                 The Part I Amendment shall become effective on the date (such date, the “ Part I Effective Date ”) on which each of the following conditions has been satisfied:

 

(i) the Administrative Agent shall have received counterparts of this Amendment No. 2 signed by the Borrower, each of the other Loan Parties, each of the 2017 Revolving Credit Lenders, the Administrative Agent, the Issuing Lenders, and the Swingline Lenders;

 

(ii) the Administrative Agent shall have received from the Borrower (A) a notice of prepayment relating to the Existing Credit Agreement, requesting the prepayment on the Amendment No. 2 Effective Date of any and all of the Existing Revolving Credit Loans outstanding under the Existing Credit Agreement immediately prior to the Amendment No. 2 Effective Date (such amount, the “ Prepayment Amount ”), and (B) a Borrowing Request relating to the initial credit extensions under this Amendment No. 2, in an amount sufficient for the Borrower to pay the Prepayment Amount; and

 

(iii) the Administrative Agent, for the account of each Existing Revolving Credit Lender, shall have received from the Borrower any and all (A) accrued and unpaid interest in respect of such Existing Revolving Credit Lender’s Existing Revolving Loans outstanding immediately prior to the Amendment No. 2 Effective Date to, but excluding, the date of such payment (it being understood and agreed that any existing Interest Period in effect immediately prior to the Amendment No. 2 Effective Date shall be deemed not to have been broken and shall continue in full force and effect until its original expiration) and (B) accrued and unpaid fees owing to such Existing Revolving Credit Lender under Sections 2.11(a) and (b)(i) of the Existing Credit Agreement immediately prior to the Amendment No. 2 Effective Date.

 

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(b)                The Part II Amendments shall become effective on the date (such date, the “ Amendment No. 2 Effective Date ”) on which each of the following conditions has been satisfied:

 

(i)      the effectiveness of the Part I Amendment on the Part I Effective Date;

 

(ii)    the representations and warranties of the Borrower set forth in Article IV of the Amended Credit Agreement, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); provided , that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects;

 

(iii) at the time of and immediately after giving effect to the transactions contemplated by this Amendment No. 2, no Default or Event of Default shall have occurred and be continuing under the Amended Credit Agreement;

 

(iv) the Borrower shall have delivered to the Administrative Agent a certificate, dated as of the Amendment No. 2 Effective Date and signed by a senior executive officer of the Borrower, confirming compliance with the conditions precedent set forth in clauses (ii) and (iii) above;

 

(v)    the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including “.pdf”) unless otherwise specified:

 

(A) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or Chief Accounting Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;

 

(B)   copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Amendment No. 2 Effective Date in each instance by its Secretary, Assistant Secretary, Chief Financial Officer or Chief Accounting Officer as being in full force and effect without modification or amendment;

 

(C)   copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;

 

(D) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of (a) Sidley Austin LLP, special counsel to the Loan Parties and (b) Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel to the Loan Parties, in each case, in form and substance reasonably satisfactory to the Administrative Agent;

 

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(E)   an executed Solvency Certificate, signed by the chief financial officer of the Borrower, dated the Amendment No. 2 Effective Date; and

 

(F)    the results of a recent Lien, tax and judgment lien search, dated a date reasonably near the date hereof, with respect to each Loan Party (under its current legal name or any previous legal name within the past five years), together with copies of such financing statements or other evidence of Liens, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.02 of the Amended Credit Agreement or discharged on or prior to the Amendment No. 2 Effective Date pursuant to documentation satisfactory to the Administrative Agent;

 

(vi) the Administrative Agent shall have received the Amended and Restated Security Agreement, in form and substance reasonably satisfactory to the Administrative Agent, executed by the Borrower and each other Loan Party, together with, to the extent not previously delivered to the Administrative Agent prior to the Amendment No. 2 Effective Date, (A) certificates, if any, representing the Pledged Equity (as defined in the Security Agreement) accompanied by undated stock powers executed in blank and instruments, if any, evidencing the Pledged Debt (as defined in the Security Agreement) indorsed in blank, and (B) each document (including, without limitation, any UCC financing statement and filings with the United States Patent and Trademark Office or United States Copyright Office) required by the Security Documents or under law or reasonably requested by the Administrative Agent or Collateral Agent to be delivered to the Administrative Agent or filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the property of the Loan Parties subject to the security interests under the Security Agreement, subject to no other Liens (other than Liens expressly permitted by Section 7.02 of the Amended Credit Agreement), which shall have been delivered to the Administrative Agent in proper form for filing, registration or recordation;

 

(vii)                        the Administrative Agent shall have received in advance of the Amendment No 2. Effective Date all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Amendment No. 2 Effective Date by the Lenders through the Administrative Agent that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;

 

(viii)                      the Administrative Agent shall have received payment from the Borrower for the account of each 2017 Revolving Credit Lender that executed and delivered a counterpart signature page to this Amendment No. 2, at or prior to 3:00 p.m., New York City time, on December 8, 2017 (the “ Consent Deadline ”), an amendment fee in an amount equal to 0.25% of the aggregate principal amount of such 2017 Revolving Credit Lender’s 2017 Revolving Credit Commitment on the Amendment No. 2 Effective Date, which fees shall be payable in immediately available funds on the Amendment No. 2 Effective Date, in U.S. dollars, and, once paid, be non-refundable; and

 

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(ix) the Administrative Agent shall have received all fees, other payments and expenses owing to the Administrative Agent and the Amendment No. 2 Lead Arrangers as previously agreed in writing by the Borrower to be due and payable on or prior to the Amendment No. 2 Effective Date (to the extent invoiced at least three (3) Business Days prior to the Amendment No. 2 Effective Date (or such later date as the Borrower may reasonably agree)), including, without limitation, (A) any reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document and (B) any fees or expenses pursuant to any separate written agreements between the Borrower, the Administrative Agent and the Amendment No. 2 Lead Arrangers.

 

Section 4. Joinder .

 

Reimbursement Services Group, Inc., a New York corporation (“ RSG ”), hereby acknowledges, agrees and confirms that, by its execution of this Amendment No. 2, RSG will, concurrently with the Amendment No. 2 Effective Date, be (a) deemed to be a party to the Amended Credit Agreement and (b) a “Guarantor” for all purposes of the Amended Credit Agreement and shall have all of the obligations of a Guarantor thereunder as if it had directly executed the Credit Agreement. Concurrently with the execution of this Amendment No. 2, RSG shall also execute and deliver the Security Agreement (as defined in the Amended Credit Agreement), as a “Securing Party” thereunder for all purposes of the Security Agreement (as defined in the Amended Credit Agreement) and shall have all obligations of a Securing Party thereunder, and shall take any and all such actions necessary to satisfy Section 3(b)(vi) hereof and Section 6.13(a) of the Amended Credit Agreement. RSG hereby ratifies, as of the Amendment No. 2 Effective Date, and agrees to be bound by, all of the terms, provisions and conditions applicable to the Guarantors contained in the Amended Credit Agreement and the Securing Parties contained in the Security Agreement (as defined in the Amended Credit Agreement). Without limiting the generality of the foregoing terms of this Section 4, RSG hereby (a) jointly and severally, together with the other Guarantors, guarantees to each Lender, each Affiliate of a Lender, the Administrative Agent and Collateral Agent the prompt payment of the Borrower Guaranteed Obligations (as defined in the Amended Credit Agreement) in full when due (whether at stated maturity, by acceleration or otherwise) in accordance with the terms of Article III of the Amended Credit Agreement, and (b) by execution of the Security Agreement (as defined in the Amended Credit Agreement), pledges and grants to the Collateral Agent, for the ratable benefit of the Secured Parties (as defined in the Security Agreement (as defined in the Amended Credit Agreement)), a Lien upon all of its right, title and interest in and to the Collateral pursuant to Section 3 of the Security Agreement (as defined in the Amended Credit Agreement).

 

Section 5. Effect of Amendment.

 

(i)                Except as expressly set forth herein or in the Amended Credit Agreement, this Amendment No. 2 shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the Existing Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants, agreements or Liens contained in the Existing Credit Agreement or any other Loan Document or any other provision of the Existing Credit Agreement or of any other Loan Document, all of which are ratified and affirmed by each Loan Party in all respects and shall continue in full force and effect. It is the intention of the parties hereto that neither this Amendment nor anything contained herein constitute a novation of the obligations outstanding under the Existing Credit Agreement or any guaranty thereof or collateral securing the same, all of which shall remain in full force and effect after the date hereof, as amended hereby. Nothing herein shall be deemed to entitle any Loan Party to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement, the Amended Credit Agreement or any other Loan Document in similar or different circumstances.

 

  6  

 

(ii)                Each Loan Party agrees that (A) all of its obligations, liabilities and indebtedness under any Loan Document to which it is a party, including its guarantee obligations, shall remain in full force and effect on a continuous basis after giving effect to this Amendment No. 2; (B) all of the Liens and security interests created and arising under such Loan Documents shall remain in full force and effect on a continuous basis after giving effect to this Amendment No. 2, and the validity and perfected status and priority of each such Lien and security interest shall continue in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged, after giving effect to this Amendment No. 2 as collateral security for its obligations, liabilities and indebtedness under the Amended Credit Agreement, for its guarantees in the other Loan Documents and all other Obligations; and (C) all Obligations are payable or guaranteed, as applicable, by each of the Loan Parties in accordance with the Amended Credit Agreement and the other Loan Documents, and each Loan Party unconditionally and irrevocably waives any claim or defense in respect of the Obligations existing on, or arising out of facts occurring at any time on or prior, to the Amendment No. 2 Effective Date, including, without limitation, any claim or defense based on any right of set-off or counterclaim and hereby ratifies and affirms each and every waiver of claims and defenses granted under the Loan Documents.

 

(iii)                On and after the Amendment No. 2 Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference to the Existing Credit Agreement in any other Loan Document shall be deemed a reference to the Amended Credit Agreement. This Amendment No. 2 shall constitute a “Loan Document” for all purposes of the Amended Credit Agreement and the other Loan Documents. On and after the Amendment No. 2 Effective Date, (A) each 2017 Revolving Credit Commitment and each loan made on or otherwise outstanding on the Amendment No. 2 Effective Date shall constitute a Revolving Credit Commitment and a Revolving Credit Loan, respectively, for all purposes of the Amended Credit Agreement, and all provisions of the Amended Credit Agreement applicable to Revolving Credit Commitments and Revolving Credit Loans shall be applicable to such 2017 Revolving Credit Commitments and such loans, respectively, and (B) each 2017 Revolving Credit Lender shall constitute a “Revolving Credit Lender” under the Amended Credit Agreement with all rights and obligations of a “Revolving Credit Lender” as provided pursuant to the Amended Credit Agreement and the other Loan Documents.

 

(iv)                The changes to the definition of “Applicable Rate” in Section 1.01 of the Amended Credit Agreement effected pursuant to this Amendment No. 2 shall apply and be effective on and after the Amendment No. 2 Effective Date. The definition of “Applicable Rate” in Section 1.01 of the Existing Credit Agreement shall apply and be effective for the period ending on, but not including, the Amendment No. 2 Effective Date.

 

  7  

 

Section 6. General.

 

(i)                         GOVERNING LAW . THIS AMENDMENT NO. 2 AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

(ii)                Counterparts . This Amendment No. 2 may be executed by one or more of the parties to this Amendment No. 2 on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Amendment No. 2 by email or facsimile transmission shall be effective as delivery of an original counterpart hereof.

 

(iii)                Headings . The headings of this Amendment No. 2 are used for convenience of reference only, are not part of this Amendment No. 2 and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment No. 2.

 

Section 7. Loss of FATCA Grandfathering.

 

For purposes of FATCA, from and after the Amendment No. 2 Effective Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Borrower and Administrative Agent to treat), the Amended Credit Agreement and any Loans made thereunder (including any Loans already outstanding) as not qualifying as “grandfathered obligations” within the meaning of Treasury Regulation Section 1.1472-2(b)(2)(i).

 

[remainder of page intentionally left blank]

 

  8  

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.

 


hms holdings corp.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

GUARANTORS :

 

ALLIED MANAGEMENT GROUP SPECIAL INVESTIGATION UNIT, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

ELIZA CORPORATION

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

ELIZA HOLDING CORP.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

ELIZALIVE, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

[ Signature Page – Amendment No. 2 ]

 

 

ESSETTE, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

HEALTHDATAINSIGHTS, INC.

 

By: /s/ Gary Call
Name: Gary Call
Title: Interim President

 

HMS CARE ANALYTICS, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

HEALTH MANAGEMENT SYSTEMS, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

INTEGRIGUARD, LLC

 

By: /s/ Douglas M. Williams, Jr.
Name: Douglas M. Williams, Jr.
Title: Chairman

 

PERMEDION, INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

[ Signature Page – Amendment No. 2 ]

 

 

REIMBURSEMENT SERVICES GROUP INC.

 

By: /s/ Jeffrey S. Sherman
Name: Jeffrey S. Sherman
Title: Executive Vice President, Chief Financial Officer
and Treasurer

 

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

CITIBANK, N.A., as Administrative Agent, Issuing Lender, Swingline Lender and 2017 Revolving Credit Lender

 

By: /s/ Michael Tortora
Name: Michael Tortora
Title: Vice President

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Bank of America, N.A., as a 2017 Revolving Credit Lender

 

 

By: /s/ Darren Merten

Name: Darren Merten
Title: Vice President

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

JPMorgan Chase Bank, N.A., as a 2017 Revolving Credit Lender

 

 

By: /s/ Gregory T Martin

Name: Gregory T Martin
Title: Authorized Signer

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Wells Fargo Bank, NA, as a 2017 Revolving Credit Lender

 

 

By: /s/ Kent S. Davis

Name: Kent S. Davis
Title: Managing Director

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

TD Bank, N.A., as a 2017 Revolving Credit Lender

 

 

By: /s/ Shivani Agarwal

Name: Shivani Agarwal
Title: Senior Vice President

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Compass Bank, as a 2017 Revolving Credit Lender

 

 

By: /s/ Jay Tweed

Name: Jay Tweed
Title: Senior Vice President

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Citizens Bank, N.A., as a 2017 Revolving Credit Lender

 

 

By: /s/ Christopher J. DeLauro

Name: Christopher J. DeLauro
Title: Vice President

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Fifth Third Bank, as a 2017 Revolving Credit Lender

 

 

By: /s/ Thomas Avery

Name: Thomas Avery
Title: Director

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Mizuho Bank Ltd., as a 2017 Revolving Credit Lender

 

 

By: /s/ Bertram H. Tang

Name: Bertram H. Tang
Title: Authorized Signatory

 

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

MUFG Union Bank, N.A., as a 2017 Revolving Credit Lender

 

 

By: /s/ Jaime Johnson

Name: Jaime Johnson
Title: Director

 

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

Siemens Financial Services, Inc., as a 2017 Revolving Credit Lender

 

 

By: /s/ John Finore

Name: John Finore
Title: Vice President

 

By: /s/ Melissa J. Brown

Name: Melissa J. Brown
Title: Sr. Transaction Coordinator

 

By: /s/ William D. Jentsch

Name: William D. Jentsch
Title: Vice President

 

 

 

 

 

 

 

 

 

[ Signature Page – Amendment No. 2 ]

 

 

EXHIBIT A

 

[Blackline of Amended Credit Agreement]

 

 

[See attached]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXECUTION VERSION

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of

May 3, 2013 , as amended by Amendment No. 1
dated as of March 8, 2017 and
Amendment No. 2 dated as of December 19, 2017

among

HMS HOLDINGS CORP.,

The GUARANTORS Party Hereto,

The LENDERS Party Hereto
and

CITIBANK, N.A.,
as Administrative Agent

_______________________

$500,000,000

 

CITIGROUP GLOBAL MARKETS INC.,

J.P. MORGAN SECURITIES LLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED ,

JPMORGAN CHASE BANK, N.A. and

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Joint Lead Arrangers and Joint Bookrunners

Fifth Third Bank
SunTrust Bank
Union Bank
US Bank National Association ,
as Co-Syndication Agents

TD SECURITIES (USA) LLC

COMPASS BANK

Compass Bank
Mizuho Corporate Bank, Ltd.
RBS Citizens CITIZENS BANK , N.A.

FIFTH THIRD BANK

TD Bank, N.A MIZUHO BANK, LTD .,

as Co-Documentation Co-Syndication Agents

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

Page

 

TABLE OF CONTENTS

 

Page

 

 

 

Article I  
       
DEFINITIONS 2
Section 1.01.   Defined Terms 2
Section 1.02.   Terms Generally 32 37
Section 1.03.   Accounting Terms; GAAP 32 38
Section 1.04.   Limited Condition Transaction 38
Section 1.05.   Cashless Rollovers 40
Section 1.06.   Additional Rules of Construction 40
Article II  
       
THE CREDITS 41
Section 2.01.   Commitments 33 41
Section 2.02.   Loans and Borrowings 33 41
Section 2.03.   Requests for Borrowings 33 42
Section 2.04.   Swingline Loans 34 43
Section 2.05.   Letters of Credit 36 44
Section 2.06.   Funding of Borrowings 40 49
Section 2.07.   Interest Elections 41 49
Section 2.08.   Termination and Reduction of the Commitments 42 51
Section 2.09.   Repayment of Loans; Evidence of Debt 43 51
Section 2.10.   Prepayment of Loans 44 52
Section 2.11.   Fees 45 53
Section 2.12.   Interest 46 54
Section 2.13.   Alternate Rate of Interest 47 55
Section 2.14.   Increased Costs 47 55
Section 2.15.   Break Funding Payments 48 57
Section 2.16.   Taxes 49 57
Section 2.17.   Payments Generally; Pro Rata Treatment; Sharing of Set-offs 52 60
Section 2.18.   Mitigation Obligations; Replacement of Lenders 54 62
Section 2.19.   Increase in Commitments 55 63
Section 2.20.   Defaulting Lenders 57 66
Section 2.21.   Extension Offers 59 68
Article III  
       
GUARANTEE 70
Section 3.01.   Guarantee 61 70
Section 3.02.   Obligations Unconditional 62 70
Section 3.03.   Reinstatement 63 71
Section 3.04.   Subrogation 63 71

i

 

 

TABLE OF CONTENTS

 

Page

 

Section 3.05.   Remedies 63 72
Section 3.06.   Instrument for the Payment of Money 63 72
Section 3.07.   Continuing Guarantee 63 72
Section 3.08.   Rights of Contribution 63 72
Section 3.09.   General Limitation on Guaranteed Obligations 64 73
Article IV  
       
REPRESENTATIONS AND WARRANTIES 73
Section 4.01.   Organization; Powers 64 73
Section 4.02.   Authorization; Enforceability 65 73
Section 4.03.   Governmental Approvals; No Conflicts 65 73
Section 4.04.   Financial Condition; No Material Adverse Change; No Default 65 74
Section 4.05.   Properties 65 74
Section 4.06.   Litigation and Environmental Matters 66 75
Section 4.07.   Compliance with Laws and Contractual Obligations 67 75
Section 4.08.   Investment Company Act Status 67 75
Section 4.09.   Taxes 67 75
Section 4.10.   ERISA 67 76
Section 4.11.   Disclosure 67 76
Section 4.12.   Use of Credit 68 76
Section 4.13.   Labor Matters 68 76
Section 4.14.   Indebtedness 68 [Reserved] 76
Section 4.15.   Liens 68 [Reserved] 76
Section 4.16.   Restricted Subsidiaries 68 77
Section 4.17.   Solvency 69 77
Section 4.18.   [Reserved] 69 77
Section 4.19.   Anti-Terrorism /Anti-Corruption Laws 69 77
Section 4.20.   Security Documents 69 78
Section 4.21.   Insurance 70 78
Article V  
       
CONDITIONS 79
Section 5.01.   Conditions of Initial Credit Extensions 70 on the Amendment No. 2 Effective Date 79
Section 5.02.   Each Credit Event 72 79
Article VI  
       
AFFIRMATIVE COVENANTS 80
Section 6.01.   Financial Statements and Other Information 72 80
Section 6.02.   Notices of Material Events 73 82
Section 6.03.   Existence; Conduct of Business 74 82
Section 6.04.   Payment of Taxes and Other Obligations 74 83
Section 6.05.   Maintenance of Properties 74 83

ii

 

TABLE OF CONTENTS

 

Page

 

Section 6.06.   Maintenance of Insurance 74 83
Section 6.07.   Books and Records 75 83
Section 6.08.   Inspection Rights 75 83
Section 6.09.   Lender Meetings Calls 75 84
Section 6.10.   [Reserved] 75 84
Section 6.11.   Compliance with Laws and Contractual Obligations 75 84
Section 6.12.   Use of Proceeds and Letters of Credit 75 84
Section 6.13.   Additional Guarantors; Further Assurances 75 84
Section 6.14.   Qualified ECP Guarantors 77 86
Section 6.15.   Designation of Subsidiaries 86
Article VII  
       
NEGATIVE COVENANTS 87
Section 7.01.   Indebtedness 77 87
Section 7.02.   Liens 79 90
Section 7.03.   Mergers, Consolidations, Etc 79 92
Section 7.04.   Dispositions 80 94
Section 7.05.   Lines of Business 81 96
Section 7.06.   Investments and Acquisitions 81 96
Section 7.07.   Restricted Payments 81 98
Section 7.08.   Transactions with Affiliates 82 99
Section 7.09.   Restrictive Agreements 83 100
Section 7.10.   Swap Agreements 83 101
Section 7.11.   Financial Covenants 83 101
Section 7.12.   Sale-Leasebacks 84 102
Section 7.13.   Modifications of Organizational Documents and Certain Other Agreements 84 102
Section 7.14.   Prepayments, Etc. of Certain Indebtedness 84 102
Section 7.15.   Fiscal Year 84 103
Article VIII  
       
EVENTS OF DEFAULT 103
Section 8.01.   Events of Default 84 103
Article IX  
       
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT 105
Section 9.01.   Appointment and Authority 87 105
Section 9.02.   Administrative Agent and Collateral Agent Individually 87 106
Section 9.03.   Duties of the Administrative Agent and Collateral Agent; Exculpatory Provisions 88 107
Section 9.04.   Reliance by Administrative Agent and Collateral Agent 89 108
Section 9.05.   Delegation of Duties 90 108
Section 9.06.   Resignation of Administrative Agent and Collateral Agent 90 109

iii

 

TABLE OF CONTENTS

 

Page

 

Section 9.07.   Non-Reliance on Administrative Agent and Collateral Agent and Other Lender Parties 92 110
Section 9.08.   Withholding Taxes 93 111
Section 9.09.   Certain ERISA Matters. 112
Article X  
       
MISCELLANEOUS 114
Section 10.01.   Notices 94 114
Section 10.02.   Posting of Approved Electronic Communications 95 116
Section 10.03.   [Reserved] 96 117
Section 10.04.   Treatment of Information 96 117
Section 10.05.   Waivers; Amendments 98 119
Section 10.06.   Expenses; Indemnity; Damage Waiver 100 122
Section 10.07.   Successors and Assigns 102 123
Section 10.08.   Survival 106 127
Section 10.09.   Counterparts; Integration; Effectiveness 106 127
Section 10.10.   Severability 106 128
Section 10.11.   Right of Setoff 106 128
Section 10.12.   Governing Law; Jurisdiction; Consent to Service of Process 107 128
Section 10.13.   WAIVER OF JURY TRIAL 107 129
Section 10.14.   Headings 108 129
Section 10.15.   Confidentiality 108 129
Section 10.16.   USA PATRIOT Act 109 130
Section 10.17.   No Advisory or Fiduciary Responsibility 109 130
Section 10.18.   Interest Rate Limitation 109 131
Section 10.19.   Acknowledgments Relating to the Restatement Date 110 131
Section 10.20.   Original Credit Agreement Superseded 110 132
Section 10.21.   Acknowledgment and Consent to Bail-In of EEA Financial Institutions 132
Section 10.22.   Release of Collateral and Guarantee Obligations; Subordination of Liens 133

 

 

iv

 

 

SCHEDULE 1.01 Commitments
SCHEDULE 1.02 Immaterial Subsidiaries
SCHEDULE 4.06 1.01 ( a B ) Litigation Existing Letters of Credit
SCHEDULE 4.06(b) Disclosed Matters
SCHEDULE 4.16 Subsidiaries
SCHEDULE 7.01 Existing Indebtedness
SCHEDULE 7.02 Existing Liens
SCHEDULE 7.06 Existing Investments
SCHEDULE 7.09 Restrictive Agreements
EXHIBIT A Form of Assignment and Assumption
EXHIBIT B-1 Form of Revolving Credit Note
EXHIBIT B-2 Form of Swingline Loan Note
EXHIBIT C [Reserved]
EXHIBIT D Form of Subsidiary Joinder Agreement
EXHIBIT E Form of Opinion of Counsel to the Loan Parties [Reserved]
EXHIBIT F-1 Form of Perfection Certificate
EXHIBIT F-2 Form of Perfection Certificate Supplement
EXHIBIT G Form of Solvency Certificate

 

 

 

 

v

 

AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”) , dated as of May 3, 2013, as amended by Amendment No. 1 , dated as of March 8, 2017, and Amendment No. 2 dated as of December 19, 2017 (this “Agreement”), among HMS HOLDINGS CORP. (the “ Borrower ”), the GUARANTORS party hereto, the LENDERS party hereto, and CITIBANK, N.A., as Administrative Agent.

 

WHEREAS, the Borrower, the Guarantors, the lenders party thereto as of the Restatement Date and the Administrative Agent are party to that certain Credit Agreement, dated as of December 16, 2011 (the “ Original Credit Agreement ”), pursuant to which the lenders thereunder made certain loans and other extensions of credit to the Borrower;

 

WHEREAS, the Borrower, the Guarantors, the Lenders party hereto and the other parties hereto desire to amend and restate the Original Credit Agreement in its entirety on and subject to the terms and conditions set forth herein;

 

WHEREAS, the parties hereto intend that (a) the Obligations (as defined in the Original Credit Agreement) of the Borrower and the other Loan Parties under the Original Credit Agreement and the other Loan Documents (as defined in the Original Credit Agreement) (the “ Original Obligations ,” and such other Loan Documents, the “ Original Loan Documents ”) that remain unpaid and outstanding on and after the Restatement Date shall continue to exist under and be evidenced by this Agreement and the other Loan Documents (as defined below), (b) any letters of credit outstanding under the Original Credit Agreement as of the Restatement Date (the “ Original Letters of Credit ”) shall be Letters of Credit outstanding hereunder and as defined herein, (c) the grants of security interests and Liens under and pursuant to the Loan Documents shall continue unaltered to secure, guarantee, support and otherwise benefit the Obligations of the Borrowers and the other Loan Parties under this Agreement, and each other Loan Document shall continue in full force and effect in accordance with its terms except as expressly amended thereby or hereby, and the parties hereto hereby ratify and confirm the terms thereof as being in full force and effect and unaltered by this Agreement except as expressly amended thereby or hereby and (d) this Agreement and the other Loan Documents do not constitute a novation or termination of the Original Obligations;

 

WHEREAS, the Loan Parties and each Lender who has executed this Agreement agree that upon the effectiveness of this Agreement all of such Lender’s Revolving Credit Commitments (as defined in the Original Credit Agreement) shall be converted into Revolving Credit Commitments hereunder; and

 

WHEREAS, the Lenders are willing to amend and restate the Original Credit Agreement and are willing to continue and extend such credit to the Borrower and each Issuing Lender is willing to issue letters of credit for the account of the Borrower and the other parties hereto are willing to amend and restate the Original Credit Agreement, in each case on the terms and subject to the conditions set forth herein . ; and

 

WHEREAS, the Lenders are willing to amend this Agreement and are willing to continue and extend such credit to the Borrower and each Issuing Lender is willing to issue letters of credit for the account of the Borrower and the other parties hereto are willing to amend and restate the Original Credit Agreement, in each case on the terms and subject to the conditions set forth herein.

 

  - 1 -  

 

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, the parties hereto hereby agree to amend and restate the Original Credit Agreement and the Original Credit Agreement is hereby amended and restated in its entirety, as follows:

 

Article I

DEFINITIONS

 

Section 1.01.         Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

 

ABR ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“Acceptable Intercreditor Agreement” means an intercreditor agreement that contains customary terms for the type of Indebtedness subject thereto and otherwise reasonably satisfactory to the Administrative Agent.

 

Acquisition ” means the acquisition by the Borrower or any other Loan Party Restricted Subsidiary of (a)  all the majority (or any greater portion) of the Capital Stock of any other Person , (b) (whether by merger or consolidation of such Person with any other Person or otherwise), (b) any Investment in (i) any Restricted Subsidiary the effect of which is to increase the Borrower’s or any Restricted Subsidiary’s equity ownership in such Restricted Subsidiary or (ii) any joint venture for the purpose of increasing the Borrower’s or such Restricted Subsidiary’s ownership interest in such joint venture, in each case under this clause (b) such that the relevant Restricted Subsidiary or joint venture becomes a wholly-owned Subsidiary, (c)  all or substantially all of the assets of any other Person or ( c d ) assets constituting one or more divisions, lines of business or business units of any other Person (whether by merger or consolidation of such Person with any other Person or otherwise) .

 

Activities ” has the meaning specified in Section 9.02(b).

 

“Additional Debt Requirements” means the following requirements:

 

(i)                  to the extent such Indebtedness shall not be the obligation of, or subject to any Guarantee by, any Person who is not also a Loan Party (or who becomes a Loan Party substantially concurrently with the incurrence or issuance of such Indebtedness, except as set forth in Section 7.01(e)), then the aggregate principal amount of such Indebtedness shall not exceed $25,000,000 in the aggregate at any one time outstanding;

 

(ii)                the obligations of the applicable Loan Party in respect of such Indebtedness shall not be secured by (x) any Lien on any property in which the Collateral Agent does not have a Lien (or property in which the Collateral Agent is not granted a Lien substantially concurrently with the grant of a Lien securing such Indebtedness) or (y) any perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or Property in which a Lien in favor of the Collateral Agent is not perfected substantially concurrently with the perfection of a Lien securing such Indebtedness ), in each case , unless such Lien is on Real Property;

 

  - 2 -  

 

(iii)              such Indebtedness shall not (x) provide for any final maturity date that is prior to (1) in the case of any Indebtedness that is secured by Liens that are pari passu with the Liens securing the Revolving Credit Facility, the Revolving Credit Termination Date, and (2) in the case of Indebtedness that is unsecured or is secured by Liens that are junior in priority to the Liens securing the Revolving Credit Facility, the date that is 91 days after the Revolving Credit Termination Date (in each case, other than customary bridge loans with an initial maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirement of this clause (iii)(x)), (y) have a shorter weighted average life to maturity than the Revolving Credit Loans as in effect on the Amendment No. 2 Effective Date (other than (1) customary bridge loans with an initial maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirement of this clause (iii)(y) and (2) any Indebtedness constituting term A, term B or “stretch senior” first lien loans may have amortization requirements that are consistent with then-current market terms for such types of Indebtedness), and (z) in the case of Indebtedness that is unsecured or is secured by Liens that are junior in priority to the Liens securing the Revolving Credit Facility, provide for any mandatory repayment, redemption or sinking fund prior to the date that is 91 days after the Revolving Credit Termination Date as of the date of issuance or incurrence, as applicable, thereof, other than mandatory repayments or redemptions from asset sales, casualty or condemnation events or excess cash flow (unless otherwise required to be made on a ratable basis with any Loans hereunder); and

 

(iv)              the other material covenants, terms and conditions (excluding (1) pricing, interest rate margins, rate floors, discounts, premiums, fees, and prepayment or redemption terms and premiums and (2) covenants or other provisions applicable only to periods after the Revolving Credit Termination Date, in each case, at the time of incurrence or issuance of such Indebtedness) applicable to such Indebtedness shall not be materially more restrictive (when taken as a whole) than the terms and conditions of the Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such terms and conditions constitute then-current market terms for the applicable type of Indebtedness; provided that any Indebtedness in the form of (A) term loans that are pari passu with any Incremental Term Loans in right of payment and with respect to security may provide for the ability of the holders thereof to decline to participate in any voluntary prepayments of such term loans and/or to receive on a pro rata or less than pro rata basis any mandatory prepayments of such term loans (but not greater than the pro rata share) or (B) revolving loans that are pari passu with the Revolving Credit Facility in right of payment and with respect to security may provide for the lenders thereof to elect lesser payments or commitment reductions in respect of such revolving loans (but not greater payment or commitment reductions).

 

“Adjusted CNI Amount ” means the Consolidated Net Income of the Borrower and its Restricted Subsidiaries for the relevant fiscal quarter, as adjusted to exclude:

 

  - 3 -  

 

(a) the sum of the items set forth in each of clauses (a)(v), (a)(vii), (a)(ix) and (a)(xi) of the definition of Consolidated EBITDA for such fiscal quarter, and

 

(b) the items set forth in clause (b)(i)(x) of the definition of Consolidated EBITDA for such fiscal quarter.

 

Adjusted LIBO Rate ” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate ; provided that, in no event shall the Adjusted LIBO Rate be less than 0.00% per annum .

 

Administrative Agent ” means Citi, in its capacity as administrative agent for the Lenders hereunder, and each other person appointed as the successor pursuant to Section 10.07.

 

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.

 

Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% and (c) the one-month LIBO Rate (determined as of such day) plus 1.00%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

 

Agents ” means, individually and collectively as the context may require, the Administrative Agent, the Collateral Agent, the Joint Lead Arangers, the Joint Bookrunners, the Syndication Agents and the Documentation Agent Arrangers and the Co-Syndication Agents .

 

Agent’s Group ” has the meaning specified in Section 9.02(b).

 

Agreement ” has the meaning specified in the introductory paragraph hereto.

 

“Amendment No. 1” means that certain Amendment No. 1 to this Agreement dated as of March 8, 2017, by and among the Borrower, the Guarantors, the Administrative Agent and the Lenders party thereto.

 

“Amendment No. 2” means that certain Amendment No. 2 to this Agreement dated as of the Amendment No. 2 Effective Date, by and among the Borrower, the Guarantors, the Administrative Agent and the Lenders party thereto.

 

“Amendment No. 2 Effective Date” means December 19, 2017.

 

  - 4 -  

 

“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.

 

Anti-Terrorism Laws ” means any Requirement of Law related to terrorism financing or money laundering including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (“ USA PATRIOT Act ”) of 2001 (Title III of Pub. L. 107-56), The Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the Trading With the Enemy Act (50 U.S.C. § 1 et seq. , as amended) and Executive Order 13224 (effective September 24, 2001).

 

Applicable Percentage ” means (a) with respect to any Revolving Credit Lender for purposes of Sections 2.04 or 2.05 or in respect of any indemnity claim under Section 10.06(b) arising out of an action or omission of the Swingline Lender or the Issuing Lender under this Agreement, the percentage of the total Revolving Credit Commitments represented by such Revolving Credit Lender’s Revolving Credit Commitment, and (b) with respect to any Lender in respect of any indemnity claim under Section 10.06(b) arising out of an action or omission of the Administrative Agent under this Agreement, the percentage of the total Commitments or Loans of all Classes hereunder represented by the aggregate amount of such Lender’s Commitments or Loans of all Classes hereunder. With respect to the Revolving Credit Lenders, if the Revolving Credit Commitments have terminated or expired, the Applicable Percentages shall be determined on the basis of the percentage of the total Revolving Credit Exposures represented by such Revolving Credit Lender’s Revolving Credit Exposure.

 

Applicable Rate ” means, for any day, with respect to any ABR Loan or Eurodollar Loan, the applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread” or “Commitment Fee,” respectively, based upon the Consolidated Leverage Ratio as of the most recent determination date; provided that from the Restatement Date until the delivery of the Borrower’s consolidated financial statements for the quarter ending on or nearest to June 30 December 31 , 2013 2017 , the “Applicable Rate” shall be the applicable rate per annum set forth below in Level II:

 

Consolidated Leverage
Ratio
ABR Spread Eurodollar Spread Commitment Fee
Level I      
Greater than or equal to 2.75:1.00 1.25% 2.25% 0.50%
Level II      
Greater than or equal to 2.0 3.0 0: 1.00 but less than 2.75: 1.00 1.00% 2.00% 0.50 0.375 %
Level III II      
Greater than or equal to 1.0 2.0 0:1.00 but less than 2.0 3.0 0:1.00 0.75% 1.75% 0.50 0.375 %
Level IV III      
Less than 1.0 2.0 0:1.00 0.50% 1.50% 0.375 0.25 %

 

  - 5 -  

 

For purposes of the foregoing, (i) the Consolidated Leverage Ratio shall be determined as of the end of each fiscal quarter of the Borrower based upon the Borrower’s consolidated financial statements delivered pursuant to Section 6.01(a) or (b) (and the related compliance certificate delivered pursuant to Section 6.01(c)), and (ii) each change in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall be effective during the period commencing on and including the date three Business Days after delivery to the Administrative Agent of such consolidated financial statements and compliance certificate indicating such change and ending on the date immediately preceding the effective date of the next such change; provided that the Consolidated Leverage Ratio shall be deemed to be in Level I (A) at any time that an Event of Default shall have occurred and be continuing or (B) if the Borrower fails to deliver the consolidated financial statements (and related compliance certificate) required to be delivered by it pursuant to Section 6.01(a), (b) and/or (c), during the period from the expiration of the time for delivery thereof specified in such sections until such financial statements and compliance certificate are delivered.

 

In the event that the Administrative Agent and the Borrower determine that any financial statements previously delivered were incorrect or inaccurate (regardless of whether this Agreement or the Commitments are in effect when such inaccuracy is discovered), and such inaccuracy, if corrected, would have led to the application of a higher Applicable ABR Rate for any period (an “ Applicable Period ”) than the Applicable Rate actually applied for such Applicable Period, then (i) the Borrower shall as soon as practicable deliver to the Administrative Agent the corrected financial statements for such Applicable Period, (ii) the Applicable Rate shall be determined as if the applicable level for such higher Applicable Rate were applicable for such Applicable Period, and (iii) the Borrower shall within three (3) Business Days of demand thereof by the Administrative Agent pay to the Administrative Agent the accrued additional amount owing as a result of such increased Applicable Rate for such Applicable Period, which payment shall be promptly applied by the Administrative Agent in accordance with this Agreement . This paragraph shall not limit the rights of the Administrative Agent and Lenders with respect to Section 2.12(c) and Article VIII. The Borrower’s obligations under this paragraph shall survive the termination of the Commitments and the repayment in cash in full of all other Obligations hereunder for the limited period ending on the date that is the later to occur of (x) one year following the date upon which such termination and repayment occurred and (y) two months following the date upon which the Borrower’s annual audited financial statements, which include the period during which such termination and repayment occurred, become publicly available.

 

Approved Electronic Communications ” means each Communication that any Loan Party is obligated to, or otherwise chooses to, provide to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, including any financial statement, financial and other report, notice, request, certificate and other information material; provided , however , that, solely with respect to delivery of any such Communication by any Loan Party to the Administrative Agent and without limiting or otherwise affecting either the Administrative Agent’s right to effect delivery of such Communication by posting such Communication to the Approved Electronic Platform or the protections afforded hereby to the Administrative Agent in connection with any such posting, “Approved Electronic Communication” shall exclude (i) any notice of borrowing, letter of credit request, swing loan request, notice of conversion or continuation, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing, (ii) any notice pursuant to Section 2.10 and any other notice relating to the payment of any principal or other amount due under any Loan Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, doc-ument document and other material required to be delivered to satisfy any of the conditions set forth in Article V or any other condition to any Borrowing or other extension of credit hereunder or any condition precedent to the effectiveness of this Agreement.

 

  - 6 -  

 

Approved Electronic Platform ” has the meaning specified in Section 10.02(a).

 

Approved Fund ” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

 

Arrangers ” means Citigroup Global Markets Inc., J.P. Morgan Securities LLC and 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). , JPMorgan Chase Bank, N.A . and Wells Fargo Bank, National Association .

 

Asset Sale ” means any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by clauses (a), (b), ( c) and (d clause (t ) of Section 7.04 ) or not otherwise permitted by Section 7.04 which yields gross proceeds to the Borrower or any of its Restricted Subsidiaries (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $ 5,000,000 10,000,000 .

 

Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.07), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

Available Amount ” means, at any time (the “Available Amount Reference Time”) , an amount, not less than zero in the aggregate, determined on a cumulative basis, equal to, without duplication:

 

(a)        the Cumulative Excess Cash Flow Amount at such time, $50,000,000 plus

 

(b)         means, at any date of determination , an amount equal to 50% of the Adjusted CNI Amount (or, in the case such Adjusted CNI Amount for such period is a deficit, minus 100% of such deficit) for each fiscal quarter ended following the Amendment No. 2 Effective Date for which financial statements have been delivered pursuant to Section 6.01(a) or 6.01(b), plus

 

  - 7 -  

 

( b c ) the amount of cash and Cash Equivalents received from Equity Issuances (plus any proceeds of the exercise of warrants or options or restricted stock described in the parenthetical to clause (a)(ii) in the definition of Equity Issuance exercised in respect of Capital Stock) after the Restatement Date, minus plus

 

(e)         the net cash proceeds (including returns) of any Investment made by the Borrower or any Restricted Subsidiary using the Available Amount received by the Borrower or any Restricted Subsidiary in connection with the Disposition of such Investment to any Person (other than the Borrower or any Restricted Subsidiary) during the period from and including the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference Time; plus

 

(f)         (x) the fair market value of the amount of any Investment by the Borrower or any Restricted Subsidiary that was made using the Available Amount in any Unrestricted Subsidiary that has been redesignated as a Restricted Subsidiary or that has been merged, amalgamated or consolidated with or into the Borrower or any Restricted Subsidiary and (y) the fair market value of the assets of any Unrestricted Subsidiary that has been transferred, conveyed or otherwise distributed to the Borrower or any Restricted Subsidiary, in each case of clauses (x) and (y), during the period from and including the Business Day immediately following the Amendment No. 2 Effective Date and at or prior to the Available Amount Reference Time, such amount not to exceed the amount of the Investment that was made using the Available Amount by the Borrower or any Restricted Subsidiary in such Unrestricted Subsidiary; plus

 

(g)         the aggregate principal amount of any Indebtedness of the Borrower or a Restricted Subsidiary issued after the Restatement Date (other than to the Borrower or any Restricted Subsidiary or an employee stock ownership plan or trust established by the Borrower or a Restricted Subsidiary), which has been converted into or exchanged for Capital Stock of any parent company of the Borrower, together with the fair market value of any Cash Equivalents, marketable securities or other property received by the Borrower or a Restricted Subsidiary upon such exchange or conversion, during the period from and including the Business Day immediately following the Amendment No. 2 Effective Date through and including the Available Amount Reference Time ; minus

 

( c h ) any amount of the Available Amount used to make Investments pursuant to Section 7.06(h) after the Restatement Date and prior to such time, minus

 

( d i ) any amount of the Available Amount used to make Restricted Payments pursuant to Section 7.07(b) after the Restatement Date and prior to such time, minus

 

( e j ) any amount of the Available Amount used to make payments or distributions in respect of Junior Indebtedness pursuant to Section 7.14 (i)(y) after the Restatement Date and prior to such time , minus .

 

(f)         any amount of the Available Amount used to make Investments, Restricted Payments or make payments or distributions in respect of Junior Indebtedness since the Effective Date and prior to the Restatement Date.

 

  - 8 -  

 

“Available Amount Reference Time” has the meaning specified in the definition of “Available Amount.”

 

“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.

 

“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”.

 

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

 

Borrower ” means HMS Holdings Corp., a New York Delaware corporation.

 

Borrowing ” means (a) all ABR Loans (other than Swingline Loans) of the same Class made, converted or continued on the same date, (b) all Eurodollar Loans of the same Class that have the same Interest Period or (c) a Swingline Loan.

 

Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.03.

 

Business Day ” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

 

“Capital Expenditures” means, for any period, expenditures (including the aggregate amount of Capital Lease Obligations incurred during such period) made by the Borrower or any of its Subsidiaries to acquire or construct fixed assets, plant and equipment (including renewals, improvements and replacements, but excluding repairs) during such period computed in accordance with GAAP .

 

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.

 

Capital Stock ” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

 

  - 9 -  

 

Cash Collateralize ” means, in respect of an obligation, provide and pledge (as a first priori-ty priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent or provide a backstop letter of credit pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent (and “ Cash Collateralization ” has a corresponding meaning).

 

Cash Equivalent ” means:

 

(a)       direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within two years from the date of acquisition thereof;

 

(b)       investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Moody’s;

 

(c)       investments in certificates of deposit, bank notes, deposit notes, banker’s acceptances, overnight deposits and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;

 

(d)       fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) of this definition and entered into with a financial institution satisfying the criteria described in clause (c) of this definition;

 

(e)       money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) have the highest rating obtainable from S&P or from Moody’s and (iii) have portfolio assets of at least $5,000,000,000; and

 

(f)       readily marketable direct obligations issued by any state, commonwealth or territory of the United States of America or any political subdivision or taxing authority thereof having one of the two highest rating categories obtainable from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition.

 

“CFC ” means any controlled foreign corporation within the meaning of Section 957(a) of the Code .

 

  - 10 -  

 

Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the SEC there-under thereunder as in effect on the date hereof , but excluding any employee benefit plan of such Person, entity or “group” and their respective Subsidiaries and any Person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan ), of shares representing more than 30% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Borrower; or (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated. provided that a transaction in which the Borrower becomes a direct or indirect Subsidiary of another Person shall not be deemed to constitute a Change in Control if, immediately following such transaction, the “beneficial owners” (as defined above), directly or indirectly through one or more intermediaries, of the Capital Stock of the Borrower immediately prior to such transaction beneficially own, directly or indirectly through one or more intermediaries, 50% or more of the outstanding voting Capital Stock of such other Person of whom the Borrower has become a direct or indirect Subsidiary.

 

Change in Law ” means (a) the adoption of any law, treaty, rule or regulation after the date of this Agreement, (b) any change in any law, treaty, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or the Issuing Lender (or, for purposes of Section 2.14(b), by any lending office of such Lender or by such Lender’s or the Issuing Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) of the United States financial regulatory authorities shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

 

Citi ” means Citibank, N.A.

 

Class ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Credit Loans, Incremental Revolving Loans, Incremental Term Loans, Extended Revolving Credit Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Credit Commitment or Incremental Term Loan Commitment.

 

“Co-Syndication Agents” means those certain financial institutions listed on the cover page hereof in such capacity.

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Collateral ” means the Security Agreement Collateral , the Mortgaged Property, and all property of any kind and nature subject or purported to be subject from time to time to a lien pursuant to any Security Document.

 

Collateral Agent ” means Citi in its capacity as collateral agent for the Secured Parties.

 

  - 11 -  

 

Commitment ” means a Revolving Credit Commitment, an Incremental Term Loan Commitment or a Letter of Credit Commitment, or any combination thereof (as the context requires).

 

Commitment Fee ” has the meaning specified in Section 2.11(a).

 

Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq. ), as amended from time to time, and any successor statute.

 

Communications ” means each notice, demand, communication, information, document and other material provided for hereunder or under any other Loan Document or otherwise transmitted between the parties hereto relating this Agreement, the other Loan Documents, any Loan Party or its Affiliates, or the transactions contemplated by this Agreement or the other Loan Documents, including, without limitation, all Approved Electronic Communications.

 

Consolidated EBITDA ” means, for any period, Consolidated Net Income for such period plus , without duplication and to the extent reflected as a charge (other than with respect to clause (vi) below) in the statement of such Consolidated Net Income for such period, the sum of the following with respect to the Borrower and its Restricted Subsidiaries :

 

(a) (i) income tax expense,

 

(ii)       Consolidated Interest Expense, amortization or writeoff write-off of debt discount and debt issuance costs and commissions, discounts and other fees and charges associated with Indebtedness (including the Loans),

 

(iii)       depreciation and amortization expense, including amortization of intangibles (including, but not limited to, goodwill) and organization costs,

 

(iv)       non-cash expenses or losses (including any non-cash stock-based compensation expense relating to stock options and restricted stock granted to employees or directors),

 

(v)       restructuring charges or reserves,

 

(vi)         without duplication of amounts added back pursuant to other clauses in this definition (whether through a pro forma adjustment or otherwise), the amount of any expected “run-rate” cost savings, operating expense reductions, other operating improvements and synergies (collectively, “Expected Cost Savings”) (net of actual amounts realized) that are reasonably identifiable and factually supportable (in the good faith determination of such Person) related to any permitted Investment, permitted Disposition, or any operating improvement, restructuring, cost savings initiative, and/or other similar initiative (any such operating improvement, restructuring, cost savings initiative or similar initiative, a “Cost Savings Initiative”); provided that such Expected Cost Savings are reasonably expected to be realized within 12 months of the consummation of the event giving rise thereto and shall not exceed 20% of Consolidated EBITDA for such period (calculated before giving effect to any such Expected Cost Savings to be added back pursuant to this clause (vi) ),

 

  - 12 -  

 

(vii)         (x) Transaction Costs and (y) any transaction fees, costs and expenses incurred in connection with the consummation of any transaction (or any transaction proposed and not consummated), whether or not permitted under this Agreement, including any issuance or offering of Capital Stock, any Investment, any Disposition, any Restricted Payment, any recapitalization, any Acquisition, merger, consolidation or amalgamation or any incurrence, repayment, refinancing, amendment or modification of Indebtedness (including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or any similar transaction,

 

(viii)         any expense attributable to the undertaking and/or implementation of cost savings initiatives, operating expense reductions, transition, opening and/or pre-opening expenses, business optimization and other restructuring (including tax restructuring) and integration expense (including any expense attributable to inventory optimization programs, software development costs, any expense attributable to the closure or consolidation of any facility and/or discontinued operations, expense relating to entry into a new market, consulting fees, signing costs, retention or completion bonus, relocation expenses, severance payments, expense associated with any modification to any pension and post-retirement employee benefit plan, expense associated with new systems design, implementation costs and project startup costs),

 

(ix)         costs of litigation, arbitration, legal settlement, fines, judgments or orders and related expenses,

 

(x)         significant and unusual or infrequent Taxes based on income, profits or capital of the Borrower and the Restricted Subsidiaries for such period , including, but not limited to, FAS 5 reserves on a significant and unusual transaction, and

 

(xi)         extraordinary, unusual or non-recurring charges or losses (including , whether or not otherwise includable as a separate item in the statement of Consolidated Net Income for such period, losses on the sales of assets outside the ordinary course of business ),

(vi)         synergies projected by the Borrower in good faith to be realized as a result of actions taken or to be taken in connection with the Transactions or any Permitted Acquisition (calculated on a Pro Forma Basis as though such items had been realized on the first day of such period) and; provided that (x ) the aggregate amount of add backs made pursuant to this clause (vi) shall not exceed an amount equal to 10% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended prior to the determination date (without giving effect to any adjustments pursuant to this clause (vi), but after giving Pro Forma Effect to any Material Acquisition or Material Disposition) and (y)(A) such add backs shall be net of the amount of actual benefits realized during such period that are otherwise included in the calculation of Consolidated EBITDA from such actions, (B) a duly completed certificate signed by a Responsible Officer of the Borrower shall be delivered to the Administrative Agent together with the certificate required to be delivered pursuant to Section 6.01(c), certifying that (i) such synergies are reasonably anticipated to be realized within the timeframes set forth in clause (ii) below and factually supportable as determined in good faith by the Borrower, and (ii) such actions have been taken or are to be taken within 12 months after the consummation of the acquisition or implementation of such initiative relating to such acquisition, which is expected to result in such synergies, (C) no synergies shall be added pursuant to this clause (vi) to the extent duplicative of any expenses or charges otherwise added to calculate Consolidated EBITDA, whether through a pro forma adjustment or otherwise, for such period and (D) projected amounts of synergies (and not yet realized) may no longer be added in calculating Consolidated EBITDA pursuant to this clause (vi) to the extent occurring more than four full fiscal quarters after the specified action taken in order to realize such synergies and

  - 13 -  

 

(vii)         cash Transaction Costs, and minus

 

(b)       (i) to the extent included in the statement of such Consolidated Net Income for such period, the sum , with respect to the Borrower and its Restricted Subsidiaries, of (x) extraordinary , unusual or non-recurring income or gains (including, whether or not otherwise includable as a separate item in the statement of such Consolidated Net Income for such period, gains on the sales of assets outside of the ordinary course of business) and (y) other non-cash income and

 

(ii)       cash payments made during such period in respect of items described in clause (a)(iv) above sub-sequent subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.

 

For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a “ Reference Period ”) for any determination of the Consolidated Leverage Ratio, Consolidated Secured Leverage Ratio or Consolidated Interest Coverage Ratio, (x) if at any time during such Reference Period or subsequent to such Reference Period and on or prior to or simultaneously with the date of determination the Borrower or any Subsidiary shall have made any Material Disposition, Consolidated EBITDA for such Reference Period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the subject of such Material Disposition for such Reference Period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (y) if during such Reference Period or subsequent to such Reference Period and on or prior to or simultaneously with the date of determination the Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after giving Pro Forma Effect thereto as if such Material Acquisition occurred on the first day of such Reference Period. As used in this definition, “ Material Acquisition ” means any Acquisition that involves the payment of consideration by the Borrower and its Subsidiaries in excess of $5,000,000; and Material Disposition ” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $5,000,000.

 

Consolidated Funded Debt ” means, at any date, all Indebtedness of the Borrower and its Restricted Subsidiaries of the type described in clauses (a ), (g) and (h) thereof or under clause (f) thereof with respect to the foregoing types of Indebtedness that matures more than one year from the date of its creation or matures within one year from such date but is renewable or extendible, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all current maturities and current sinking fund payments in respect of such Indebtedness whether or not required to be paid within one year from the date of its creation and, in the case of the Borrower, Indebtedness in respect of the Loans, determined on a consolidated basis in accordance with GAAP, it being understood that any Indebtedness of such Person in respect of the undrawn portion of any letter of credit shall not constitute Consolidated Funded Debt of such Person.

 

  - 14 -  

 

Consolidated Interest Coverage Ratio ” means, at any date, the ratio of (a) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower ended on or most recently ended prior to such date, to (b) Consolidated Interest Expense for such period.

 

Consolidated Interest Expense ” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of the Borrower and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Restricted Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP) determined on a consolidated basis in accordance with GAAP.

 

Consolidated Leverage Ratio ” means, at any date, the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt on such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower ended on or most recently ended prior to such date.

 

Consolidated Net Income ” means, for any period, the consolidated net income (or loss) of the Borrower and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or loss) of any Person (other than a Restricted Subsidiary of the Borrower) in which the Borrower or any of its Restricted Subsidiaries has an ownership interest, except to the extent that any such income is actually received by the Borrower or such Restricted Subsidiary in the form of dividends or similar distributions, and (b) the undistributed earnings of any Restricted Subsidiary of the Borrower (other than a Loan Party) to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary is not at the time permitted by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Restricted Subsidiary.

 

Consolidated Secured Leverage Ratio ” means, at any date, the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt secured by a Lien on such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower ended on or most recently ended prior to such date.

 

“Consolidated Total Assets” means, as to any Person determined on a consolidated basis, at any date of determination, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a consolidated balance sheet of the applicable Person at such date.

 

  - 15 -  

 

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

 

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

 

“Cumulative Excess Cash Flow Amount” means, at any date, an amount , determined on a cumulative basis equal to the aggregate cumulative sum of 50% of Excess Cash Flow for each Fiscal Year (but not less than zero with respect to any Fiscal Year) ending after the Effective Date and prior to such date.

 

“Cost Savings Initiative” has the meaning specified in the definition of “Consolidated EBITDA.”

 

Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both, would, unless cured or waived, become an Event of Default.

 

Defaulting Lender ” means, at any time, a Lender as to which the Administrative Agent has notified the Borrower that (i) such Lender has failed for three or more Business Days to comply with its obligations under this Agreement to make a Loan, make a payment to the Issuing Lender in respect of a LC Disbursement or make a payment to the Swingline Lender in respect of a Swingline Loan (each, a “ funding obligation ”), (ii) such Lender has notified the Administrative Agent, or has stated publicly, that it will not com-ply comply with any such funding obligation hereunder, or has defaulted on its funding obligations under any other loan agreement or credit agreement, (iii) such Lender has, for three or more Business Days, failed to confirm in writing to the Administrative Agent, in response to a written request of the Administrative Agent, that it will comply with its funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (iii) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (iv) a Lender Insolvency Event or a Bail-In Action has occurred and is continuing with respect to such Lender ( provided that neither the reallocation of funding obligations provided for in Section 2.20 as a result of a Lender’s being a Defaulting Lender nor the performance by a Non-Defaulting Lender of such reallocated funding obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Any determination that a Lender is a Defaulting Lender under clauses (i) through (iv) above will be made by the Administrative Agent in its sole discretion acting in good faith. The Administrative Agent will promptly send to all parties hereto a copy of any notice to the Borrower provided for in this definition.

 

“Disclosed Matters ” means the actions, suits and proceedings disclosed in Schedule 4.06 (a) and the environmental matters disclosed in Schedule 4.06(b).

 

  - 16 -  

 

Disposition or “Dispose” means, with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (excluding the sale by the Borrower of its own Indebtedness or Capital Stock).

 

Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

Domestic Subsidiary ” means any Subsidiary of the Borrower organized or incorporated under the laws of the United States of America, any state thereof or the District of Columbia.

 

Do Not Have Unreasonably Small Capital ” means that the Borrower and its Subsidiaries taken as a whole is a going concern and has sufficient capital to ensure that it will continue to be a going concern for such period.

 

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

 

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

 

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

 

Effective Date ” means December 16, 2011.

 

Embargoed Person ” means any party that (i) is publicly identified on the most current list of “Specially Designated Nationals and Blocked Persons” published listed in any Sanctions-related list of designated Persons maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or or the U.S. Department of State, (ii) resides, is organized or chartered, or has a place of business in a country , region or territory subject to OFAC sanctions Sanctions or embargo programs (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Sudan and Syria), (iii) is owned or controlled by any such Person or Persons described in the foregoing clauses (i) or (ii) , or (iv)  is publicly identified as prohibited from doing business with the United States under the International Emergency Economic Powers Act, the Trading With the Enemy Act, or any other Requirement of Law.

 

“Engagement Letter” means the confidential engagement letter , dated as of April 8, 2013, among the Borrower and the Arrangers.

 

Environmental Laws ” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters.

 

  - 17 -  

 

Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Restricted Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Equity Issuance ” means (a) any issuance or sale by the Borrower or any of its Restricted Subsidiaries after the date hereof of (i) any of its Capital Stock, (ii) any warrants or options exercisable in respect of its Capital Stock (other than any warrants, options or restricted stock issued to directors, officers, employees or consultants of the Borrower or any of its Restricted Subsidiaries pursuant to benefit plans established in the ordinary course of business and any Capital Stock of the Borrower issued upon the exercise of such warrants or options) or (iii) any other security or instrument representing an equity interest (or the right to obtain any equity interest, other than convertible debt) in the Borrower or any of its Restricted Subsidiaries or (b) the receipt by the Borrower or any of its Restricted Subsidiaries after the date hereof of any capital contribution (whether or not evidenced by any equity security issued by the recipient of such contribution); provided that Equity Issuance shall not include (v) any such issuance or sale by any Restricted Subsidiary of the Borrower to the Borrower or any Restricted Subsidiary of the Borrower, (w) any capital contribution by the Borrower or any Restricted Subsidiary of the Borrower to any Restricted Subsidiary of the Borrower, (x) any such issuance under any Plan, or (y) any such issuance of Capital Stock of the Borrower as consideration for any Acquisition permitted under Section 7.06(g), or (z)(i) any issuance of mandatorily redeemable preferred Capital Stock or (ii) Capital Stock that is convertible into or exchangeable for Indebtedness.

 

Equity Rights ” means, with respect to any Person, any subscriptions, options, warrants, commitments, preemptive rights or agreements of any kind (including any shareholders’ or voting trust agreements) for the issuance, sale, registration or voting of, or securities convertible into, any additional shares of Capital Stock of any class or type of such Person.

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

ERISA Event ” means (a) any “reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) with respect to any Plan, the failure to satisfy the minimum funding standard under Section 412 of the Code or Section 302 of ERISA, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) a determination that any Plan is, or is expected to be, in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code); (e) the incurrence by the Borrower or any of its ERISA Affiliates of any liability un-der under Title IV of ERISA with respect to the termination of any Plan; (f) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan or the occurrence of any event or condition which could reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (g) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (h) the withdrawal of the Borrower or any of its ERISA Affiliates from a Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (i) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA or in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA); (j) a failure to make a required contribution to a Multiemployer Plan or (k) the occurrence of a nonexempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to the Borrower.

 

  - 18 -  

 

Eurodollar ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the LIBO Rate.

 

“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 .

 

Event of Default ” has the meaning assigned to such term in Article VIII.

 

“Excess Cash Flow” means, for any Fiscal Year of the Borrower (an “Excess Cash Flow Period”), the sum of (i) Consolidated Net Income for such Fiscal Year of the Borrower as shown on the financial statements for such Fiscal Year delivered pursuant to Section 6.01(a) plus (ii) an amount equal to the amount of all non-cash charges to the extent deducted in determining Consolidated Net Income for such Fiscal Year, plus (iii) decreases in Working Capital for such Fiscal Year, minus , without duplication:

 

(a)         scheduled principal payments in respect of Indebtedness of the Borrower or any Subsidiary, in each case made with Internally Generated Cash during such Fiscal Year ; minus

 

(b)         Capital Expenditures, Permitted Acquisitions and Investments permitted by Section 7.06(h ), in each case made with Internally Generated Cash during such Fiscal Year; minus

 

(c)         increases to Working Capital for such Fiscal Year; minus

 

  - 19 -  

 

(d)         without duplication of amounts deducted from Excess Cash Flow in the prior Fiscal Year or such Fiscal Year, to the extent set forth in a certificate of a Responsible Officer delivered to the Administrative Agent at or before the time the certificate required to be delivered pursuant to Section 6.01( c) , the aggregate amount that shall be required to be paid in cash in respect of Capital Expenditures to be made by the Borrower or any Subsidiary during the 90 days following such Excess Cash Flow Period pursuant to binding con-tracts (the “ Contract Amount ”) entered into prior to or during such Fiscal Year; provided that to the extent the aggregate amount of Internally Generated Cash actually utilized to finance such Capital Expenditures during such 90-day period is less than the Contract Amount, the amount of such shortfall shall be added to Excess Cash Flow for the Excess Cash Flow Period following such Excess Cash Flow Period.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Excluded Swap Obligation ” means with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal.

 

“Excluded Subsidiary” has the meaning assigned to such term in the definition of “Guarantor”.

 

Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, (a) taxes imposed on or measured by its net income (however de-nominated denominated ) and franchise taxes imposed on it, in each case, by a jurisdiction as a result of such recipient being organized or having its principal office or applicable Lending Office lending office in such jurisdiction or as a result of any other present or former connection between such recipient and such jurisdiction (other than any connection arising solely 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, and/or enforced, any Loan Documents), (b) any branch profits tax under Section 884(a) of the Code, or any similar tax, imposed by any jurisdiction described in clause (a), (c) in the case of a Non-U.S. Lender (other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any U.S. federal withholding tax that is imposed on amounts payable to such Non-U.S. Lender pursuant to Requirements of Law in effect at the time such Non-U.S. Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Non-U.S. Lender (or its assignor, if any) was entitled, immediately prior to the designation of such new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.16 (a) or (c), (d) any United States federal withholding tax imposed pursuant to FATCA and (e) any withholding taxes attributable to the failure of a Lender to comply with Section 2.16(e).

 

  - 20 -  

 

“Existing Letters of Credit” means those letters of credit issued and outstanding under this Agreement immediately prior to the Amendment No. 2 Effective Date as set forth on Schedule 1.01(B), which shall continue to constitute a Letter of Credit hereunder on the Amendment No. 2 Effective Date.

 

Existing Term Loan Facility ” means all Term Loans (as defined in the Original Credit Agreement) under the Original Credit Agreement.

 

“Expected Cost Savings” has the meaning assigned to such term in the definition of “Consolidated EBITDA.”

 

Extended Revolving Credit Commitment ” has the meaning assigned to such term in Section 2.21(a).

 

Extended Revolving Credit Facility ” has the meaning assigned to such term in Section 2.21(a).

 

Extended Revolving Credit Loans ” has the meaning assigned to such term in Section 2.21(a).

 

Extending Revolving Credit Lender ” has the meaning assigned to such term in Section 2.21(a).

 

Extension ” has the meaning assigned to such term in Section 2.21(a).

 

Extension Offer ” has the meaning assigned to such term in Section 2.21(a).

 

Facility ” has the meaning assigned to such term in Section 2.21(a).

 

Fair Value ” means the amount at which the assets (both tangible and intangible), in their entirety, of the Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.

 

FATCA ” means current Sections 1471 through 1474 of the Code (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations thereunder or official interpretations thereof, and any agreements entered into pursuant to current Section 1471(b)(1) of the current Code , in each case , ( or any amended or successor version of the Code that is substantively comparable described above), and any intergovernmental agreements (and any related laws, regulations, or official administrative guidance) implementing the foregoing .

 

Federal Funds Effective Rate ” means, for any day, the weighted average (rounded up-wards upwards , if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such trans-actions transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it ; provided that, in no event shall the Federal Funds Effective Rate be less than 0.00% per annum .

 

  - 21 -  

 

“First Lien Leverage Ratio” means, as of any date , the ratio of (a) the aggregate principal amount of all Consolidated Funded Debt that is secured by first priority Liens as of such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower ended on or most recently ended prior to such date.

 

Fiscal Year ” means any of the annual accounting periods of Borrower ending on December 31 of each year.

 

“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto.

 

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

 

Foreign Subsidiary FSHCo ” means any Subsidiary of the Borrower that is not a Domestic Subsidiary that has no material assets other than Capital Stock of one or more Foreign Subsidiaries that are CFCs .

 

GAAP ” means generally accepted accounting principles in the United States of America.

 

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

 

Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

  - 22 -  

 

Guarantors ” means , all of the existing and future, direct and indirect, wholly owned Domestic Subsidiaries of the Borrower except (i) any Subsidiaries of Foreign Subsidiaries that are CFCs , (ii) any FSHCo, (iii) any captive insurance companies, not-for-profit subsidiaries, and special purpose entities , (iv) any Immaterial Subsidiary (in the case an Immaterial Subsidiary that is a Domestic Subsidiary , unless the Borrower otherwise elects to make such Immaterial Subsidiary a Guarantor), (v) any Unrestricted Subsidiary, (vi) except to the extent prohibited or restricted by applicable law or by contract existing on the Effective Date or, with respect to Subsidiaries acquired after the Effective Date, existing when such Subsidiary was acquired (including any requirement to obtain the consent of any governmental authority or third party) or resulting from Guaranteeing the Obligations or (vii) any Subsidiary whose Guarantee of the Obligations would reasonably be expected to result in material adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent, all of the existing and future, direct and indirect, wholly owned Domes-tic Subsidiaries of the Borrower except (i) any Subsidiaries of Foreign Subsidiaries that are controlled foreign corporations within the meaning of Section 957(a) of the Code (“CFCs”) , (ii) any wholly owned Domestic Subsidiary that has no material assets other than the equity of CFCs and (iii) any captive insurance companies, not-for-profit subsidiaries, special purpose entities and Immaterial Subsidiaries. (the entities in clauses (i) through (vii), each, an “Excluded Subsidiary”).

 

Guaranteed Obligations ” has the meaning set forth in Section 3.01.

 

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

 

Historical Financial Statement ” has the meaning set forth in Section 4.04(a).

 

Identified Contingent Liabilities ” means the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities).

 

“Immaterial Subsidiary” means (a) as of the Restatement Date, any Subsidiary listed in Schedule 1.02 hereto and (b) at any time thereafter, any Subsidiary designated as such by the Borrower in a certificate delivered by the Borrower to the Administrative Agent ( and which designation has not been rescinded in a sub-sequent certificate of the Borrower delivered to the Administrative Agent); provided that neither the assets of, nor the aggregate revenues of, all Immaterial Subsidiaries may exceed 5% of the consolidated revenues or consolidated total assets of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP, in each case determined as of the end of the fiscal quarter or Fiscal Year most recently ended (and, with respect to any such determination of revenues , for the period of four fiscal quarters then ended).

 

  - 23 -  

 

“Immaterial Subsidiary” means at any time thereafter, any Restricted Subsidiary (a) whose total assets (on a consolidated basis with its Restricted Subsidiaries) as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available were less than 5% of the Consolidated Total Assets of the Borrower and its Restricted Subsidiaries at such date (based upon the financial statements pursuant to Section 6.01(a) or (b) most recently delivered on or prior to such date) and (b) whose gross revenues (on a consolidated basis with its Restricted Subsidiaries) for such period were less than 5% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries for such period, in each case determined in accordance with GAAP ; provided that a Subsidiary shall not be permitted to be an Immaterial Subsidiary if (i) the aggregate amount of gross revenue for all Immaterial Subsidiaries exceeds 5% of the consolidated gross revenues of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available (based upon the financial statements pursuant to Section 6.01(a) or (b) most recently delivered on or prior to such date) or (ii)   the aggregate amount of total assets for all Immaterial Subsidiaries exceeds 5% of the aggregate amount of Consolidated Total Assets of the Borrower and its Restricted Subsidiaries as of the last day of the Reference Period most recently ended fiscal quarter of the Borrower for which financial statements were available (based upon the financial statements pursuant to Section 6.01(a) or (b) most recently delivered on or prior to such date).

 

Increase Effective Date ” has the meaning assigned to such term in Section 2.19(a).

 

Increase Joinder ” has the meaning assigned to such term in Section 2.19(c).

 

Incremental Commitment ” has the meaning assigned to such term in Section 2.19(a).

 

“Incremental Equivalent Debt” means (i) Indebtedness in the form of notes or loans (or commitments in respect thereof (assuming such commitments then being obtained are fully drawn)) in lieu of loans (or commitments) under Section 2.19, which notes or loans are secured by the Collateral on a pari passu basis with Liens securing the Obligations; provided that (x) the aggregate outstanding amount thereof, together with the aggregate outstanding amount of Incremental Commitments previously incurred under Section 2.19, does not, at the time of incurrence exceed the amount set forth in Section 2.19(a ) and (y) the Additional Debt Requirements are satisfied; and (ii) any Indebtedness that constitutes permitted refinancing debt in respect thereof and, in any case, is permitted to be incurred pursuant to Section 7.01.

 

Incremental Revolving Commitment ” has the meaning assigned to such term in Section 2.19(a).

 

Incremental Revolving Loan ” has the meaning assigned to such term in Section 2.19(c).

 

Incremental Term Loan ” has the meaning assigned to such term in Section 2.19(c).

 

Incremental Term Loan Commitment ” has the meaning assigned to such term in Section 2.19(a).

 

  - 24 -  

 

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind , (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding (i) trade payables, accrued expenses, current accounts payable and similar obligations incurred in the ordinary course of business such Person’s business (including on an intercompany basis), (ii) any earnout obligation until such obligation becomes a liability on the balance sheet (excluding the footnotes thereto) of such Person in accordance with GAAP and has not been paid within thirty (30) days after becoming due and payable, (iii) prepaid or deferred revenue arising in the ordinary course of business, or (iv) purchase price holdbacks arising in the ordinary course of business in respect of a portion of the purchase price of an asset to satisfy warrants or other unperformed obligations of the seller of such asset ), (e) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebted-ness of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (j) the liquidation value of all mandatorily redeemable preferred Capital Stock of such Person and (k) all obligations of Swap Agreements to the extent required to be reflected on a balance sheet of such Person. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. For the avoidance of doubt, notwithstanding anything to the contrary set forth herein, (1) intercompany advances in the ordinary course of business in respect of operating costs (such as cash management obligations, royalty fees and transfer pricing) shall not constitute Indebtedness and (2) obligations which would otherwise constitute Indebtedness but which have been cash collateralized or amounts for the repayment thereof placed in escrow shall not constitute Indebtedness to the extent of such cash collateral or escrowed amounts.

 

Indemnitee ” has the meaning assigned to such term in Section 10.06(b).

 

Information Memorandum ” means that certain information memorandum relating to this Agreement dated as of April 8, 2013.

 

Initial Revolving Credit Facility ” means the Revolving Credit Commitments created on the Restatement Date that have not been extended pursuant to Section 2.21.

 

Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.07.

 

Interest Payment Date ” means (a) with respect to any ABR Loan (other than a Swingline Loan), each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable thereto and, in the case of any Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period and (c) with respect to any Swingline Loan, the day that such Loan is required to be repaid.

 

  - 25 -  

 

Interest Period ” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or with the consent of each affected Lender, nine or twelve months), as the Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing, and the date of a Borrowing comprising Loans of any Class that have been converted or continued shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

“Internally Generated Cash ” means any cash of the Borrower or any Subsidiary that is not generated from a Disposition, a Recovery Event, an incurrence of Indebtedness or an Equity Issuance.

 

“Interpolated Screen Rate” shall mean, the LIBO Rate shall be determined through the use of straight-line interpolation by reference to two such rates, one of which shall be determined as if the length of the period of such deposits were the period of time for which the rate for such deposits are available is the period next shorter than the length of such Interest Period and the other of which shall be determined as if the period of time for which the rate for such deposits are available is the period next longer than the length of such Interest Period as determined by the Administrative Agent .

 

Investment ” means, by any Person, (a) the amount paid or committed to be paid , or the value of property or services contributed or committed to be contributed, by such Person for or in connection with the acquisition by such Person of any stock, bonds, notes, debentures, partnership or other ownership interests or other securities of any other Person and (b) the amount of any advance, loan or extension of credit by such Person, to any other Person, or guaranty or other similar obligation of such Person with respect to any Indebtedness of such other Person (other than Indebtedness constituting trade payables, lease obligations, performance obligations and other payables credits granted or deposits made in the ordinary course of business), and ( without duplication ) any amount committed to be advanced, loans, or extended by such Person to any other Person, or any amount the payment of which is committed to be assured by a guaranty or similar obligation by such Person for the benefit of, such other Person. The amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but giving effect to any Returns.

 

IP Security Agreements ” means that certain Trademark Security Agreement, dated as of December 16, 2011, by HealthDataInsights, Inc. in favor of the Administrative Agent (on behalf of the Secured Parties) and that certain Copyright Security Agreement, dated as of December 16, 2011, by HealthDataInsights, Inc. in favor of the Administrative Agent.

 

  - 26 -  

 

Issuing Lender ” means (i) Citi and its successors, in its capacity as issuer of Letters of Credit hereunder, or one or more Lenders reasonably acceptable to the Borrower, the Administrative Agent and any such Lender , and (ii) for purposes of the Existing Letters of Credit, each Issuing Lender set forth on Schedule 1.01(B) .

 

Junior Indebtedness ” means any Indebtedness that is subordinated in right of payment to the Obligations under the Loan Documents.

 

LC Disbursement ” means a payment made by the Issuing Lender pursuant to a Letter of Credit.

 

LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

 

“LCT Election” has the meaning assigned to such term in Section 1.04(a).

 

“LCT Test Time” has the meaning assigned to such term in Section 1.04(a).

 

Lender Party ” means any Lender, the Issuing Lender or the Swingline Lender.

 

Lender Party Appointment Period ” has the meaning assigned to such term in Section 9.06(a).

 

Lender Insolvency Event ” means that (i) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they be-come become due, or makes a general assignment for the benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment.

 

Lenders ” means the Persons listed on Schedule 1.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or an instrument entered into pursuant to Section 10.07, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context otherwise requires, the term “Lenders” includes the Swingline Lender.

 

Letter of Credit ” means any standby letter of credit issued pursuant to this Agreement , which shall include each Existing Letter of Credit, which shall be deemed to constitute a Letter of Credit issued under this Agreement on the Amendment No. 2 Effective Date for all purposes of this Agreement and the other Loan Documents .

 

  - 27 -  

 

Letter of Credit Documents ” means, with respect to any Letter of Credit, collectively, any application therefor and any other agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral security for any of such obligations, each as the same may be modified and supplemented and in effect from time to time.

 

Letter of Credit Sublimit Amount ” means $ 20,000,000 50,000,000 .

 

LIBO Rate means shall mean , with respect to any Eurodollar Borrowing for any Interest Period, the rate appearing on Reuters Screen Libor 01 for the applicable interest period (or on any successor or substitute page of such screen, or any successor to or substitute for such screen, providing rate quotations comparable to those currently provided on such page of such screen, as per annum determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m. , ( London time , three ) on the date that is two Business Days prior to the commencement of such Interest Period , as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that by reference to the ICE Benchmark Administration Interest Settlement Rates (or the successor thereto if the ICE Benchmark Administration is no longer making such rates available) for Dollar deposits (as set forth by any service selected by the Administrative Agent that has been nominated by the ICE Benchmark Administration (or its successor) as an authorized information vendor for the purpose of displaying such rates) for a period equal to such Interest Period ; provided that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the interest rate per annum determined by the Administrative Agent to be the average of the rates per annum at which Dollar deposits are offered for such relevant Interest Period to major banks in the London interbank market in London, England by the Administrative Agent at approximately 11:00 a.m. ( London time ) on the date that is two Business Days prior to the beginning of such Interest Period ; provided further that, to the extent that an interest rate is not ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the Interpolated Screen Rate; provided, however, to the extent such rate is not available at such time for any reason pursuant to the foregoing provisions of this definition , then the “LIBO Rate” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of (x) a comparable successor or alternative interbank rate for deposits in Dollars that is, at such time, broadly accepted by the syndicated loan market in the United States in lieu of the “LIBO Rate” and is reasonably acceptable to the Borrower and the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m. , London time , three Business Days prior to the commencement of such Interest Period . or (y) solely if no such broadly accepted comparable successor interbank rate exists at such time, a successor or  alternative index rate as the Administrative Agent and the Borrower may determine with the consent of the Required Lenders.

 

Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

  - 28 -  

 

“Limited Condition Transaction” means (a) any acquisition or similar Investment by the Borrower or any Restricted Subsidiary or any merger of the Borrower permitted by the final paragraph of Section 7.03 and/or (b) the payment of Junior Indebtedness permitted by Section 7.14, in each case under this clause (b), for which an irrevocable notice of redemption, repayment or repurchase has been delivered, in each case, that is not conditioned on the availability of, or on obtaining, third party financing.

 

Loan Documents ” means, collectively, this Agreement, Amendment No. 1, Amendment No. 2, the Letter of Credit Documents, the promissory notes (if any) executed and delivered pursuant to Section 2.09(f), the Security Documents, any In-crease Increase Joinder, any Extension Offer and each certificate, agreement or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing.

 

Loan Parties ” means the Borrower and the Guarantors.

 

Loans ” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

 

Margin Stock ” means “margin stock” within the meaning of Regulations T, U and X of the Board.

 

Material Adverse Effect ” means a material adverse effect on (a) the business, operations, property or financial condition of the Borrower and its Restricted Subsidiaries taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform their respective payment obligations hereunder and under the other Loan Documents and (c) the validity or enforceability of this Agreement or any other Loan Document or the rights or remedies of the Administrative Agent and the Lenders , taken as a whole, hereunder or thereunder.

 

“Material Disposition” means any Disposition of property or series of related Dispositions of property that yields gross proceeds to the Borrower or any of its Restricted Subsidiaries in excess of $5,000,000.

 

Material Indebtedness ” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding $15,000,000. For purposes of determining Material Indebtedness, the “ principal amount ” of the obligations of the Borrower or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

 

Material Subsidiary ” means any Restricted Subsidiary that is not an Immaterial Subsidiary.

 

Minimum Extension Condition ” has the meaning assigned to such term in Section 2.21(b).

 

  - 29 -  

 

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

 

“Mortgage” means an agreement , including, but not limited to, a mortgage, deed of trust or any other document, creating and evidencing a Lien on a Mortgaged Property, which shall be in form and sub-stance reasonably satisfactory to the Collateral Agent , in each case, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign law.

 

“Mortgaged Property ” means (a) each Real Property identified as a Mortgaged Property on Schedule 7(a) to the Perfection Certificate dated the Effective Date, if applicable, and (b) each Real Property, if any, which shall be subject to a Mortgage delivered after the Effective Date pursuant to Section 6.13.

 

Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

Net Cash Proceeds ” means in connection with any Asset Sale or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or the sale or disposition of any non-cash consideration or otherwise, but only as and when received and excluding the portion of such deferred payment constituting interest) of such Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees, investment banking fees, amounts required to be applied to the repayment of Indebtedness se-cured secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale or Recovery Event (other than any Lien pursuant to a Security Document) and other customary costs, fees and expenses actually incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements) and net of amounts deposited in escrow in connection therewith or reasonably expected to be paid as a result of any purchase price adjustment, indemnities or reserves related thereto (such amounts shall be Net Cash Proceeds to the extent and at the time released or not required to be so used).

 

Non-Defaulting Lender ” means, at any time, a Revolving Credit Lender that is not a De-faulting Defaulting Lender.

 

Non-Excluded Taxes ” means all Taxes other than Excluded Taxes and Other Taxes.

 

Non-U.S. Lender ” means any Lender that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

Obligations ” means, collectively, (a) all of the Indebtedness, liabilities and obligations of any Loan Party to the Administrative Agent, the Lenders, the Swingline Lender and/or the Issuing Lender arising under the Loan Documents (including all reimbursement obligations in respect of Letters of Credit), in each case whether fixed, contingent (including without limitation those Obligations incurred as a Guarantor pursuant to Article III), now existing or hereafter arising, created, assumed, incurred or acquired, and whether before or after the occurrence of any Event of Default under clause (h) or (i) of Article VIII and including any obligation or liability in respect of any breach of any representation or warranty, funding losses and all interest and fees accruing after the commencement of an insolvency proceeding, whether or not allowed or allowable in any such proceeding, (b) all obligations of any Loan Party owing to any Lender, Administrative Agent or Collateral Agent or any Affiliate of any Lender, Administrative Agent or Collateral Agent under any treasury management services agreement, any service terms or any service agreements, including electronic payments service terms and/or automated clearing house agreements, and all overdrafts on any account which any Loan Party maintains with any Lender or any Affiliate of any Lender and (c) all obligations of any Loan Party owing to any Lender, Administrative Agent or Collateral Agent or any Affiliate of any Lender, Administrative Agent or Collateral Agent (or any Person that was a Lender, Administrative Agent, Collateral Agent or an Affiliate thereof at any time when it entered into such agreement) under (i) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements, (ii) other agreements or arrangements designed to manage interest rates or interest rate risk and (iii) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices; provided that Obligations shall in no event include any Excluded Swap Obligations.

 

  - 30 -  

 

Original Credit Agreement ” has the meaning assigned to such term in the recitals hereto.

 

Original Letters of Credit ” has the meaning assigned to such term in the recitals hereto.

 

Original Loan Documents ” has the meaning assigned to such term in the recitals hereto.

 

Original Obligations ” has the meaning assigned to such term in the recitals hereto.

 

Other Taxes ” means any and all present or future stamp or documentary Taxes or any other excise, property or similar Taxes arising from any payment made under this Agreement or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document, excluding (1) any such Tax imposed on an assignment (other than an assignment pursuant to a request by the Borrower under Section 2.18(b)) of any interest in any Loan or Commitment hereunder (an “ Assignment Tax ”), but only to the extent such Assignment Tax is imposed as a result of a present or former connection between the assignor and/or assignee and the taxing jurisdiction (other than any connection arising solely from such assignor and/or assignee having executed, delivered, become a party to, per-formed performed its obligations under, received payments under, received a perfected security interest under, engaged in any other transaction pursuant to, and/or enforced, any Loan Documents) and (2) any Excluded Taxes.

 

Parent Company ” means, with respect to a Lender, the bank holding company (as defined in Regulation Y of the Board), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of such Lender.

 

Participant ” has the meaning set forth in Section 10.07(c)(i).

 

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

  - 31 -  

 

Perfection Certificate ” means a certificate in the form of Exhibit F-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

 

Perfection Certificate Supplement ” means a certificate supplement in the form of Exhibit F-2 or any other form approved by the Collateral Agent.

 

Permitted Acquisition ” means any Acquisition ; provided that each of the following conditions shall be met (subject to any LCT Election) :

 

(a)       before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;

 

(b)       the Borrower would be in compliance (on a Pro Forma Basis after giving effect to such Acquisition and any other Acquisition, Disposition, debt incurrence, debt retirement) with the covenants contained in Section 7.11 recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available;

 

(c)       if such Acquisition involves the acquisition of Capital Stock of a Person, such Acquisition shall result in the issuer of such Capital Stock becoming a Guarantor to the extent required by Section 6.13; and

 

(d)       such acquisition shall result in the Collateral Agent, for the benefit of the Secured Parties, being granted a security interest in any Capital Stock or any assets so acquired to the extent required by Section 6.13.

 

Permitted Acquisition Consideration ” means, in connection with any Permitted Acquisition, the aggregate amount (as valued at the fair market value of such Permitted Acquisition at the time such Per-mitted Permitted Acquisition is made) of, without duplication: (a) the purchase consideration paid or payable in cash for such Permitted Acquisition, whether payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any contingency, and including any and all payments representing the purchase price and any assumptions of Indebtedness and/or Guaranteed Obligations, “earn outs” and other agreements to make any payment the amount of which is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any Person or business and (b) the aggregate amount of Indebtedness incurred or assumed in connection with such Permitted Acquisition.

 

Permitted Liens ” means:

 

(a)       Liens imposed by law for Taxes (i)  that are not yet due or are being contested in good faith and by appropriate proceedings, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP or (ii) with respect to which the failure to pay the same would not reasonably be expected to result in a Material Adverse Effect ;

 

  - 32 -  

 

(b)       carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations (i) that are not overdue by more than 30 days or , (ii) are being contested in compliance with Section 6.04 and which proceedings have the effect of preventing the forfeiture or sale of the property or assets subject to such lien or (iii) with respect to which the failure to pay the same would not reasonably be expected to result in a Material Adverse Effect ;

 

(c)       pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;

 

(d)       deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;

 

(e)       judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VIII; and

 

(f)       easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Restricted Subsidiary;

 

provided that the term “Permitted Liens” shall not include any Lien securing Indebtedness for borrowed money .

 

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

 

Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Present Fair Salable Value ” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets of the Borrower and its Subsidiaries taken as a whole are sold with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.

 

Prime Rate ” means the rate of interest per annum publicly announced from time to time by Citi as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

  - 33 -  

 

Pro Forma Basis and or Pro Forma Effect mean, for purposes of calculating means, with respect to any determination of the Consolidated Leverage Ratio , the Consolidated Secured Leverage Ratio, the First Lien Leverage Ratio, the Consolidated Interest Coverage Ratio, Consolidated EBITDA, Consolidated Funded Debt and , Consolidated Interest Expense for any Reference Period during which one or more Material Acquisition or Material Disposition occurs or which is the Reference Period ending immediately prior to the date of determination with respect to a Material Acquisition or Material Dis-position occurring on or prior to or simultaneously with the date of determination, that such Material Acquisition or Material Disposition ( and all other Material Acquisition or Material Disposition that have been consummated during the applicable period) and Consolidated Total Assets (including component definitions of each of the foregoing), that each Subject Transaction with respect to any test or covenant for which such determination is being made shall be deemed to have occurred as of the first day of the applicable Reference Period and all income statement items (whether positive or negative) attributable to the assets or Person disposed of in a Material Disposition shall be excluded and all Indebtedness repaid or discharged in connection with such Material Disposition shall be excluded and all income statement items (whether positive or negative) attributable to the as-sets or Person acquired in a Material Acquisition and all Indebtedness incurred or assumed in connection with such Material Acquisition shall be included . (or, in the case of Consolidated Total Assets (or with respect to any determination pertaining to the balance sheet, including the acquisition of cash and Cash Equivalents), as of the last day of such Reference Period) and that:

 

(a)         (i) in the case of (A) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or product line of the Borrower or any Restricted Subsidiary constituting a Material Disposition , (B) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (C) the implementation of any Cost Savings Initiative, statement of operations items (whether positive or negative and including any items giving rise to Expected Cost Savings ) attributable to the property or Person subject to such Subject Transaction, shall be excluded as of the first day of the applicable Reference Period with respect to any test or covenant for which the relevant determination is being made and (ii) in the case of (A) any Permitted Acquisition or other permitted Investment described in the definition of the term “Subject Transaction” and/or (B) the designation of an Unrestricted Subsidiary as a Restricted Subsidiary, statement of operations items (whether positive or negative) attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Reference Period with respect to any test or covenant for which the relevant determination is being made; it being understood that any pro forma adjustment described in this Agreement may be applied to any such test or covenant solely to the extent that such adjustment is consistent with the definition of the term “Consolidated EBITDA”;

 

(b)         any retirement or repayment of Indebtedness shall be deemed to have occurred as of the first day of the applicable Reference Period with respect to any test or covenant for which the relevant determination is being made;

 

(c)         any Indebtedness incurred by the Borrower or any Restricted Subsidiary in connection therewith shall be deemed to have occurred as of the first day of the applicable Reference Period with respect to any test or covenant for which the relevant determination is being made; provided that, (i) if such Indebtedness has a floating or formula rate, such Indebtedness shall have an implied rate of interest for the applicable Reference Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness at the relevant date of determination (taking into account any interest hedging arrangements applicable to such Indebtedness), (ii) interest on any Capital Lease Obligations shall be deemed to accrue at an interest rate reasonably determined by the Borrower to be the rate of interest implicit in such obligation in accordance with GAAP and (iii) interest on any Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen by the Borrower; and

 

  - 34 -  

 

(d)         for purposes of determining Consolidated Total Assets, the acquisition of any asset (including cash and Cash Equivalents), whether pursuant to any Subject Transaction or any Person becoming a Subsidiary or merging, amalgamating or consolidating with or into the Borrower or any of its Subsidiaries, or the Disposition of any asset (including cash and Cash Equivalents), described in the definition of the term “Subject Transaction” shall be deemed to have occurred as of the last day of the applicable period of four consecutive fiscal quarters with respect to any test or covenant for which such calculation is being made.

 

“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.

 

Qualified ECP Guarantor ” means, in respect of any Swap Obligation, each Loan 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 con-tract 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.

 

Quarterly Dates ” means the last Business Day of March, June, September and December in each year.

 

Real Property ” means, collectively, all right, title and interest (including any mineral or other estate) in and to any and all parcels of or interests in real property owned, leased, or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and con-tract contract rights and other property and rights incidental to the ownership or operation thereof.

 

Recovery Event ” means any settlement of or payment in respect of any property insurance claim or casualty insurance claim (but not to the extent such claim compensates for any loss of revenues or interruption of business or operations caused thereby) or any condemnation proceeding awards or other compensation received in respect thereof relating to any asset or property of the Borrower or any of its Restricted Subsidiaries with a value in excess of $10,000,000.

 

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Reference Period has the meaning set forth in the definition of Consolidated EBITDA means any period of four consecutive fiscal quarters .

 

Register ” has the meaning set forth in Section 10.07(b)(iv).

 

Reinvestment Deferred Amount ” means, with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or any of its Restricted Subsidiaries in connection therewith which are not applied to prepay the Revolving Credit Loans pursuant to Section 2.10(b) as a result of the delivery of a Reinvestment Notice.

 

Reinvestment Event ” means any Asset Sale or Recovery Event in respect of which the Borrower has delivered a Reinvestment Notice.

 

Reinvestment Notice ” means a written notice executed by a Responsible Officer stating that no Default or Event of Default shall have occurred and be continuing and that the Borrower or any Restricted Subsidiary intends and expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to reinvest in its business.

 

Reinvestment Prepayment Amount ” means, with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Pre-payment Prepayment Date to reinvest in the Borrower’s or any Restricted Subsidiary’s business.

 

Reinvestment Prepayment Date ” means, with respect to any Reinvestment Event, the earlier of (a) the date occurring twelve months after such Reinvestment Event; provided that such twelve month period shall increase to eighteen months with respect to any Reinvestment Deferred Amount if the Borrower or the relevant Restricted Subsidiary has contractually committed within such twelve month period to use such Reinvestment Deferred Amount to reinvest in its business and (b) the date on which the Borrower shall have deter-mined determined not to, or shall have otherwise ceased to, reinvest in the Borrower’s or any Restricted Subsidiary’s business with all or any portion of the relevant Reinvestment Deferred Amount.

 

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

 

Required Lenders ” means, at any time, Lenders having Revolving Credit Exposures, out-standing outstanding Incremental Term Loans and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures, outstanding Incremental Term Loans and unused Revolving Credit Commitments at such time. The “Required Lenders” of a particular Class of Loans means Lenders having Revolving Credit Exposures, outstanding Incremental Term Loans and/or unused Commitments of such Class, as applicable, representing more than 50% of the total Revolving Credit Exposures, outstanding Incremental Term Loans and/or unused Commitments of such Class, as applicable, at such time.

 

Required Revolving Credit Lenders ” means, at any time, Revolving Credit Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Revolving Credit Commitments at such time. The “Required Revolving Credit Lenders” of a particular Class of Loans means Lenders having Revolving Credit Exposures and/or unused Commitments of such Class, as applicable, representing more than 50% of the total Revolving Credit Exposures and/or unused Commitments of such Class, as applicable, at such time.

 

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Requirement of Law ” means, as to any Person, the certificate of incorporation and by-laws bylaws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or de-termination determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

 

Responsible Officer ” means the chief executive officer, president , general counsel, chief accounting officer or chief financial officer of the Borrower, but in any event, with respect to financial matters, the chief financial officer of the Borrower.

 

Restatement Date ” means the date on which the conditions specified in Section 5.01 are satisfied (or waived in accordance with Section 10.05).

 

Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Capital Stock of the Borrower or any Restricted Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Capital Stock of the Borrower or any option, warrant or other right to acquire any such Capital Stock of the Borrower.

 

Restricting Information ” has the meaning specified in Section 10.04(a).

 

“Restricted Subsidiary” means any Subsidiary that is not an Unrestricted Subsidiary. Unless explicitly set forth to the contrary, a reference to a “Restricted Subsidiary” means a Restricted Subsidiary of the Borrower.

 

“Returns” means, with respect to any Investment of any Person and without duplication (including as a result of such amount being included in Consolidated Net Income of such Person), any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash by such Person in respect of such Investment not in excess of the amount of the original Investment by such Person.

 

Revolving Credit ,” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.01(a).

 

Revolving Credit Availability Period ” means the period from and including the Restatement Date to but excluding the earlier of the Revolving Credit Commitment Termination Date and the date of termination of the Revolving Credit Commitments.

 

Revolving Credit Commitment ” means, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Credit Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or increased from time to time pursuant to Section 2.08, (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.07 and (c) reduced pursuant to Section 2.10. The initial amount of each Lender’s Revolving Credit Commitment is set forth on Schedule 1.01 under the caption “Revolving Credit Commitment,” or in the Assignment and Assumption or other instrument pursuant to which such Lender shall have assumed its Revolving Credit Commitment, as applicable. The initial aggregate amount of the Revolving Credit Commitments is $500,000,000.

 

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Revolving Credit Commitment Termination Date ” means (x) with respect to Revolving Credit Loans May 3, 2018 , December 19, 2022 and (y) with respect to Extended Revolving Credit Loans , the date specified in the applicable Extension Offer applicable to such Extended Revolving Credit Loans.

 

Revolving Credit Exposure ” means, with respect to any Revolving Credit Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Revolving Credit Loans, (b) the LC Expo-sure Exposure of such Lender and (c) the Swingline Exposure of such Lender at such time.

 

Revolving Credit Facility ” means an Initial Revolving Credit Facility or an Extended Revolving Credit Facility, and “ Revolving Credit Facilities ” means all of them, collectively.

 

Revolving Credit Lender ” means a Lender with a Revolving Credit Commitment or, if the Revolving Credit Commitments have terminated or expired, a Lender with Revolving Credit Exposure.

 

Revolving Credit Loans ” means the loans made by the Lenders to the Borrower pursuant to Section 2.01(a).

 

S&P ” means Standard & Poor’s Ratings Services.

 

Sale/Leaseback Transaction ” has the meaning assigned to such term in Section 7.12.

 

“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.

 

SEC ” means the Securities and Exchange Commission, or any regulatory body that succeeds to the functions thereof.

 

Secured Parties ” has the meaning set forth in the Security Agreement.

 

Security Agreement ” means that certain Amended and Restated Security Agreement, dated as of December 16, 2011 the Amendment No. 2 Effective Date , between the Loan Parties and the Administrative Agent.

 

Security Agreement Collateral ” means all property from time to time pledged or granted as collateral pursuant to the Security Agreement.

 

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Security Documents ” means, collectively, the Security Agreement, each IP Security Agreement, each Mortgage, each Subsidiary Joinder Agreement, any security, pledge or similar agreement entered into pursuant to Section 6.13 in favor of the Administrative Agent, and all UCC financing statements required by the terms of any such agreement to be filed with respect to the security interests created pursuant thereto.

 

Solvency Certificate ” means a certificate substantially in the form of Exhibit G.

 

Solvent ” means, with respect to any Person at any time, that (a) the Fair Value and Present Fair Salable Value of the assets of such Person and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities, (b) such Person and its Subsidiaries taken as a whole Do Not Have Unreason-ably Unreasonably Small Capital, (c) such Person and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature, and (d) the Borrower and its Subsidiaries, on a consolidated basis, are not “insolvent” within the meaning given to that term under the United States Bankruptcy Code.

 

Stated Liabilities ” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Borrower and its Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions, determined in accordance with GAAP consistently applied.

 

Statutory Reserve Rate ” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute euro-currency eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

Stock Repurchase ” has the meaning assigned to such term in Section 7.07(c).

 

“Subject Transaction” means (a) any Permitted Acquisition or similar permitted Investment, (b) any Material Disposition not prohibited by this Agreement, (c) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance this Agreement, (d) any incurrence or repayment of Indebtedness, (e) the implementation of any Cost Savings Initiative and/or (f) any other event that by the terms of the Loan Documents requires pro forma compliance with a test or covenant hereunder or requires such test or covenant to be calculated on a Pro Forma Basis.

 

Subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held. Unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.

 

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Subsidiary Joinder Agreement ” means a Subsidiary Joinder Agreement substantially in the form of Exhibit D executed and delivered by a Domestic Subsidiary that, pursuant to Section 6.13(a), is required to become a “Guarantor” hereunder and a “Securing Party” under the Security Agreement in favor of the Administrative Agent.

 

“Successor Borrower” has the meaning assigned to such term in Section 7.3(e).

 

Swap Agreement ” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or any Subsidiary shall be a Swap Agreement.

 

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

 

Swingline Exposure ” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percent-age Percentage of the total Swingline Exposure at such time.

 

Swingline Lender ” means Citi or any other Revolving Credit Lender that becomes the Administrative Agent or agrees, with the approval of the Administrative Agent and the Borrower, to act as the Swingline Lender hereunder, in each case in its capacity as the Swingline Lender hereunder.

 

Swingline Loan ” means a Loan made pursuant to Section 2.04.

 

Tax Indemnitee ” has the meaning assigned to such term in Section 2.16(c).

 

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

 

“Termination Date” has the meaning assigned to such term in the lead in to Article VI.

 

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Total Leverage Incurrence Test ” means, with respect to the most recent Reference Period, the Consolidated Leverage Ratio (calculated on a Pro Forma Basis) shall be no greater than 3.00 4.00 to 1.00.

 

Transaction Costs ” means any fees and expenses related to the entry into (a)  the Loan Documents and incurrence of the Loans in connection therewith on the Restatement Date , (b) Amendment No. 1 and (c) Amendment No. 2 .

 

Transactions ” means the execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Loan Party is intended to be a party, the borrowing of Loans hereunder and the use of proceeds thereof, and the issuance of Letters of Credit hereunder.

 

Type ,” when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

 

U.S. Lender ” means a Lender that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.

 

UCC ” means the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

 

United States Tax Compliance Certificate ” has the meaning assigned to such term in Section 2.16(e)(2)(C).

 

“Unrestricted Subsidiary” means any Subsidiary designated (or redesignated) by the Borrower as an Unrestricted Subsidiary hereunder after the Restatement Date in accordance with Section 6.15 and any Subsidiary of an Unrestricted Subsidiary.

 

Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

“Working Capital” means, for the Borrower and its Subsidiaries on a consolidated basis and calculated in accordance with GAAP, as of any date of determination, the excess of (a ) current assets (other than cash and cash equivalents and taxes and deferred taxes) over (b) current liabilities, excluding, without duplication, (i) the current portion of any long-term Indebtedness, (ii) outstanding Revolving Credit Loans and Swingline Loans, (iii) the current portion of current taxes and deferred income taxes and (iv) the current portion of accrued Consolidated Interest Expense.

 

“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.

 

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Section 1.02.         Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms de-fined defined . Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “ with-out without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Un-less Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) 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, ac-counts accounts and contract rights.

 

Section 1.03.         Accounting Terms; GAAP . Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then the parties will negotiate in good faith the terms of such amendment and, until such amendment is effective, such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. 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 Restricted Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount (or the accreted value thereof in the case of Indebtedness issued at a discount) thereof and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

 

Notwithstanding anything to the contrary contained in the paragraph above or the definition of Capital Lease Obligations, in the event of an accounting change requiring all leases to be capitalized, only those leases (assuming for purposes hereof that they were in existence on the date hereof ) that would constitute Capital Lease Obligations on the date hereof (without giving effect to such accounting change) shall be considered Capital Lease Obligations and all calculations and deliverables under this Agreement or any other Loan Document shall be made in accordance therewith (provided that all financial statements delivered to the Administrative Agent in accordance with the terms of this Agreement after the date of such accounting change shall contain a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).

 

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Section 1.04.         Limited Condition Transaction .

 

(a)                 Notwithstanding anything to the contrary herein (including in connection with any calculation made on a Pro Forma Basis), to the extent that the terms of this Agreement require (i) compliance with any financial ratio or test (including any Consolidated Leverage Ratio test, any Consolidated Secured Leverage Ratio and/or any First Lien Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated EBITDA or Consolidated Total Assets or (ii) the absence of a Default or Event of Default (or any type of Default or Event of Default) as a condition to (A) the consummation of any transaction in connection with any Limited Condition Transaction, at the election of the Borrower (the “LCT Election”), the determination of whether the relevant condition is satisfied may be made at the time (the “LCT Test Time”) of (or on the basis of the financial statements for the most recently ended Reference Period at the time of) the execution of the definitive agreement with respect to such Limited Condition Transaction. If the Borrower has made an LCT Election, then in connection with any calculation of any financial ratio or basket availability following such LCT Test Time and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement with respect thereto is terminated, any such financial ratio or test and/ or any cap shall be calculated (and tested), as applicable, on a Pro Forma Basis both (1) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of indebtedness and the use of proceeds thereof) have been consummated and (2) assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of indebtedness and the use of proceeds thereof) have not been consummated.

 

(b)                Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one decimal place more than the number of decimal places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding up if there is no nearest number).

 

(c)                 Notwithstanding anything to the contrary herein, but subject to this Section 1.04, all financial ratios and tests (including the Consolidated Leverage Ratio , the Consolidated Secured Leverage Ratio, the First Lien Leverage Ratio, the Consolidated Interest Coverage Ratio and the amount of Consolidated Total Assets and Consolidated EBITDA) contained in this Agreement that are calculated with respect to any Reference Period during which any Subject Transaction occurs shall be calculated with respect to such Reference Period and such Subject Transaction on a Pro Forma Basis. Further, if since the beginning of any such Reference Period and on or prior to the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that subsequently became a Restricted Subsidiary or was merged, amalgamated or consolidated with or into the Borrower or any Restricted Subsidiary since the beginning of such Reference Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such Reference Period as if such Subject Transaction had occurred at the beginning of the applicable Reference Period (or, in the case of Consolidated Total Assets ( or with respect to any determination pertaining to the balance sheet, including the acquisition of cash and Cash Equivalents), as of the last day of such Reference Period).

 

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(d)                For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial ratio or test (including any First Lien Leverage Ratio test, any Consolidated Leverage Ratio test, any Consolidated Interest Coverage Ratio test and/or the amount of Consolidated EBITDA or Consolidated Total Assets), such financial ratio or test shall be calculated at the time (subject to clause (a) above) such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have occurred solely as a result of a change in such financial ratio or test occurring after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the case may be.

 

Section 1.05.         Cashless Rollovers . Notwithstanding anything to the contrary contained in this Agreement or in any other Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with any other Indebtedness permitted hereunder in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “ in immediately available funds ”, “in same day funds”, “in cash” or any other similar requirement.

 

Section 1.06.         Additional Rules of Construction .

 

(a)                 For purposes of determining compliance at any time with Sections 7.01 and 7.02, in the event that any Lien or any Indebtedness meets the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 7.01 and 7.02, the Borrower, in its sole discretion, may classify or reclassify such transaction or item (or portion thereof) and will only be required to include the amount and type of such transaction (or portion thereof) in any one category. All references in Sections 2.19, 7.01, 7.02, 7.04, 7.06, 7.07, 7.12 and 7.14 to any Dollar amount shall be determined from and after the Amendment No. 2 Effective Date.

 

(b)                Notwithstanding anything to the contrary herein, unless the Borrower otherwise notifies the Administrative Agent, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including any Consolidated Leverage Ratio test, any Consolidated Secured Leverage Ratio test and/or any First Lien Leverage Ratio test) (including amounts determined in reference to a percentage of Consolidated EBITDA or Consolidated Total Assets, any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including any Consolidated Leverage Ratio test and/or any Consolidated Secured Leverage Ratio test) (but excluding amounts determined by reference to a percentage of Consolidated EBITDA, Consolidated Total Assets, any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (i) the Incurrence-Based Amounts shall first be calculated without giving effect to any Fixed Amounts being relied upon for such incurrence or transactions or test ( i.e. , Fixed Amounts shall be disregarded in the calculation of the financial ratio applicable to the Incurrence-Based Amounts, but full Pro Forma Effect shall be given thereto and to all other applicable and related transactions (including, in the case of any financial ratio or test required under Sections 7.06, 7.07 and 7.14, any incurrences of Indebtedness and Liens constituting Fixed Amounts shall be taken into account for purposes of calculating any Incurrence-Based Amounts) and all other permitted pro forma adjustments and (ii) thereafter, the incurrence of the portion of such amounts or other applicable transaction to be entered into in reliance on any Fixed Amounts shall be calculated.

 

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(c)                 (i) If any payment hereunder (other than payments on Eurodollar loans) becomes due and payable on a day other than a Business Day , such payment shall be extended to the next succeeding Business Day. If any payment on a Eurodollar loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.

 

(ii)                When performance of any covenant, duty or obligation in respect of any deliverable (other than payment of an obligation as described in clause (i) above) is required on a day which is not a Business Day, the date on which such performance is required shall be extended to the immediately succeeding Business Day.

 

Article II

THE CREDITS

 

Section 2.01.         Commitments . Subject to the terms and conditions set forth herein, each Revolving Credit Lender agrees, severally and not jointly, to make Revolving Credit Loans to the Borrower from time to time during the Revolving Credit Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit Commitment or (ii) the total Revolving Credit Exposures exceeding the total Re-volving Revolving Credit Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans.

 

Section 2.02.         Loans and Borrowings .

 

(a)                 Obligations of Lenders . Each Loan shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)                Type of Loans . Subject to Section 2.13, each Borrowing shall be comprised entirely of ABR Loans or of Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

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(c)                 Minimum Amounts; Limitation on Number of Borrowings . Each Eurodollar Borrowing shall be in an aggregate amount of $3,000,000 or a larger multiple of $500,000. Each ABR Borrowing shall be in an aggregate amount equal to $1,000,000 or a larger multiple of $250,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused amount of the total Revolving Credit Commitment or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Each Swingline Loan shall be in an amount that is a multiple of $250,000 and not less than $250,000. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time be more than a total of six Eurodollar Borrowings outstanding.

 

(d)                Limitations on Interest Periods . Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as a Eurodollar Borrowing) any Revolving Credit Eurodollar Borrowing if the Interest Period requested therefor would end after the Revolving Credit Commitment Termination Date.

 

Section 2.03.         Requests for Borrowings .

 

(a)                 Notice by the Borrower . To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (i) in the case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before on the date of the proposed Borrowing; provided that any such notice of an ABR Borrowing to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f) may be given not later than 12:00 noon, New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Re-quest Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(b)                Content of Borrowing Requests . Each telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)                  the aggregate amount of the requested Borrowing;

 

(ii)                the date of such Borrowing, which shall be a Business Day;

 

(iii)              whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

 

(iv)              in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d); and

 

(v)                the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.06.

 

(c)                 Notice by the Administrative Agent to the Lenders . Promptly following receipt of a Borrowing Request in accordance with this Section (but in any event on the same Business Day such Borrowing Request is received by the Administrative Agent), the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.

 

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(d)                Failure to Elect . If no election as to the Type of a Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

Section 2.04.         Swingline Loans .

 

(a)                 Agreement to Make Swingline Loans . Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time during the Revolving Credit Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding $25,000,000 or (ii) the total Revolving Credit Exposures exceeding the total Revolving Credit Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.

 

(b)                Notice of Swingline Loans by Borrower . To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and amount of the requested Swingline Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means of a credit to an account of the Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f), by remittance to the Issuing Lender) by 3:00 p.m., New York City time, on the requested date of such Swingline Loan.

 

(c)                 Participations by Lenders in Swingline Loans . The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the Revolving Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Credit Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Re-volving Revolving Credit Lender, specifying in such notice such Revolving Credit Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Revolving Credit Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph in compliance with the terms and conditions of this Agreement is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, with-holding withholding or reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this para-graph paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans made by such Revolving Credit Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Revolving Credit Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Credit Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.

 

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(d)                If the maturity date shall have occurred in respect of any Revolving Credit Facility at a time when another Revolving Credit Facility is in effect with a longer maturity date, then on the earliest occurring maturity date all then out-standing outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such maturity date); provided , however , that if on the occurrence of such earliest maturity date (after giving effect to any repayments of Revolving Credit Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.05(e)), there shall exist sufficient unutilized Revolving Credit Commitments so that the respective out-standing outstanding Swingline Loans could be incurred pursuant the Revolving Credit Commitments that will remain in effect after the occurrence of such maturity date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and same shall be deemed to have been incurred solely pursuant to the relevant Revolving Credit Commitments that will remain in effect, and such Swingline Loans shall not be so required to be repaid in full on such earliest maturity date.

 

Section 2.05.         Letters of Credit .

 

(a)                 General . Subject to the terms and conditions set forth herein, in addition to the Loans pro-vided provided for in Section 2.01, the Borrower may request the Issuing Lender to issue, at any time and from time to time during the Revolving Credit Availability Period, Letters of Credit denominated in Dollars for the Borrower’s account in such form as is acceptable to the Issuing Lender in its reasonable determination. Letters of Credit issued hereunder shall constitute utilization of the Commitments.

 

(b)                Notice of Issuance, Amendment, Renewal or Extension . To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand de-liver deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Lender and the Administrative Agent) to the Issuing Lender and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing Lender, the Borrower also shall submit a letter of credit application on the Issuing Lender’s standard form in connection with any request for a Letter of Credit. In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Lender relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

 

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(c)                 Limitations on Amounts . A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the total LC Exposure shall not exceed the Letter of Credit Sublimit Amount and (ii) the total Revolving Credit Exposures shall not exceed the total Revolving Credit Commitments.

 

(d)                Expiration Date . Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date one year after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is five Business Days prior to the Revolving Credit Commitment Termination Date.

 

(e)                 Participations . By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) by the Issuing Lender in accordance with the terms and conditions of this Agreement, and without any further action on the part of the Issuing Lender or the Revolving Credit Lenders, the Issuing Lender hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the Issuing Lender, a participation in such Letter of Credit equal to such Revolving Credit Lender’s Applicable Percent-age Percentage of the aggregate amount available to be drawn under such Letter of Credit. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments.

 

In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for account of the Issuing Lender, such Revolving Credit Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Lender promptly upon the request of the Issuing Lender at any time from the time of such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or at any time after any reimbursement payment is required to be refunded to the Borrower for any rea-son reason . Such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in the same manner as provided in Section 2.06 with respect to Revolving Credit Loans made by such Revolving Credit Lender (and Section 2.06 shall apply, mutatis mutandis , to the payment obligations of the Revolving Credit Lenders), and the Administrative Agent shall promptly pay to the Issuing Lender the amounts so received by it from the Revolving Credit Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to para-graph paragraph (f) of this Section, the Administrative Agent shall distribute such payment to the Issuing Lender or, to the ex-tent extent that the Revolving Credit Lenders have made payments pursuant to this paragraph to reimburse the Issuing Lender, then to such Revolving Credit Lenders and the Issuing Lender as their interests may appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph to reimburse the Issuing Lender for any LC Disbursement (other than the funding of ABR Revolving Credit Loans or a Swingline Loan as contemplated under paragraph (f) of this Section) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

 

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(f)                 Reimbursement . If the Issuing Lender shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the Issuing Lender in respect of such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on the Business Day immediately following the day that the Borrower receives notice of such LC Disbursement, provided that, if such LC Disbursement is not less than $100,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Credit Borrowing or a Swingline Loan in an equivalent amount and, to the ex-tent extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Revolving Credit Borrowing or Swingline Loan.

 

If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Credit Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Credit Lender’s Applicable Percentage thereof.

 

(g)                Obligations Absolute . The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Lender under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the fore-going foregoing , that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. Neither the Administrative Agent, the Revolving Credit Lenders nor the Issuing Lender, nor any of their Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Lender; provided that the foregoing shall not be construed to excuse the Issuing Lender from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Lender’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or wilful willful misconduct on the part of the Issuing Lender (as finally determined by a court of competent jurisdiction), the Issuing Lender shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Cred-it Credit , the Issuing Lender may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

 

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(h)                Disbursement Procedures . The Issuing Lender shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Lender shall promptly after such examination notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Lender has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Lender and the Revolving Credit Lenders with respect to any such LC Disbursement.

 

(i)                  Interim Interest . If the Issuing Lender shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Credit Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (f) of this Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be for account of the Issuing Lender, except that interest accrued on and after the date of payment by any Revolving Credit Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Lender shall be for account of such Revolving Credit Lender to the extent of such payment.

 

(j)                  Replacement of Issuing Lender . The Issuing Lender may be replaced at any time by writ-ten written agreement among the Borrower, the Administrative Agent, the replaced Issuing Lender and the successor Issuing Lender thereto. The Administrative Agent shall notify the Revolving Credit Lenders of any such replacement of the Issuing Lender. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for account of the replaced Issuing Lender pursuant to Section 2.11(b). From and after the effective date of any such replacement, (i) the successor Issuing Lender shall have all the rights and obligations of the re-placed replaced Issuing Lender under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Lender” shall be deemed to refer to such successor or to any previous Issuing Lender, or to such successor and all previous Issuing Lenders, as the context shall require. After the replacement of the Issuing Lender hereunder, the replaced Issuing Lender shall remain a party hereto and shall continue to have all the rights and obligations of the Issuing Lender under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

 

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(k)                Cash Collateralization . If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Revolving Credit Lenders (or, if the maturity of the Revolving Credit Loans has been accelerated, Revolving Credit Lenders representing greater than 50% of the total LC Exposure) demanding Cash Collateralization pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to 105 103 % of the total LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of De-fault Default with respect to any Loan Party described in clause (h) or (i) of Article VIII. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Loan Parties under this Agreement and the other Loan Documents. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Lender for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Expo-sure Exposure at such time or, if the maturity of the Revolving Credit Loans has been accelerated (but subject to the consent of Revolving Credit Lenders representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Loan Parties under this Agreement and the other Loan Documents. If the Borrower is required to Cash Collateralize hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived.

 

(l)                  Provisions Related to Multiple Revolving Credit Facilities . If the maturity date in respect of any Revolving Credit Facilities occurs prior to the expiration of any Letter of Credit, then (i) if one or more other Revolving Credit Facilities in respect of which the maturity date shall not have occurred are then in effect, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make Revolving Credit Loans and payments in respect thereof pursuant to Section 2.03(c) and (d)) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-terminating Revolving Credit Facilities up to an aggregate amount not to exceed the aggregate principal amount of the unutilized Revolving Credit Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall Cash Collateralize any such Letter of Credit in accordance with Section 2.05(k). Commencing with the maturity date of any Revolving Credit Facility, the sublimit for Letters of Credit shall be agreed with the Lenders under the extended Revolving Credit Facilities.

 

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(m)              The Borrower, the Administrative Agent and the Revolving Credit Lenders hereby agree that, as of the Amendment No. 2 Effective Date, each Existing Letter of Credit shall continue to constitute a Letter of Credit issued under this Agreement by the relevant Issuing Lender set forth on Schedule 1.01(B), and that the fees and other provisions of this Section 2.05 shall be applicable to each Existing Letter of Credit as of the Amendment No. 2 Effective Date.

 

Section 2.06.         Funding of Borrowings .

 

(a)                 Funding by Lenders . Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders; provided that Swingline Loans shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Credit Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.05(f) shall be remitted by the Administrative Agent to the Issuing Lender.

 

(b)                Presumption by the Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender 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 paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made avail-able available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

 

Section 2.07.         Interest Elections .

 

(a)                 Elections by the Borrower . The Loans constituting each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may elect Interest Periods, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans of the respective Class constituting such Borrowing, and the Loans of such Class constituting each such portion shall be considered a separate Borrowing. This Section shall not apply to Swingline Borrowings Loans , which may not be converted or continued and which shall accrue interest based only at the Alternate Base Rate.

 

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(b)                Notice of Elections . To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Re-quest Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(c)                 Content of Interest Election Requests . Each telephonic and written Interest Election Re-quest Request shall specify the following information in compliance with Section 2.02:

 

(i)                  the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the in-formation information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

 

(ii)                the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)              whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

 

(iv)              if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d).

 

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

(d)                Notice by the Administrative Agent to the Lenders . Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)                 Failure to Elect; Events of Default . If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default shall have occurred and be continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

 

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Section 2.08.         Termination and Reduction of the Commitments .

 

(a)                 Scheduled Termination . Unless previously terminated, the Revolving Credit Commitments shall terminate on the Revolving Credit Commitment Termination Date.

 

(b)                Voluntary Termination or Reduction . The Borrower may at any time terminate, or from time to time reduce, the Revolving Credit Commitments; provided that (i) each reduction of the Revolving Credit Commitment pursuant to this Section shall be in an amount that is $1,000,000 or a larger multiple of $1,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.10, the total Revolving Cred-it Credit Exposures would exceed the total Revolving Credit Commitments. The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Credit Commitments under this paragraph (b) at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of such termination may state that such notice is conditioned upon the effectiveness of other credit facilities another transaction , in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Revolving Credit Commitments shall be permanent.

 

Section 2.09.         Repayment of Loans; Evidence of Debt .

 

(a)                 Repayment .

 

(i)                  The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of each Revolving Credit Lender the full outstanding principal amount of such Revolving Credit Lender’s Revolving Credit Loans, and each such Revolving Credit Loan shall mature, on the Revolving Credit Commitment Termination Date.

 

(ii)                The Borrower hereby unconditionally promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving Credit Commitment Termination Date and the seventh consecutive Business Day on which the Swingline Loan remains outstanding, the full outstanding principal amount of such Swingline Loan.

 

(b)                [Reserved] .

 

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(c)                 Maintenance of Records by Lenders . Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.

 

(d)                Maintenance of Records by the Administrative Agent . The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the Lenders and each Lender’s share thereof.

 

(e)                 Effect of Entries . The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

 

(f)                 Promissory Notes . Any Lender may request that Loans made by it be evidenced by a promissory note of the Borrower. In such event, the Borrower, at its own expense, shall prepare, execute and deliver to such Lender a promissory note(s) payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and substantially in the form of Exhibit B-1 or B-2, as appropriate, and such note(s) shall be evidence of such Loans (and all amounts payable in respect thereof). Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the payee named therein (or, if requested by such payees, to such payee and its registered assigns).

 

Section 2.10.         Prepayment of Loans .

 

(a)                 Optional Prepayments . The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to the requirements of paragraph (c) of this Section.

 

(b)                Mandatory Commitment Reductions and Prepayments . If after the date hereof Amendment No. 2 Effective Date the Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event , then , unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof within five Business Days after such Asset Sale or Recovery Event , receipt of such Net Cash Proceeds, and if no such Reinvestment Notice is delivered, then the Revolving Credit Commitments Loans shall be reduced prepaid by an amount equal to 100% of such Net Cash Proceeds (without any reduction in the Revolving Credit Commitments) ; provided , that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the permanent reduction prepayment of Revolving Credit Commitments; provided, further, that if after giving effect to any such Loans (without any reduction of in the Revolving Credit Commitments the Revolving Credit Exposure would exceed the total Revolving Credit Commitments , the Borrower shall repay the Revolving Credit Loans in an amount equal to such excess; and provided, further, that if the property subject to such Asset Sale or Recovery Event constituted Collateral, then all property purchased with Reinvestment Prepayment Amount pursuant to this subsection shall be made subject to the Lien of the applicable Security Documents in favor of the Collateral Agent , for its benefit and for the benefit of the other Secured Parties in accordance with Section 6.13 . ).

 

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(c)                 Notices, Etc . The Borrower shall notify the Administrative Agent (and, in the case of pre-payment prepayment of a Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time, one Business Day before the date of prepayment or (iii) in the case of pre-payment prepayment of a Swingline Loan, not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Credit Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.08. Promptly following receipt of any such notice relating to a Borrowing of any Class, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing of any Class shall be applied ratably to the Loans of such Class included in such Borrowing and (unless the Borrower shall otherwise direct) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.12.

 

Section 2.11.         Fees .

 

(a)                 Commitment Fee . The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a commitment fee (the “ Commitment Fee ”), which shall accrue at the Applicable Rate for the Commitment Fee on the average daily unused amount of such Lender’s Revolving Credit Commitment during the period from and including the Effective Date to but excluding the earlier of the date the Revolving Credit Commitments terminate and the Revolving Credit Commitment Termination Date. Accrued Commitment Fees shall be payable on each Quarterly Date and on the earlier of the date the Revolving Credit Commitments terminate and the Revolving Credit Commitment Termination Date, commencing on the first such date to occur after the date hereof. The Commitment Fee shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing the Commitment Fee, the Revolving Credit Commitment of a Revolving Credit Lender shall be deemed to be used to the extent of the outstanding Revolving Credit Loans and LC Exposure of such Revolving Credit Lender (and the Swingline Exposure of such Revolving Credit Lender shall be disregarded for such purpose).

 

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(b)                Letter of Credit Fees . The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Credit Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Credit Loans on the average daily amount of such Revolving Credit Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date the Revolving Credit Commitments terminate and the date on which there ceases to be any LC Exposure, and (ii) to the Issuing Lender a fronting fee, which shall accrue at the rate of 0.125% per annum on the average daily amount of the total LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date the Revolving Credit Commitments terminate and the date on which there ceases to be any LC Exposure in respect of Letters of Credit issued by the Issuing Lender, as well as the Issuing Lender’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting fees accrued through and including the last day of March, June, September and December of each year shall be payable on the third Business Day following such last day, commencing on the first such date to occur after the Effective Date; provided that all such fees shall be payable on the date on which the Revolving Credit Commitments terminate and any such fees accruing after the date on which the Revolving Credit Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Lender pursuant to this paragraph shall be payable within 10 days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

(c)                 Administrative Agent Fees . The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.

 

(d)                Payment of Fees . All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to the Issuing Lender, in the case of fees payable to it) for distribution, in the case of commitment fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.

 

(e)                 Defaulting Lender . Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, such Defaulting Lender will not be entitled to any fees accruing during such period pursuant to Sections 2.11(a) and 2.11(b) (without prejudice to the rights of the Lenders other than Defaulting Lenders in respect of such fees), provided that (i) to the extent that a portion of the LC Exposure or the Swingline Exposure of such Defaulting Lender is reallocated to the Non-Defaulting Lenders pursuant to Section 2.20(a), the fees pursuant to Section 2.11(b) that would have accrued for the benefit of such Defaulting Lender will instead accrue for the benefit of and be payable to such Non-Defaulting Lenders, pro rata in accordance with their respective Commitments, and (ii) to the extent any portion of such LC Exposure or the Swingline Exposure cannot be so reallocated, such fees pursuant to Section 2.11(b) will instead accrue for the benefit of and be payable to the Issuing Lender and the Swingline Lender as their interests appear (and the pro rata payment provisions of Section 2.17 will automatically be deemed adjusted to reflect the provisions of this Section).

 

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Section 2.12.         Interest .

 

(a)                 ABR Loans . The Loans comprising each ABR Borrowing (including each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate for ABR Borrowings.

 

(b)                Eurodollar Loans . The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate for Eurodollar Borrowings.

 

(c)                 Default Interest . Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2.00% per annum plus the rate otherwise applicable to such Loan as provided in paragraphs (a) and (b) of this Section and (ii) in the case of any other amount, 2.00% per annum plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.

 

(d)                Payment of Interest . Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Credit Loans, upon termination of the Revolving Credit Commitments; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Credit Loan prior to the end of the Revolving Credit Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period there-for therefor , accrued interest on such Loan shall be payable on the effective date of such conversion.

 

(e)                 Computation . All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

Section 2.13.         Alternate Rate of Interest . If prior to the commencement of any Interest Period for any Eurodollar Borrowing:

 

(a)                 the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or

 

(b)                the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for such Interest Period;

 

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then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the con-version conversion of any Borrowing to, or the continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted to, an ABR Borrowing and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.

 

Section 2.14.         Increased Costs .

 

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

 

(i)                  impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Lender; or

 

(ii)                subject any Lender or Issuing Lender to any Tax (other than Non-Excluded Taxes or Other Taxes indemnified by Section 2.16 and any Excluded Taxes); or

 

(iii)              impose on any Lender or the Issuing Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Lender of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Lender hereunder (whether of principal, interest or other-wise otherwise ), then the Borrower will pay to such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.

 

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

 

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(c)                 Certificates from Lenders . A certificate of a Lender or the Issuing Lender setting forth the amount or amounts, necessary to compensate such Lender or the Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

 

(d)                Delay in Requests . Failure or delay on the part of any Lender or the Issuing Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Lender, 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 the Issuing Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180 day period referred to above shall be extended to include the period of retroactive effect thereof.

 

Section 2.15.         Break Funding Payments . In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Euro-dollar Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(c) and is revoked in accordance therewith) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for the loss (other than any loss of anticipated profits), cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss (other than any loss of anticipated profits), cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

Section 2.16.         Taxes .

 

(a)                 Payments Free of Taxes . Any and all All payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall (except to the extent required by any Requirement of Law) be paid free and clear of, and without any deduction or withholding on account of, any Taxes; provided that if any Loan Party or any other applicable withholding agent shall be required by any Requirement of Law to deduct or withhold any Taxes from or in respect of any such payment, then (i) the applicable Loan Party shall promptly notify the Administrative Agent of any such requirement; (ii) the applicable withholding agent shall make such deduction or withholding and timely pay to the relevant Governmental Authority any such Tax; and (iii) if the Tax in question is a Non-Excluded Tax or Other Tax, the sum payable by such Loan Party shall be increased to the extent necessary so that after all required deductions of Non-Excluded Taxes and Other Taxes have been made (including any deductions or withholdings of Non-Excluded Taxes or Other Taxes attributable to any amounts payable under this Section 2.16) the Lender (or, in the case of payments made to the Administrative Agent or Lender (as applicable for its own account, the Administrative Agent ) receives a net payment equal to the payment it would have received had no such deduction or withholding been required or made.

 

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(b)                Payment of Other Taxes by the Borrower . The Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law Requirements of Law .

 

(c)                 Indemnification by the Borrower . The Loan Parties shall jointly and severally indemnify each Lender and Administrative Agent (each, a “ Tax Indemnitee ”), within 10 days after written demand therefor, for the full amount of any Non-Excluded Taxes or Other Taxes payable by such Tax Indemnitee (including any Non-Excluded Taxes or Other Taxes imposed on or attributable to amounts payable under this Section 2.16), and any reasonable expenses related thereto, whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that, if the Borrower determines in its good faith judgment that a reasonable basis exists for contesting any Non-Excluded Tax or Other Tax, the Tax Indemnitee shall reasonably cooperate with the Borrower (at the Borrower’s expense) in pursuing a refund of such Non-Excluded Tax or Other Tax (and any refund received shall be payable to the Borrower to the extent provided in Section 2.16(f)); provided , further , that (1) no such cooperation shall be required to the extent the Tax Indemnitee determines in good faith that such cooperation or pursuing such refund would materially prejudice the legal or commercial position of such Tax Indemnitee and (2) no Tax Indemnitee shall be required to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person. A reasonably detailed certificate as to the amount of such liability and the reasons therefor delivered by the Tax Indemnitee, or by the Administrative Agent on its own behalf or on behalf of another Tax Indemnitee, shall be conclusive absent manifest error.

 

(d)                Evidence of Payments . As soon as practicable after any payment of Non-Excluded Taxes or Other Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority, the Borrower shall deliver to the Administrative Agent, or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent or the Borrower (as the case may be).

 

(e)                 Tax Forms . Each Lender shall, at such times as are reasonably requested by the Borrower or the Administrative Agent, provide the Borrower and the Administrative Agent with any properly completed and executed documentation prescribed by any Requirement of Law or reasonably requested by the Borrower or the Administrative Agent certifying as to any entitlement of such Lender to an exemption from, or reduction in, any withholding Tax with respect to any payments to be made to such Lender under any Loan Document. Each such Lender shall, whenever a lapse in time or change in circumstances renders any such documentation (including any specific documentation required below in this Section 2.16(e)) obsolete, expired, invalid or inaccurate in any respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability legal ineligibility to do so.

 

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Without limiting the generality of the foregoing:

 

(i)                  Each U.S. Lender shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement two properly completed and duly signed original copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding.

 

(ii)                Each Non-U.S. Lender shall deliver to the Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Borrower or the Administrative Agent) whichever of the following is applicable:

 

(A)              two properly completed and duly signed original copies of IRS Form W-8BEN or W-8BEN-E (or any successor forms) claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Code,

 

(B)               two properly completed and duly signed original copies of IRS Form W-8ECI (or any successor forms),

 

(C)               in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code, (A) two properly completed and duly signed certificates (any such certificate, a “ United States Tax Compliance Certificate ”) and (B) two properly completed and duly signed original copies of IRS Form W-8BEN or W-8BEN-E (or any successor forms),

 

(D)              to the extent a Non-U.S. Lender is not the beneficial owner (for example, where the Non-U.S. Lender is a partnership or a participating Lender), two properly completed and duly signed original copies of IRS Form W-8IMY (or any successor forms) of the Non-U.S. Lender, accompanied by a Form W-8ECI, W-8BEN, United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information (or any successor forms) from each beneficial owner that would be required under this Section 2.16(e) if such beneficial owner were a Lender, as applicable ( provided that if the Non-U.S. Lender is a partnership and not a participating Lender, and one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Non-U.S. Lender on behalf of such beneficial owners), or

 

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(E)               two properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws as a basis for claiming a complete exemption from, or a reduction in, United States federal withholding tax on any payments to such Lender under the Loan Documents.

 

(iii)              If a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Sections 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and the Administrative Agent at the time or times prescribed by law applicable Requirements of Law and at such time or times reasonably requested by Borrower or the Administrative Agent such documentation prescribed by applicable law ( Requirements of 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, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment.

 

Notwithstanding any other provision of this clause (e), a Lender shall not be required to deliver any documentation that such Lender is not legally eligible to deliver.

 

Each Lender hereby authorizes the Administrative Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided by the Lender to the Administrative Agent pursuant to this Section 2.16(e) .

 

(f)                 Refunds . If a Tax Indemnitee determines, in its good faith judgment, that it has received a refund (in cash or as an offset against other cash Tax liabilities) of any Non-Excluded Taxes or Other Taxes as to which it has received additional amounts or indemnification payments under this Section 2.16, then it shall pay over the amount of such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Loan Party under this Section 2.16 with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Tax Indemnitee (including any Taxes imposed with respect to such refund) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that the Borrower, upon the request of the Tax Indemnitee, agrees to repay the amount paid over to the Borrower ( plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Tax Indemnitee in the event the Tax Indemnitee is required to repay such refund to the applicable Governmental Authority. This subsection shall not be construed to require a Tax Indemnitee to make available its tax returns (or any other information relating to its taxes which it deems confidential) to, any Loan Party or any other Person.

 

(g)                General . For the avoidance of doubt, the term “Lender” shall, for all purposes of this Section 2.16, include any Swingline Lender and any Issuing Lender.

 

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Section 2.17.         Payments Generally; Pro Rata Treatment; Sharing of Set-offs .

 

(a)                 Payments by the Borrower . The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or otherwise) or under any other Loan Document (except as otherwise expressly provided therein) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at an account maintained with the Administrative Agent as notified to the Borrower and the Lenders, except as otherwise expressly provided in the relevant Loan Document and except payments to be made directly to the Issuing Lender or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 10.06, which shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder and under any other Loan Document shall be made in Dollars.

 

(b)                Application of Insufficient Payments . If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due here-under hereunder , ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

 

(c)                 Pro Rata Treatment . Except to the extent otherwise provided herein: (i) each Borrowing of a particular Class shall be made from the applicable Lenders, pro rata according to the amounts of the respective Commitments of such Class and shall be allocated pro rata among the applicable Lenders according to the amounts of their respective Commitments of such Class (in the case of the making of Loans) or their respective Loans of such Class that are to be included in such Borrowing (in the case of conversions and continuations of Loans), (ii) each payment of commitment fees under Section 2.11 shall be made for account of the Revolving Credit Lenders, and each termination or reduction of the amount of the Revolving Credit Commitments under Section 2.08 shall be applied to the Revolving Credit Commitments, pro rata according to the respective Revolving Credit Commitments of the Revolving Credit Lenders; (iii) each payment or prepayment of principal of Loans of any Class by the Borrower shall be made for account of the applicable Lenders pro rata according to the respective unpaid principal amounts of the Loans of such Class held by such Lenders; and (iv) each payment of interest on Loans of any Class by the Borrower shall be made for account of the applicable Lenders pro rata according to the amounts of interest on such Loans of such Class then due and payable to such Lenders.

 

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(d)                Sharing of Payments by Lenders . If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and Swingline Loans, as applicable, and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements and Swingline Loans, as applicable, of other applicable Lenders to the extent necessary so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements and Swingline Loans, as applicable; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Restricted Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

(e)                 Presumptions of Payment . 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 account of the Lenders or the Issuing 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 Issuing 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 applicable Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

(f)                 Certain Deductions by the Administrative Agent . If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(e), 2.06(a) and (b) or 2.17(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

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Section 2.18.         Mitigation Obligations; Replacement of Lenders .

 

(a)                 Designation of a Different Lending Office . If any Lender requests compensation under Section 2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, 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 2.14, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.16, or if any Lender defaults in its obligation to fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (i) terminate the applicable Commitments of such Lender and repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender as of such termination date or (ii)  require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.07), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i in the case of clause (ii) above, (x ) the Borrower shall have received the prior written consent of the Administrative Agent (unless an Incremental Term Loan is being assigned to an existing Incremental Term Loan Lender or an Affiliate or Approved Fund thereof) and (if a Revolving Credit Commitment is being assigned), the Issuing Lender and the Swingline Lender to such assignee (which consent, in each case, shall not unreasonably be withheld), ( ii y ) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it under the Loan Documents, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and ( iii z ) in the case of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuant to Section 2.16, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

(c)                 Lender . For the avoidance of doubt, the term “Lender” shall, for all purposes of this Section 2.18, include an Issuing Lender and a Swingline Lender.

 

Section 2.19.         Increase in Commitments .

 

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(a)                 Borrower Request . The Borrower may by written notice to the Administrative Agent elect to request (x) prior to the Revolving Credit Commitment Termination Date, one or more increases to the existing Revolving Credit Commitments (each, an “ Incremental Revolving Commitment ”) and/or (y) prior to the Revolving Credit Commitment Termination Date, the establishment of one or more new term loan commitments (each, an “ Incremental Term Loan Commitment ” and, together with the Incremental Revolving Commitment, the “ Incremental Commitments ”) by an (together with respect to any amounts incurred with respect to Incremental Equivalent Debt) (A) an amount not in excess of the aggregate sum of (A) $75,000,000 plus (B) an additional amount, not less than $25,000,000 individually, so long as, in the case of clause ( B), after giving pro forma effect to the borrowings (assuming that the Revolving Credit Commitments are fully drawn and, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully drawn) to be made on the Increase Effective Date, to any change in Consolidated EBITDA resulting from the consummation of any Permitted Acquisition concurrently with such borrowings and any increase in Indebtedness resulting from the assumption of Indebtedness in connection with the consummation of any Permitted Acquisition concurrently with such borrowings, greater of $120,000,000 and 100% of Consolidated EBITDA on a Pro Forma Basis as of the most recently ended Reference Period (less, (i) solely for purposes of determining how much Indebtedness may be incurred under this clause (A), the aggregate principal amount of all Incremental Commitments incurred or issued in reliance on clause (A), and (ii ) the aggregate principal amount of all outstanding Incremental Equivalent Debt incurred by reference to this clause (A)) or (B) an unlimited amount so long as, the Borrower’s Consolidated Se-cured First Lien Leverage Ratio calculated on a Pro Forma Basis for the prior most recently ended Reference Period shall not be greater than 2.5:1.0 3.00 to 1.00 . Each such notice shall specify (i) the date (each, an “ Increase Effective Date ”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a Business Day not less than 10 Business Days (or such shorter period as to which the Administrative Agent may agree) after the date on which such notice is delivered to the Administrative Agent and (ii) the identity of each assignee permit-ted permitted by Section 10.07(b) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment.

 

(b)                Conditions . The Incremental Commitments shall become effective as of such Increase Effective Date; provided that (subject, in the case of any Incremental Commitments being used to finance a Limited Condition Transaction, to Section 1.04(a)) :

 

(i)                  no Default or Event of Default shall have occurred and be continuing or would result from the borrowings (assuming, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully drawn) to be made on the Increase Effective Date and the use of proceeds thereof;

 

(ii)                after giving pro forma effect Pro Forma Effect to the borrowings (assuming, in the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are fully drawn) to be made on the Increase Effective Date and to any change in Consolidated EBITDA and any increase in Indebtedness resulting from the assumption of Indebtedness in connection with the consummation of any Permitted Acquisition concurrently with such borrowings, the Borrower shall be in compliance with each of the covenants set forth in Section 7.11 for the prior Reference Period;

 

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(iii)              The Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; and

 

(iv)              unless otherwise agreed by the Lenders providing the Incremental Commitments, the condition set forth in Section 5.02(a) shall be satisfied.

 

(c)                 Terms of Incremental Term Loans and Incremental Commitments . The terms and provisions of the Incremental Commitments and Loans made pursuant thereto shall be as follows:

 

(i)                  the terms and provisions of Loans made pursuant to Incremental Term Loan Commitments (“ Incremental Term Loans ”) shall be, except as otherwise set forth herein, as agreed be-tween between the Borrower, the Lenders providing the Incremental Term Loans and the Administrative Agent;

 

(ii)                the Incremental Term Loans and Loans made pursuant to Incremental Revolving Loan Commitments (“ Incremental Revolving Loans ”) will rank pari passu in right of payment and security with the Loans;

 

(iii)              the terms and provisions of Revolving Credit Loans made pursuant to Incremental Revolving Commitments shall be identical to the Revolving Credit Loans , (except that such Incremental Revolving Commitments may have different upfront or similar fees) ;

 

(iv)              the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the weighted average life to maturity of the Revolving Credit Loans on the Restatement Date , except that any Indebtedness constituting term A, term B or “stretch senior” first lien loans may have amortization requirements that are consistent with then-current market terms for such types of Indebtedness ; and

 

(v)                the maturity date of Incremental Term Loans shall not be earlier than the Revolving Credit Commitment Termination Date.

 

The Incremental Commitments shall be effected by a joinder agreement (the “ Increase Joinder ”) executed by the Borrower, the Administrative Agent and each Lender making such Incremental Commitment, in form and substance satisfactory to each of them. The Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.19 . , and the Lenders acknowledge and agree that such adjustments shall be made to this Agreement (or to the corresponding provisions of the applicable Increase Joinder) as are necessary to provide for the “fungibility” of such Incremental Commitment with such then-existing Revolving Credit Loans or Term Loans, as applicable.

 

In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Credit Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Credit Loans made pursuant to new Commitments.

 

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(d)                Adjustment of Revolving Credit Loans . To the extent the Commitments being increased on the relevant Increase Effective Date are Revolving Credit Commitments, then each Revolving Credit Lender that is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date shall make a Revolving Credit Loan, the proceeds of which will be used to prepay the Revolving Credit Loans of the other Revolving Credit Lenders immediately prior to such Increase Effective Date, so that, after giving effect thereto, the Revolving Credit Loans outstanding are held by the Revolving Credit Lenders pro rata based on their Revolving Credit Commitments after giving effect to such Increase Effective Date. If there is a new borrowing of Revolving Credit Loans on such Increase Effective Date, the Revolving Credit Lenders after giving effect to such Increase Effective Date shall make such Revolving Credit Loans in accordance with Section 2.01(b).

 

(e)                 Making of Incremental Term Loans . On any Increase Effective Date on which Incremental Term Loan Commitments are effective, subject to the satisfaction of the terms and conditions in paragraph (c) of this Section (subject, in the case of any Incremental Commitments being used to finance Limited Condition Transaction, to Section 1.04(a)) , each Lender of such Incremental Term Loan Commitments shall make an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment.

 

(f)                 Equal and Ratable Benefit . The Loans and Commitments established pursuant to this paragraph shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such Class of Loans or any such new Commitments.

 

Section 2.20.         Defaulting Lenders .

 

(a)                 If a Lender becomes, and during the period it remains, a Defaulting Lender, the following provisions shall apply with respect to any outstanding LC Exposure and any outstanding Swingline Exposure of such Defaulting Lender:

 

(i)                  the LC Exposure and the Swingline Exposure of such Defaulting Lender will, subject to the limitation in the first proviso below, automatically be reallocated (effective on the day such Lender becomes a Defaulting Lender) among the Non-Defaulting Lenders pro rata in accordance with their respective Commitments; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure, Swingline Exposure and LC Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender as in effect at the time of such reallocation and (b) neither such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender may have against such De-faulting Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;

 

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(ii)                to the extent that any portion (the “ unreallocated portion ”) of the Defaulting Lender’s LC Exposure and Swingline Exposure cannot be so reallocated, whether by reason of the first proviso in clause (i) above or otherwise, the Borrower will, not later than five Business Days after demand by the Administrative Agent (at the direction of the Issuing Lender and/or the Swingline Lender, as the case may be), (a) Cash Collateralize the obligations of the Borrower to the Issuing Lender and the Swingline Lender in respect of such LC Exposure or Swingline Exposure, as the case may be, in an amount at least equal to the aggregate amount of the unreallocated portion of such LC Exposure or Swingline Exposure, or (b) in the case of such Swingline Exposure, prepay (subject to Section 2.20(a)(iii) below) and/or Cash Collateralize in full the unreallocated portion thereof, or (c) make other arrangements satisfactory to the Administrative Agent, and to the Issuing Lender and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; and

 

(iii)              any amount paid by the Borrower for the account of a Defaulting Lender under this Agreement (whether on ac-count account of principal, interest, fees, indemnity payments or other amounts) will not be paid or distributed to such De-faulting Defaulting Lender, but will instead be retained by the Administrative Agent in a segregated account until (subject to Section 2.20(b)) the termination of the Commitments and payment in full of all obligations of the Borrower here-under hereunder and will be applied by the Administrative Agent, to the fullest extent permitted by law, to the making of payments from time to time in the following order of priority: first to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent under this Agreement, second to the payment of any amounts owing by such Defaulting Lender to the Issuing Lender or the Swingline Lender ( pro rata as to the respective amounts owing to each of them) under this Agreement, third to the payment of post-default interest and then current interest due and payable to the Lenders hereunder other than Defaulting Lenders, ratably among them in accordance with the amounts of such interest then due and payable to them, fourth to the payment of fees then due and payable to the Non-Defaulting Lenders hereunder, ratably among them in accordance with the amounts of such fees then due and payable to them, fifth to pay principal and unreimbursed LC Disbursements then due and payable to the Non-Defaulting Lenders hereunder ratably in accordance with the amounts thereof then due and payable to them, sixth to any amounts owed by the Defaulting Lender to the Borrower hereunder, seventh to the ratable payment of other amounts then due and payable to the Non-Defaulting Lenders, and eighth after the termination of the Commitments and payment in full of all obligations of the Borrower hereunder, to pay amounts owing under this Agreement to such Defaulting Lender or as a court of competent jurisdiction may otherwise direct.

 

(b)                If the Borrower, the Administrative Agent, the Issuing Lender and the Swingline Lender agree in writing in their discretion that a Lender that is a Defaulting Lender should no longer be deemed to be a Defaulting Lender the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any amounts then held in the segregated account referred to in Section 2.20(a)(iii)), such Lender will, to the extent applicable, purchase such portion of outstanding Loans of the other Lenders and/or make such other adjustments as the Administrative Agent may determine to be necessary to cause the LC Exposure and Swingline Exposure of the Lenders to be on a pro rata basis in accordance with their respective Commitments, whereupon such Lender will cease to be a Defaulting Lender and will be a Non-Defaulting Lender (and such LC Exposure and Swingline Exposure of each Lender will automatically be adjusted on a prospective basis to reflect the foregoing); provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such 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 Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

 

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(c)                 The Borrower may terminate the unused amount of the Commitment of a Defaulting Lender upon not less than five Business Days’ prior notice to the Administrative Agent (which will promptly notify the Lenders thereof), and in such event the provisions of Section 2.20(a)(iii) will apply to all amounts thereafter paid by the Borrower for the account of such Defaulting Lender under this Agreement (whether on account of principal, interest, fees, indemnity or other amounts), provided that such termination will not be deemed to be a waiver or re-lease release of any claim the Borrower, the Administrative Agent, the Issuing Lender, the Swingline Lender or any Lender may have against such Defaulting Lender.

 

(d)                New Swingline Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, the Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Lender shall not be required to issue, amend or increase any Letter of Credit, unless they are respectively satisfied that the related exposure will be 103% covered by the Commitments of the Non-Defaulting Lenders and/or cash collateralized on terms reasonably satisfactory to the Administrative Agent, and participations in any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Lenders in accordance with their respective Commitment (and Defaulting Lenders shall not participate therein).

 

Section 2.21.         Extension Offers .

 

(a)                 Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “ Extension Offer ”) made from time to time by the Borrower to all Lenders of Revolving Credit Commitments with a like maturity date on a pro rata basis (based on the aggregate outstanding principal amount of the Revolving Credit Commitments with a like maturity date) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Revolving Credit Commitments and otherwise modify the terms of such Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including, without limitation, by increasing the interest rate or fees payable in respect of such Revolving Credit Commitments (and related outstandings)) (each, an “ Extension ,” and each group of Revolving Credit Commitments in each case as so extended, as well as the original Revolving Credit Commitments (not so extended), being a “ Facility ”; any Extended Revolving Credit Commitments shall constitute a separate Revolving Credit Facility (an “ Extended Revolving Credit Facility ”) from the portion of the Revolving Credit Facility not being extended), so long as the following terms are satisfied: (i) no Default or Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders, (ii) except as to interest rates, fees and final maturity (which shall be determined by the Borrower and set forth in the relevant Extension Offer), the Revolving Credit Commitment of any Revolving Credit Lender that agrees to an Extension with respect to such Revolving Credit Commitment (an “ Extending Revolving Credit Lender ”) extended pursuant to an Extension (an “ Extended Revolving Credit Loans ”), and the related outstandings, shall be a Revolving Credit Commitment (or related out-standings outstandings , as the case may be) with the same terms as the original Revolving Credit Commitments (and related out-standings outstandings ); provided that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings), (B)  re-payments repayments required upon the maturity date of the non-extending Revolving Credit Commitments and (C)  subject to clause (3) below, repayment made in connection with a permanent repayment and termination of commitments) of Loans with respect to Extended Revolving Credit Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Sections 2.04(d) and 2.05(l) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Sections 2.04(d) and 2.05(l), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Ex-tended Extended Revolving Credit Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any Revolving Credit Facility on a better than a pro rata basis as compared to any other Revolving Credit Facility with a later maturity date than such Revolving Credit Facility and (4) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to existing Revolving Credit Commitments and Revolving Credit Loans and (5) at no time shall there be Revolving Credit Commitments hereunder (including Extended Revolving Credit Commitments and any Initial Revolving Credit Commitments) which have more than three different maturity dates (unless otherwise agreed by the Administrative Agent), (iii) if the aggregate principal amount of Revolving Credit Commitments in respect of which Revolving Credit Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Credit Commitments offered to be extended by the Borrower pursuant to such Extension Offer, then the Revolving Credit Loans of such Revolving Credit Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Revolving Credit Lenders have accepted such Extension Offer, (iv) all documentation in respect of such Extension shall be consistent with the foregoing and (v) any applicable Minimum Extension Condition shall be satisfied unless waived by the Borrower.

 

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(b)                With respect to all Extensions consummated by the Borrower pursuant to this Section, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.10 and (ii) no Extension Offer is required to be in any minimum amount or any minimum increment, provided that the Borrower may at its election specify as a condition (a “ Minimum Extension Condition ”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Ex-tension Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Revolving Credit Commitments of the Revolving Credit Facility to be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections 2.10 and 2.17) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section.

 

 

 

 

 

 

 

 

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(c)                 No consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the Issuing Lender and Swingline Lender. All Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrower as may be necessary in order to establish new Facilities or sub-Facilities in respect of Revolving Credit Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Facilities or sub-Facilities, in each case on terms consistent with this Section. In addition, if so provided in such amendment and with the consent of each Issuing Lender, participations in Letters of Credit expiring on or after the maturity date in respect of the Revolving Credit Facility not being extended shall be re-allocated reallocated from Lenders holding Revolving Credit Commitments not being extended to Lenders holding Extended Revolving Credit Commitments in accordance with the terms of such amendment. Without limiting the foregoing , in connection with any Extensions the respective Loan Parties shall (at their expense) amend (and the Administrative Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the Facility with the latest maturity date so that such maturity date is extended to such later maturity date (or such later date as may be advised by local counsel to the Administrative Agent).

 

(d)                In connection with any Extension, the Borrower shall provide the Administrative Agent at least 10 Business Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including, without limitation, regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section.

 

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Article III

GUARANTEE

 

Section 3.01.         Guarantee . Each Guarantor hereby jointly and severally guarantees on a senior secured basis to each Lender (and each Affiliate of a Lender which holds any of the Obligations of the Borrower or any other Loan Party) and the Administrative Agent and their respective successors and assigns the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of the Borrower strictly in accordance with the terms thereof (such Obligations being herein collectively called the “ Guaranteed Obligations ”). The Guarantors hereby further jointly and severally agree that if the Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will 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, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

 

Section 3.02.         Obligations Unconditional . The obligations of the Guarantors under Section 3.01 are absolute and unconditional guarantees of payment, and joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the other Loan Parties under this Agreement or any other agreement or instrument referred to herein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder, which shall remain absolute and unconditional as described above:

 

(a)                 at any time or from time to time, without notice to the Guarantors, 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 this Agreement or any other agreement or instrument referred to herein 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 this Agreement or any other agreement or instrument referred to herein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with; or

 

(d)                any lien or security interest granted to, or in favor of, the Administrative Agent or any Lender or Lenders as security for any of the Guaranteed Obligations shall fail to be perfected.

 

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The Guarantors hereby expressly waive 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 the Borrower under this Agreement or any other agreement or instrument referred to herein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.

 

Section 3.03.         Reinstatement . The obligations of each Guarantor under this Article shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower 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 fees 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 3.04.         Subrogation . Each Guarantor hereby agrees that, until the payment and satisfaction in full of all Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under this Agreement, it shall not exercise any right or remedy arising by reason of any performance by it of its guarantee in Section 3.01, whether by subrogation or otherwise, against the Borrower or any other guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.

 

Section 3.05.         Remedies . Each Guarantor agrees that, as between such Guarantor and the Lenders, the obligations of the Borrower under this Agreement may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VIII) for purposes of Section 3.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by such Guarantor for purposes of Section 3.01.

 

Section 3.06.         Instrument for the Payment of Money . Each Guarantor hereby acknowledges that the guarantee in this Article constitutes an instrument for the payment of money, and consents and agrees that any Lender or the Administrative Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to proceed by motion for summary judgment in lieu of complaint pursuant to N.Y. Civ. Prac. L&R § 3213.

 

Section 3.07.         Continuing Guarantee . The guarantee in this Article is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.

 

Section 3.08.         Rights of Contribution . The Guarantors hereby agree, as between themselves, that if any Guarantor shall become an Excess Funding Guarantor (as defined below) by reason of the payment by such Guarantor of any Guaranteed Obligations, then each other Guarantor shall, on demand of such Excess Funding Guarantor (but subject to the next sentence), pay to such Excess Funding Guarantor an amount equal to such Guarantor’s Pro Rata Share (as defined below and determined, for this purpose, without reference to the properties, debts and liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined below) in respect of such Guaranteed Obligations. The payment obligation of a Guarantor to any Excess Funding Guarantor under this Section shall be subordinate and subject in right of payment to the prior payment in full of the obligations of such Guarantor under the other provisions of this Article III and such Excess Funding Guarantor shall not exercise any right or remedy with respect to such excess until payment and satisfaction in full of all of such obligations.

 

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For purposes of this Section, (i) “ Excess Funding Guarantor ” means, in respect of any Guaranteed Obligations, a Guarantor that has paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii) “ Excess Payment ” means, in respect of any Guaranteed Obligations, the amount paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such Guaranteed Obligations and (iii) “ Pro Rata Share ” means, for any Guarantor, the ratio (expressed as a percentage) of (x) the amount by which the aggregate fair saleable value of all properties of such Guarantor (excluding any shares of stock or other equity interest of any other Guarantor) exceeds the amount of all the debts and liabilities of such Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder and any obligations of any other Guarantor that have been Guaranteed by such Guarantor) to (y) the amount by which the aggregate fair saleable value of all properties of the Borrower and all of the Guarantors exceeds the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of the Loan Parties hereunder and under the other Loan Documents) of all of the Guarantors, determined (A) with respect to any Guarantor that is a party hereto on the Effective Date, as of the Effective Date, and (B) with respect to any other Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.

 

Section 3.09.         General Limitation on Guaranteed Obligations . In any action or proceeding involving any state corporate law, or any state or Federal bankruptcy, in-solvency insolvency , reorganization or other law affecting the rights of creditors generally, if the obligations of any Guarantor under Section 3.01 would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 3.01, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by such Guarantor, any Lender, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

 

Article IV

REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants to the Lenders that:

 

Section 4.01.         Organization; Powers . Each of the Borrower and its Restricted Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required.

 

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Section 4.02.         Authorization; Enforceability . The Transactions are within the Borrower’s and each other Loan Party’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Agreement and each of the other Loan Documents have been duly executed and delivered by each Loan Party party thereto and constitutes, or when executed and delivered by such Loan Party will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party in accordance with its terms, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

 

Section 4.03.         Governmental Approvals; No Conflicts . The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for (i) such as have been obtained or made and are in full force and effect and (ii) filings and recordings in respect of the Liens created pursuant to the Security Documents, (b) will not violate any Requirement of Law, (c) will not violate any of the Loan Parties’ organizational documents, (d) will not violate or result in a default under any material Contractual Obligation upon the Borrower and its Restricted Subsidiaries or its or their respective assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Restricted Subsidiaries, and (e) except for the Liens created pursuant to the Security Documents, will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Restricted Subsidiaries.

 

Section 4.04.         Financial Condition; No Material Adverse Change; No Default .

 

(a)                 Financial Condition . The Borrower has heretofore furnished to the Lenders its audited consolidated balance sheet and statements of income, stockholders’ equity and cash flows as of and for the Fiscal Years ended December 31, 2010 2014 , December 31, 2011 2015 and December 31, 2012 2016 , in each case reported on by KPMG LLP (the financial information described above, the “ Historical Financial Statements ”). The Historical Financial Statements present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and its Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments and the absense absence of footnotes in the case of financial statements referred to in clause (ii) above. There are no liabilities of the Borrower or any of its Subsidiaries, fixed or contingent, which are material in relation to the consolidated financial condition of the Borrower that are not reflected in such financial statements or in the notes thereto, other than liabilities arising in the ordinary course of business since the respective dates of such financial statements.

 

(b)                No Material Adverse Change . Since December 31, 2012 2016 , there has not occurred any event, development or circumstance that has had or could reasonably be expected to have a Material Adverse Effect.

 

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Section 4.05.         Properties .

 

(a)                 Property Generally . Each of the Borrower and its Restricted Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, subject only to Permitted Liens. The Liens granted by the Security Documents constitute valid perfected first priority Liens on the properties and assets covered by the Security Documents, to the extent required by the Security Documents and subject to no prior or equal Lien except those Liens permitted by Section 7.02.

 

(b)                Leases . Each of the Borrower and its Restricted Subsidiaries has complied with all obligations under all leases to which it is a party and all such leases are in full force and effect except for such noncompliance or ineffectiveness which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

(c)                 Real Property . Schedules 7(a) and 7(b) to the Perfection Certificate dated the Effective Date contain a true and complete list of each interest in Real Property owned by the Borrower and any Restricted Subsidiary as of the Effective Date and describes the type of interest therein held by the Borrower or Restricted Subsidiary and whether such owned Real Property is leased and if leased whether the underlying lease contains any option to purchase all or any portion of such Real Property or any interest therein or contains any right of first refusal relating to any sale of such Real Property or any portion thereof or interest therein.

 

(d)                Flood Zone. No Mortgage encumbers Mortgaged Property that is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards within the meaning of the National Flood Insurance Act of 1968 unless flood insurance available under such Act has been obtained in accordance with Section 6.06. [Reserved].

 

(e)                 Intellectual Property . Each of the Borrower and its Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Restricted Subsidiaries does not infringe upon the rights of any other Person except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 4.06.         Litigation and Environmental Matters .

 

(a)                 Actions, Suits and Proceedings . There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against the Borrower or any of its Restricted Subsidiaries or, to the knowledge of the Borrower, threatened in writing against or affecting the Borrower or any of its Restricted Subsidiaries that , in either case, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect or that involve this Agreement or the Transactions (other than the Disclosed Matters) .

 

(b)                Environmental Matters . Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of its Restricted Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental Liability or (iv) knows of any facts that could reasonably be expected to result in any Environmental Liability.

 

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(c) Disclosed Matters. Since the Restatement Date , there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or could reasonably be expected to result in , a Material Adverse Effect .

 

Section 4.07.         Compliance with Laws and Contractual Obligations . Each of the Borrower and its Restricted Subsidiaries is in compliance with all Requirements of Law applicable to it or its property or all Contractual Obligations binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default or Event of Default shall have occurred and be continuing.

 

Section 4.08.         Investment Company Act Status . Neither the Borrower nor its Restricted Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

 

Section 4.09.         Taxes . The Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes levied or imposed upon it or otherwise due and pay-able payable (including in its capacity as a withholding agent), except, in each case, (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. There is no current, pending or proposed Tax audit, assessment, deficiency or other claim against Borrower or any of its Restricted Subsidiaries that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

Section 4.10.         ERISA . Except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) no ERISA Event has occurred or is reasonably expected to occur and (b) each Plan has complied with the applicable provisions of ERISA and the Code. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Ac-counting Accounting Standards Codification No.  87 715 ) does not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an amount that could reasonably be expected to result in a Material Adverse Effect.

 

Section 4.11.         Disclosure . The Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Restricted Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the written reports, financial statements, certificates or other written information (other than (a)  projections and other forward looking information and (b)  information of a general economic or industry-specific nature ) furnished by or on behalf of the Borrower or any Restricted Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement and the other Loan Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) taken as a whole contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation thereof.

 

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Section 4.12.         Use of Credit . Neither the Borrower nor any of its Restricted Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock in violation of Regulation U.

 

Section 4.13.         Labor Matters . Except with respect to any matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (a) no collective bargaining agreement or other labor contract will expire during the term of this Agreement, (b) to the Borrower’s knowledge, no union or other labor organization is seeking to organize, or to be recognized as bargaining representative for, a bargaining unit of employees of the Borrower or any of its Restricted Subsidiaries, (c) there is no pending or, to the Borrower’s knowledge, threatened strike, work stoppage, material unfair labor practice claim or charge, arbitration or other labor dispute against or affecting the Borrower or any of its Restricted Subsidiaries or their respective employees and (d) there are no actions, suits, charges, demands, claims, counterclaims or proceedings pending or, to the best of the Borrower’s knowledge, threatened against the Borrower or any of its Restricted Subsidiaries, by or on behalf of, or with, its employees.

 

Section 4.14.         [Reserved] .

 

Section 4.15.         [Reserved] .

 

SECTION 4.14. Indebtedness. Schedule 7.01 is a complete and correct list of each credit agreement, loan agreement, indenture, purchase agreement, guarantee , letter of credit or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) to, or guarantee by, the Borrower or any of its Subsidiaries, in each case, outstanding as of the Restatement Date (other than the Loan Documents (as defined in the Original Credit Agreement)), and the aggregate principal or face amount outstanding or that may become outstanding under each such arrangement is correctly described in Schedule 7.01.

 

SECTION 4.15. Liens. Schedule 7.02 is a complete and correct list of each Lien securing Indebtedness of any Person outstanding as of the Restatement Date (other than the Liens under the Loan Documents (as defined in the Original Credit Agreement)) and covering any property of the Borrower or any of its Subsidiaries, and the aggregate Indebtedness se-cured (or that may be secured) by each such Lien and the property covered by each such Lien is correctly described in Schedule 7.02.

 

Section 4.16.         Restricted Subsidiaries . Schedule 4.16 is a complete and correct list of all of the Restricted Subsidiaries of the Borrower as of the Restatement Amendment No. 2 Effective Date, together with, for each such Restricted Subsidiary, (a) the jurisdiction of organization of such Restricted Subsidiary, (b) each Person holding ownership interests in such Restricted Subsidiary and (c) the nature of the ownership interests held by each such Person and the percentage of ownership of such Restricted Subsidiary represented by such ownership interests. Except as disclosed in Schedule 4.16 as of the Amendment No. 2 Effective Date , (i) each of the Borrower and its Restricted Subsidiaries owns, free and clear of Liens (other than Liens arising by operation of law or created pursuant to the Security Documents), and has the unencumbered right to vote, all outstanding ownership interests in each Person shown to be held by it in Schedule 4.16, (ii) all of the issued and outstanding Capital Stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable and (iii) there are no out-standing outstanding Equity Rights with respect to such Person.

 

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Section 4.17.         Solvency . The Borrower is and, after giving effect to the making of each Loan and the use of proceeds thereof, will be Sol-vent Solvent .

 

Section 4.18.         [Reserved] .

 

Section 4.19.         Anti-Terrorism /Anti-Corruption Laws .

 

(a)                 Anti-Terrorism Laws . Neither the Borrower nor any of its Restricted Subsidiaries and, to the knowledge of the Borrower, none of its Affiliates and none of the respective officers, directors, brokers or agents of the Borrower , or such Restricted Subsidiary or Affiliate has violated or is in violation of Anti-Terrorism Laws.

 

(b)                Anti-Corruption Laws. Neither the Borrower nor any of its Restricted Subsidiaries and, to the knowledge of the Borrower, none of the respective officers, directors, brokers or agents of the Borrower or such Restricted Subsidiary has violated or is in violation of any Anti-Corruption Laws, where such violation could reasonably be expected to result in a material liability on the part of the Borrower or any of its Restricted Subsidiaries.

 

(c)                 (b) Embargoed Persons . Neither the Borrower nor any of its Restricted Subsidiaries and, to the knowledge of the Borrower, none of its Affiliates and none of the respective officers, directors, brokers or agents of such Loan Party , such Subsidiary or such Affiliate that is or such Restricted Subsidiary acting or benefiting in any capacity in connection with the Loans is an Embargoed Person. Neither Borrower nor any of its Restricted Subsidiaries engages in any dealings or transactions with an Embargoed Person.

 

(d)                (c) Use of Proceeds . Neither the Borrower nor any of its Restricted Subsidiaries and, to the knowledge of the Borrower, none of its Affiliates and none of the respective officers, directors, brokers or agents of the Borrower, such Restricted Subsidiary or such Affiliate acting or benefiting in any capacity in connection with the Loans (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Embargoed Person or in violation of any Anti-Corruption Laws , (ii) deals in, or otherwise engages in any transaction related to, any property or interests in property blocked pursuant to any Anti-Terrorism Law or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

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Section 4.20.         Security Documents .

 

(a)                 Security Agreement . The Security Agreement is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Security Agreement Collateral and, (i) upon the filing of financing statements and other filings in appropriate form in the offices specified on Schedule 7 to the Perfection Certificate dated the Effective Date and (ii) upon the taking of possession or control by the Collateral Agent of the Security Agreement Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the Security Agreement), the Liens created by the Security Agreement shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors in the Security Agreement Collateral (other than such Security Agreement Collateral in which a security interest cannot be granted or cannot be perfected by filing financing statements, possession or control (to the extent required by the Security Agreement) under the UCC as in effect at the relevant time in the relevant jurisdiction), in each case subject to no Liens other than Permitted Liens.

 

(b)                PTO Filing; Copyright Office Filing . Upon the filing of the IP Security Agreements in the United States Patent and Trademark Office or the United States Copyright Office, as applicable, the Liens created by such IP Security Agreements shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in Trademark and Patents (each as defined in the applicable IP Security Agreement) registered or applied for with the United States Patent and Trademark Office or Copyrights (as defined in the applicable IP Security Agreement) registered or applied for with the United States Copyright Office, as the case may be, in each case subject to no Liens other than Permitted Liens.

 

(c)                 Valid Liens . Each Security Document delivered pursuant to Section 6.13 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Par-ties Parties , legal, valid and enforceable Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Collateral thereunder, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law and (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent required by any Security Document), such Security Document will constitute fully perfected first priority Liens on, and security interests in, all right, title and interest of the Loan Parties in such Collateral (other than Collateral in which a security interest cannot be granted or cannot be perfected by filing financing statements, possession or control (to the extent required by the Security Agreement) under the UCC), in each case subject to no Liens other than Permitted Liens.

 

Section 4.21.         Insurance . All insurance maintained by the Loan Parties is in full force and effect, all premiums have been duly paid, no Loan Party has received notice of violation or cancellation thereof, and the use, occupancy and operation of the Real Property comply with all insurance requirements, and there exists no default under any insurance requirement, in each case, where the failure to comply with the foregoing could reasonably be expected to result in a Material Adverse Effect. Each Loan Party has insurance in such amounts and covering such risks and liabilities as are customary for companies of a similar size engaged in similar businesses in similar locations.

 

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Article V

CONDITIONS

 

Section 5.01.         Conditions of Initial Credit Extensions on the Amendment No. 2 Effective Date . The obligations of the Lenders to make the initial Loans and of the Issuing Lender to issue or continue its initial Letters of Credit hereunder shall not become effective until the date on which (i) the Administrative Agent and the Collateral Agent shall have received each of the following documents set forth in Section 3 of Amendment No. 2 , each of which shall be satisfactory to the Administrative Agent in form and substance and (ii) each of the other conditions set forth in Section 3 of Amendment No. 2 shall have been satisfied (or such condition shall have been waived in accordance with Section 10.05) : .

 

(a) Executed Counterparts. From each party hereto , a counterpart of this Agreement.

 

(b) Opinion of Counsel to the Loan Parties. A written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Date of Wilmer Cutler Pickering Hale and Dorr LLP, counsel for the Loan Parties, substantially in the form of Exhibit E and Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent, and covering such other matters relating to the Loan Parties, this Agreement or the Transactions as the Administrative Agent shall reasonably request (and the Borrower hereby instructs such counsel to deliver such opinions to the Lenders and the Administrative Agent).

 

(c) Officer’s Certificate. A certificate, dated the Restatement Date and signed by a senior executive officer of the Borrower , confirming compliance with the conditions precedent set forth in Sections 5.02(a) and (b) .

 

(d) Corporate Documents. Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

 

(e) Solvency Certificate. A Solvency Certificate, dated the Restatement Date, signed by the chief financial officer of the Borrower.

 

(f) Lien Searches. Certified copies of requests for information or searches dated a date reasonably near the date hereof listing all effective financing statements and tax and judgment Liens which name or evidence any Loan Party (under its name or any previous name) as transferor or debtor, together with copies of such financing statements or other evidence of Liens.

 

(g) Substantially concurrently with the Restatement Date, the repayment in full of the Existing Term Loan Facility.

 

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(h) Financial Statements. The Historical Financial Statements.

 

(i) Patriot Act. All documentation and information as is reasonably requested in writing at least 3 days prior to the Restatement Date by the Administrative Agent about the Loan Parties to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act .

 

(j) Borrowing Request . A Borrowing Request or letter of credit request, as applicable, relating to the initial credit extensions hereunder.

 

(k) Fees and Expenses. Payment in full in cash of all fees and expenses required to be paid hereunder and the Engagement Letter and invoiced two days prior to the Restatement Date.

 

Section 5.02.         Each Credit Event . The obligation of each Lender to make any Loan (other than in the case of clause ( a) or (b) with respect to a Borrowing under Section 2.19) , and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit, are additionally subject to the satisfaction of the following conditions:

 

(a)                 the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and

 

(b)                at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing . ; and

 

(c)                 the Administrative Agent shall have received a Borrowing Request or letter of credit request, as applicable, relating to each credit extension hereunder.

 

Each such Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence.

 

In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Col-lateralization Collateralization or a combination thereof satisfactory to the Issuing Lender or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.

 

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Article VI

AFFIRMATIVE COVENANTS

 

Until the Commitments have expired or been terminated and the principal of and interest on each Loan and , all fees payable hereunder and all other Obligations (other than indemnification obligations not yet due and payable and Obligations under clauses (b) and (c) of the definitions of Obligations) shall have been paid in full and all Letters of Credit shall have expired or terminated without any being drawn, or have been Cash Collateralized in the amount required hereunder and all LC Disbursements shall have been reimbursed (the “Termination Date”) , the Borrower covenants and agrees with the Lenders that:

 

Section 6.01.         Financial Statements and Other Information . The Borrower will furnish to the Administrative Agent (which shall promptly furnish to each Lender):

 

(a)                 within 90 days (or, in the case of the Fiscal Year ended December 31, 2016, within 180 days) after the end of each Fiscal Year of the Borrower (or such later date as may be applicable if any Rule 12b-25 of the Exchange Act extension is made pursuant to the filing of a Form 12b-25 as required pursuant to the Exchange Act) , the audited consolidated balance sheet and related statements of income, stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous Fiscal Year, all reported on by KPMG LLP or other independent public accountants of recognized national standing ( which opinion shall be without a “going concern” or like qualification or exception , other than solely with respect to an upcoming maturity date of Indebtedness otherwise permitted hereunder or a potential inability to satisfy a financial covenant, and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

 

(b)                within 45 days (or, in the case of the fiscal quarter ending March 31, 2017, simultaneously with the delivery of the audit for the Fiscal Year ended December 31, 2016 as required by Section 6.01(a) hereof) after the end of the first three fiscal quarters of the Borrower (or such later date as may be applicable if any Rule 12b-25 of the Exchange Act extension is made pursuant to the filing of a Form 12b-25 as required pursuant to the Exchange Act) , the consolidated balance sheets and related consolidated statements of income and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the Fiscal Year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous Fiscal Year, all certified by a Responsible Officer as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes ; (it being understood that the delivery by the Borrower of quarterly reports on Form 10-Q of the Borrower shall satisfy the requirements of this Section 6.01(b) to the extent such quarterly reports include the information specified herein);

 

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(c)                 concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate of a Responsible Officer (i) certifying as to whether a Default has occurred then exists and, if a Default has occurred then exists , specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.11 and, in the case of audited financial statements, setting forth reasonably detailed calculations demonstrating Excess Cash Flow and , (iii) stating whether any change in GAAP or in the application thereof has occurred since the date of the most recent audited financial statements of the Borrower referred to in Section 4.04(a) or delivered pursuant to Section 6.01(a) and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate and (iv) listing each Unrestricted Subsidiary as of the last day of such reporting period and of any new Restricted Subsidiary of the Borrower formed or acquired during such reporting period ;

 

(d)                promptly upon receipt thereof, copies of all other reports submitted to the Borrower by its independent certified public accountants in connection with any annual or interim audit or review of the books of the Borrower made by such accountants;

 

(e)                 promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Restricted Subsidiary with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; and

 

(f)                 promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement and the other Loan Documents, as the Administrative Agent or any Lender may reasonably request. Notwithstanding anything to the contrary in this Section 6.01, neither the Borrower nor any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (1) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable laws or any binding agreement not entered into in contemplation of avoiding such inspection and disclosure rights, (2) that is subject to attorney client or similar privilege or constitutes attorney work product, (3) in respect of which the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party not entered into in contemplation of avoiding such inspection and disclosure; provided that, with respect to this clause (3), the Borrower shall (A) make the Administrative Agent aware of such confidentiality obligations (to the extent permitted under the applicable confidentiality obligation) and (B) use commercially reasonable efforts to communicate the relevant information in a way that does not violate such confidentiality obligations, or (4) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any Restricted Subsidiary thereof and/or any of its customers and/or any of its suppliers; and

 

(g)                simultaneously with the delivery of each set of consolidated financial statements referred to in Sections 6.01 (a) and 6.01(b) above, a summary of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such consolidated financial statements .

 

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Documents required to be delivered pursuant to this Section 6.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower (or a representative thereof) posts such documents (or provides a link thereto) at www. hms.com ; provided that, other than with respect to items required to be delivered pursuant to Section 6.01(e) above, the Borrower shall promptly notify (which notice may be by facsimile or electronic mail) the Administrative Agent of the posting of any such documents at www.hms.com and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents; (ii) on which such documents are delivered by the Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant secure 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); (iii) on which such documents are faxed to the Administrative Agent (or electronically mailed to an address provided by the Administrative Agent); or (iv) with respect to any item required to be delivered pursuant to Section 6.01( a), (b) or (e) above in respect of information filed by the Borrower with any securities exchange or with the SEC or any analogous Governmental Authority or private regulatory authority with jurisdiction over matters relating to securities, on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority.

 

Section 6.02.         Notices of Material Events . The Borrower will furnish to the Administrative Agent and (which shall promptly furnish to each Lender ) prompt written notice of the following:

 

(a)                 promptly after any senior executive officer of the Borrower obtains knowledge thereof, the occurrence of any Default;

 

(b)                the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any of its Restricted Subsidiaries, other than disputes in the ordinary course of business or, whether or not in the ordinary of business , disputes involving amounts exceeding $10,000,000 that could reasonably be expected to result in a Material Adverse Effect ;

 

(c)                 the occurrence of any ERISA Event that, individually or together with any other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; and

 

(d)                any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

 

Each notice delivered under this Section shall be accompanied by a statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

 

Section 6.03.         Existence; Conduct of Business . The Borrower will, and will cause each of its Restricted Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business except to the extent that the failure to do so, other than with respect to the Borrower, would not reasonably be expected to result in a Material Adverse Effect ; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.03 or any Disposition permitted by Section 7.04 .

 

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Section 6.04.         Payment of Taxes and Other Obligations . The Borrower will, and will cause each of its Restricted Subsidiaries to, pay its obligations, including Tax liabilities before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being con-tested contested in good faith by appropriate proceedings and the Borrower or such Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make such payment could not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

 

Section 6.05.         Maintenance of Properties . The Borrower will, and will cause each of its Restricted Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear and casualty/condemnation excepted.

 

Section 6.06.         Maintenance of Insurance . The Borrower will, and will cause each of its Restricted Subsidiaries to, maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily maintained by companies engaged in the same or similar businesses operating in the same or similar locations, which shall be endorsed or (i) provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least 30 days (or, in the case of non-payment, 10 days) after receipt by the Collateral Agent of written notice thereof , and (ii) name the Collateral Agent as mortgagee (in the case of property insurance) or additional insured on behalf of the Secured Parties (in the case of general liability insurance) or loss payee (in the case of property insurance), as applicable , and (iii) be reasonably satisfactory in all other respects to the Collateral Agent. If any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrower shall, or shall cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent. .

 

Section 6.07.         Books and Records . The Borrower will, and will cause each of its Restricted Subsidiaries to, keep proper books of record and account in which full, true and correct entries in accordance with GAAP are made of all dealings and transactions in relation to its business and activities.

 

Section 6.08.         Inspection Rights . The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender , upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at the expense of the Borrower and at such reasonable times; provided that the Administrative Agent and each Lender shall be limited to one such visit or inspection each during any Fiscal Year, except that such limitation shall not apply at any time a an Event of Default has occurred and is continuing. Notwithstanding anything to the contrary in this Section 6.08, neither the Borrower nor any Restricted Subsidiary will be required to disclose or permit the inspection or discussion of, any document, information or other matter (1 ) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by applicable laws, (2) that is subject to attorney client or similar privilege or constitutes attorney work product, (3) in respect of which the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party not entered into in contemplation of avoiding such inspection and disclosure; provided that, with respect to this clause (3), the Borrower shall (A) make the Administrative Agent aware of such confidentiality obligations (to the extent permitted under the applicable confidentiality obligation) and (B) use commercially reasonable efforts to communicate the relevant information in a way that does not violate such confidentiality obligations, or (4) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrower or any Restricted Subsidiary thereof and/or any of its customers and/or any of its suppliers.

 

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Section 6.09.         Lender Meetings Calls . The Borrower will, (a) within 5 10 days after delivery of the financial information described in Section 6.01(a) are required to be delivered (and at a time and on the date which is reasonably acceptable to the Borrower , ) and (b)  at the request of the Administrative Agent or Required Lenders, hold a meeting by conference call (the costs of such call to be paid by the Borrower) with all Lenders who choose to attend such meeting, at which meeting shall be reviewed the financial results of the previous Fiscal Year ; provided that, unless an Event of Default exists, such meeting shall occur no more than once per Fiscal Year .

 

Section 6.10.         [Reserved] .

 

Section 6.11.         Compliance with Laws and Contractual Obligations . The Borrower will, and will cause each of its Restricted Subsidiaries to, comply with all Requirements of Law (including any Environmental Laws) applicable to it or its property, and all Contractual Obligations binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

Section 6.12.         Use of Proceeds and Letters of Credit . The proceeds of the Revolving Credit Loans to be made on the Restatement Date will be used to pay down any amount outstanding under the Existing Term Loan Facility and to pay related fees and expenses. The proceeds of the Revolving Credit Loans made after the Restatement Date, and the Letters of Credit issued hereunder, will be used for general corporate purposes of the Borrower and its Restricted Subsidiaries , including acquisitions and for any other purposes permitted hereunder. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board, including Regulations T, U and X. No part of the proceeds of any Loan will be used directly, or to the knowledge of the Borrower , indirectly (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 Embargoed Person to the extent such activities, businesses or transaction would be prohibited if conducted by a corporation incorporated in the United States, or (iii) in any manner that would result in the violation of any Sanctions applicable to the Borrower or any of its Restricted Subsidiaries.

 

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Section 6.13.         Additional Guarantors; Further Assurances .

 

(a)                 Guarantors . The Borrower will take such action, and will cause each of its wholly-owned Domestic Subsidiaries (other than Immaterial Subsidiaries an Excluded Subsidiary ) to take such action, from time to time as shall be necessary to ensure that such Domestic Subsidiaries of the Borrower are “Guarantors” hereunder. Without limiting the generality of the foregoing, in the event that the Borrower or any of its Subsidiaries shall form or acquire any new wholly-owned Domestic Subsidiary (other than an Immaterial Excluded Subsidiary) that shall constitute a Subsidiary hereunder or any Domestic or any wholly-owned Restricted Subsidiary that is a Domestic Subsidiary shall cease to be an Immaterial Subsidiary, the Borrower and its Restricted Subsidiaries will cause such Domestic Subsidiary to, within 30 days of the later of (x) the delivery of the next compliance certificate under Section 6.01(c) following such event or (y) 30 days (or such longer period as to which the Administrative Agent may agree) after such event:

 

(i)                  become a “Guarantor” hereunder, and a “Securing Party” under the Security Agreement pursuant to a Subsidiary Joinder Agreement;

 

(ii)                cause such Domestic Subsidiary to take such action (including delivering such shares of stock, executing and delivering such UCC financing statements) as shall be necessary to create and perfect valid and enforceable first priority Liens on substantially all of the personal property of such new Restricted Subsidiary as collateral security for the obligations of such new Restricted Subsidiary hereunder to the extent required pursuant to the Security Agreement; and

 

(iii)              deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Loan Parties pursuant to Section 5.01 on the Restatement Date as the Administrative Agent shall reasonably request.

 

In addition, promptly but in no event later than 30 days following the later of (x) the delivery of the next compliance certificate under Section 6.01(c) following such event or (y) 30 days (or such longer period as to which the Administrative Agent may agree) after the formation or acquisition of a Foreign Subsidiary (which period may be extended by the Administrative Agent in its sole discretion), the Borrower will take such action, and will cause each of its Domestic Subsidiaries (other than Immaterial Subsidiaries any Excluded Subsidiary ) to take such action, from time to time as shall be necessary to ensure that 65% of the equity interests of each Foreign Subsidiary that is directly owned by the Borrower or any Domestic Subsidiary Guarantor (a “ First-Tier Foreign Subsidiary ”) shall be pledged in favor of the Administrative Agent (or a sub-agent thereof) for the benefit of the Lenders Secured Parties , pursuant to the Security Agreement or such other pledge or similar agreement as the Administrative Agent shall reasonably request (and in that connection Borrower will, and will cause such Domestic Subsidiary Guarantor to, comply with the other requirements of this Section) ; provided that in no event will any foreign law-governed security or pledge agreements be required .

 

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(b)                Further Assurances . The Borrower will, and will cause each of its Restricted Subsidiaries (other than Immaterial Excluded Subsidiaries) to take such action from time to time as shall reasonably be requested by the Administrative Agent or Collateral Agent to effectuate the purposes and objectives of this Agreement and to confirm the validity, perfection and priority of the Lien of the Security Documents. Without limiting the foregoing, but subject to the 65% limitation in the last paragraph of Section 6.13(a), in the event that any additional Capital Stock shall be is-sued issued by any Domestic Subsidiary or First-Tier Foreign Subsidiary (other than an Immaterial Subsidiary), the Loan Parties agree forthwith to deliver to the Collateral Agent pursuant to the Security Agreement the certificates evidencing such shares of stock (if any) , accompanied by undated stock powers executed in blank and to take such other action as the Administrative Agent or Collateral Agent shall request to perfect the security interest created therein pursuant to the Security Agreement.

 

(c) Mortgages . Promptly grant to the Collateral Agent , within 30 days of the acquisition there-of, a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Restatement Date and that, together with any improvements thereon, individually has a fair market value of at least $5,000,000. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Permitted Liens or other Liens acceptable to the Collateral Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall require to confirm the validity, perfection and priority of the Lien of any Mortgage against such after-acquired Real Property (including a title policy, a sur-vey, flood determination and local counsel opinion and such other documents as are reasonably required by the Administrative Agent or the Collateral Agent ( in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent ) in respect of such Mortgage).

 

(c)                 Mortgages. For the avoidance of doubt, no mortgage, deed of trust or any other document, creating and evidencing a lien on owned Real Property shall be required and shall not be considered part of the Collateral .

 

Section 6.14.         Qualified ECP Guarantors . 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 other Guarantor to honor all of its obligations under this Guarantee in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 6.14 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 6.14, or otherwise under the Guarantee, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 6.14 shall remain in full force and effect until a discharge of the Obligations. Each Qualified ECP Guarantor intends that this Section 6.14 constitute, and this Section 6.14 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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Section 6.15.         Designation of Subsidiaries . The board of directors (or equivalent governing body) or any committee thereof of the Borrower shall only designate or redesignate a Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary after the Amendment No. 2 Effective Date by written notice from the Borrower to the Administrative Agent if such designation or redesignation is in compliance with the following applicable conditions (subject to Section 1.04(a)): (i) immediately before and after such designation (or redesignation), (x) no Event of Default shall have occurred and be continuing or shall exist after giving effect to such designation (including after giving effect to the reclassification of Investments in, Indebtedness of and Liens on the assets of, the applicable Restricted Subsidiary or Unrestricted Subsidiary), and (y) the Borrower shall be in compliance with Section 7.11 on a Pro Forma Basis, (ii) no Subsidiary may be designated (or redesignated) as an Unrestricted Subsidiary if, after such designation (or redesignation), it would be a “Restricted Subsidiary” for the purpose of any Incremental Equivalent Debt, (iii) the designation of any Subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower (or its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Borrower’s (or its applicable Restricted Subsidiary’s) equity interest therein as reasonably estimated by the Borrower (and such designation shall only be permitted to the extent such Investment is permitted under Section 7.06), (iv) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary) or hold any Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted to incur such Indebtedness or Liens in favor of such Unrestricted Subsidiary pursuant to Sections 7.01 and 7.02), (v) the designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence or making, as applicable, at the time of designation of any then-existing Investment, Indebtedness or Lien of such Restricted Subsidiary, as applicable; provided that upon a redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary at the time of such redesignation, less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time of such redesignation, and (vi) the Borrower shall have delivered to the Administrative Agent an officer’s certificate executed by a Responsible Officer of the Borrower, certifying compliance with the applicable requirements of the preceding clauses (i) through (v) of this Section 6.15.

 

 

Article VII

NEGATIVE COVENANTS

 

Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

 

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Until the Termination Date, the Borrower covenants and agrees with the Lenders that:

 

Section 7.01.         Indebtedness . The Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:

 

(a)                 Indebtedness of the Loan Parties created hereunder and under the other Loan Documents;

 

(b)                Indebtedness of the Loan Parties existing on the date hereof and set forth on Schedule 7.01 and any refinancings, replacements or renewals thereof; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed, replaced or refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and expenses associated therewith and (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life than the Indebtedness being renewed, replaced or refinanced;

 

(c)                 (i) Indebtedness of any Loan Party owing to any other Loan Party and (ii) Indebtedness of any Subsidiary that is not a Loan Party owing to the Borrower or any Subsidiary; provided that the aggregate principal amount of Indebtedness owing to the Loan Parties under clause (ii) above, together with (x) the aggregate amount of Investments by the Loan Parties in Subsidiaries that are not Loan Parties under Section 7.06(c)(ii) and (y ) the aggregate principal amount of Permitted Acquisition Consideration paid for Permitted Acquisitions of or in any Subsidiary that shall not be or, after giving effect to such Permitted Acquisition, shall not become a Guarantor under Section 7.06(g), shall not exceed $25,000,000 at any time outstanding; the Borrower or any Restricted Subsidiary owing to the Borrower or any other Restricted Subsidiary to the extent constituting an Investment permitted by Section 7.06; provided that any Indebtedness of a Loan Party to any Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations pursuant to terms reasonably satisfactory to the Collateral Agent ;

 

(d)                Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof in an amount not to exceed the greater of $50,000,000 , and 45% of pro forma Consolidated EBITDA as of the most recently ended Reference Period and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that such Indebtedness is incurred prior to, at the time of or within 90 days after such acquisition or the completion of such construction or improvement;

 

(e)                 Indebtedness of any Person that becomes a (or encumbers any assets acquired by) a Restricted Subsidiary after the date hereof; provided that (i) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary and (ii) the sum of (x) the aggregate principal amount of Indebtedness permitted by this clause (e) plus (y) the aggregate sales price in respect of Sale/Leaseback Transactions incurred under Section 7.12 shall not exceed $15,000,000 at any time outstanding; or acquisition of such assets;

 

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(f) other Indebtedness not described in the foregoing clauses (a) through ( e) and clauses (g) and (h ) in an aggregate principal amount not exceeding $25,000,000 at any time outstanding ;

 

(f)                 (g) Indebtedness under Swap Agreements with respect to interest rates, foreign currency exchange rates or commodity prices, in each case not entered into for speculative purposes; and

 

(g)                Incremental Equivalent Debt;

 

(h)                Indebtedness of the Borrower or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or such Restricted Subsidiary in the ordinary course of business against insufficient funds so long as such Indebtedness is promptly repaid;

 

(i)                  Indebtedness incurred by the Borrower or any Restricted Subsidiary in the form of customary obligations under indemnification, incentive, non-compete, deferred compensation, or other similar arrangements in the ordinary course of business (including in connection with any Permitted Acquisition or any other Investment permitted hereunder and including to any current or former directors, officers and employees of the Borrower or any of its Restricted Subsidiaries);

 

(j)                  Indebtedness in respect of (i) statutory obligations, bids, leases, governmental contracts, trade contracts, performance, surety, stay, customs, appeal, performance and/or return of money bonds, completion guarantees and similar obligations not in connection with money borrowed, in each case, provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice and (ii) letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments to support any of the foregoing;

 

(k)                Indebtedness in respect of any bankers’ acceptance, bank guarantees , letter of credit , warehouse receipt or similar facilities or surety bonds, performance bonds or similar instruments entered into or incurred in the ordinary course of business in respect of workers compensation claims, unemployment insurance, other types of social security, vacation pay, health or disability benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims or similar obligations;

 

(l)                  Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements and in respect of incentive, supplier finance or similar programs, in each case, in the ordinary course of business;

 

(m)              [Reserved];

 

(n)                Indebtedness consisting of (i) obligations to pay insurance premiums, (ii) take or pay obligations contained in supply agreements and (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements, in each case, in the ordinary course of business;

 

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(o)                Indebtedness supported by a letter of credit in a principal amount not to exceed the face amount of such letter of credit;

 

(p)                Guarantee obligations incurred in the ordinary course of business in respect of obligations to or of suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners to the extent constituting an Investment permitted under Section 7.06(j)(ii);

 

(q)                Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition or Acquisition permitted hereunder or consummated prior to the Amendment No. 2 Effective Date or any other purchase of assets or Capital Stock;

 

(r)                  [reserved];

 

(s)                 (h) (i) other Indebtedness not described in the foregoing clauses (a) through ( g r ); provided that both (x) immediately prior to and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (y) after giving effect to the incurrence of such Indebtedness the Borrower shall will be in compliance with a Consolidated Leverage Ratio that is 0.25 less than the Consolidated Leverage Ratio for the relevant period set forth in Section 7.11 (a) , and (z) the maturity of such Indebtedness at the time of incurrence shall not be earlier then 91 days following the latest maturity date of the Revolving Credit Loans and the Additional Debt Requirements are satisfied and (ii) any Indebtedness incurred to refinance, extend, renew, or replace Indebtedness incurred under clause (i) above; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the Indebtedness being renewed, replaced or refinanced, plus the amount of any accrued but unpaid interest plus premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life to maturity of such than the Indebtedness at the time of incurrence shall not be shorter than that of the latest maturity date of the Revolving Credit Loans. being renewed, replaced or refinanced, (C) if the Indebtedness being renewed, replaced or refinanced is secured by Liens on any Collateral (x) on a pari passu basis with the Liens on the Collateral securing the Obligations or otherwise, then such refinancing Indebtedness shall be (a) secured by Liens on any Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder and shall be subject to an Acceptable Intercreditor Agreement, or (b) shall be unsecured, and (y) on a junior basis with the Liens on the Collateral securing the Obligations or otherwise, then such refinancing Indebtedness shall be (a) secured by Liens on any Collateral on a junior basis with respect to the remaining Obligations hereunder and shall be subject to an Acceptable Intercreditor Agreement, or (b) shall be unsecured; provided, however, that in each case, if such refinancing Indebtedness is secured, it shall not be secured by any assets other than the Collateral, (D) if the Indebtedness being renewed, replaced or refinanced is subordinated in right of payment to the Obligations under the Loan Documents, then such refinancing Indebtedness shall be subordinated in right of payment to the Obligations under the Loan Documents, and (E) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, the refinancing Indebtedness shall be Guaranteed by the same guarantors that are (or would have been), immediately prior to such refinancing, refunding or replacing, guarantors of the Indebtedness being so refinanced, refunded or replaced; and

 

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(t)                  other Indebtedness not described in the foregoing clauses (a) through ( s ) in an aggregate principal amount not exceeding the greater of $25,000,000 at any time outstanding and 20% of pro forma Consolidated EBITDA as of the most recently ended Reference Period.

 

The accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness with the same terms as the underlying Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 7.01. Premiums, interest, fees and expenses incurred in connection with an obligation described in clauses (a) through (t) above shall not, themselves, be deemed to be included as Indebtedness for purposes of calculating the baskets set forth above.

 

Section 7.02.         Liens . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:

 

(a)                 Liens created pursuant to the Loan Documents;

 

(b)                Permitted Liens;

 

(c)                 any Lien on any property or asset of the Borrower or any of its Restricted Subsidiaries existing on the date hereof and set forth on Schedule 7.02 (excluding, however, following the making of the initial Loans hereunder as of the Re-statement Restatement Date, Liens securing Indebtedness to be repaid with the proceeds of such Loans, as indicated on Schedule 7.02); provided that (i) no such Lien shall extend to any other property or asset of the Borrower or any of its Restricted Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the date hereof and extensions, renewals, replacements and combinations thereof that do not increase the outstanding principal amount thereof or commitment therefor, in each case, as in effect on the date hereof;

 

(d)                Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Restricted Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 7.01(d), (ii) such Liens and the Indebtedness secured thereby are incurred prior to, at the time of or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such Liens shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary;

 

(e)                 any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Restricted Subsidiary or existing on any property or asset of any Person that becomes a Restricted Subsidiary after the date hereof prior to the time such Person becomes a Restricted Subsidiary; provided that (i) such Lien secures Indebtedness permitted by Section 7.01(e), (ii) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Restricted Subsidiary, as the case may be, (iii) such Lien shall not apply to any other property or assets of the Borrower or any Restricted Subsidiary (it being understood that individual financings of the type permitted under Section 7.01(d) or (e) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (iv) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Restricted Subsidiary, as the case may be and extensions, renewals and replacements thereof that do not increase the original outstanding principal amount thereof (except to the extent otherwise permitted under Section 7.01) ; and

 

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(f)                 Liens securing Indebtedness or other obligations in an aggregate amount not exceeding the greater of $25,000,000 and 20% of pro forma Consolidated EBITDA as of the most recently ended Reference Period at any time outstanding . ;

 

(g)                Liens securing Indebtedness permitted under Section 7.01(g) or (s); provided that to the extent any Indebtedness incurred pursuant to Section 7.01(s) is secured by Liens on the Collateral on a pari passu basis with the Revolving Credit Facility, then after giving pro forma effect to the incurrence of such Indebtedness, the First Lien Leverage Ratio shall not exceed 3.0:1.0; and provided further any such Liens are subject to the terms of an Acceptable Intercreditor Agreement;

 

(h)                Liens arising out of customary conditional sales, installment sales, title retention, consignment or similar arrangements for the sale or purchase by the Borrower or any of its Restricted Subsidiaries of goods through third parties in the ordinary course of business or by operation of law under Article 2 of the UCC (or any similar Requirement of Law under any jurisdiction);

 

(i)                  licenses of intellectual property granted by the Borrower or any Restricted Subsidiary in the ordinary course of business that do not constitute a disposition of all substantial rights in such intellectual property;

 

(j)                  rights of setoff or bankers’ liens of banks or other financial institutions where the Borrower or any of its Restricted Subsidiaries maintain deposits in the ordinary course of business;

 

(k)                Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Borrower or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business or (iii) relating to purchase orders and other agreements entered into with customers of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

 

(l)                  Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;

 

(m)              precautionary or purported Liens evidenced by the filing of UCC financing statements or similar financing statements under applicable Requirements of Law relating solely to (i) operating leases or consignment or bailee arrangements entered into in the ordinary course of business and/or (ii) accounts receivable sold in the ordinary course of business as permitted under this Agreement and pursuant to arrangements that are non-recourse to the Borrower or any of its Restricted Subsidiaries (except for customary representations, warranties, reporting and receivables servicing covenants and indemnities in connection therewith);

 

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(n)                (i) Liens on Capital Stock of joint ventures or non-wholly-owned Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-wholly-owned Subsidiaries;

 

(o)                Liens on cash and Cash Equivalents used to satisfy or discharge Indebtedness; provided such satisfaction or discharge is not prohibited hereunder;

 

(p)                Liens solely on any cash earnest money deposits made by the Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder;

 

(q)                Liens on securities that are the subject of repurchase agreements constituting Investments permitted under Section 7.06 arising out of such repurchase transaction; and

 

(r)                  Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party , in each case of the foregoing clauses (i) and (ii), securing intercompany Indebtedness permitted under Section 7.01.

 

Section 7.03.         Mergers, Consolidations, Etc . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), except that:

 

(a)                 any Restricted Subsidiary may be merged or consolidated with or into the Borrower so long as (i) the Borrower is the surviving entity or (ii) if the Borrower is not the surviving entity, such surviving entity (w) is a wholly owned Domes-tic Domestic Subsidiary that is a direct or indirect parent of each other Restricted Subsidiary of the Borrower, (x) enters into an assumption agreement with respect to the Obligations of the Borrower reasonably satisfactory to the Administrative Agent, (y) if requested by the Administrative Agent, provides such evidence of power and authority and validity of such assumed Obligations as the Administrative Agent may reasonably request, provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with Section 6.13 and (z) the Borrower provides all documentation and information reasonably requested in writing by the Administrative Agent about the successor Borrower to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act.

 

(b)                any Restricted Subsidiary may be merged or consolidated with or into any other Restricted Subsidiary, so long as if any Restricted Subsidiary party to such transaction is a Loan Party, the surviving entity thereof is or becomes a Loan Party at the time of consummation of such merger or consolidation, provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with Section 6.13;

 

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(c) liquidations or dissolutions of Subsidiaries that are not Loan Parties; and

 

(d) mergers or consolidations permitted by Section 7.06(c ), (g) and (h) .

 

(c)                 any Restricted Subsidiary may liquidate or dissolve if (i) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders and (ii) to the extent such Restricted Subsidiary is a Loan Party, any assets or business not otherwise disposed of or transferred in accordance with Section 7.04 (or, in the case of any such business, discontinued), shall be transferred to, or otherwise owned or conducted by, a Loan Party after giving effect to such liquidation or dissolution; provided that in the case of any liquidation or dissolution of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 7.06; and

 

(d)                (x) any merger, amalgamation, dissolution, liquidation or consolidation, the purpose of which is to effect (i) any Disposition permitted under Section 7.04 (other than in reliance on clause (i) thereof), (ii) any Investment permitted under Section 7.06, or (iii) (A) the conversion of the Borrower or any Restricted Subsidiary into another form of entity or (B) any reorganization or reincorporation of (1) the Borrower or any Domestic Subsidiary in another jurisdiction in the United States or (2) any Foreign Subsidiary in the United States or any other jurisdiction; provided that in the case of this clause (iii), so long as in the case of clause (iii), (x) no Event of Default has occurred and is continuing or would result therefrom, (y) such conversion, reorganization or reincorporation does not adversely affect the aggregate value of the guarantee of the Obligations or the Collateral or the Secured Parties’ rights and remedies (taken as a whole) under the Loan Documents (in each case, as reasonably determined by the Borrower in consultation with the Administrative Agent) and (z) if reasonably requested by the Administrative Agent, customary legal opinions, authorizing resolutions and other corporate documents as reasonably requested by the Agents shall have been delivered to the Administrative Agent.

 

(e)                 Notwithstanding anything herein to the contrary and solely to the extent not constituting a Change in Control , the Borrower may merge or consolidate with or into any other Person so long as: (i) the Borrower shall be the continuing or surviving corporation or, in the case of a merger or consolidation in which the Borrower is not the continuing or surviving Person, the Person formed by or surviving any such merger shall be an entity organized or existing under the laws of the United States, any state thereof, or the District of Columbia (the Borrower or such other Person, as the case may be, being herein referred to as the “Successor Borrower”), (ii) no Event of Default has occurred and is continuing at the date of such merger or consolidation or would result from such merger or consolidation, (iii)(w) the Successor Borrower enters into an assumption agreement with respect to the Obligations of the Borrower reasonably satisfactory to the Administrative Agent, (x) if requested by the Administrative Agent, provides such evidence of power and authority and validity of such assumed Obligations as the Administrative Agent may reasonably request; provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with Section 6.13 , (y) the Successor Borrower provides all documentation and information reasonably requested in writing by the Administrative Agent about the Successor Borrower to the extent required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act and (z) upon its reasonable request, the Administrative Agent shall have received customary legal opinions; and (ii) in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor, either (A) such Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the guarantee obligations of the Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent or (B) the relevant transaction shall be treated as an Investment and shall comply with Section 7.06.

 

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Section 7.04.         Dispositions . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, convey, sell, lease, transfer or otherwise dis-pose dispose of, in one transaction or a series of transactions, any part of its business or property, whether now owned or hereafter acquired (including receivables and leasehold interests), except:

 

(a)                 obsolete , surplus or worn-out property, tools or equipment no longer used or useful in its business;

 

(b)                any inventory or other property sold or disposed of in the ordinary course of business and for fair consideration;

 

(c) any Subsidiary of the Borrower may sell, lease, transfer or otherwise dispose of any or all of its property to the Borrower or any wholly owned Subsidiary of the Borrower that is a Guarantor;

 

(c)                 (i) the Disposition, abandonment, cancellation or lapse of intellectual property which, in the reasonable good faith determination of the Borrower, is not material to the conduct of the business of the Borrower and its Restricted Subsidiaries, or is no longer economical to maintain in light of its respective use, in each case, in the ordinary course of business, (ii) the cross-licensing or licensing of intellectual property, in the ordinary course of business that does not constitute a disposition of all substantial rights in such intellectual property and does not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole , and (iii)  the contemporaneous exchange of property for property of a like kind to the extent that the property received in such exchange is of a value substantially equivalent to or greater than the value of the property exchanged;

 

(d)                the sale or issuance of (i) any Restricted Subsidiary’s Capital Stock to the Borrower or any Guarantor or (ii) the Capital Stock of any Restricted Subsidiary may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary of the Borrower that is not a Guarantor to another Restricted Subsidiary that is not a Guarantor ;

 

(e)                 any Recovery Event ; provided that the requirements of Section 2.10(b), to the extent applicable, are complied with in connection therewith;

 

(f)                 the leasing, occupancy agreements or sub-leasing of property that would not materially interfere with the required use of such property by the Borrower or its Restricted Subsidiaries;

 

(g)                foreclosures or transfers of condemned property as a result of the exercise of “eminent domain” or other similar policies to the respective Governmental Authority or agency that has condemned same (whether by deed in lieu of condemnation or otherwise) and transfers of properties that have been subject to a casualty to the respective insurer of such property as part of an insurance settlement;

 

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(h)                Dispositions (including of Capital Stock) among the Borrower and its Restricted Subsidiaries (upon voluntary liquidation or otherwise); provided that (x) any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be treated as an Investment and otherwise made in compliance with Section 7.06, and (y) any such Disposition from a Restricted Subsidiary that is not a Guarantor to the Borrower or any Guarantor shall be for no more than fair market value;

 

(i)                  Liens permitted by Section 7.02 and Restricted Payments permitted by Section 7.07;

 

(j)                  [Reserved];

 

(k)                Dispositions of cash and Cash Equivalents in the ordinary course of business and/or other assets that were Cash Equivalents when the relevant original Investment was made in the ordinary course of business;

 

(l)                  Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business or in any situation of a work-out or financial distress, in each case, of the Person owing such accounts receivable;

 

(m)              terminations or the unwinding of any Swap Agreement permitted hereunder;

 

(n)                any Foreign Subsidiary may issue Capital Stock to qualified directors where required by applicable Requirements of Law or to satisfy other applicable Requirements of Law with respect to ownership of Capital Stock in Foreign Subsidiaries;

 

(o)                leases, subleases, licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole;

 

(p)                Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 

(q)                the Disposition of the Capital Stock in, Indebtedness of, or other securities issued by, an Unrestricted Subsidiary;

 

(r)                  the expiration of any option agreement in respect of real or personal property (or the termination of any lease or license thereof) and any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;

 

(s)                 Dispositions of non-core assets and sales of fee-owned real property, in each case acquired in any Acquisition permitted hereunder which, within 180 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrower or its Restricted Subsidiaries or any of their respective businesses; provided that no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed;

 

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(t)                  (e) Dispositions of property by the Borrower or any Restricted Subsidiary the aggregate for fair market value of which in any Fiscal Year does not exceed 10% of the consolidated assets of the Borrower and its Subsidiaries as of the end of the immediately preceding Fiscal Year of the Borrower ; provided that, at the time of any such ; provided that with respect to any Disposition pursuant to this clause ( e) and immediately after giving effect thereto, no Default or t) for a purchase price in excess of $10,000,000 (as determined in good faith by the Borrower) at least 75% of the consideration received in respect of such Disposition shall be cash or Cash Equivalents; provided, further, that for purposes of the foregoing requirement, (1) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to a Borrower or any Material Subsidiary) of the Borrower or any Material Subsidiary (as shown on the most recent balance sheet or statement of financial position (or in the notes thereto) that are assumed by the transferee of any such assets and for which the Borrower and its Restricted Subsidiaries have been validly released by all relevant creditors in writing, (2) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (3) any securities received by the Borrower or any Material Subsidiary from the transferee that are converted into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition, and (4) any non-cash consideration received by the Borrower or one of its Restricted Subsidiaries in respect of such Disposition (any such non-cash consideration, “Designated Non-Cash Consideration”) having an aggregate fair market value not in excess of $10,000,000, when taken together with all other non-cash consideration that is so designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation (with the fair market value of each item of Designated Non-Cash Consideration being measured on the date a definitive sale agreement for such Disposition was entered into without giving effect to subsequent changes in value), received pursuant to this clause (4) that is at that time outstanding , in each case, shall be deemed to be cash or Cash Equivalents; provided further, that no Event of Default shall have has occurred and be is continuing (or would result therefrom) determined at the time of entering into the definitive sale agreement therefor ; and

 

(u)                (f) Investments permitted by Section 7.06 (c) and (h) .

 

To the extent that any Collateral is Disposed (other than any lease for which a Loan Party is the lessor) of as expressly permitted by this Section 7.04 to any Person other than a Loan Party, such Collateral shall be Disposed of free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such disposition; it being understood and agreed that the Administrative Agent and the Collateral Agent shall be authorized to take, and shall take (without recourse or warranty), any actions reasonably requested by the Borrower in order to effect the foregoing in accordance with Section 10.21 hereof.

 

Section 7.05.         Lines of Business . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and its Restricted Subsidiaries on the date hereof and businesses similar, complementary, ancillary, incidental or reasonably related thereto.

 

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Section 7.06.         Investments and Acquisitions . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make or suffer to exist any In-vestment Investment in any Person or purchase or otherwise acquire make an Acquisition (in one transaction or a series of transactions) any assets of any other Person constituting a business , except:

 

(a)                 Cash Equivalents;

 

(b)                Investments (other than Investments permitted under clauses (a) and (d) of this Section) existing on the date hereof and set forth on Schedule 7.06;

 

(c)                 (i) Investments by any Loan Party in any other Loan Party; and (ii ) Investments by any Restricted Subsidiary that is not a Loan Party in the Borrower or any other Restricted Subsidiary and (iii ) Investments by the Borrower or any Restricted Subsidiary in any Subsidiary that is not a Loan Party; provided that that the aggregate amount of Investments by the Loan Parties in Subsidiaries that are not Loan Parties under clause (ii) above, together with (x) the aggregate principal amount of Indebtedness owing to the Loan Parties incurred under Section 7.01(c) (ii) and (y) the aggregate principal amount of Permitted Acquisition Consideration paid for Permitted Acquisitions of or in any Subsidiary that shall not be or, after giving effect to such Permitted Acquisition, shall not be-come a Guarantor under Section 7.06(g) , shall not exceed $25,000,000 at any time outstanding the greater of $50,000,000 and 45% of pro forma Consolidated EBITDA as of the most recently ended Reference Period ;

 

(d)                Indebtedness permitted by Section 7.01 (other than Indebtedness permitted by Section 7.01(c) (ii) );

 

(e)                 purchases of inventory and other property to be sold or used in the ordinary course of business;

 

(f)                 [Reserved]. Investments of the Borrower or any Restricted Subsidiary under Swap Agreements permitted hereunder;

 

(g)                Permitted Acquisitions; provided (i) that the aggregate amount of Permitted Acquisition Consideration of such Permitted Acquisitions made or provided by the Borrowers Borrower or any Restricted Subsidiary to any Restricted Subsidiary that shall not be or, after giving effect to such Permitted Acquisition, shall not become a Guarantor, together with (x) the aggregate principal amount of Indebtedness owing to the Loan Parties incurred under Section 7.01(c)(ii ) and (y) the aggregate amount of Investments by the Loan Parties in Subsidiaries that are not Loan Parties under Section 7.06(c)(ii), shall not exceed $25,000,000 ; and shall not exceed the greater of $50,000,000 and 45% of pro forma Consolidated EBITDA as of the most recently ended Reference Period and (ii) any Investment in any Restricted Subsidiary that is not a Loan Party in an amount required to permit such Restricted Subsidiary to consummate a Permitted Acquisition, which amount is actually applied by such Restricted Subsidiary to consummate such Permitted Acquisition substantially concurrently with the making of such Investment;

 

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(h)                other Investments in an aggregate amount (valued at cost) since the Restatement Date then outstanding not exceeding the greater of $15,000,000 plus, so long as immediately after giving effect to any such Investment, no Default or Event of De-fault shall have occurred and be continuing and 15% of pro forma Consolidated EBITDA as of the most recently ended Reference Period plus , the Available Amount . ;

 

(i)                  Investments made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary, so long as such Investments were not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary;

 

(j)                  (i) Guarantees of leases (other than capital leases) of the Borrower and its Restricted Subsidiaries or of other obligations of the Borrower and its Restricted Subsidiaries not constituting Indebtedness and in the ordinary course of business and (ii) Guarantees of obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;

 

(k)                Investments received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in satisfaction or partial satisfaction of accounts receivable or notes receivable from financially troubled account debtors, including Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;

 

(l)                  Investments received in lieu of cash in connection with any Disposition permitted by Section 7.04;

 

(m)              Investments to the extent that payment therefor is made solely with Capital Stock of the Borrower to the extent not resulting in a Change in Control;

 

(n)                Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 7.06 (other than Investments made pursuant to Section 7.06(g)(ii));

 

(o)                Investments in Restricted Subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning; provided that, any such reorganization, restructuring or activity, does not adversely affect the aggregate value of the guarantee of the Obligations or the Collateral or the Secured Parties’ rights and remedies (taken as a whole) under the Loan Documents (in each case, as reasonably determined by the Borrower in consultation with the Administrative Agent);

 

(p)                Investments consisting of the licensing of intellectual property pursuant to joint marketing arrangements with other Persons entered into in the ordinary course of business;

 

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(q)                unfunded pension fund and other employee benefit plan obligations and liabilities to the extent that the same are permitted to remain unfunded under applicable Requirements of Law;

 

(r)                  Investments in the Borrower or any Restricted Subsidiary and/or any joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business; and

 

(s)                 the Borrower and its Restricted Subsidiaries may make unlimited Investments so long as (i) on a Pro Forma Basis the Borrower is in compliance with Section 7.11 and (ii)   immediately after giving effect thereto, no Event of Default has occurred and is continuing.

 

Section 7.07.         Restricted Payments . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that:

 

(a)                 the Borrower may declare and pay dividends with respect to its Capital Stock payable solely in additional shares of its Capital Stock;

 

(b)                (i) the Borrower may make Restricted Payments after the Restatement Date in an aggregate amount not exceeding (i) $ 30,000,000 40,000,000 in any Fiscal Year plus , so long as immediately after giving effect to any such Restricted Payment the Total Leverage Incurrence Test (calculated on a Pro Forma Basis) would have been satisfied, (ii) the Available Amount; provided that, subject to Section 1.04, at the time of any Restricted Payment pursuant to this clause (b) (ii) made in reliance on clause (b) of the definition of Available Amount and immediately after giving effect thereto, (x) no Default or Event of Default shall have occurred and be continuing , (y) the Borrower shall be in compliance with Section 7.11 on a Pro Forma Basis and (z) the Total Leverage Incurrence Test (calculated on a Pro Forma Basis) shall be satisfied ;

 

(c)                 the Borrower may repurchase restricted stock from its employees at the lower of cost or market pursuant to an arrangement approved by the board of directors of the Borrower (each, a “ Stock Repurchase ”); provided that (i) at the time of any such Stock Repurchase and immediately after giving effect thereto, no Default shall have occurred and be continuing and (ii) the Borrower shall be compliant on a Pro Forma Basis with each of the covenants set forth in Section 7.11 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Section 6.01(a) and (b) after giving effect to any such Stock Repurchase; and

 

(d)                so long as immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing, the Borrower may purchase, redeem or acquire any Capital Stock of the Borrower in an aggregate amount since the Restatement Date not to exceed $50,000,000; provided that at

 

(e)                 the time of such purchase, redemption or acquisition pursuant to this clause (d) and Borrower may make unlimited Restricted Payments so long as , (i) on Pro Forma Basis the Borrower is in compliance with Section 7.11, (ii) immediately after giving effect thereto, no De-fault or Event of Default shall have has occurred or be and is continuing . and (iii) the Consolidated Leverage Ratio (calculated on a Pro Forma Basis) shall be no greater than 3.50 to 1.00; and

 

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(f)                 the payment of any Restricted Payment within 60 days after the date of declaration or announcement of such Restricted Payment, as the case may be, if at the date of declaration or notice, the Restricted Payment would have complied with Section 7.07 (assuming the declaration or giving of the notice of such dividend or other distribution would have been deemed to be a Restricted Payment at such time);

 

provided that nothing herein shall be deemed to prohibit (x) the payment of dividends by any making of Restricted Payments by any Restricted Subsidiary of the Borrower to the Borrower or any other Restricted Subsidiary of the Borrower or, if applicable, any minority shareholder of such Restricted Subsidiary (in accordance with the percentage of the relevant class of Capital Stock of such Restricted Subsidiary owned by such minority shareholder) and (y) repurchases of relevant class of Capital Stock deemed to occur as a result of the sur-render of surrender of such Capital Stock for cancellation in connection with the exercise of stock options or , warrants or other securities convertible into or exchangeable for Capital Stock .

 

Section 7.08.         Transactions with Affiliates . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except:

 

(a)                 transactions in the ordinary course of business at prices and on terms and conditions not materially less favorable to the Borrower or such Restricted Subsidiary than could be obtained on an arm’s-length basis from a Person that is not an Affiliate;

 

(b)                transactions between or among the Borrower and one or more of its wholly-owned Restricted Subsidiaries not involving any other Affiliate ;

 

(c)                 any Investment permitted by Section 7.06;

 

(d) [Reserved].

 

(d)                any issuance of Capital Stock of the Borrower , or other payments, awards or grants in cash, securities, Capital Stock of the Borrower pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the board of directors of the Borrower ;

 

(e)                 transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and its Restricted Subsidiaries in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate;

 

(f)                 (e) any Restricted Payment permitted by Section 7.07; and

 

(g)                (f) any Affiliate who is a natural person may serve as an employee or director of the Borrower and receive reasonable compensation for his (including severance and termination payments), customary, indemnities and reimbursement of reasonable out-of-pocket costs for his or her services in such capacity.

 

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Section 7.09.         Restrictive Agreements . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon ( a x ) the ability of the Borrower or any Restricted Subsidiary to create, incur or permit to exist any Lien securing the Obligations upon any of its property or assets, or ( b y ) the ability of any Restricted Subsidiary to pay dividends or other distributions with respect to any shares of its Capital Stock or to make or repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted Subsidiary; except:

 

(a)                 restrictions and conditions imposed by law or , by the Loan Documents ; or by any documents governing Indebtedness permitted to be incurred under Section 7.01 (g) and /or (s); provided, that any such documents governing such Indebtedness shall include terms and conditions that are no more restrictive (when taken as a whole), as to the provisions of clauses (x) and (y) of this Section 7.09 above, than those in existence under this Agreement.

 

(b)                restrictions and conditions existing on the Restatement Date set forth on Schedule 7.09 (but shall apply to any ex-tension extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition);

 

(c)                 customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary Person or its assets pending such sale; provided that such restrictions and conditions apply only to the Subsidiary Person (including its Subsidiaries) or such assets to be sold and such sale is permitted hereunder (or such sale requires the Termination Date to occur) ;

 

(d)                with respect to clause (a) above, (x) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness or relating to any other Indebtedness permitted by this Agreement if such restrictions or conditions apply to Liens other than the Liens created pursuant to the Loan Documents and (y) customary provisions in leases and other contracts restricting the assignment thereof; and

 

(e)                 with respect to clause (a) above, provisions in any lease or lease agreement, or any restrictions or conditions imposed by any landlord, prohibiting or restricting the granting, creation or incurrence of any liens on any premises leased by the Borrower or any of its Restricted Subsidiaries . ;

 

(f)                 with respect to clause (a) only, Contractual Obligations incurred in the ordinary course of business and on customary terms which limit Liens on such Contractual Obligation;

 

(g)                customary provisions in joint venture agreements and other similar agreements (including charter restriction) applicable to joint ventures or any other non-wholly owned Subsidiary permitted under Section 7.06 and applicable solely to such joint venture or such non-wholly owned Subsidiary and entered into in the ordinary course of business;

 

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(h)                with respect to clause (a) only, restrictions on cash or other deposits or net worth imposed by suppliers, landlords, customers, insurance and surety or bonding companies under contracts entered into in the ordinary course of business; and

 

(i)                  with respect to clause (a) only, provisions restricting the granting of a security interest in intellectual property contained in licenses or sublicenses by the Borrower and its Restricted Subsidiaries of such intellectual property, which licenses and sublicenses were entered into in the ordinary course of business (in which case such restriction shall relate only to such intellectual property).

 

Section 7.10.         Swap Agreements . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any Swap Agreement, other than Swap Agreements entered into with any of the Lenders or an Affiliate of any Lender or in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary is exposed in the conduct of its business or the management of its liabilities.

 

Section 7.11.         Financial Covenants .

 

(a)                 Maximum Consolidated Leverage Ratio . Beginning with the fiscal quarter ending on March December  31, 2012 2017 , the Borrower will not permit the Consolidated Leverage Ratio, as of the last day of any Reference Period ending during any period (inclusive of the beginning and ending dates of each such period) in the table below, to exceed the ratio set forth opposite such period in the table below:

 

Reference Period Consolidated
Leverage Ratio
Amendment No. 2 Effective Date - December 31, 2013 2019 3.50 4.75 to 1.0 1.00
January 1, 2014 - December 31, 2014 2020 and thereafter 3.50 4.25 to 1.0 1.00
January 1, 2015 and thereafter 3.25 to 1.0

 

Notwithstanding the foregoing, for the 4 full consecutive fiscal quarters following the consummation of a Permitted Acquisition or similar Investment permitted hereunder (a “Step-Up Period”) (and including for purposes of whether any determination as to whether a Permitted Acquisition or similar Investment is permitted hereunder), the Consolidated Leverage Ratio shall increase, on a Pro Forma Basis, from its then-current level to 5.25 to 1.00, and after the expiration of any then applicable Step-Up Period, the required ratio for compliance shall revert to the level required by the table above.

 

(b)                Minimum Interest Coverage Ratio . Beginning with the fiscal quarter ending on March December  31, 2012 2017 , the Borrower will not permit the Consolidated Interest Coverage Ratio, as of the last day of any Reference Period, to be less than 3.00 to 1.00.

 

Section 7.12.         Sale-Leasebacks . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, enter into any arrangement with any Person providing for the leasing by the Borrower or any Restricted Subsidiary of real or personal property which has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of the Borrower or such Restricted Subsidiary (a “ Sale/Leaseback Transaction ”), except for Sale/Leaseback Transactions by the Borrower and its Restricted Subsidiaries with an aggregate sales price not exceeding, taken together with sum of the aggregate principal amount of Indebtedness permitted under clause (e) of Section 7.01, the greater of $15,000,000 and 15% of pro forma Consolidated EBITDA .

 

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Section 7.13.         Modifications of Organizational Documents and Certain Other Agreements . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, consent to any modification, supplement or waiver of any of the provisions of the charter, by-laws bylaws or other organizational documents of the Borrower or any of its Restricted Subsidiaries that could reasonably be expected to be materially adverse to the interests of the Lenders.

 

Section 7.14.         Prepayments, Etc. of Certain Indebtedness . The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly (a) prepay, redeem, purchase, defease or otherwise satisfy or make any unscheduled payment, in each case, prior to the scheduled maturity thereof in any manner (whether directly or indirectly) on Junior Indebtedness , (except for payments in an aggregate amount not exceeding $30,000,000 plus , so long as immediately prior to and after giving effect to any such payment the Total Leverage Incurrence Test (calculated on a Pro Forma Basis) would have been satisfied, the Available Amount; provided that, at the time of such payment pursuant to this clause (a) and immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, or (b) make any payment in violation of any subordination terms of, any Junior Indebtedness for borrowed money (other than any intercompany Indebtedness and the Loans) . ; provided that the Borrower may prepay, redeem, purchase, defease or otherwise satisfy or make any unscheduled payment, in each case, prior to the scheduled maturity thereof in any manner (whether directly or indirectly) on Junior Indebtedness:

 

(i)                  in an aggregate amount not exceeding, (x) $40,000,000 plus (y) the Available Amount ; provided that, subject to Section 1.04(a), at the time of any payment pursuant to this clause (i)(y) in reliance on clause (b) of the definition of Available Amount, immediately after giving effect thereto, (1) no Event of Default shall have occurred and be continuing , (2) the Borrower shall be in compliance with Section 7.11 on a Pro Forma Basis and (3) the Total Leverage Incurrence Test (calculated on a Pro Forma Basis) shall be satisfied;

 

(ii)                subject to Section 1.04(a), in an unlimited amount so long as (x) on Pro Forma Basis the Borrower is in compliance with Section 7.11, (y) no Event of Default has occurred and is continuing on the date of such payment and (z) the Consolidated Leverage Ratio (calculated on a Pro Forma Basis ) shall be no greater than 3.50 to 1.00;

 

(iii)              the refinancing thereof (in whole or part) with the net cash proceeds of any Indebtedness (to the extent such Indebtedness constitutes permitted refinancing debt in respect thereof and, in any case, is permitted to be incurred pursuant to Section 7.01);

 

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(iv)              (x) in exchange for, or with proceeds of any issuance of, Capital Stock of the Borrower and/or any capital contribution in respect of Capital Stock of the Borrower, (y)  as a result of the conversion of all or any portion of any such Indebtedness into Capital Stock of the Borrower and (z) to the extent otherwise restricted, payment in kind interest with respect to any such Indebtedness; and

 

(v)                as part of an applicable high yield discount obligation catch-up payment.

 

Section 7.15.         Fiscal Year . The Borrower will not change its Fiscal Year-end to a date other than December 31.

 

Article VIII

EVENTS OF DEFAULT

 

Section 8.01.         Events of Default . If any of the following events (“ Events of Default ”) shall occur:

 

(a)                 the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;

 

(b)                the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five or more Business Days;

 

(c)                 any representation or warranty made or deemed made by or on behalf of the Borrower or any Restricted Subsidiary in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, or in any certificate furnished