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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): July 31, 2020

 

Spirit AeroSystems Holdings, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware   001-33160   20-2436320
(State or other jurisdiction of
incorporation)
  (Commission File Number)   (IRS Employer Identification No.)

 

3801 South Oliver, Wichita, Kansas 67210
(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code: (316) 526-9000

 

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))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which registered
Class A Common Stock, par value $0.01 per share   SPR   New York Stock Exchange

 

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.

 

Credit Agreement Amendment

 

On July 31, 2020, Spirit AeroSystems Holdings, Inc. (the “Company”), Spirit AeroSystems, Inc., the Company’s direct wholly-owned subsidiary (“Spirit”), and Spirit AeroSystems North Carolina, Inc., a wholly-owned subsidiary of the Company, entered into an amendment (“July 2020 Amendment”) to the Second Amended and Restated Credit Agreement, among Spirit, the Company, as parent guarantor, the lenders party thereto, Bank of America, N.A., as administrative agent (the “Administrative Agent”), and the other agents named therein (the “2018 Credit Agreement”), consisting of a $500 million revolving credit facility (the “Revolver”), a $206 million term loan A facility (the “Term Loan”) and a $250 million delayed draw term loan facility (the “Delayed Draw Term Loan”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the 2018 Credit Agreement.

 

The primary purpose for entering into the July 2020 Amendment was to obtain covenant relief with respect to expected breaches of the first lien leverage and interest coverage ratios under the 2018 Credit Agreement. The July 2020 Amendment waived or modified the financial ratios and tests as follows:

 

   · First Lien Leverage Ratio: The ratio of first lien senior secured debt to consolidated EBITDA over the last twelve months shall not be tested in the fourth fiscal quarter of 2020 and the first fiscal quarter of 2021 and shall not, as of the end of the applicable fiscal quarter, be more than: (i) 6.50:1.00, with respect to the third fiscal quarter of 2020; (ii) 4.50:1.00, with respect to the second fiscal quarter of 2021; (iii) 3.50:1.00, with respect to the third fiscal quarter of 2021; and (iv) 3.00:1.00 thereafter through the fourth fiscal quarter of 2022.

 

   · Interest Coverage Ratio: The interest coverage ratio shall not be tested in the fourth fiscal quarter of 2020 and the first fiscal quarter of 2021 and shall not, as of the end of the applicable fiscal quarter, be less than: (i) 1.25:1.00, with respect to the third fiscal quarter of 2020; (ii) 1.15:1.00, with respect to the second fiscal quarter of 2021; (iii) 1.35:1.00, with respect to the third fiscal quarter of 2021; (iv) 1.50:1.00, with respect to the fourth fiscal quarter of 2021; (v) 2.00:1.00, with respect to the first fiscal quarter of 2022; (vi) 2.75:1.00, with respect to the second fiscal quarter of 2022; (vii) 3.25:1.00 with respect to the third fiscal quarter of 2022; (viii) 3.75:1.00, with respect to the fourth fiscal quarter of 2022; and (ix) 4.00:1.00 thereafter.

 

   · Total Leverage Ratio: The ratio of indebtedness to consolidated EBIDTA over the last twelve months shall not be tested until the second fiscal quarter of 2022 and shall not, as of the end of the applicable fiscal quarter, be greater than (i) 6.00:1:00, with respect to the second fiscal quarter of 2022; (ii) 5.50:1.00, with respect to the third fiscal quarter of 2022; (iii) 4.50:1.00, with respect to the fourth fiscal quarter of 2022; and (iv) 3.50:1:00 thereafter.

 

   · Minimum Liquidity: As of the end of each fiscal month, until the end of the ninth fiscal month of 2022, the Company shall have minimum liquidity of not less than $750 million.

 

Except as described above, the financial ratios remain the same as those set forth in the Fourth Amendment to the Second Amended and Restated Credit Agreement, dated as of April 13, 2020, previously described in the Company’s Current Reports on Form 8-K filed on April 13, 2020 and April 17, 2020.

 

As a condition to the covenant relief, the Company reduced the size of the Revolver by $300 million to $500 million and used $100 million of cash on hand to prepay the Term Loan and Delayed Draw Term Loan on a pro rata basis.

 

The July 2020 Amendment updated the COVID-19-related carve-out to the representation that no material adverse effect has occurred on the Company’s operations, business, assets, properties, liabilities, or financial condition (among other items) since a specified date, providing that the impacts of the COVID-19 pandemic on the business, operations and/or financial condition of the Company occurring prior to June 30, 2021 that were publicly disclosed or disclosed to the Administrative Agent prior to the effectiveness of the July 2020 Amendment will be disregarded when considering whether a material adverse effect has occurred when that representation is made. In addition, the July 2020 Amendment added two new mandatory prepayment requirements, providing that (a) if either the Asco Acquisition or the Bombardier Acquisition does not close or is terminated, or the consideration for either acquisition is reduced by an amount above a specified threshold, 75% of the unspent cash will be required to prepay loans under the 2018 Credit Agreement, and (b) if the Company raises additional equity, 75% of the net proceeds will be required to prepay loans under the 2018 Credit Agreement.

 

The July 2020 Amendment added a new event of default that would be triggered if the Company’s Senior Floating Rate Notes (the “Floating Rate Notes”) remain outstanding and the Term Loan and the Delayed Draw Term Loan have not been repaid by the date that is 91 calendar days prior to the maturity date of the Floating Rate Notes.

 

Each of the Revolver, the Term Loan and the Delayed Draw Term Loan continues to mature on July 12, 2023, and, following the effectiveness of the July 2020 Amendment and prior to the date of release of the security, will bear interest at a rate, at Spirit’s option, ranging between LIBOR plus 3.375% and LIBOR plus 4.875% (or between base rate plus 2.375% and base rate plus 3.875%, as applicable) based on Spirit’s issuer credit rating or corporate family rating (as applicable) provided by Standard & Poor’s Financial Services LLC and/or Moody’s Investors Service, Inc.

 

 

 

 

Certain of the lenders under the 2018 Credit Agreement and their affiliates have provided certain commercial banking, financial advisory and investment banking services to the Company and its affiliates in the past and may do so in the future. In addition, The Bank of New York Mellon, one of the lenders under the 2018 Credit Agreement, and its affiliates act as the trustee, paying agent and registrar for Spirit’s senior notes and the investment manager for the Company’s U.S. defined benefit pension plan. Such parties received, and expect to receive, customary fees and commissions for these services.

 

The description of the July 2020 Amendment in this Current Report on Form 8-K does not purport to be complete and is qualified in its entirety by reference to the full text of the July 2020 Amendment, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.

 

  Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit No. Description
   
10.1  Sixth Amendment to the Second Amended and Restated Credit Agreement, dated as of July 31, 2020, among Spirit AeroSystems, Inc., as borrower, Spirit AeroSystems Holdings, Inc., as parent guarantor, Spirit AeroSystems North Carolina, Inc., as a guarantor, the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent.
   
104  Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101)

 

 

 

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.

 

  SPIRIT AEROSYSTEMS HOLDINGS, INC.
   
Date: August 3, 2020 By: /s/ Mark Suchinski
    Name: Mark Suchinski
    Title: Senior Vice President and Chief Financial Officer

 

 

 

Exhibit 10.1

 

Published CUSIP Number: 84857HAR1

 

SIXTH AMENDMENT

TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of July 31, 2020

 

by and among

 

SPIRIT AEROSYSTEMS, INC.,

as Borrower,

 

SPIRIT AEROSYSTEMS HOLDINGS, INC. and

SPIRIT AEROSYSTEMS NORTH CAROLINA, INC.,

as Guarantors,

 

THE LENDERS,

 

and

 

BANK OF AMERICA, N.A.,

as Administrative Agent

 

BOFA SECURITIES, INC.,

as Sole Lead Arranger and Sole Bookrunner

 

 

 

 

SIXTH AMENDMENT

TO

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 31, 2020 (this “Amendment”), is entered into by and among SPIRIT AEROSYSTEMS, INC., a Delaware corporation (the “Borrower”), SPIRIT AEROSYSTEMS HOLDINGS, INC., a Delaware corporation (the “Parent Guarantor”), SPIRIT AEROSYSTEMS NORTH CAROLINA, INC., a North Carolina corporation, the Lenders, and Bank of America, N.A., as Administrative Agent, a Swing Line Lender and an L/C Issuer. Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (as defined below and as amended hereby).

 

W I T N E S S E T H

 

WHEREAS, the Borrower, the Parent Guarantor, the Lenders, and Bank of America, N.A., as Administrative Agent, a Swing Line Lender and an L/C Issuer, have entered into that certain Second Amended and Restated Credit Agreement, dated as of July 12, 2018 (as amended by that certain First Amendment to Second Amended and Restated Credit Agreement, dated as of February 24, 2020, that certain Second Amendment to Second Amended and Restated Credit Agreement, dated as of March 30, 2020, that certain Third Amendment to Second Amended and Restated Credit Agreement, dated as of April 10, 2020, that certain Fourth Amendment to Second Amended and Restated Credit Agreement, dated as of April 13, 2020, that certain Fifth Amendment to Second Amended and Restated Credit Agreement, dated as of April 20, 2020, and as further amended, restated, amended and restated, supplemented, increased, extended, refinanced, renewed, replaced, and/or otherwise modified in writing from time to time prior to the date hereof, the “Credit Agreement”); and

 

WHEREAS, the Borrower has requested certain amendments to the Credit Agreement, and the Lenders and the Administrative Agent have agreed to such amendments, subject to the terms and conditions set forth herein.

 

Now, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:

 

A G R E E M E N T

 

Section 1.      Introductory Paragraph; Recitals. The above introductory paragraph and recitals (including any terms defined therein) of this Amendment are incorporated herein by reference as if fully set forth in the body of this Amendment.

 

Section 2.        Amendments to Credit Agreement. Pursuant to Section 11.01 of the Credit Agreement, the Credit Agreement is hereby amended in the following respects:

 

2.1       Body of Credit Agreement. The body of the Credit Agreement (but not the Exhibits and/or Schedules thereto) is hereby amended to (a) delete the stricken text (as indicated textually in the same manner as the following example: stricken text), and (b) insert the underlined text (as indicated textually in the same manner as the following example: underlined text), in each case of the foregoing clauses (a) and (b), as set forth in the marked copy of the entire body of the Credit Agreement attached hereto as Annex I.

 

2.2       Schedule to Credit Agreement. Schedule I to the Credit Agreement shall be amended and restated in its entirety with the Schedule attached hereto as Annex II.

 

Sixth Amendment to Second Amended and Restated Credit Agreement (Spirit AeroSystems, Inc.) 

 

 

 

Section 3.      Waivers. Each Lender hereby waives the application of Section 3.05 of the Credit Agreement (as amended hereby) to: (a) any prepayment made after the Sixth Amendment Effectiveness Date in accordance with Section 2.05(b)(v) or Section 2.05(b)(vi) of the Credit Agreement (as amended hereby); and (b) the prepayment of the Term Loans to occur on the Sixth Amendment Effectiveness Date in accordance with Section 4.3 of this Amendment. This waiver shall not be construed to be a waiver of, or in any way obligate any Lender to waive, compensation otherwise payable to such Lender under Section 3.05 of the Credit Agreement (as amended hereby) in any other circumstance. Each Lender hereby waives: (i) the notice of commitment reduction otherwise required by Section 2.06(a) of the Credit Agreement in connection with the reduction of the Aggregate Revolving Commitments to occur on the Sixth Amendment Effectiveness Date in accordance with the terms of this Amendment; and (ii) the notice of prepayment otherwise required by Section 2.05(a)(i) of the Credit Agreement in connection with the prepayment of the Term Loans to occur on the Sixth Amendment Effectiveness Date in accordance with Section 4.3 of this Amendment.

 

Section 4.       Conditions Precedent. This Amendment shall be effective upon the satisfaction of the following conditions precedent (such date of such satisfaction, the “Sixth Amendment Effectiveness Date”):

 

4.1       Amendment. Receipt by the Administrative Agent of a counterpart of this Amendment, signed by each of the Administrative Agent, the Lenders and the Loan Parties.

 

4.2       Sixth Amendment Effectiveness Date Certificate. Receipt by the Administrative Agent of a certificate, duly executed by a Responsible Officer of the Borrower and dated as of the Sixth Amendment Effectiveness Date:

 

(a)       certifying that each of the representations and warranties contained in the Credit Agreement (as amended hereby) and in each other Loan Document, and in each agreement, certificate and notice furnished at any time under, or in connection with, this Amendment or such other Loan Document, is true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Sixth Amendment Effectiveness Date with the same effect as if then made (except to the extent that such representations and warranties specifically refer to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date), and except that, for purposes hereof, the representations and warranties contained in Section 6.05(a) and Section 6.05(b) of the Credit Agreement (as amended hereby) shall be deemed to refer to the most recent financial statements furnished pursuant to Section 7.01(a) and Section 7.01(b), respectively, of the Credit Agreement (as amended hereby);

 

(b)       certifying that no Default or Event of Default has occurred and is continuing;

 

(c)       certifying, and demonstrating with calculations attached to such certificate in form and detail reasonably acceptable to the Administrative Agent, that, immediately after giving effect to this Amendment, the Parent Guarantor and its Subsidiaries, on a consolidated basis, have minimum Liquidity of not less than Seven-Hundred Fifty Million Dollars ($750,000,000); and

 

(d)       attaching copies of the Organizational Documents of the Loan Parties (certified as of a recent date by the applicable Governmental Authority with respect to articles of incorporation, certificates of formation or similar documents).

 

4.3       Prepayment of Term Loans. Receipt by the Administrative Agent of a prepayment of the Term Loans in an aggregate amount of at least One-Hundred Million Dollars ($100,000,000), which shall be applied pro rata to the outstanding Term Loans (and, in each case of each outstanding Term Loan, to the remaining quarterly installments of principal under such Term Loan in direct order of maturity).

 

2 

 

 

4.4       Fees. Receipt by the Administrative Agent on, and subject to the occurrence of, the Sixth Amendment Effectiveness Date of payment in full of: (a) an amendment fee, for the account of each Lender that delivers its signature page (not in escrow) to this Amendment by 5:00 p.m. (Eastern time) on July 28, 2020, in an amount equal to the product of (I) the sum of (1) such Lender’s Revolving Commitment as of the Sixth Amendment Effectiveness Date (for purposes of clarity, as determined after giving effect to the reduction of the Revolving Commitments to occur on the Sixth Amendment Effectiveness Date in accordance with the terms of this Amendment), plus (2) the outstanding principal amount of Term Loans held by such Lender as of the Sixth Amendment Effectiveness Date (for purposes of clarity, as determined after giving effect to the prepayment of the Term Loans to occur on the Sixth Amendment Effectiveness Date in accordance with the foregoing Section 4.3), multiplied by (II) fifteen basis points (0.15%); and (b) without duplication of the amendment fee described in the immediately foregoing Section 4.4(a), all fees referred to in the Fee Letter.

 

4.5       Out-of-Pocket Expenses and Attorney Costs. Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable out-of-pocket expenses of the Arrangers and the Administrative Agent, and all fees, charges and disbursements of counsel to the Lead Arrangers and the Administrative Agent (limited to one (1) primary counsel for the Administrative Agent, and, if deemed reasonably necessary by the Administrative Agent, one (1) special and/or local counsel to the Administrative Agent in each applicable jurisdiction or regulatory counsel retained by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Sixth Amendment Effectiveness Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred, or to be incurred, by it through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

 

Section 5.       Representations and Warranties. On and as of the date hereof, after giving effect to this Amendment, the Borrower and the Parent Guarantor each hereby represent and warrant to the Administrative Agent and each Lender as follows:

 

5.1       this Amendment has been duly authorized, executed and delivered by each Loan Party signatory hereto, and, assuming the due execution and delivery of this Amendment by each of the other parties hereto, constitutes the legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or similar Laws affecting creditors’ rights generally;

 

5.2       each of the representations and warranties contained in Article VI of the Credit Agreement (as amended hereby) and in each other Loan Document, and in each agreement, certificate and notice furnished at any time under, or in connection with, this Amendment or such other Loan Document, is true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date hereof with the same effect as if then made (except to the extent that such representations and warranties specifically refer to an earlier date, in which case, such representations and warranties shall be true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date), and except that, for purposes hereof, the representations and warranties contained in Section 6.05(a) and Section 6.05(b) of the Credit Agreement (as amended hereby) shall be deemed to refer to the most recent statements furnished pursuant to Section 7.01(a) and Section 7.01(b), respectively, of the Credit Agreement (as amended hereby); and

 

5.3       no Default or Event of Default has occurred and is continuing.

 

Section 6.        Reference to the Effect on the Loan Documents.

 

6.1       As of the Sixth Amendment Effectiveness Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import, and each reference in the other Loan Documents to the Credit Agreement (including, without limitation, by means of words like “thereunder”, “thereof” and words of like import), shall mean and be a reference to the Credit Agreement, as amended hereby, and this Amendment and the Credit Agreement shall be read together and construed as a single instrument.

 

3 

 

 

6.2       Except as expressly amended hereby, all of the terms and provisions of the Credit Agreement and all other Loan Documents are and shall remain in full force and effect and are hereby ratified and confirmed.

 

6.3       The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders, the Borrower, the Arrangers or the Administrative Agent under any of the Loan Documents, nor constitute a waiver or amendment of any other provision of any of the Loan Documents or for any purpose, except as expressly set forth herein.

 

6.4       This Amendment is a Loan Document.

 

Section 7.        Incorporation by Reference; Notices; Successors, Etc. The provisions of Section 1.02 (Other Interpretive Provisions), Section 1.05 (Times of Day), Section 11.10 (Counterparts; Integration; Effectiveness) (with respect to counterparts only), Section 11.12 (Severability), Section 11.14 (Governing Law; Jurisdiction; Etc.), and Section 11.15 (Waiver of Right to Trial by Jury), in each case, of the Credit Agreement (as amended hereby) are hereby incorporated by reference and shall apply to this Amendment, mutatis mutandis. All communications and notices hereunder shall be given as provided in Section 11.02 of the Credit Agreement (as amended hereby). The terms of this Amendment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.

 

Section 8.        Affirmations.

 

8.1       Each Loan Party signatory hereto hereby (a) ratifies and affirms its obligations under the Loan Documents (including guarantees) executed by the undersigned, and (b) acknowledges, renews and extends its continued liability under all such Loan Documents, and agrees such Loan Documents remain in full force and effect, in each case, as modified by this Amendment.

 

8.2       Each Loan Party signatory hereto hereby reaffirms, as of the date hereof: (a) the covenants and agreements contained in each Loan Document to which it is a party, including, in each case, such covenants and agreements as in effect immediately after giving effect to this Amendment and the transactions contemplated hereby; and (b) its guarantee of payment of the Obligations pursuant to the Guaranty.

 

8.3       Each Loan Party signatory hereto hereby acknowledges and agrees that the acceptance by the Administrative Agent and each Lender shall not be construed in any manner to establish any course of dealing on the Administrative Agent’s or Lender’s part, including the providing of any notice or the requesting of any acknowledgment not otherwise expressly provided for in any Loan Document with respect to any future amendment, waiver, supplement or other modification to any Loan Document or any arrangement contemplated by any Loan Document.

 

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

 

4 

 

 

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

 

BORROWER: SPIRIT AEROSYSTEMS, INC.,
  a Delaware corporation
   
  By: /s/ Rhonda Harkins
  Name:       Rhonda Harkins
  Title:         Treasurer
   
GUARANTORS: SPIRIT AEROSYSTEMS HOLDINGS, INC.,
  a Delaware corporation
   
  By: /s/ Rhonda Harkins
  Name:      Rhonda Harkins
  Title:        Treasurer
   
  SPIRIT AEROSYSTEMS NORTH CAROLINA,
  INC., a North Carolina corporation
   
  By: /s/ Rhonda Harkins
  Name:      Rhonda Harkins
  Title:        Treasurer

 

[Signature Pages Continue]

 

Signature Page to Sixth Amendment to Second Amended and Restated Credit Agreement (Spirit AeroSystems, Inc.)

 

 

 

 

ADMINISTRATIVE AGENT bank of america, n.a.,
  as Administrative Agent
   
  By: /s/ Kevin Ahart
  Name:    Kevin Ahart
  Title:      Kevin Ahart

 

[Signature Pages Continue]

 

Signature Page to Sixth Amendment to Second Amended and Restated Credit Agreement (Spirit AeroSystems, Inc.)

 

 

 

 

[Lender signature pages intentionally omitted]

 

Signature Page to Sixth Amendment to Second Amended and Restated Credit Agreement (Spirit AeroSystems, Inc.)

 

 

 

 

Annex I

 

Body of Credit Agreement

 

Annex I to Sixth Amendment to Second Amended and Restated Credit Agreement (Spirit AeroSystems, Inc.)

 

 

 

 

 

Published CUSIP Number: 84857HAR1

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

Dated as of July 12, 2018

 

among

 

SPIRIT AEROSYSTEMS, INC.,

as Borrower,

 

SPIRIT AEROSYSTEMS HOLDINGS, INC. AND THE SUBSIDIARIES THEREOF PARTY HERETO,

as Guarantors,

 

THE LENDERS REFERRED TO HEREIN,

and

 

BANK OF AMERICA, N.A.

as Administrative Agent and Collateral Agent

 

Mizuho Bank, LTD.

and

CITIBANK, N.A.,

as Syndication Agents

 

and

 

THE BANK OF NOVA SCOTIA

ROYAL BANK OF CANADA

and

u.s. bank national association,

as Co-Documentation Agents

 

BOFA SECURITIES, INC.,

as a Joint Lead Arranger and Sole Bookrunner

and

 

Mizuho Bank, LTD.

and

CITIBANK, N.A.,

as Joint Lead Arrangers

 

 

 

 

TABLE OF CONTENTS

Page

 

ARTICLE I  —  DEFINITIONS AND ACCOUNTING TERMS 1
   
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 5260
1.03 Accounting Terms 5361
1.04 Rounding 5462
1.05 Times of Day 5462
1.06 Letter of Credit Amounts 5462
   
ARTICLE II  —  THE COMMITMENTS AND CREDIT EXTENSIONS 5463
   
2.01 Commitments 5463
2.02 Borrowings, Conversions and Continuations of Loans 5867
2.03 Letters of Credit 5969
2.04 Swing Line Loans 6878
2.05 Prepayments 7081
2.06 Termination or Reduction of Aggregate Revolving Commitments and Aggregate Delayed Draw Term Loan Commitments 7387
2.07 Repayment of Loans 7488
2.08 Interest 7589
2.09 Fees 7690
2.10 Computation of Interest and Fees 7791
2.11 Evidence of Debt 7791
2.12 Payments Generally; Administrative Agent’s Clawback 7792
2.13 Sharing of Payments by Lenders 7994
2.14 Cash Collateral 8095
2.15 Defaulting Lenders 8196
   
ARTICLE III  —  TAXES, YIELD PROTECTION AND ILLEGALITY 8398
   
3.01 Taxes 8398
3.02 Illegality 87103
3.03 Inability to Determine Rates 87104
3.04 Increased Costs 90106
3.05 Compensation for Losses 91108
3.06 Mitigation Obligations; Replacement of Lenders 91108
3.07 Survival 92109
3.08 Withholding Taxes 92109
   
ARTICLE IV  —  GUARANTY 92109
   
4.01 The Guaranty 92109
4.02 Obligations Unconditional 93110
4.03 Reinstatement 94111
4.04 Certain Additional Waivers 94111
4.05 Remedies 94112
4.06 Rights of Contribution 94112
4.07 Guarantee of Payment; Continuing Guarantee 95112
4.08 Keepwell 95112
4.09 Appointment of Borrower 95113

 

 

 

 

ARTICLE V  —  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 95113
   
5.01 Conditions of Initial Credit Extension 95113
5.02 Conditions to all Credit Extensions 97115
   
ARTICLE VI  —  REPRESENTATIONS AND WARRANTIES 98116
   
6.01 Organization, Etc 98116
6.02 Due Authorization, Non-Contravention, Etc 98116
6.03 Government Approval, Regulation, Etc 99117
6.04 Validity, Etc 100118
6.05 Financial Information 100118
6.06 No Material Adverse Effect 100118
6.07 Litigation 101119
6.08 Compliance with Laws and Agreements 101119
6.09 Loan Parties; Subsidiaries, Etc.; Deposit and Investment Accounts. 101120
6.10 Ownership of Properties 102120
6.11 Taxes 103121
6.12 Pension and Welfare Plans 103121
6.13 Environmental Warranties 104122
6.14 Regulations T, U and X 104123
6.15 Disclosure and Accuracy of Information 104123
6.16 Labor Matters 104123
6.17 Solvency 104123
6.18 Securities 105124
6.19 Sanctions; Anti-Corruption Laws 105124
6.20 Creation, Perfection and Priority of Liens; Equity Interests 105124
6.21 Insurance 106125
6.22 Boeing Agreements 106125
6.23 Affected Financial Institution 106125
6.24 Beneficial Ownership Certification 106125
   
ARTICLE VII  —  AFFIRMATIVE COVENANTS 106125
   
7.01 Financial Information, Reports, Notices, Etc 106126
7.02 Compliance with Laws, Etc 109128
7.03 Maintenance of Properties 109129
7.04 Insurance 109129
7.05 Books and Records; Visitation Rights 110129
7.06 Environmental Covenant 110130
7.07 Existence; Conduct of Business 111131
7.08 Use of Proceeds 111131
7.09 Payment of Taxes 111131
7.10 KYC Information 111131
7.13 Additional Guarantors 112131
7.14 Pledged Assets; Additional Collateral 112132
7.15 Further Assurances 113134
7.16 Post-First Amendment Effectiveness Date Conditions 114134

 

iii

 

 

ARTICLE VIII  —  NEGATIVE COVENANTS 115135
   
8.01 Liens 115135
8.02 Indebtedness 118139
8.03 Fundamental Changes; Line of Business 122144
8.04 Investments, Loans, Advances, Guarantees and Acquisitions 123145
8.05 Asset Dispositions 124147
8.06 Restricted Payments 127150
8.07 Transactions with Affiliates 128151
8.08 Financial Covenants 129152
8.09 Fiscal Year 130154
8.10 Sanctions and Anti-Money Laundering Laws 130154
8.11 Anti-Corruption Laws 131155
8.12 Use of Proceeds 131155
8.13 Sale and Leaseback Transactions 131155
8.14 Restrictive Agreements 131156
8.15 Amendments or Waivers of Certain Documents; Prepayments of Certain Indebtedness 133157
   
ARTICLE IX  —  EVENTS OF DEFAULT AND REMEDIES 133158
   
9.01 Events of Default 133158
9.02 Action if Bankruptcy 135160
9.03 Action if Other Event of Default 136160
9.04 Action if Event of Termination 136161
9.05 Application of Proceeds 136161
   
ARTICLE X  —  ADMINISTRATIVE AGENT 137163
   
10.01 Appointment and Authority 137163
10.02 Rights as a Lender 138163
10.03 Exculpatory Provisions 138164
10.04 Reliance by Administrative Agent 139165
10.05 Delegation of Duties 140165
10.06 Resignation of Administrative Agent 140165
10.07 Non-Reliance on Administrative Agent and Other Lenders 141167
10.08 No Other Duties; Etc 141168
10.09 Administrative Agent May File Proofs of Claim 141168
10.10 ERISA Matters 143170
10.11 Guaranteed Treasury Management Agreements and Guaranteed Swap Contracts 145171
   
ARTICLE XI  —  MISCELLANEOUS 146172
   
11.01 Amendments, Etc 146172
11.02 Notices and Other Communications; Facsimile Copies 148175
11.03 No Waiver; Cumulative Remedies; Enforcement 150177
11.04 Expenses; Indemnity; and Damage Waiver 151178
11.05 Payments Set Aside 153180
11.06 Successors and Assigns 153181
11.07 Treatment of Certain Information; Confidentiality 157186
11.08 Set-off 158187
11.09 Interest Rate Limitation 159187

 

iv

 

 

11.10 Counterparts; Integration; Effectiveness 159188
11.11 Survival of Representations and Warranties 159188
11.12 Severability 159188
11.13 Replacement of Lenders 160188
11.14 Governing Law; Jurisdiction; Etc 160189
11.15 Waiver of Right to Trial by Jury 161190
11.16 Electronic Execution 162191
11.17 USA PATRIOT Act 162191
11.18 No Advisory or Fiduciary Relationship 162192
11.19 Acknowledgment and Consent to Bail-In of Affected Financial Institutions 163192
11.20 Acknowledgement Regarding Any Supported QFCs 163193
11.21 Amendment and Restatement 164193
11.22 Waiver of Notice Period and Breakage Costs 164194
11.23 Reallocation 164194

 

v

 

 

SCHEDULES  
   
I Lenders and Commitments
1.01(a) Boeing Agreements
1.01(b) Existing Letters of Credit
6.09 Loan Party Information
6.09–CSAG Loan Parties; Subsidiaries, Etc.; Deposit and Investment Accounts
6.10–CSAG–RP Leased and Owned Real Property
6.10–CSAG–IP Intellectual Property
8.01(c) Existing Liens
8.02–CSAG Existing Indebtedness
8.04 Existing Investments
11.02 Certain Addresses for Notices

 

EXHIBITS  
   
2.01(d)(ii) [Form of] Add-On Term Loan Lender Joinder Agreement
2.02 [Form of] Loan Notice
2.04(b) [Form of] Swing Line Loan Notice
2.05(a) [Form of] Notice of Prepayment and/or Reduction / Termination of Commitments
2.11(a) [Form of] Revolving Note
2.11(b) [Form of] Swing Line Note
2.11(c) [Form of] Term A Note
2.11(d) [Form of] Delayed Draw Term Loan Note
2.11(e) [Form of] Add-On Term Note
3.01 [Forms of] U.S. Tax Compliance Certificates (Forms 1-4)
7.01(d) [Form of] Compliance Certificate
7.12–CSAG [Form of] Guarantor Joinder Agreement
9.05 [Form of] Guaranteed Party Designation Notice
11.06 [Form of] Assignment and Assumption

 

 

 

 

SECOND AMENDED AND RESTATED CREDIT AGREEMENT

 

This SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July 12, 2018, by and among Spirit AeroSystems, Inc., a Delaware corporation (the “Borrower”), Spirit AeroSystems Holdings, Inc., a Delaware corporation (the “Parent Guarantor”), the other Guarantors party hereto solely at all times during the CSAG Period, the Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent, a Swing Line Lender, an L/C Issuer and, solely at all times during the CSAG Period, Collateral Agent.

 

The Borrower has requested that the Lenders provide ONE BILLION TWO-HUNDRED FIFTY-SIX MILLION TWO-HUNDRED FIFTY THOUSAND DOLLARS ($1,256,250,000) in credit facilities (as such amount may be increased or decreased pursuant to the terms hereof) for the purposes set forth herein, and the Lenders are willing to do so on the terms and conditions set forth herein.

 

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

 

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

 

1.01           Defined Terms.

 

As used in this Agreement, the following terms shall have the meanings set forth below:

 

2021 Notes” means those certain Senior Floating Rate Notes issued by the Borrower pursuant to the 2021 / 2023 / 2028 Notes Indenture and described in clause (a) of the definition of “2021 / 2023 / 2028 Notes” below.

 

2021 / 2023 / 2028 Notes” means, collectively, (a) those certain Senior Floating Rate Notes due 2021 in an aggregate original principal amount of Three-Hundred Million Dollars ($300,000,000), (b) those certain 3.950% Senior Notes due 2023 in an aggregate original principal amount of Three-Hundred Million Dollars ($300,000,000), and (c) those certain 4.600% Senior Notes due 2028 in an aggregate original principal amount of Seven-Hundred Million Dollars ($700,000,000), in each case of the foregoing, issued by the Borrower pursuant to the 2021 / 2023 / 2028 Notes Indenture.

 

2021 / 2023 / 2028 Notes Indenture” means that certain Indenture, dated as of May 30, 2018, by and among the Borrower, as issuer, the Parent Guarantor, as guarantor, and the 2021 / 2023 / 2028 Notes Trustee (as amended, restated, amended and restated, supplemented and/or otherwise modified in writing from time to time).

 

2021 / 2023 / 2028 Notes Trustee” means The Bank of New York Mellon Trust Company, N.A. (or any successor thereto), in its capacity as trustee for the 2021 / 2023 / 2028 Notes.

 

2026 Noteholders” means, collectively, as of any date of determination: (a) each Person that is a registered holder of the 2026 Notes as of such date; and (b) the 2026 Notes Trustee.

 

2026 Notes” means those certain 3.850% Senior Notes due 2026, issued by the Borrower pursuant to the 2026 Notes Indenture, in an aggregate original principal amount of Three-Hundred Million Dollars ($300,000,000).

 

2026 Notes Indenture” means that certain Indenture, dated as of June 1, 2016, by and among the Borrower, as issuer, the guarantors party thereto, and the 2026 Notes Trustee (as amended, restated, amended and restated, supplemented and/or otherwise modified in writing from time to time).

 

2026 Notes Obligations” means all of the obligations of the Loan Parties under the 2026 Notes Indenture, including principal, premium, if any, and interest on the 2026 Notes.

 

 

 

 

2026 Notes Trustee” means The Bank of New York Mellon Trust Company, N.A. (or any successor thereto), in its capacity as trustee for the 2026 Notes.

 

737 MAX Certification Date” means the date on which the Boeing 737 MAX aircraft is re-certified by the Federal Aviation Administration for commercial aviation purposes.

 

“1st Lien/2nd Lien Intercreditor Agreement” has the meaning specified in the first paragraph of Section 8.02(b)(xxv).

 

Acquisition”, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all, or any substantial portion, of the Property of another Person, or any division, line of business or other business unit of another Person or at least a majority of the Voting Stock of another Person, in each case, whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise.

 

Acquisition Agreement” shall have the meaning set forth in Section 2.01(d)(ii).

 

Acquisition Financing Commitments” shall have the meaning set forth in Section 2.01(d)(ii).

 

Act” has the meaning specified in Section 11.17.

 

Add-On Term Loan” has the meaning specified in Section 2.01(d)(ii).

 

Add-On Term Loan Commitment” means, as to each Add-On Term Loan Lender, the commitment of such Add-On Term Loan Lender to make all, or any portion, of an Add-On Term Loan hereunder pursuant to an Add-On Term Loan Lender Joinder Agreement.

 

Add-On Term Loan Effective Date” has the meaning specified in Section 2.01(d)(ii).

 

Add-On Term Loan Lender” means each of the Persons identified as an “Add-On Term Loan Lender” in any Add-On Term Loan Lender Joinder Agreement, together with its successors and permitted assigns.

 

Add-On Term Loan Lender Joinder Agreement” means a joinder agreement, substantially in the form of Exhibit 2.01(d)(ii), executed and delivered in accordance with the provisions of Section 2.01(d)(ii).

 

Add-On Term Loan Maturity Date” shall be as set forth in the applicable Add-On Term Loan Lender Joinder Agreement.

 

Additional Obligations” means all obligations arising under Guaranteed Treasury Management Agreements and Guaranteed Swap Contracts, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, and reimbursement of costs and expenses as provided for under such agreements; provided, that, Additional Obligations of any Guarantor shall exclude any Excluded Swap Obligations with respect to such Guarantor.

 

Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

 

Administrative Agents Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.02, or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders.

 

2

 

 

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

 

Advance Payment” means an advance payment, progress payment, or similar payment made to any Loan Party or Subsidiary (or any such payment made to any joint venture in which any Loan Party or Subsidiary is a participant where all, or a portion, of such payment is passed on or paid by the joint venture to any Loan Party or Subsidiary) in connection with a program under a commercial or government (including defense) contract with a customer in contemplation of the future performance of services, receipt of goods, incurrence of expenditures, or for other Property to be provided by any Loan Party or Subsidiary where the amount of such payment is either applied to offset a portion of the purchase price for, or otherwise repaid in installments based on, future shipset (or similar unit) deliveries, the provision of services, goods or other Property to the relevant customer (or through such joint venture) or incurrence of expenditures, generally over a fixed number or amount of shipsets (or similar units), services, goods or other Property, or incurrence of expenditures.

 

Affected Financial Institution” means: (a) any EEA Financial Institution; or (b) any UK Financial Institution.

 

Affiliate” of any Person means any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person (excluding any trustee under, or any committee with responsibility for administering, any Plan). A Person shall be deemed to be “controlled by” any other Person if such other Person possesses, directly or indirectly, power to:

 

(a)               vote ten percent (10.0%) or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managing general partners of such Person; or

 

(b)               direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

Affiliate Transaction” has the meaning specified in Section 8.07.

 

Agent Parties” shall have the meaning specified in Section 11.02(c).

 

Aggregate Delayed Draw Term Loan Commitments” means the Delayed Draw Term Loan Commitments of all the Lenders. The aggregate principal amount of the Aggregate Delayed Draw Term Loan Commitments in effect on the Effectiveness Date is TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000.00).

 

Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Effectiveness Date is EIGHT HUNDRED MILLION DOLLARS ($800,000,000.00). The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Sixth Amendment Effectiveness Date is FIVE-HUNDRED MILLION DOLLARS ($500,000,000.00).

 

Agreement” means this Second Amended and Restated Credit Agreement.

 

Applicable Percentage” means, with respect to any Lender at any time: (a) with respect to such Lender’s Revolving Commitment at any time, the percentage (carried out to the ninth (9th) decimal place) of the Aggregate Revolving Commitments represented by such Lender’s Revolving Commitment at such time, subject to adjustment as provided in Section 2.15, provided, that, if the commitment of each Lender to make Revolving Loans, and the obligation of each L/C Issuer to make L/C Credit Extensions, have been terminated pursuant to Section 9.02, Section 9.03, or Section 9.04, as applicable, or, if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments; (b) with respect to such Lender’s portion of the outstanding Term A Loan at any time, the percentage (carried out to the ninth (9th) decimal place) of the outstanding principal amount of the Term A Loan held by such Lender at such time; (c) (i) with respect to such Lender’s Delayed Draw Term Loan Commitment at any time, the percentage (carried out to the ninth (9th) decimal place) of the Aggregate Delayed Draw Term Loan Commitments represented by such Lender’s Delayed Draw Term Loan Commitment at such time, subject to adjustment as provided in Section 2.15, provided, that, if the commitment of each Lender to make Delayed Draw Term Loans has been terminated pursuant to Section 9.02, Section 9.03, or Section 9.04, as applicable, or, if the Aggregate Delayed Draw Term Loan Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments, and (ii) with respect to such Lender’s portion of the outstanding Delayed Draw Term Loans at any time, the percentage (carried out to the ninth (9th) decimal place) of the outstanding principal amount of the Delayed Draw Term Loans held by such Lender at such time; and (d) with respect to such Lender’s portion of any outstanding Add-On Term Loan at any time, the percentage (carried out to the ninth (9th) decimal place) of the outstanding principal amount of such Add-On Term Loan held by such Lender at such time. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule I, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, or in any documentation executed by such Lender in connection with an increase in the Revolving Commitments or Add-On Term Loan pursuant to Section 2.01(d), as applicable.

 

3

 

 

Applicable Rate” means, (a) with respect to an Add-On Term Loan, the percentage(s) per annum set forth in the applicable Add-On Term Loan Lender Joinder Agreement, and (b) with respect to Revolving Loans, the Term A Loan, Delayed Draw Term Loans, Swing Line Loans, Letters of Credit, the Revolving Commitment Fee, and the DDTL Commitment Fee, as applicable, (i) solely at all times that are prior to the First Amendment Effectiveness Date, the percentages per annum set forth in the first (1st) table immediately below, based upon the applicable Credit Rating as set forth in such table, (ii) solely at all times that are on or after the First Amendment Effectiveness Date but prior to the Fourth Amendment Effectiveness Date, the percentages per annum set forth in the second (2nd) table below, based upon the applicable Credit Rating as set forth in such table (it being understood that at all times during such period the Credit Ratings corresponding to Pricing Tier V were in effect, so such Pricing Tier shall apply for such period), (iii) solely at all times that are on or after the Fourth Amendment Effectiveness Date but prior to the Collateral and Subsidiary Guaranty Release Sixth Amendment Effectiveness Date, the percentages per annum set forth in the third (3rd) table below, based upon the applicable Credit Rating as set forth in such table, and (iv) solely at all times that are on or after the Sixth Amendment Effectiveness Date but prior to the Collateral and Subsidiary Guaranty Release Date, the percentages per annum set forth in the fourth (4th) table below, based upon the applicable Credit Rating as set forth in such table, and (v) solely at all times that are on or after the Collateral and Subsidiary Guaranty Release Date, the percentages per annum set forth in the fifth (5th) table below, based upon the applicable Credit Rating as set forth in such table:

 

Solely at all times that are prior to the First Amendment Effectiveness Date:

 

Pricing Tier

Credit Rating

(S&P / Moody’s)

 

Revolving Commitment
Fee and DDTL Commitment Fee
Letter of Credit
Fee
Eurodollar
Rate Loans
Base Rate
Loans
 
 
I ≥ BBB+ / Baa1 0.125% 1.125% 1.125% 0.125%  
II BBB / Baa2 0.150% 1.250% 1.250% 0.250%  
III BBB- / Baa3 0.200% 1.375% 1.375% 0.375%  
IV BB+ / Ba1 0.250% 1.625% 1.625% 0.625%  
V ≤ BB / Ba2 0.300% 1.875% 1.875% 0.875%  

 

4

 

 

Solely at all times that are on or after the First Amendment Effectiveness Date but prior to the Fourth Amendment Effectiveness Date:

 

Pricing Tier

Credit Rating 

(S&P / Moody’s)

 

Revolving Commitment
Fee and DDTL Commitment Fee
Letter of Credit
Fee
Eurodollar
Rate Loans
Base Rate
Loans
 
 
I ≥ BBB+ / Baa1 0.125% 1.625% 1.625% 0.625%  
II BBB / Baa2 0.150% 1.750% 1.750% 0.750%  
III BBB- / Baa3 0.200% 1.875% 1.875% 0.875%  
IV BB+ / Ba1 0.300% 2.125% 2.125% 1.125%  
V BB / Ba2 0.375% 2.375% 2.375% 1.375%  
VI ≤ BB- / Ba3 0.500% 2.625% 2.625% 1.625%  

 

Solely at all times that are on or after the Fourth Amendment Effectiveness Date but prior to the Collateral and Subsidiary Guaranty Release Sixth Amendment Effectiveness Date:

 

Pricing Tier

Credit Rating

(S&P / Moody’s)

 

Revolving Commitment
Fee and DDTL Commitment Fee
Letter of Credit
Fee
Eurodollar
Rate Loans
Base Rate
Loans
 
 
I ≥ BBB+ / Baa1 0.250% 3.125% 3.125% 2.125%  
II BBB / Baa2 0.275% 3.250% 3.250% 2.250%  
III BBB- / Baa3 0.325% 3.375% 3.375% 2.375%  
IV BB+ / Ba1 0.425% 3.625% 3.625% 2.625%  
V BB / Ba2 0.500% 3.875% 3.875% 2.875%  
VI ≤ BB- / Ba3 0.625% 4.125% 4.125% 3.125%  

 

Solely at all times that are on or after the Sixth Amendment Effectiveness Date but prior to the Collateral and Subsidiary Guaranty Release Date:

 

Pricing Tier

Credit Rating

(S&P / Moody’s)

 

Revolving Commitment
Fee and DDTL Commitment Fee
Letter of Credit
Fee
Eurodollar
Rate Loans
Base Rate
Loans
 
 
I ≥ BBB- / Baa3 0.325% 3.375% 3.375% 2.375%  
II BB+ / Ba1 0.425% 3.625% 3.625% 2.625%  
III BB / Ba2 0.500% 3.875% 3.875% 2.875%  
IV BB- / Ba3 0.625% 4.125% 4.125% 3.125%  

 

5

 

 

V B+ / B1 0.675% 4.500% 4.500% 3.500%
VI ≤ B / B2 0.725% 4.875% 4.875% 3.875%

 

Solely at all times that are on or after the Collateral and Subsidiary Guaranty Release Date:

 

Pricing Tier

Credit Rating

(S&P / Moody’s)

 

Revolving Commitment
Fee and DDTL Commitment Fee
Letter of Credit
Fee
Eurodollar
Rate Loans
Base Rate
Loans
 
 
I ≥ BBB+ / Baa1 0.250% 2.625% 2.625% 1.625%  
II BBB / Baa2 0.275% 2.750% 2.750% 1.750%  
III BBB- / Baa3 0.325% 2.875% 2.875% 1.875%  
IV BB+ / Ba1 0.375% 3.125% 3.125% 2.125%  
V ≤ BB / Ba2 0.425% 3.375% 3.375% 2.375%  

 

The Applicable Rate on the FourthSixth Amendment Effectiveness Date initially shall be based on Pricing Tier VIV in the thirdfourth (3rd4th) table above,set forth in this definition. Thereafter, the Applicable Rate will be determined from time to time as follows: (a) solely at all times that are not during the CSAG Period, (i) if S&P and Moody’s each provide a Credit Rating, the higher of the two (2) Credit Ratings, or (ii) if only one (1) of S&P or Moody’s provides a Credit Rating, the Credit Rating that is provided; and (b) solely at all times during the CSAG Period, (i) if S&P and Moody’s each provide a Credit Rating, and (A) there is a split in the Credit Ratings provided by S&P and Moody’s of more than one (1) level, the Credit Rating that is one (1) level lower than the higher of such Credit Ratings, or (B) there is not a split in the Credit Ratings provided by S&P and Moody’s of more than one (1) level, the higher of such Credit Ratings, or (ii) if only one (1) of S&P or Moody’s provides a Credit Rating, the Credit Rating that is one (1) level lower than the Credit Rating that is provided. In the event that both S&P and Moody’s cease to provide Credit Ratings, then the Applicable Rate will be based on the last available Credit Rating(s) until such time as the Borrower and the Lenders can negotiate, in good faith, an alternative pricing grid for determining the Applicable Rate. Each change in the Applicable Rate resulting from a change in a Credit Rating shall be effective during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.

 

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

 

Arrangers” means, collectively, BofA Securities, Mizuho Bank, Ltd. and Citibank, together with their respective successors and assigns.

 

Asco” means S.R.I.F. N.V., a Belgian public limited liability company.

 

Asco Acquisition” means the acquisition of Asco pursuant to that certain Agreement for the Sale and Purchase of Shares of S.R.I.F. N.V., dated as of May 1, 2018, by and among Christian Boas, Emile Boas, DREDA, Sylvie Boas, Spirit AeroSystems Belgium Holdings BVBA, and the Parent Guarantor, as such agreement may be amended from time to time.

 

6

 

 

Asset Sale” means any direct or indirect sale, transfer, lease, conveyance, or other disposition by any Loan Party or Subsidiary of any of its Property, including any sale or issuance of any Equity Interests of any Subsidiary.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06 or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent.

 

Audited Financial Statements” means the audited consolidated balance sheet of the Parent Guarantor and its Subsidiaries for the Fiscal Year ended December 31, 2017, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such Fiscal Year of the Parent Guarantor and its Subsidiaries, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP.

 

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

 

Bail-In Legislation” means: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule; and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

Bank of America” means Bank of America, N.A. and its successors.

 

Bank of America Fee Letter” means that certain Fee Letter, dated as of May 24, 2018, by and among the Borrower, BofA Securities (successor in interest to Merrill Lynch, Pierce, Fenner & Smith Incorporated), and Bank of America.

 

Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus one-half of one percent (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurodollar Rate plus one percent (1.00%); provided, that, if the Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. The “prime rate” is a rate set by Bank of America based upon various factors, including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate is being used as an alternate rate of interest pursuant to Section 3.03, then the Base Rate shall be: (i) the greater of clauses (a) and (b) above; and (ii) determined without reference to clause (c) above.

 

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

 

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

 

Beneficial Ownership Regulation” means 31 C.F.R. §–1010.230, as from time to time in effect, and all official rulings or interpretations thereunder or thereof.

 

7

 

 

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 Internal Revenue Code; or (c) any Person whose Property includes (for purposes of ERISA Section 3(42), or otherwise for purposes of Title I of ERISA or Section 4975 of the Internal Revenue Code) the Property of any such “employee benefit plan” or “plan”.

 

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. §–1841(k)) of such party.

 

Board of Directors” means, with respect to any Person: (a) in the case of any corporation, the board of directors of such Person; (b) in the case of any limited liability company, the board of managers, manager or managing member of such Person; (c) in the case of any partnership, the general partner of such Person; and (d) in any other case, the functional equivalent of the foregoing.

 

Boeing” means The Boeing Company.

 

Boeing 737 MAX Program” means, collectively, those certain contractual arrangements between the Borrower and Boeing (including, without limitation, (i) the Special Business Provisions MS–65530–0016 (Sustaining), dated as of June 16, 2005, by and between Boeing and the Borrower (as amended from time to time), and (ii) the General Terms Agreement (Sustaining and others), dated as of June 16, 2005, by and between Boeing and the Borrower (as amended from time to time)) regarding the production by the Borrower of components of the 737 MAX airplane.

 

Boeing Agreements” means the agreements set forth on Schedule 1.01(a).

 

BofA Securities” means BofA Securities, Inc. and its successors and assigns.

 

Bombardier Acquisition” means the acquisition of the outstanding equity of Short Brothers plc and Bombardier Aerospace North Africa SAS, and certain other assets, pursuant to that certain Agreement, dated as of October 31, 2019, by and among Bombardier, Inc., Bombardier Aerospace UK Limited, Bombardier Finance Inc., Bombardier Services Corporation, Spirit Aerosystems Global Holdings Limited, and the Borrower, as such agreement may be amended from time to time.

 

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

 

Borrower Materials” has the meaning specified in the last paragraph of Section 7.01.

 

Borrowing” means each of the following: (a) a borrowing of Swing Line Loans pursuant to Section 2.04; and (b) a borrowing consisting of simultaneous Loans of the same Type, and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Lenders pursuant to Section 2.01.

 

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located, and, if such day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.

 

Capital Lease” means, as applied to any Person, any lease of any Property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person.

 

Capital Lease Obligations” means all monetary or financial obligations of the Borrower and its Subsidiaries under any leasing or similar arrangement conveying the right to use real or personal property, or a combination thereof, which, in accordance with GAAP, would or should be classified and accounted for as Capital Leases, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first (1st) date on which such lease may be terminated by the lessee without payment of a penalty.

 

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Cash Collateralize” means to deposit in a Controlled Account or to pledge and deposit with, or deliver to, the Administrative Agent, for the benefit of one (1) or more of the L/C Issuers or the Lenders, as collateral for L/C Obligations or obligations of the Lenders to fund participations in respect of L/C Obligations, cash or deposit account balances, or, if the Administrative Agent and the applicable L/C Issuer shall agree in their sole discretion, other credit support, in each case, pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 

CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

 

CFC” means a controlled foreign corporation (as defined in Section 957 of the Internal Revenue Code).

 

Change in Control” means:

 

(a)               any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d–3 and 13d–5 under the Exchange Act, provided, that, for purposes of this clause (a), such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock of the Parent Guarantor representing greater than thirty-five percent (35.0%) of the voting power of the outstanding Voting Stock of the Parent Guarantor;

 

(b)               during any period of two (2) consecutive years, individuals who, at the beginning of such period, constituted the Board of Directors of the Parent Guarantor (together with any new directors whose election to such Board of Directors, or whose nomination for election, was approved by a vote of a majority of the directors of the Parent Guarantor then still in office who were either directors at the beginning of such period or whose election, or nomination for election, was previously so approved) cease, for any reason, to constitute at least a majority of the Board of Directors of the Parent Guarantor;

 

(c)               at any time, the Parent Guarantor ceases to own one hundred percent (100.0%) of the Equity Interests of the Borrower; or

 

(d)               the occurrence of any “change of control” (or any other similar or analogous term) under any Material Indebtedness.

 

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

 

China JVs” means: (a) Huarui Spirit Aerospace Manufacturing Co., Ltd.; and (b) Xizi Spirit Aerospace Industry (Zhejiang) Ltd.

 

Citibank” means Citibank, N.A.

 

Citibank Fee Letter” means that certain Fee Letter, dated as of May 24, 2018, by and among the Borrower, the Parent Guarantor and Citibank.

 

Class” means: (a) when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term A Loan, Delayed Draw Term Loans, Add-On Term Loan, or Swing Line Loans; (b) when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, a Term A Loan Commitment, a Delayed Draw Term Loan Commitment, or an Add-On Term Loan Commitment; and (c) when used in reference to any Lender, refers to whether such Lender is a Revolving Lender, a Term A Lender, a Delayed Draw Term Loan Lender, or an Add-On Term Loan Lender.

 

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Collateral” means a collective reference to all real and personal Property with respect to which Liens in favor of the Collateral Agent, for the benefit of the Secured Parties, are granted, or purported to be granted, solely at all times during the CSAG Period pursuant to, and in accordance with, the terms of the Collateral Documents (but, in any event, excluding any Excluded Property).

 

Collateral Agent” means Bank of America in its capacity as collateral agent under any of the Loan Documents, or any successor collateral agent.

 

Collateral and Subsidiary Guaranty Release Date” means the first (1st) Business Day to occur after the First Amendment Effectiveness Date on which: (a) (i) no Default or Event of Default has occurred and is continuing on such date, (ii) no Material Indebtedness incurred pursuant to Section 8.02(b)(ii) or Section 8.02(b)(xiv) of the Loan Parties and/or Subsidiaries (or any refinancing thereof) is secured by any Liens, or, after giving effect to the release of the Collateral in accordance with the terms of the Collateral Documents and Section 10.10(c), shall be secured by any Liens, and (iii) either (I) the Credit Rating (1) is “BBB-” or higher, as determined by S&P, on such date, and (2) is “Baa3” or higher, as determined by Moody’s, on such date, or (II) S&P and Moody’s have each confirmed in writing (which writing(s) shall be in form and substance reasonably satisfactory to the Administrative Agent) that (1) the Credit Rating will be “BBB-” or higher, as determined by S&P, and (2) the Credit Rating will be “Baa3” or higher, as determined by Moody’s, in each case of the foregoing clauses (a)(iii)(II)(1) and (a)(iii)(II)(2), after giving effect to the release of the Collateral in accordance with the terms of the Collateral Documents and Section 10.10(c), and (b) the Borrower has delivered a certificate, duly executed by a Responsible Officer of the Borrower, (i) certifying as to the matters set forth in the foregoing clause (a) and (ii) electing to (A) effect the release of the Collateral in accordance with the terms of the Collateral Documents and Section 10.10(c) on such date, and (B) release from the Guaranty all Guarantors (other than the Parent Guarantor) on such date.

 

Collateral Documents” means a collective reference to the Security Agreement, the Mortgages, and any other security documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.12, Section 7.13, Section 7.14 and Section 7.15, as applicable, as such Sections are in effect solely at all times during the CSAG Period.

 

Commitment” means, as to each Lender, the Revolving Commitment of such Lender, the Term A Loan Commitment of such Lender, the Delayed Draw Term Loan Commitment of such Lender, and/or each Add-On Term Loan Commitment of such Lender.

 

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

 

Compliance Certificate” means (a) a certificate substantially in the form of Exhibit 7.01(d), or (b) a Pro Forma Compliance Certificate, as applicable.

 

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

 

Consolidated Amortization Expense” means, for any Test Period or other measurement period, the amortization expense of the Parent Guarantor and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, plus, to the extent not already included in such amortization expense, the amortization of certain intangibles that are recorded as contra-revenues, in each case, determined on a consolidated basis in accordance with GAAP.

 

Consolidated Depreciation Expense” means, for any Test Period or other measurement period, the depreciation expense of the Parent Guarantor and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

Consolidated Secured Credit Facility Indebtedness” means, solely at all times during the CSAG Period, the aggregate principal amount of Indebtedness then outstanding under this Agreement, including, without limitation, all accrued and unpaid interest on the Loans and any other fees due hereunder, plus, to the extent not otherwise included therein, the L/C Obligations.

 

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Consolidated EBITDA” means, for any Test Period or other measurement period, Consolidated Net Income for such period, adjusted by:

 

(a)               adding thereto, in each case, solely to the extent deducted in determining such Consolidated Net Income (and without duplication):

 

(i)                        Consolidated Interest Expense for such period;

 

(ii)                        Consolidated Amortization Expense for such period;

 

(iii)                        Consolidated Depreciation Expense for such period;

 

(iv)                        Consolidated Tax Expense for such period;

 

(v)                        the aggregate amount of all other non-cash charges reducing Consolidated Net Income (excluding any non-cash charge that is expected to be paid in cash in any future period, unless the Parent Guarantor determines to add back such charge, in which case, the cash amounts in respect of which such charge was made will be deducted from Consolidated EBITDA in the periods when paid) in such period;

 

(vi)                        any (A) expenses or charges related to any issuance of Equity Interests, any acquisition, investment, Asset Sale, or the incurrence or repayment of Indebtedness, including refinancing thereof (in each case, to the extent permitted hereunder and whether or not consummated), (B) unusual or non-recurring charges deducted in such period in computing Consolidated Net Income, and (C) restructuring and business optimization charges, accruals or reserves, including any system implementation costs, costs related to the closure, relocation, reconfiguration and/or consolidation of facilities, and costs to relocate employees, retention charges, severance, contract termination costs, transition and other duplicative running costs; provided, that, all amounts added back to “Consolidated EBITDA” pursuant to this clause (a)(vi) shall not exceed, (I) solely at all times during the FCR Period, together with all amounts added back to “Consolidated EBITDA” pursuant to clause (a)(vii) below, One-Hundred Million Dollars ($100,000,000) during the FCR Period, and (II) solely at all times that are not during the FCR Period, Fifty Million Dollars ($50,000,000) per Fiscal Year;

 

(vii)                        “run-rate” cost savings in connection with a Permitted Acquisition, Investment permitted hereunder, Asset Sale permitted hereunder, or other cost-saving initiative projected by the Borrower in good faith to result from specified actions taken, committed to be taken, or expected in good faith to be taken, no later than twelve (12) months after the end of such Test Period or other measurement period, calculated on a Pro Forma Basis after giving effect thereto, net of the amount of actual benefits realized during such period from such actions; provided, that, (A) such cost savings are reasonably identifiable and factually supportable and certified by a Financial Officer of the Borrower (it is understood and agreed that “run-rate” means the full recurring benefit for a period that is associated with any action taken, or expected to be taken, in each case, net of the amount of actual benefits realized during such period from such actions to the extent already included in Consolidated Net Income for such period), and (B) all amounts added back to “Consolidated EBITDA” pursuant to this clause (a)(vii) shall not exceed, (I) solely at all times during the FCR Period, together with all amounts added back to “Consolidated EBITDA” pursuant to clause (a)(vi) above, One-Hundred Million Dollars ($100,000,000) during the FCR Period, and (II) solely at all times that are not during the FCR Period, Fifty Million Dollars ($50,000,000) during the term of this Agreement;

 

(viii)                        (A) solely with respect to the Fiscal Year ending December 31, 2018, all fees, costs and expenses incurred in connection with the transactions contemplated by this Agreement, to the extent that such fees, costs and expenses are deducted in such period in computing Consolidated Net Income; and (B) all fees, costs and expenses incurred in connection with the transactions contemplated by the First Amendment, to the extent that such fees, costs and expenses are deducted in such period in computing Consolidated Net Income;

 

(ix)                        any non-cash impairment of goodwill, intangibles, or other Property in such period;

 

(x)                        non-cash compensation expenses, or other non-cash expenses or charges, arising from the sale of stock, the granting of stock options, the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution or change of any such stock, stock option, stock appreciation rights or similar arrangements) in such period; and

 

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(xi)                        forward loss charges in accordance with GAAP, in an aggregate amount not to exceed Five-Hundred Million Dollars ($500,000,000) during the term of this Agreement; and

 

(b)               subtracting therefrom, in each case, solely to the extent added in determining such Consolidated Net Income (and without duplication):

 

(i)                        the aggregate amount of all non-cash items increasing Consolidated Net Income (other than (A) the accrual of revenue, reversal of deferred revenues or advance payments or recording of receivables in the ordinary course of business, and (B) the reversal of an accrual of a reserve referred to in the parenthetical to clause (a)(v) above) for such period; and

 

(ii)                        unusual and non-recurring gains included in calculating Consolidated Net Income for such period.

 

Consolidated Indebtedness” means, at a particular date, the aggregate amount of all Indebtedness of the Parent Guarantor and its Subsidiaries, determined on a consolidated basis in accordance with GAAP at such date.

 

Consolidated Interest Expense” means, for any Test Period or other measurement period, with respect to the Parent Guarantor and its Subsidiaries on a consolidated basis, the sum of:

 

(a)               gross interest expense for such period, including: (i) the amortization of debt discounts; (ii) the amortization of all fees (including fees with respect to Swap Contracts) payable in connection with the incurrence of Indebtedness to the extent included in interest expense; and (iii) the portion of any payments or accruals with respect to Capital Lease Obligations allocable to interest expense; and

 

(b)               capitalized interest.

 

Consolidated Net Income” means, for any Test Period or other measurement period, the net income or loss of the Parent Guarantor and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP, provided, that, there shall be excluded therefrom, without duplication:

 

(i)                        the income or loss of any Person (other than consolidated Subsidiaries of the Parent Guarantor) in which any other Person (other than any Loan Party or Subsidiary) has a joint interest, except to the extent of the amount of dividends or other distributions actually paid to any Loan Party or Subsidiary by such Person during such period;

 

(ii)                        the cumulative effect of a change in accounting principles during such period;

 

(iii)                        any net after-tax income (loss) from discontinued operations, and any net after-tax gains or losses on disposal of discontinued operations; and

 

(iv)                        any (A) unusual and infrequent gain (or unusual and infrequent loss) realized during such period by any Loan Party or Subsidiary, or (B) gain (or loss) realized during such period by any Loan Party or Subsidiary upon an Asset Sale (other than Asset Sales in the ordinary course of business), in each case of the foregoing clauses (iv)(A) and (iv)(B), together with any related provision for taxes on any such gain (or the tax effect of any such loss), recorded or recognized by any Loan Party or Subsidiary during such period.

 

Consolidated Tax Expense” means, for any Test Period or other measurement period, the tax expense of the Parent Guarantor and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

 

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Consolidated Total Assets” means, at any time, the total assets of the Parent Guarantor and its Subsidiaries determined in accordance with GAAP, as of the last day of the Fiscal Quarter most recently ended prior to the date of such determination for which financial statements have been (or are required to have been) delivered to the Administrative Agent pursuant to Section 7.01(a) or Section 7.01(b), in each case, calculated on a Pro Forma Basis.

 

Control Agreement” means a control agreement among one (1) or more Loan Parties, a depository bank, a securities intermediary or a commodity intermediary, as the case may be, and the Collateral Agent, in form and substance reasonably acceptable to the Collateral Agent.

 

Controlled Account” means each deposit account and securities account that is subject to an account control agreement, in form and substance reasonably satisfactory to the Administrative Agent and the applicable L/C Issuer.

 

Covered Party” has the meaning specified in Section 11.20.

 

Credit Extension” means each of the following: (a) a Borrowing; and (b) an L/C Credit Extension.

 

Credit Rating” means the senior unsecured rating, corporate family rating, or corporate credit rating (or substantially equivalent rating) of the Borrower provided by S&P and/or Moody’s, as applicable.; provided, that, at all times on or after the Sixth Amendment Effectiveness Date, notwithstanding anything to the contrary in the foregoing, “Credit Rating” shall mean the issuer credit rating (in the case of S&P) or the corporate family rating (in the case of Moody’s) of the Borrower, as the case may be, if available at such time, and, if not available at such time, then any such other rating of the Borrower referred to in the foregoing, as available at such time and selected by the Administrative Agent.

 

CSAG Period” means the period from, and including, the First Amendment Effectiveness Date to, but excluding, the Collateral and Subsidiary Guaranty Release Date.

 

DDTL Commitment Fee” has the meaning specified in Section 2.09(b).

 

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

 

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

 

Default Rate” means: (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate, plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans, plus (iii) two percent (2.00%) per annum, provided, that, with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan, plus two percent (2.00%) per annum, in each case, to the fullest extent permitted by applicable Laws; and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate applicable to Letters of Credit, plus two percent (2.00%) per annum.

 

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Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all, or any portion, of its Loans within two (2) Business Days of the date on which such Loans were required to be funded hereunder, unless such Lender notifies the Administrative Agent and the Borrower, in writing, that such failure is the result of such Lender’s determination that one (1) or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any L/C Issuer, any Swing Line Lender, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, each L/C Issuer, or each Swing Line Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided, that, such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) after the date of this Agreement, has, or has a direct or indirect parent company that has (other than via an Undisclosed Administration), (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or Property, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender, or any direct or indirect parent company thereof, by a Governmental Authority, so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States, or from the enforcement of judgments or writs of attachment on its Property, or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one (1) or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefore by the Administrative Agent in a written notice of such determination, which notice shall be delivered by the Administrative Agent to the Borrower, each L/C Issuer, each Swing Line Lender, and each other Lender promptly following such determination.

 

Deferred Amounts” has the meaning specified in Section 2.05(b)(v).

 

Delayed Draw Term Loan” has the meaning specified in Section 2.01(c). As of the First Amendment Effectiveness Date, the aggregate outstanding amount of all Delayed Draw Term Loans was Two Hundred Forty-Three Million Seven Hundred Fifty Thousand Dollars ($243,750,000). As of the Sixth Amendment Effectiveness Date, the aggregate outstanding amount of all Delayed Draw Term Loans was One-Hundred Eighty-Two Million Forty-Five Thousand Seven-Hundred Eighty-Six Dollars and Twenty-One Cents ($182,045,786.21).

 

Delayed Draw Term Loan Availability Period” means, with respect to the Delayed Draw Term Loan Commitments, the period from, and including, the Effectiveness Date to the earliest of: (a) January 12, 2019 (the “Initial DDTL Availability Expiration Date”), provided, that, (i) the Initial DDTL Availability Expiration Date may be extended once, upon written request from the Borrower to the Administrative Agent prior to the Initial DDTL Availability Expiration Date, from the Initial DDTL Availability Expiration Date to the date that is three (3) months after the Initial DDTL Availability Expiration Date (the “First Extended DDTL Availability Expiration Date”; and such three (3) month period, the “First Extension Period”), subject to the Borrower’s payment to the Delayed Draw Term Loan Lenders of a fee (to be allocated ratably in accordance with their respective Commitments thereunder) in an amount equal to two and one-half basis points (0.025%) of the undrawn Aggregate Delayed Draw Term Loan Commitments as of the Initial DDTL Availability Expiration Date, and (ii) the Initial DDTL Availability Expiration Date, as extended by the First Extended DDTL Availability Expiration Date, may be extended once, upon written request from the Borrower to the Administrative Agent prior to the First Extended DDTL Availability Expiration Date, from the First Extended DDTL Availability Expiration Date to the date that is three (3) months after the First Extended DDTL Availability Expiration Date (the “Second Extended DDTL Availability Expiration Date”; and such three (3) month period, the “Second Extension Period”), subject to the Borrower’s payment to the Delayed Draw Term Loan Lenders of a fee (to be allocated ratably in accordance with their respective Commitments thereunder) in an amount equal to two and one-half basis points (0.025%) of the undrawn Aggregate Delayed Draw Term Loan Commitments as of the First Extended DDTL Availability Expiration Date; (b) the date of termination of the Aggregate Delayed Draw Term Loan Commitments pursuant to Section 2.06; and (c) the date of termination of the commitment of each Lender to make Loans pursuant to Section 9.02, Section 9.03 or Section 9.04, as applicable.

 

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Delayed Draw Term Loan Borrowing” means a Borrowing consisting of simultaneous Delayed Draw Term Loans of the same Type, and, in the case of Eurodollar Rate Loans, having the same Interest Period, made by each of the Delayed Draw Term Loan Lenders pursuant to Section 2.01(c).

 

Delayed Draw Term Loan Commitment” means, as to each Delayed Draw Term Loan Lender, its obligation to make its portion of each Delayed Draw Term Loan to the Borrower pursuant to Section 2.01(c), in the principal amount set forth opposite such Lender’s name on Schedule I or in the Assignment and Assumption pursuant to which such Delayed Draw Term Loan Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. As of the First Amendment Effectiveness Date, the aggregate amount of the Delayed Draw Term Loan Lenders’ Delayed Draw Term Loan Commitments available to be drawn was Zero Dollars ($0.00).

 

Delayed Draw Term Loan Lender” means, at any time: (a) so long as any Delayed Draw Term Loan Commitment is in effect, any Lender that has a Delayed Draw Term Loan Commitment at such time; or (b) if the Delayed Draw Term Loan Commitments have terminated or expired, any Lender that has a Delayed Draw Term Loan.

 

Designated Jurisdiction” means any country or territory, to the extent that such country or territory itself is the subject of any Sanction.

 

Designated Transaction” means one (1) or more related Acquisitions and/or Investments, or a series of related Acquisitions and/or Investments consummated within a period of six (6) consecutive months, and designated by the Borrower in writing to the Administrative Agent, prior to the end of the Fiscal Quarter in which such related Acquisition and/or Investment, or such related series thereof, as applicable, is made, as a “Designated Transaction”, the total cash and non-cash consideration (including any assumption of Indebtedness, deferred purchase price, earn-out obligations and equity consideration) and/or contributed cash and Property for which shall exceed One-Hundred Fifty Million Dollars ($150,000,000).

 

Discontinuance Event” means, with respect to any contract with a commercial or government (including defense) customer providing for Advance Payments, the occurrence of either (a) a termination of the program specified in such contract in respect of which such Advance Payments were made, or (b) a termination of such contract, in each case of the foregoing clauses (a) and (b), which results in a requirement under such contract for any Loan Party or Subsidiary to repay the outstanding balance of any Advance Payments received thereunder.

 

Disqualified Capital Stock” means any Equity Interest which, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is six (6) months following the Final Maturity Date, (b) is convertible into, or exchangeable (unless at the sole option of the issuer thereof) for, (i) debt securities, or (ii) any Equity Interests referred to in clause (a) above, in each case, at any time on or prior to the date that is six (6) months following the Final Maturity Date, or (c) contains any repurchase obligation (other than repurchase obligations with respect to the Parent Guarantor’s common Equity Interests issued to employees, officers and directors of the Loan Parties and Subsidiaries upon death, disability, retirement, severance or termination of employment or service) which may come into effect prior to payment in full of all Obligations (other than contingent indemnification obligations under the Loan Documents that are not then due or claimed); provided, that, any Equity Interests that would not constitute Disqualified Capital Stock, but for provisions thereof giving holders thereof (or the holders of any security into, or for which, such Equity Interests is convertible, exchangeable or exercisable) the right to require the issuer thereof to redeem such Equity Interests upon the occurrence of a change in control or Asset Sale occurring prior to the date that is six (6) months following the Final Maturity Date, shall not constitute Disqualified Capital Stock, if such Equity Interests provide that the issuer thereof will not redeem any such Equity Interests pursuant to such provisions prior to the repayment in full of the Obligations (other than contingent indemnification obligations under the Loan Documents that are not then due or claimed).

 

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

 

Domestic Subsidiary” means any Subsidiary that is organized under the Laws of any state of the United States or the District of Columbia.

 

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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) above; or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) above 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.

 

Effectiveness Date” means July 12, 2018.

 

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.06(b)(iii) and Section 11.06(b)(v) (subject to such consents, if any, as may be required under Section 11.06(b)(iii)).

 

Environment” means ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata, natural resources such as flora and fauna, or as otherwise defined in any applicable Environmental Law.

 

Environmental Laws” means all applicable Laws which: (a) regulate, or relate to, pollution or the protection, including, without limitation, any Remedial Action, of the environment or human health (to the extent relating to exposure to Hazardous Materials); (b) the use, generation, distribution, treatment, storage, transportation, handling, disposal or release of Hazardous Materials; (c) the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources; or (d) impose liability or provide for damages with respect to any of the foregoing, including the Federal Water Pollution Control Act (33 U.S.C. §–1251 et seq.), Resource Conservation & Recovery Act (42 U.S.C. §–6901 et seq.), Safe Drinking Water Act (21 U.S.C. § 349, 42 U.S.C. §§–201, 300f), Toxic Substances Control Act (15 U.S.C. §–2601 et seq.), Clean Air Act (42 U.S.C. §–7401 et seq.), and Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. §–9601 et seq.), or any other similar applicable Law of similar effect, each as amended.

 

Environmental Liability” means any liability, contingent or otherwise (including, but not limited to, any liability for damages, natural resource damage, costs of Remedial Action, administrative oversight costs, fines, penalties or indemnities), of any Loan Parties or Subsidiaries, 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; or (d) the Release, or threatened Release, of any Hazardous Materials.

 

Environmental Permit” means any permit, approval, authorization, certificate, license, variance, filing or permission required by or from any Governmental Authority pursuant to any Environmental Law.

 

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Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into, or exchangeable for, shares of capital stock of (or other ownership or profit interests in) such Person, or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. Notwithstanding anything to the contrary in the foregoing and for the avoidance of doubt, “Equity Interests” shall not include any Permitted Convertible / Exchangeable Indebtedness, any Permitted Bond Hedge Transactions, or any Permitted Warrant Transactions.

 

Equity Rights” means all securities convertible into, or exchangeable for, Equity Interests, and all warrants, options, and/or other rights to purchase, or subscribe for, any Equity Interests, whether or not presently convertible, exchangeable or exercisable, but excluding debt securities convertible into, or exchangeable for, Equity Interests.

 

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

 

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

 

ERISA Event” means: (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension 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; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of a notice of intent to terminate, or the treatment of a Pension Plan amendment as a termination, under Sections 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan is considered an at-risk plan, or a plan in endangered or critical status within the meaning of Sections 430 and 432 of the Internal Revenue Code or Sections 303 and 305 of ERISA; (h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate; or (i) a failure by the Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension Funding Rules in respect of a Pension Plan, whether or not waived, or the failure by the Borrower or any ERISA Affiliate to make any required contribution to a Multiemployer Plan.

 

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.

 

Eurodollar Base Rate” means:

 

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(a)            for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations, as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”), at or about 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first (1st) day of such Interest Period) with a term equivalent to such Interest Period; and

 

(b)           for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m., London time, two (2) Business Days prior to such date, for Dollar deposits with a term of one (1) month commencing that day;

 

provided, that: (i) (A) to the extent that a comparable or successor rate is approved by the Administrative Agent pursuant to Section 3.03, the approved rate shall be applied in a manner consistent with market practice, and (B) to the extent that such market practice referred to in clause (i)(A) of this proviso is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent; and (ii) (A) at any time that is prior to the termination of all Specified Swap Contracts, if the Eurodollar Base Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, and (B) at any time that is after the termination of all Specified Swap Contracts, if the Eurodollar Base Rate shall be less than three quarters of one percent (0.75%), such rate shall be deemed to be three quarters of one percent (0.75%) for purposes of this Agreement.

 

Eurodollar Rate” means: (a) for any Interest Period with respect to any Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period, by (ii) one (1), minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest Period; and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such day, by (ii) one (1), minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day.

 

Eurodollar Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate” above.

 

Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five (5) decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan, and for each outstanding Base Rate Loan the interest on which is determined by reference to the Eurodollar Rate, in each case, shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage.

 

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Event of Default” has the meaning specified in Section 9.01.

 

Event of Termination” has the meaning specified in Section 9.01.

 

Excluded Accounts” means: (a) (i) deposit and/or securities accounts of the Loan Parties used for payroll, (ii) accounts maintained in trust for the benefit of third parties and fiduciary purposes, (iii) escrow, defeasance, discharge and redemption accounts (including any relating to a satisfaction and discharge of Indebtedness), (iv) disbursement accounts as part of a zero balance system, (v) employee benefit accounts (including 401(k) accounts and pension fund accounts), and (vi) new market tax credit accounts, in each case of the foregoing clauses (a)(i) through (a)(v), so long as such account is used solely for such designated purpose; and (b) any deposit and/or securities account maintained in a jurisdiction outside of the United States.

 

Excluded Equity” means, with respect to any Loan Party: (a) Equity Interests issued by such Loan Party pursuant to the exercise of options or warrants; (b) Equity Interests issued by such Loan Party pursuant to the conversion of any debt securities, or the conversion of any class of equity securities to any other class of equity securities; (c) options or warrants issued by such Loan Party relating to the Equity Interests of such Loan Party; and (d) Equity Interests issued by such Loan Party pursuant to any employee stock purchase plans and/or retirement plans, issued to former officers, former directors or union participants, or as compensation to officers, directors, employees or consultants (including pursuant to the Omnibus Incentive Plan of 2014 that provides for the grant of incentive awards).

 

Excluded Property” means, solely at all times during the CSAG Period, with respect to any Loan Party:

 

(a)            any owned or leased Real Property with a fair market value (as reasonably determined by the Borrower in consultation with the Collateral Agent) of less than Ten Million Dollars ($10,000,000) as of the First Amendment Effectiveness Date, or, with respect to any Real Property acquired by any Loan Party after the First Amendment Effectiveness Date, at the time of such acquisition;

 

(b)           any owned or leased Real Property which is located in a jurisdiction outside of the United States;

 

(c)            any Principal Properties (whether owned or leased);

 

(d)            any Real Property that is or becomes subject to: (i) restrictions relating to a classified program; or (ii) contractual or governmental limitations on the grant of security (or for which the recording of a mortgage would trigger a purchase or other preferential right in favor of a third-party), it being understood and agreed that, as of the First Amendment Effectiveness Date, none of the Real Properties listed on Schedule 6.10–CSAG–RP is subject to any such restrictions or undertakings;

 

(e)            any intellectual property for which a perfected Lien thereon is not effected either by: (i) the filing of a UCC financing statement; or (ii) notice of such Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office;

 

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(f)            any personal Property (other than (i) personal Property described in clause (e) above, and (ii) personal Property consisting of deposit accounts, securities accounts and commodities accounts) for which the attachment or perfection of a Lien thereon is not governed by the UCC;

 

(g)           any personal Property which is located in a jurisdiction outside of the United States, including, without limitation, any intellectual property registered with, or pending before, any Governmental Authority or registrar of any jurisdiction outside of the United States;

 

(h)            the Equity Interests of any Foreign Subsidiary or FSHCO that is directly owned by such Loan Party, other than (i) sixty-five percent (65.0%) (or such lesser percentage as is owned by such Loan Party) of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treasury Regulations Section 1.956–2(c)(2)), and (ii) one-hundred percent (100.0%) (or such lesser percentage as is owned by a Loan Party) of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treasury Regulations Section 1.956–2(c)(2)), in each case of the foregoing clauses (h)(i) and (h)(ii), of each First-Tier Foreign Subsidiary (other than any Immaterial Foreign Subsidiary) that is directly owned by such Loan Party;

 

(i)             the Equity Interests of any Subsidiary of such Loan Party solely to the extent that the pledge of such Equity Interests pursuant to the Collateral Documents would require the Parent Guarantor to file separate consolidated financial statements for such Subsidiary with the SEC (or other applicable federal Governmental Authority) pursuant to the S–X Filing Regulation (or other applicable federal Law) (including, for purposes of clarity and without limitation, the Equity Interests of the Borrower as of the First Amendment Effectiveness Date);

 

(j)             the Equity Interests of any Subsidiary of such Loan Party, solely if, and to the extent that, such Subsidiary: (i) is a Restricted Subsidiary (as defined in the 2021 / 2023 / 2028 Notes Indenture as in effect on the First Amendment Effectiveness Date); (ii) is an Immaterial Foreign Subsidiary; (iii) is an FSHCO; (iv) is not a Wholly Owned Subsidiary of the Parent Guarantor, other than any Subsidiary that (A) is a Wholly Owned Subsidiary as of the time that such Subsidiary’s Equity Interests become subject to a security interest in favor of the Collateral Agent, and (B) subsequently becomes a non-Wholly Owned Subsidiary; (v) is a captive insurance company; (vi) is a special purpose entity; or (vii) is a not-for-profit entity;

 

(k)            any Property which is subject to a Capital Lease Obligation permitted hereunder, pursuant to documents which prohibit such Loan Party from granting Liens on such Property pursuant to the Collateral Documents;

 

(l)             Excluded Accounts;

 

(m)           motor vehicles and other personal Property subject to certificates of title, solely if, and to the extent that, a Lien thereon cannot be perfected by the filing of a UCC financing statement;

 

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(n)           letter of credit rights with an individual value of less than Ten Million Dollars ($10,000,000), solely if, and to the extent that, a Lien thereon cannot be perfected by the filing of a UCC financing statement;

 

(o)           commercial tort claims with an individual value of less than Ten Million Dollars ($10,000,000), solely if, and to the extent that, a Lien thereon cannot be perfected by the filing of a UCC financing statement;

 

(p)            any personal Property for which, solely if, and for so long as, a pledge thereof, or the granting of a security interest therein, (i) is prohibited by, or would violate, any applicable Laws, or would require the consent or approval of any Governmental Authority, or (ii) would require the consent or approval of a third party (other than a Governmental Authority), so long as such consent or approval right arises under an agreement in effect (A) on the Fourth Amendment Effectiveness Date, or (B) on the date on which such personal Property is acquired (other than any such agreement entered into, or right of consent or approval created, in contemplation of this Agreement in order that an asset would constitute “Excluded Property”), in each case, unless such prohibition or requirement would be rendered ineffective with respect to the creation of a security interest pursuant to Sections 9–406, 9–407 or 9–409 of the UCC; provided, that, such Property (or any portion thereof) shall cease to constitute “Excluded Property” at such time as such prohibition or requirement shall no longer be applicable;

 

(q)            margin stock;

 

(r)             any lease, license or other agreements, or any Property subject to a purchase money security interest, Capital Lease or similar arrangements (in each case, to the extent permitted under the Loan Documents), solely if, and for so long as, a pledge thereof, or the granting of a security interest therein, would violate or invalidate such lease, license or agreement, purchase money, Capital Lease or similar arrangement, or create a right of termination in favor of any other party thereto (other than any Loan Party or Subsidiary) (other than any such agreement executed, arrangement entered into, or right of termination created, in contemplation of this Agreement in order that an asset would constitute “Excluded Property”), in each case, after giving effect to the applicable anti-assignment clauses of the UCC and applicable Laws, other than the proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable Laws notwithstanding such prohibition; provided, that, such Property (or any portion thereof) shall cease to constitute “Excluded Property” at such time as such prohibition or limitation shall no longer be applicable;

 

(s)            any intent-to-use trademark or service mark application in the United States prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, solely to the extent, if any, that, and solely at all times during the period, if any, during which, the grant, attachment, or enforcement of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service mark application, or any trademark or service mark issuing therefrom, in each case, under applicable federal Laws;

 

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(t)             any personal Property for which a pledge thereof, or the granting of a security interest therein, would result in material adverse tax consequences to the Parent Guarantor and its Subsidiaries, in each case, as reasonably determined in good faith by the Borrower in consultation with the Collateral Agent;

 

(u)            any personal Property for which the Collateral Agent and the Borrower have determined, in their reasonable judgment, that the cost or burden (including, without limitation, regulatory burdens) of creating or perfecting such pledges or security interests therein would be excessive in light of the benefits to be obtained therefrom by the Secured Parties; and

 

(v)            any Property to the extent the grant of a security interest therein would violate or be inconsistent with restrictions applicable under a classified program, any national security Law, policy, guideline or program or is otherwise not permitted by applicable Governmental Authorities or officials on the basis of national security policy or concerns;

 

provided, that, notwithstanding anything to the contrary in the foregoing, “Excluded Property” shall not include, and the Collateral shall include, and the security interest granted in the Collateral shall attach to: (A) all proceeds, substitutions or replacements of any such excluded items referred to in clauses (a) through (v) above, unless such proceeds, substitutions or replacements would constitute any of such excluded items; and (B) all rights to payment due, or to become due, under any such excluded items referred to in clauses (a) through (v) above, unless such rights to payment would constitute any of such excluded items referred to in clauses (a) through (v) above.

 

Excluded Subsidiary” means: (a) any Immaterial Subsidiary; (b) any Subsidiary that is prohibited by applicable Law, or by any contractual obligation existing on the First Amendment Effectiveness Date or on the date on which any such Subsidiary is acquired (so long as, in respect of any such contractual prohibition, such prohibition is not incurred in contemplation of such Acquisition in order to avoid the requirement to provide a Guaranty pursuant to Article IV) from Guaranteeing the payment of the Obligations, or which would require the consent, approval, license, or authorization from any Governmental Authority to provide a Guaranty, unless such consent, approval, license or authorization has been obtained (it being understood and agreed that the Loan Parties shall use commercially reasonable efforts to obtain such consent, approval, license or authorization), or for which the provision of a Guaranty would reasonably be expected to result in material adverse tax consequences to the Parent Guarantor and its Subsidiaries, in each case, as reasonably determined in good faith by the Borrower in consultation with the Collateral Agent; (c) any Foreign Subsidiary; (d) any FSHCO; (e) any not-for-profit Subsidiary, captive insurance Subsidiary, or special purpose entity; (f) any Subsidiary that is not a Wholly Owned Subsidiary, other than any Subsidiary that (i) is a Wholly Owned Subsidiary as of the time that such Subsidiary becomes a Guarantor hereunder, and (ii) subsequently becomes a non-Wholly Owned Subsidiary; and (g) any Subsidiary for which the Collateral Agent and the Borrower have determined, in their reasonable judgment, that the cost or burden of providing such a Guarantee would be excessive in light of the benefits to be obtained therefrom by the Lenders. “Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all, or a portion, of the Guaranty of such Guarantor of 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 (determined after giving effect to Section 4.08 and any and all Guarantees of such Guarantor’s Swap Obligations by the Borrower) at the time the Guaranty of such Guarantor becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one (1) Swap Contract, such exclusion shall apply to only the portion of such Swap Obligation that is attributable to Swap Contracts for which such Guaranty is or becomes illegal.

 

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Excluded Taxes” means any of the following Taxes imposed on, or with respect to, any Recipient, or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to, or for the account of, such Lender with respect to an applicable interest in a Loan or Commitment, pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13), or (ii) such Lender changes its Lending Office, except, in each case of the foregoing clauses (b)(i) and (b)(ii), to the extent that, pursuant to Section 3.01(a)(ii) or Section 3.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto, or to such Lender immediately before it changed its Lending Office; (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e); and (d) any U.S. federal withholding Taxes imposed under FATCA.

 

Existing Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of June 6, 2016 (as amended, amended and restated, modified, supplemented, increased or extended from time to time, including pursuant to that certain Amendment No. 1 to Credit Agreement, dated as of September 22, 2017), by and among the Borrower, the Parent Guarantor, the lenders party thereto, and Bank of America, as administrative agent.

 

Existing Letters of Credit” means the letters of credit described by date of issuance, letter of credit number, undrawn amount, name of beneficiary, and date of expiry on Schedule 1.01(b).

 

FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, and any applicable intergovernmental agreements implementing any of the foregoing.

 

FCR Period” means the period from, and including, the First Amendment Effectiveness Date to, but excluding, the Financial Covenant Reversion Date.

 

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided, that: (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day; and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1.00%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent. If, at any time, the Federal Funds Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

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Fee Letters” means, collectively, the Bank of America Fee Letter, the Mizuho Fee Letter, the Citibank Fee Letter, the First Amendment Fee Letter, and the Fourth Amendment Fee Letter.

 

Final Maturity Date” means, as of any date of determination, the later of: (a) the Revolving Loan Maturity Date; (b) the Term Loan Maturity Date; and (c) the then latest Add-On Term Loan Maturity Date.

 

Financial Covenant Reversion Date” means the first (1st) day of the first (1st) Fiscal Quarter of 2023.

 

Financial Covenants” means, at any time, the applicable covenants and agreements of the Loan Parties set forth in Section 8.08 that are in effect at such time.

 

Financial Officer” of any corporation, partnership, or other entity means the chief financial officer, the principal accounting officer, the treasurer, or the controller of such corporation, partnership or other entity.

 

First Amendment” means that certain First Amendment to Second Amended and Restated Credit Agreement, dated as of the First Amendment Effectiveness Date, by and among the Borrower, the Parent Guarantor, the Lenders party thereto, and the Administrative Agent.

 

First Amendment Effectiveness Date” means February 24, 2020.

 

First Amendment Fee Letter” means that certain fee letter, dated as of February 14, 2020, by and among the Borrower, the Parent Guarantor, BofA Securities, and the Administrative Agent (as amended by that certain Amendment to Fee Letter, dated as of February 24, 2020).

 

First Extended DDTL Availability Expiration Date” has the meaning specified in the definition of “Delayed Draw Term Loan Availability Period” above.

 

First Extension Period” has the meaning specified in the definition of “Delayed Draw Term Loan Availability Period” above.

 

First Lien Leverage Ratio” means, solely at all times during the FCR Period, the ratio of: (a) all indebtedness of the Parent Guarantor and its Subsidiaries, on a consolidated basis, as determined in accordance with GAAP (including, without limitation, Indebtedness of the types described in clauses (a) and (b) of the definition of “Indebtedness” above, but excluding, for the avoidance of doubt, Indebtedness of the type described in clause (g) of the definition of “Indebtedness” above) that is secured by a first-priority Lien on any property of the Parent Guarantor or any of its Subsidiaries (including, without limitation, solely at all times during the CSAG Period, Consolidated Secured Credit Facility Indebtedness, but excluding any indebtedness secured by Liens incurred under Section 8.01(ee) to the extent that such Liens are in favor of a Governmental Authority; to (b) Consolidated EBITDA for the last ended Test Period. Notwithstanding anything to the contrary in the foregoing, in no event will obligations or liabilities in respect of any Equity Interests be included in any calculation of the First Lien Leverage Ratio.

 

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First-Tier Foreign Subsidiary” means any Foreign Subsidiary, all, or any portion, of the Equity Interests of which are owned or held directly by a Loan Party.

 

Fiscal Month” means any fiscal month of the Borrower or the Parent Guarantor, as the context requires.

 

Fiscal Quarter” means any fiscal quarter of the Borrower or the Parent Guarantor, as the context requires.

 

Fiscal Year” means any fiscal year of the Borrower or the Parent Guarantor, as the context requires.

 

Flood Hazard Property” shall have the meaning set forth in the definition of “Real Property Security Documents” below.

 

Flood Insurance Laws” means, collectively: (a) the National Flood Insurance Reform Act of 1994 (which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973), as now or hereafter in effect or any successor statute thereto; (b) the Flood Insurance Reform Act of 2004, as now or hereafter in effect or any successor statute thereto; and (c) the Biggert–Waters Flood Insurance Reform Act of 2012, as now or hereafter in effect or any successor statute thereto.

 

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

 

Foreign Plan” means any employee benefit plan, program, policy, arrangement or agreement maintained, or contributed to, outside the United States by any Loan Party or Subsidiary primarily for the benefit of employees of any Loan Party or Subsidiary employed outside the United States.

 

Foreign Subsidiary” means any Subsidiary that: (a) is not organized under the Laws of any state of the United States or of the District of Columbia; or (b) (i) is organized under the Laws of any state of the United States or of the District of Columbia, and (ii) is a direct or indirect subsidiary of a CFC.

 

Fourth Amendment Effectiveness Date” means April 17, 2020, the earliest date on which all of the conditions precedent set forth in Section 2 of that certain Fourth Amendment to Second Amended and Restated Credit Agreement, dated as of April 13, 2020, by and among the Loan Parties, the Lenders party thereto, and the Administrative Agent arewere satisfied.

 

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Fourth Amendment Fee Letter” means that certain fee letter, dated as of April 13, 2020, by and among the Borrower, the Parent Guarantor, BofA Securities, and the Administrative Agent.

 

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

 

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

 

FSHCO” means any Subsidiary that is organized under the Laws of any state of the United States or of the District of Columbia, substantially all of the Property of which consists of: (a) Equity Interests of one (1) or more CFCs; or (b) Indebtedness of such CFCs.

 

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

 

GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time.

 

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

 

Guarantee” means, as to any Person: (a) any obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guaranteeing, any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital, or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor, so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring, in any other manner, the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof, or to protect such obligee against loss in respect thereof (in whole or in part); or (b) any Lien on any Property of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made, or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

 

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Guaranteed Party Designation Notice” means a notice from any Lender, or an Affiliate of a Lender, substantially in the form of Exhibit 9.05.

 

Guaranteed Swap Contract” means any Swap Contract by and between any Loan Party or Subsidiary and any Swap Bank. For the avoidance of doubt, a holder of Obligations in respect of Guaranteed Swap Contracts shall be subject to the last paragraph of Section 9.05 and Section 10.11.

 

Guaranteed Treasury Management Agreement” means any Treasury Management Agreement by and between any Loan Party or Subsidiary and any Treasury Management Bank. For the avoidance of doubt, a holder of Obligations in respect of Guaranteed Treasury Management Agreements shall be subject to the last paragraph of Section 9.05 and to Section 10.11.

 

Guarantor Joinder Agreement” means a joinder agreement, in substantially the form of Exhibit 7.12–CSAG, executed and delivered by a Subsidiary in accordance with the provisions of Section 7.12.

 

Guarantors” means, collectively: (a) the Parent Guarantor; (b) each Subsidiary of the Parent Guarantor indicated as a “Guarantor” on the signature pages to this Agreement; (c) each Subsidiary of the Parent Guarantor that is, or may from time to time become, party to this Agreement pursuant to the terms of Section 7.12; and (d) solely with regard to the Additional Obligations of each Subsidiary of the Parent Guarantor, the Borrower.

 

Guaranty” means the guaranty made by each Guarantor (and, with respect to Additional Obligations (determined before giving effect to Section 4.01 and Section 4.08), the Borrower) in favor of the Administrative Agent, the Lenders, and the other Loan Document Secured Parties pursuant to Article IV.

 

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

 

Honor Date” has the meaning specified in Section 2.03(c).

 

IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002, to the extent applicable to the relevant financial statements delivered under this Agreement or referred to herein.

 

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Immaterial Foreign Subsidiary” means a Foreign Subsidiary that contributes (together with its Subsidiaries on a consolidated basis) less than five percent (5.0%) of Consolidated EBITDA, and owns (together with its Subsidiaries) less than five percent (5.0%) of Consolidated Total Assets (determined upon the delivery of the most recently delivered financial statements pursuant to Section 7.01(a) or Section 7.01(b), as applicable, (a) for the last ended Test Period (with respect to Consolidated EBITDA), and (b) as of the date of such financial statements (with respect to Consolidated Total Assets), on a Pro Forma Basis); provided, that, if all of the Immaterial Foreign Subsidiaries that are First-Tier Foreign Subsidiaries contribute, in the aggregate, more than five percent (5.0%) of Consolidated EBITDA, or have, in the aggregate, more than five percent (5.0%) of Consolidated Total Assets, then the Borrower shall (in consultation with the Administrative Agent) designate one (1) or more of such First-Tier Foreign Subsidiaries to not be treated as an Immaterial Foreign Subsidiary for purposes of the Loan Documents, so that the aggregate thresholds set forth in this proviso are not exceeded, determined after giving effect to such designation.

 

Immaterial Subsidiary” means a Subsidiary (other than a Loan Party or an Excluded Subsidiary described in clauses (b) through (g) of such definition) that contributes (together with its Subsidiaries on a consolidated basis) less than five percent (5.0%) of Consolidated EBITDA, or owns (together with its Subsidiaries) less than five percent (5.0%) of Consolidated Total Assets (determined upon the delivery of the most recently delivered financial statements pursuant to Section 7.01(a) or Section 7.01(b), as applicable, (a) for the last ended Test Period (with respect to Consolidated EBITDA), and (b) as of the date of such financial statements (with respect to Consolidated Total Assets), on a Pro Forma Basis); provided, that, if all Immaterial Subsidiaries contribute, in the aggregate, more than five percent (5.0%) of Consolidated EBITDA, or have, in the aggregate, more than five percent (5.0%) of Consolidated Total Assets, then the Borrower shall (in consultation with the Administrative Agent) designate one (1) or more of such Subsidiaries to not be treated as an Immaterial Subsidiary for purposes of the Loan Documents, so that the aggregate thresholds set forth in this proviso are not exceeded, determined after giving effect to such designation.

 

Impending Acquisitions” means, collectively, the Asco Acquisition and the Bombardier Acquisition, in each case, substantially on the terms disclosed to the Administrative Agent in writing prior to the First Amendment Effectiveness Date; provided, that, the aggregate cash considerationpurchase agreement for each of the Asco Acquisition and the Bombardier Acquisition shall not exceed the aggregate consideration set forth in the applicable Acquisition Agreementbe amended on or after the Sixth Amendment Effectiveness Date in a manner materially adverse to the interests of the Lenders without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that any amendment thereto that reduces the purchase price and/or defers all, or a portion, of the payment thereof shall be deemed not to be materially adverse to the interests of the Lenders).

 

Impermissible Qualification” means, relative to the opinion or certification of any independent public accountant as to any financial statement of any Loan Party, any qualification or exception to such opinion or certification:

 

(a)            which is of a “going concern” or similar nature; or

 

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(b)           which relates to the limited scope of examination of matters relevant to such financial statement.

 

Increase Effective Date” has the meaning specified in Section 2.01(d)(i).

 

Increase Joinder” has the meaning specified in Section 2.01(d)(i)(B).

 

Incremental Funds Availability Period” means the period from, and including, the Effectiveness Date to, but excluding, the First Amendment Effectiveness Date, together with the period from, and including, the Collateral and Subsidiary Guaranty Release Date to, but excluding, the earlier of the Revolving Loan Maturity Date and the Term Loan Maturity Date.

 

Incremental Funds Certain Provision” shall have the meaning set forth in Section 2.01(d)(ii).

 

Indebtedness” of any Person means the sum of all indebtedness of such Person on a consolidated basis (without duplication) with respect to:

 

(a)            borrowed money or obligations represented by bonds, debentures, notes or other similar instruments;

 

(b)           the aggregate amount of Capital Lease Obligations; provided, that, to the extent such obligations are limited in recourse to the Property subject to such Capital Lease, such limited recourse obligations shall be included in Indebtedness only to the extent of the fair market value of such property;

 

(c)            the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such Person, prepared as of such date in accordance with GAAP, if such lease were accounted for as a Capital Lease;

 

(d)           the outstanding principal amount of any Securitization Transaction, after taking into account reserve accounts and making appropriate adjustments, determined by the Administrative Agent in its reasonable discretion;

 

(e)            all obligations of others secured by any Lien on any Property of such Person, but, to the extent such Lien does not extend to any other Property of such Person and is otherwise non-recourse against such Person, limited to the lesser of: (i) the aggregate unpaid amount of such obligations; and (ii) the fair market value of such Property as reasonably determined by such Person;

 

(f)             all indebtedness representing the deferred purchase price of Property or services, but excluding: (i) trade payables and accrued liabilities in the ordinary course of business; and (ii) any purchase price adjustment, contingent payment or deferred payment incurred in connection with an Acquisition or other Investment, so long as such obligation has not become a liability on the balance sheet of such Person in accordance with GAAP;

 

(g)           net obligations under Swap Contracts;

 

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(h)           all obligations for the reimbursement of any obligor under letters of credit, bankers’ acceptances, and similar credit transactions; and

 

(i)             Guarantees in respect of, or to assure an obligee against failure to make payment in respect of, liabilities, obligations or indebtedness of the kind described in clauses (a) through (h) above.

 

Notwithstanding anything to the contrary in the foregoing, in no event shall any of the following constitute Indebtedness: (i) obligations or liabilities in respect of any Equity Interests, any Permitted Bond Hedge Transactions, or any Permitted Warrant Transactions; (ii) any obligations in respect of Advance Payments, except following a Discontinuance Event with respect to the applicable contract, in which case, “Indebtedness” shall include an amount equal to the lesser of (A) the aggregate amount of Advance Payments made by the applicable customer under the applicable contract, less the sum of (I) the aggregate amount of Advance Payments under the applicable contract theretofore repaid to the applicable customer or otherwise satisfied or forgiven, plus (II) any Advance Payments that are not required to be repaid under the applicable contract as a result of such Discontinuance Event, and (B) the amount agreed in writing between the Parent Guarantor or the applicable Subsidiary, on one hand, and the applicable customer, on the other hand, in settlement of any repayment obligations owing to the applicable customer in respect of Advance Payments under the applicable contract as a result of such Discontinuance Event; (iii) obligations and/or liabilities under any Permitted Incentive Program, to the extent that such obligations and/or liabilities satisfy both of the following two (2) requirements, (A) such obligations and/or liabilities do not constitute indebtedness on the balance sheet of such Person in accordance with GAAP, and (B) such obligations and/or liabilities are not secured by a Lien on any Property of any Loan Party or Subsidiary (regardless of whether such obligations and/or liabilities constitute indebtedness on the balance sheet of such Person in accordance with GAAP); and (iv) obligations and/or liabilities under any Qualifying IRB Financing.

 

The amount of any net obligation owed by such Person under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.

 

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

 

Indemnitees” has the meaning specified in Section 11.04(b).

 

Information” has the meaning specified in Section 11.07.

 

Initial DDTL Availability Expiration Date” has the meaning specified in the definition of “Delayed Draw Term Loan Availability Period” above.

 

Interest Coverage Ratio” means, as of any date, the ratio of: (a) Consolidated EBITDA for the last ended Test Period; to (b) Consolidated Interest Expense (excluding (i) non-cash interest expense relating to any Permitted Convertible / Exchangeable Indebtedness, and (ii) amounts paid in connection with any Permitted Bond Hedge Transactions using the proceeds from the issuance of the related Permitted Convertible / Exchangeable Indebtedness) for the last ended Test Period.

 

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Interest Payment Date” means: (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Revolving Loan Maturity Date, the Term Loan Maturity Date, or any applicable Add-On Term Loan Maturity Date, as the case may be, provided, that, if any Interest Period for a Eurodollar Rate Loan exceeds three (3) months, the respective dates that fall every three (3) months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Revolving Loan Maturity Date, the Term Loan Maturity Date, or any applicable Add-On Term Loan Maturity Date, as the case may be.

 

Interest Period” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to, or continued as, a Eurodollar Rate Loan, and ending on the date one (1), two (2), three (3) or six (6) months thereafter, as selected by the Borrower in its Loan Notice, or such other period that is twelve (12) months or less requested by the Borrower and consented to by all of the Lenders under such Eurodollar Rate Loan (in each case, subject to availability); provided, that:

 

(a)            any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day, unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case, such Interest Period shall end on the next preceding Business Day;

 

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

 

(c)            no Interest Period with respect to any Revolving Loan shall extend beyond the Revolving Loan Maturity Date;

 

(d)           no Interest Period with respect to the Term A Loan or any Delayed Draw Term Loan shall extend beyond the Term Loan Maturity Date; and

 

(e)            no Interest Period with respect to any Add-On Term Loan shall extend beyond the applicable Add-On Term Loan Maturity Date.

 

Internal Revenue Code” means the Internal Revenue Code of 1986 (as amended).

 

Internal Revenue Service” means the United States Internal Revenue Service.

 

Investment” has the meaning specified in Section 8.04.

 

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

 

Issuer Documents” means, with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary), or in favor of such L/C Issuer, and relating to any such Letter of Credit.

 

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Joint Venture” means a corporation, partnership, limited liability company, joint venture or other similar arrangement (whether created by contract or conducted through a separate legal entity) which is not a Subsidiary of any Loan Party or Subsidiary and which is formed by any Loan Party or Subsidiary with one (1) or more other Person in order to conduct a common venture or enterprise with such Persons.

 

Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case applicable or binding upon any Person or any of its Property, or to which such Person or any of its Property is subject.

 

L/C Advance” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.

 

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

 

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

 

L/C Issuer” means, as the context may require: (a) Bank of America, in its capacity as an issuer of Letters of Credit hereunder and its successors in such capacity, as provided in Section 2.03(l); (b) Mizuho Bank, Ltd., in its capacity as an issuer of Letters of Credit hereunder and its successors in such capacity, as provided in Section 2.03(l); (c) Citibank, in its capacity as an issuer of Letters of Credit hereunder and its successors in such capacity, as provided in Section 2.03(l); (d) any other consenting Revolving Lender approved by the Administrative Agent and the Borrower, in its capacity as issuer of Letters of Credit issued by it hereunder and its successors in such capacity, as provided in Section 2.03(l) or Section 2.03(e) collectively, all of the foregoing. Each L/C Issuer may, in its discretion, arrange for one (1) or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case, the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate.

 

L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For all purposes of this Agreement, if, on any date of determination, a Letter of Credit has expired by its terms, but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each Add-On Term Loan Lender, each Post-Increase Revolving Lender, and, as the context requires, each Swing Line Lender, in each case, together with their successors and permitted assigns.

 

Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may include the office of any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.

 

Letter of Credit” means any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder, and shall include the Existing Letters of Credit.

 

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

 

Letter of Credit Expiration Date” means the day that is thirty (30) days prior to the Revolving Loan Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

 

Letter of Credit Fee” has the meaning specified in Section 2.03(h).

 

Letter of Credit Sublimit” means, as of any date of determination, an amount equal to the lesser of (a) the Aggregate Revolving Commitments as of such date, and (b) One-Hundred Million Dollars ($100,000,000); provided, that, with respect to (i) Bank of America, in its capacity as an L/C Issuer, the Letter of Credit Sublimit shall be $33,333,333.34, (ii) Mizuho Bank, Ltd., in its capacity as an L/C Issuer, the Letter of Credit Sublimit shall be $33,333,333.33, (iii) Citibank, in its capacity as an L/C Issuer, the Letter of Credit Sublimit shall be $33,333,333.33, and (iv) with respect to any other Lender serving as an L/C Issuer, the Letter of Credit Sublimit shall be such amount as agreed in writing among the Borrower, such Lender and the Administrative Agent. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

Leverage Increase Notice” has the meaning specified in Section 8.08(b).

 

Leverage Increase Period” has the meaning specified in Section 8.08(b).

 

LIBOR” has the meaning specified in the definition of “Eurodollar Base Rate” above.

 

LIBOR Rate” has the meaning specified in the definition of “Eurodollar Base Rate” above.

 

LIBOR Screen Rate” means the LIBOR quote on the applicable screen page that the Administrative Agent (in its reasonable discretion) designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time in its reasonable discretion).

 

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LIBOR Successor Rate” has the meaning specified in Section 3.03(c).

 

LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definitions of Base Rate, Interest Period, Eurodollar Rate, Eurodollar Base Rate, timing and frequency of determining rates and making payments of interest, and other technical, administrative and/or operational matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible, or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines, in consultation with the Borrower, is reasonably necessary in connection with the administration of this Agreement).

 

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

 

Liquidity” means, as of any date of determination: (a) the aggregate amount of unrestricted and unencumbered (other than by Liens in favor of the Collateral Agent) cash or cash equivalents (measured at fair market value) of the Parent Guarantor and its Subsidiaries; plus (b) the aggregate amount actually available to be drawn, if any, by the Borrower under the Aggregate Revolving Commitments at such time; plus (c) the aggregate amount actually available to be drawn, if any, by the Borrower under the Aggregate Delayed Draw Term Loan Commitments (as defined in the Liquidity Bridge Credit Agreement) at such time.

 

Liquidity Bridge Credit Agreement” means that certain Delayed Draw Term Loan Credit Agreement, dated as of the First Amendment Effectiveness Date, by and among the Borrower, the Guarantors, the lenders party thereto, and Bank of America, as administrative agent.

 

Loan” means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan, a Swing Line Loan, a Term A Loan, a Delayed Draw Term Loan, or an Add-On Term Loan.

 

Loan Documents” means this Agreement, each Note, each Issuer Document, each Add-On Term Loan Lender Joinder Agreement (if any), any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.14, each Fee Letter (but specifically excluding Guaranteed Treasury Management Agreements and Guaranteed Swap Contracts), and, solely at all times during the CSAG Period, each Collateral Document and each Guarantor Joinder Agreement (if any).

 

Loan Notice” means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to another Type, or (c) a continuation of Eurodollar Rate Loans, in each case, pursuant to Section 2.02(a), which shall be substantially in the form of Exhibit 2.02 or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

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Loan Document Secured Parties” means, collectively, the Collateral Agent, the Administrative Agent, the Lenders, the Swap Banks, the Treasury Management Banks, and any other holders of the Secured Obligations pursuant to the terms of the Loan Documents.

 

Loan Parties” means, collectively: (a) at all times during the term of this Agreement, (i) the Borrower, and (ii) the Parent Guarantor; and (b) solely at all times during the CSAG Period, any other Subsidiaries of the Parent Guarantor that are Guarantors at any time during the CSAG Period.

 

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

 

MAE Reversion Date” means the earlier to occur of: (a) the 737 MAX Certification Date; and (b) June 30, 2021.

 

Master Agreement” has the meaning specified in the definition of “Swap Contract” below.

 

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

 

Material Indebtedness” means (i) any Indebtedness (other than the Loans and Letters of Credit), or (ii) obligations in respect of one (1) or more Swap Contracts, of any one (1) or more Loan Parties and Subsidiaries, individually or in an aggregate principal amount exceeding One-Hundred Million Dollars ($100,000,000).

 

Maximum Rate” has the meaning specified in Section 11.09.

 

Minimum Collateral Amount” means, at any time: (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to one hundred percent (100.0%) of the Fronting Exposure of the L/C Issuers with respect to Letters of Credit issued and outstanding at such time; (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), Section 2.14(a)(ii) or Section 2.14(a)(iii), an amount equal to one hundred percent (100.0%) of the Outstanding Amount of all L/C Obligations; and (c) otherwise, an amount determined by the Administrative Agent and each applicable L/C Issuer in their sole discretion.

 

Mizuho Fee Letter” means that certain Fee Letter, dated as of May 24, 2018, by and among the Borrower, the Parent Guarantor and Mizuho Bank, Ltd.

 

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

 

Mortgage” means each mortgage, deed of trust, deed to secure debt, assignment of leases and rents, leasehold mortgage, and other security documents that grant, or purport to grant, to the Collateral Agent, for the benefit of the Secured Parties, solely at all times during the CSAG Period, a Lien on any Mortgaged Property.

 

Mortgaged Property” means each Real Property subject to a Mortgage pursuant to the terms of the Collateral Documents.

 

Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes, or is obligated to make, contributions, or, during the preceding five (5) plan years, has made, or been obligated to make, contributions.

 

Multiple Employer Plan” means a Plan which has two (2) or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two (2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA.

 

Net Condemnation Proceeds” means an amount equal to: (a) any cash payments or proceeds received by a Loan Party, the Administrative Agent or the Collateral Agent as a result of any condemnation, or other taking or temporary or permanent requisition, of any Property of a Loan Party, any interest therein or right appurtenant thereto, or any change of grade affecting such Property, as the result of the exercise of any right of condemnation or eminent domain by a Governmental Authority (including a transfer to a Governmental Authority in lieu or anticipation of a condemnation); minus (b) (i) any actual costs incurred by a Loan Party in connection with any such condemnation or taking (including fees and expenses of counsel), and (ii) provisions for all taxes reasonably estimated to be payable as a result of such condemnation, without regard to the consolidated results of operations of the Loan Parties, taken as a whole, in each case, as reasonably determined in good faith by the Borrower.

 

Net Insurance Proceeds” means an amount equal to: (a) any cash payments or proceeds received by a Loan Party, the Administrative Agent or the Collateral Agent under any casualty insurance policy in respect of a covered loss thereunder with respect to any Property (excluding amounts payable with respect to a business interruption policy or claim); minus (b) the sum of (i) any actual costs incurred by a Loan Party in connection with the adjustment or settlement of any claims of a Loan Party in respect thereof (including fees and expenses of counsel), plus (ii) provisions for all taxes reasonably estimated to be payable as a result of such event, without regard to the consolidated results of operations of Loan Parties, taken as a whole, in each case, as reasonably determined in good faith by the Borrower.

 

Net Proceeds” means:

 

(a)         with respect to any sale of any Property by any Person, the aggregate consideration received by such Person from such sale, less the sum of (i) the actual amount of the fees and commissions payable by such Person, other than to any of its Affiliates, plus (ii) the costs and expenses (including any legal, financial advisory, consulting, accounting and other advisory expenses) directly related to such sale that are to be paid by such Person, other than to any of its Affiliates (including, without limitation, transfer, sale, use and other similar taxes payable in connection with such sale), plus (iii) taxes reasonably estimated to be payable by such Person as a result of such sale, plus (iv) any reasonable reserves, escrow obligations, holdbacks, or retained liabilities relating to such sale, plus (v) the amount of any Indebtedness (other than the Obligations) which is required to be repaid or prepaid by such Person as a result of such sale, plus (vi) any amount required by applicable Law to be paid upon receipt to a third party related to the transaction, in each case of the foregoing clauses (a)(i) through (a)(vi), as reasonably determined in good faith by the Borrower; and

 

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(b)               with respect to any sale or issuance of any Equity Interests by any Person, or any issuance or incurrence of any Indebtedness by any Person, the aggregate consideration received by such Person from such sale, issuance or incurrence, less the sum of: (i) the actual amount of the fees and commissions payable by such Person, other than to any of its Affiliates; and (ii) the legal expenses, and the other costs and expenses, directly related to such issuance or incurrence that are to be paid by such Person, other than to any of its Affiliates.

 

Net Recovery Event Proceeds” means, collectively, Net Condemnation Proceeds and/or Net Insurance Proceeds, as applicable.

 

Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that: (a) requires the approval of all Lenders, or all affected Lenders, in accordance with the terms of Section 11.01, or the Lenders holding Loans or Commitments of a particular Class as provided in clause (vii) of the final proviso to Section 11.01; and (b) has been approved by the Requisite Lenders.

 

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

 

Non-Recourse Debt” means Indebtedness of a Person:

 

(a)                as to which no Loan Party: (i) provides any Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or instrument that would constitute Indebtedness); or (ii) is directly or indirectly liable (as a guarantor or otherwise); and

 

(b)                no default with respect to which (including any rights that the holders thereof may have to take enforcement action against the debtor thereof) would permit (upon notice, lapse of time, or both) any holder of any Indebtedness of any Loan Party to declare a default under such Indebtedness, or to cause the payment thereof to be accelerated or payable prior to its stated maturity.

 

North Hangar Lease” means, collectively, the Building Lease, dated as of October 14, 2016, by and between Air Capital Flight Line, LLC, as landlord, and the Borrower, as tenant, as amended and supplemented from time to time (including any supplemental or similar leases with respect to related buildings or property).

 

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Note” or “Notes” means the Revolving Notes, the Swing Line Note, the Term A Notes, the Delayed Draw Term Loan Notes, and/or any Add-On Term Notes, individually or collectively, as appropriate.

 

Notice of Prepayment and/or Reduction / Termination of Commitments” means a notice of prepayment with respect to a Loan, which shall be substantially in the form of Exhibit 2.05(a) or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer.

 

Obligations” means all: (a) advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, whether direct or indirect (including, without limitation, those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, and including interest and fees that accrue after the commencement by or against any Loan Party, or Affiliate thereof, of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; and (b) Additional Obligations. Notwithstanding anything to the contrary in the foregoing, the “Obligations” of any Guarantor shall not include any Excluded Swap Obligations with respect to such Guarantor.

 

OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.

 

Organizational Document” means: (a) with respect to each Person that is a corporation, its charter and its by-laws (or similar documents); (b) with respect to each Person that is a limited liability company, its certificate of formation and its operating agreement (or similar documents); (c) with respect to each Person that is a limited partnership, its certificate of formation and its limited partnership agreement (or similar documents); (d) with respect to each Person that is a general partnership, its partnership agreement (or similar document); and (e) with respect to any Person that is any other type of entity, such documents as shall be comparable to the foregoing.

 

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

 

Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06).

 

Outside Date” has the meaning specified in Section 2.05(b)(v).

 

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Outstanding Amount” means: (a) with respect to any Loans on any date, the aggregate outstanding principal amount thereof, after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date, after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

 

Parent Guarantor” has the meaning specified in the introductory paragraph hereto.

 

Participant” has the meaning specified in Section 11.06(d).

 

Participant Register” has the meaning specified in Section 11.06(d).

 

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

 

Pension Funding Rules” means the rules of the Code and ERISA regarding minimum funding standards with respect to Pension Plans and set forth in Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.

 

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

 

Permitted Acquisition” means (A) any Impending Acquisition, and (B) any Acquisition, whether by purchase, merger, consolidation or otherwise, by any Loan Party or Subsidiary, of all, or substantially all, of the Property of, or all of the Equity Interests in, a Person, or a division, line of business, or other business unit of a Person, so long as, in each case of this clause (B):

 

(a)               the Board of Directors of such Person shall not have indicated publicly its opposition to the consummation of such Acquisition (which opposition has not been publicly withdrawn);

 

(b)               such Property is to be used in, or such Person so acquired is engaged in, as the case may be, a business of the type permitted under Section 8.03(c);

 

(c)               immediately after giving effect to such Acquisition: (i) all transactions related thereto are consummated, in all material respects, in accordance with applicable Laws; (ii) the Loan Parties are in compliance with all applicable Financial Covenants in effect at such time on a Pro Forma Basis, after giving effect to such Acquisition (and any related incurrence or repayment of Indebtedness), provided, that, in the case of an Acquisition that is subject to the Incremental Funds Certain Provision, the date of determination of such Financial Covenants on a Pro Forma Basis shall, at the option of the Borrower, be the date of execution of the applicable Acquisition Agreement, and such determination shall be made after giving effect to such Acquisition (and any other transactions to be entered into in connection therewith (including, without limitation, any incurrence of Indebtedness and the use of proceeds thereof)) on a Pro Forma Basis; (iii) any Indebtedness or any Preferred Stock that is incurred, acquired, or assumed in connection with such Acquisition shall be in compliance with Section 8.02; and (iv) no Specified Event of Default shall have occurred or be continuing; and

 

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(d)               solely with respect to any such Acquisition that is consummated at any time after the First Amendment Effectiveness Date and prior to the earlier of (A) the Financial Covenant Reversion Date, and (B) the Collateral and Subsidiary Guaranty Release Date: (i) in the case of an Acquisition of Equity Interests, the Person acquired (if not an Excluded Subsidiary) shall become a Guarantor to the extent required under Section 7.12 and grant Liens to the extent required under Section 7.13, or be merged into a Loan Party; (ii) no Event of Default shall have occurred or be continuing; (iii) at least five (5) Business Days prior to the date of the consummation of such Acquisition (or such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate duly executed by a Financial Officer of the Borrower, certifying, and demonstrating with reasonably detailed calculations attached thereto, compliance with all applicable Financial Covenants in effect at such time on a Pro Forma Basis, as described in clause (c)(ii) above; and (iv) the Administrative Agent shall have provided express written consent to such Acquisition, in writing, prior to the date of the consummation of such Acquisition.

 

Permitted Bond Hedge Transactions” means any call, or capped call, option (or economically equivalent swap or other derivative transaction) relating to the common stock of the Parent Guarantor (or other securities and/or property of the Parent Guarantor that the applicable Permitted Convertible / Exchangeable Indebtedness is convertible or exchangeable into, in accordance with the terms thereof) purchased by the Borrower or the Parent Guarantor in connection with the issuance of any Permitted Convertible / Exchangeable Indebtedness; provided, that, the purchase price for such Permitted Bond Hedge Transactions, less the proceeds received by the Parent Guarantor from the sale of any related Permitted Warrant Transactions, does not exceed the Net Proceeds received by the Borrower or the Parent Guarantor, as the case may be, from the issuance of such Permitted Convertible / Exchangeable Indebtedness in connection with such Permitted Bond Hedge Transactions.

 

Permitted Convertible / Exchangeable Indebtedness” means, collectively: (a) any Indebtedness of the Borrower or the Parent Guarantor that is convertible into, or exchangeable for, common stock in the Parent Guarantor (or other securities and/or property that such Indebtedness is convertible or exchangeable into in accordance with the terms thereof), cash (such amount of cash determined by reference to the price of such common stock, or such other securities and/or property), or any combination of any of the foregoing, and cash in lieu of fractional shares of common stock; and (b) the Guarantee of any of the Indebtedness described in the foregoing clause (a) by the Parent Guarantor or the Borrower, as the case may be.

 

Permitted Incentive Programs” means any incentive, employment, development or other similar programs or agreements with any governmental, quasi-governmental, economic development authority, non-profit or similar entity or an affiliated organization, including, without limitation: (a) any Permitted State Bond Financing; (b) industrial revenue bonds; (c) new market tax credits; (d) research and development arrangements; and (e) other similar arrangements.

 

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Permitted Investments” means:

 

(a)               Dollars (including such Dollars as are held as overnight bank deposits and demand deposits with banks);

 

(b)               marketable direct obligations issued by, or unconditionally guaranteed by, the United States government or issued by any agency or instrumentality thereof and backed by the full faith and credit of the United States of America, in each case, maturing within one (1) year from the date of acquisition thereof;

 

(c)               marketable direct obligations issued by any state of the United States of America, or any political subdivision of any such state, or any public instrumentality thereof, maturing within one (1) year from the date of acquisition thereof, and, at the time of acquisition, having a rating of at least “A–2” from S&P or at least “P–2” of Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two (2) named rating agencies cease publishing;

 

(d)               commercial paper maturing no more than one (1) year from the date of creation thereof, and, at the time of acquisition, having a rating of at least “A–2” from S&P or at least “P–2” from Moody’s, or carrying an equivalent rating by a nationally recognized rating agency, if both of the two (2) named rating agencies cease publishing;

 

(e)               time deposits, demand deposits, certificates of deposit, Eurodollar time deposits, time deposit accounts, term deposit accounts, or bankers’ acceptances maturing within one (1) year from the date of acquisition thereof or overnight bank deposits, in each case, issued by any bank organized under the Laws of the United States, or any state thereof, or the District of Columbia, or any U.S. branch of a foreign bank having, at the date of acquisition thereof, combined capital and surplus of not less than Five-Hundred Million Dollars ($500,000,000);

 

(f)                repurchase obligations with a term of not more than ninety (90) days for underlying securities of the types described in clause (a) above, entered into with any bank meeting the qualifications specified in clause (e) above;

 

(g)               investments in money market funds which invest all, or substantially all, of their assets in securities of the types described in clauses (a) through (f) above; and

 

(h)               in the case of Foreign Subsidiaries, Investments made locally of a type comparable to those described in clauses (a) through (f) above, which may include investments in the relevant foreign currency.

 

Permitted Lien Renewals” means any replacement, extension or renewal of any Lien permitted hereunder, provided, that: (a) such replacement, extension or renewal Lien shall not cover any Property other than the Property that was subject to such Lien prior to such replacement, extension or renewal (other than (i) after-acquired Property that is affixed or incorporated into the Property covered by such Liens, and (ii) proceeds and products thereof); and (b) any Indebtedness and other obligations secured by such replacement, extension or renewal Lien are permitted by this Agreement.

 

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Permitted Liens” has the meaning specified in Section 8.01.

 

Permitted Refinancing” means, with respect to any Indebtedness, any refinancing thereof, provided, that: (a) no Event of Default shall have occurred and be continuing or would arise therefrom; (b) any such refinancing Indebtedness shall (i) not have a stated maturity or Weighted Average Life to Maturity that is shorter than the Indebtedness being refinanced, (ii) if the Indebtedness being refinanced is expressly subordinated to the Obligations, be subordinated to the Obligations on the same or similar terms as the Indebtedness being refinanced, (iii) if the Indebtedness being refinanced is secured by a Lien on any Collateral that is junior to the Lien of the Secured Parties, be secured by a Lien on such Collateral that is junior to the Lien of the Secured Parties on terms that are substantially the same or similar to those applicable to the Indebtedness being refinanced (or terms that are otherwise reasonably acceptable to the Administrative Agent), or be unsecured, and (iv) with respect to the amount of Indebtedness being incurred as a Permitted Refinancing, be in an aggregate principal amount that does not exceed the principal amount so refinanced, plus all accrued and unpaid interest thereon, plus the stated amount of any premium and other payments required to be paid in connection with such refinancing pursuant to the terms of the Indebtedness being refinanced, plus, in any such case, the amount of reasonable expenses of the Loan Parties and Subsidiaries incurred in connection with such refinancing; and (c) the sole obligors and/or guarantors on such refinancing Indebtedness shall not include any Person other than the obligors and/or guarantors on such Indebtedness being refinanced and the Loan Parties hereunder.

 

Permitted State Bond Financing” means bond financings entered into for the purpose of obtaining a credit against state or local payroll taxes paid with respect to wages of employees of the Loan Parties or Subsidiaries (including any such financings entered into with the State of Kansas).

 

Permitted Warrant Transactions” means any call option, warrant, or right to purchase (or economically equivalent swap or other derivative transaction) relating to the common stock in the Parent Guarantor (or other securities and/or property of the Parent Guarantor that the applicable Permitted Convertible / Exchangeable Indebtedness is convertible or exchangeable into, in accordance with the terms thereof) sold or issued by the Parent Guarantor substantially concurrently with any purchase by the Borrower of related Permitted Bond Hedge Transactions, and the performance by the Parent Guarantor of its obligations thereunder.

 

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

 

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

 

Platform” has the meaning specified in the last paragraph of Section 7.01.

 

Post-Increase Revolving Lenders” has the meaning specified in Section 2.01(d)(i)(C).

 

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Preferred Stock” means, with respect to any Person, any and all preferred or preference Equity Interests (however designated) of such Person, whether or not outstanding or issued on the Effectiveness Date or the First Amendment Effectiveness Date.

 

Pre-Increase Revolving Lenders” has the meaning specified in Section 2.01(d)(i)(C).

 

Principal Property” shall have the meaning specified in the 2021 / 2023 / 2028 Notes Indenture (as in effect on the First Amendment Effectiveness Date).

 

Priority Debt” means, as of any date of determination, the sum (without duplication) of: (a) the aggregate principal amount outstanding of all unsecured Indebtedness of Subsidiaries (other than any unsecured Indebtedness of any Subsidiary owing to any Loan Party or Wholly Owned Subsidiary); plus (b) the aggregate principal amount outstanding of secured Indebtedness of any Loan Party or Subsidiary (other than (i) any secured Indebtedness of (A) any Subsidiary of the Borrower owing to a Loan Party or Wholly Owned Subsidiary, (B) the Parent Guarantor owing to another Loan Party, or (C) a Loan Party other than the Parent Guarantor owing to the Parent Guarantor, and (ii) any Indebtedness secured by a Lien permitted under Section 8.01, other than clause (v) (solely with respect to Securitization Transactions) and clause (ee) thereof).

 

Pro Forma Basis” means, for purposes of calculating any applicable Financial Covenants in effect or other covenant or provision hereunder, that any (a) Asset Sale (or series of related Asset Sales) that yields gross proceeds to the Loan Parties or Subsidiaries in excess of Five Million Dollars ($5,000,000), (b) Acquisition or similar Investment (or series of related Acquisitions or similar Investments) that involves the payment of consideration by any Loan Party or Subsidiary in excess of Five Million Dollars ($5,000,000), (c) Restricted Payment, (d) incurrence, prepayment, cancellation, termination, repurchase or repayment of Indebtedness (or any amendment, modification or amendment and restatement thereof), or (e) “run-rate” cost savings, as described in clause (a)(vii) of the definition of “Consolidated EBITDA” above, in each case of the foregoing clauses (a) through (e), shall be deemed to have occurred as of the first (1st) day of the last ended Test Period preceding the date of such transaction for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or Section 7.01(b). In connection with the foregoing: (i) (A) with respect to any Asset Sale, income statement and cash flow statement items (whether positive or negative) attributable to the Property disposed of shall be excluded to the extent relating to any period occurring prior to the date of such transaction, and (B) with respect to any Acquisition or similar Investment, income statement items attributable to the Person or Property acquired shall be included to the extent relating to any period applicable in such calculations, to the extent such items are not otherwise included in such income statement items for the Parent Guarantor and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set forth in Section 1.01; and (ii) any Indebtedness incurred or assumed by any Loan Party or Subsidiary (including the Person or Property acquired) in connection with such transaction (A) shall be deemed to have been incurred as of the first (1st) day of the applicable period, and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest for the applicable period for purposes of this definition of “Pro Forma Basis”, determined by utilizing the rate which is, or would be, in effect with respect to such Indebtedness as at the relevant date of determination.

 

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For purposes of determining compliance on a Pro Forma Basis with any Financial Covenant in effect as of any date that is prior to the first (1st) date on which such Financial Covenant is to be tested hereunder, the level of any such Financial Covenant shall be deemed to be the covenant level for such first (1st) test date.

 

Notwithstanding anything to the contrary in the foregoing or in Section 1.02, (I) Consolidated EBITDA attributable to the businesses acquired in the Impending Acquisitions, and (II) Consolidated Interest Expense relating to Indebtedness acquired or assumed in connection with the Impending Acquisitions, in each case with respect to the immediately foregoing clauses (I) and (II), occurring prior to consummation of each respective Impending Acquisition, shall not be taken into account on a Pro Forma Basis for purposes of calculating compliance with any applicable Financial Covenants in effect or any other covenant or provision hereunder.

 

Pro Forma Compliance Certificate” means a certificate of a Financial Officer of the Borrower or the Parent Guarantor, as applicable, demonstrating compliance with each of the applicable Financial Covenants in effect, at the time of delivery of such certificate to the Administrative Agent, on a Pro Forma Basis, after giving effect to the applicable transaction, recomputed as of the last day of the last ended Test Period, and attaching reasonably detailed calculations demonstrating such compliance.

 

Projections” has the meaning specified in Section 6.15.

 

Property” means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible.

 

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

 

Public Lender” has the meaning specified in the last paragraph of Section 7.01.

 

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. §–5390(c)(8)(D).

 

QFC Credit Support” has the meaning specified in Section 11.20.

 

Qualified ECP Guarantor” means, at any time, each Loan Party that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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Qualifying IRB Financing” means: (a) those certain bond financings entered into with the City of Wichita, Kansas in effect on the Effectiveness Date, and refinancings, replacements or extensions thereof satisfying the conditions of clauses (b)(i) through (b)(iv) immediately below; and (b) other bond financings entered into from time to time, provided, that, in each case of this clause (b), (i) such bonds are entered into for the sole purpose of abating personal, sales or real property taxes of the Loan Parties and their Subsidiaries, (ii) such bonds are issued pursuant to state Law, (iii) such bonds are purchased by the Loan Parties or Subsidiaries pursuant to a bond purchase agreement, (iv) the Loan Parties or Subsidiaries maintain ownership of such bonds, (v) there are no Liens on the Property of any Loan Party or Subsidiary in respect of obligations under, or in connection with, such bonds, or any related guaranty or lease obligations (except to the extent that the terms of the bond financing, including the lease arrangements, are deemed to result in a Lien in favor of the bond trustee (for itself, or on behalf of any Loan Party or Subsidiary as holder of the bonds) or any Governmental Authority on the Property that is the subject of the transaction), (vi) such bonds do not require cash payments by any Loan Party or Subsidiary (after giving effect to the rights of setoff and netting provided for in such bonds), and (vii) the Parent Guarantor is entitled under GAAP to offset any indebtedness relating to the obligations with related Property in the same amount, and the effect of such netting is that the obligations are not reflected as “debt” on the face of the Parent Guarantor’s consolidated balance sheet.

 

Real Property” means all right, title and interest of any Loan Party or Subsidiary in and to any and all parcels of, or interests in, real property owned, leased, licensed or operated (including, without limitation, any leasehold estate) by any Loan Party or Subsidiary, together with, in each case, all improvements and appurtenant fixtures.

 

Real Property Agreements” means any and all leases, subleases, license agreements, tenancy agreements, option agreements, rights of first refusal, parking agreements, restrictive covenants, easement agreements, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements, and any other agreements (including, without limitation, all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record, and whether now in existence or hereafter entered into, affecting the ownership, operation, use or occupancy of all, or any portion, of any Real Property.

 

Real Property Security Documents” means, with respect to the fee or leasehold interest of any Loan Party in any Real Property (other than any Excluded Property):

 

(a)               a fully executed and notarized Mortgage encumbering the fee or leasehold interest of such Loan Party in such Real Property;

 

(b)               if requested by the Collateral Agent, but only to the extent necessary to obtain customary “same as survey” endorsements (or survey endorsements based upon a ZipMap) to the ALTA mortgagee title insurance policies referred to in clause (c) of this definition of “Real Property Security Documents”, and to delete any standard printed survey (or ZipMap) exceptions contained in such title insurance policies, either: (i) maps or plats of an as-built survey of the sites of such Real Property certified to each of the Collateral Agent and the title insurance company issuing the title insurance policies referred to in clause (c) of this definition of “Real Property Security Documents”, in a manner satisfactory to each of the Collateral Agent and such title insurance company, dated as of a date satisfactory to each of the Collateral Agent and such title insurance company, by an independent professional licensed land surveyor, which maps or plats, and the surveys on which they are based, shall be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the National Society of Professional Surveyors in 2016 with items 2, 3, 4, 6(a), 6(b), 7(a), 7(b)(1), 7(c), 8, 9, 13, 14, 16, 17, and 19 on Table A thereof completed; or (ii) if acceptable to such title insurance company, so-called ZipMaps certified to each of the Collateral Agent and such title insurance company, in form and substance reasonably acceptable to the Collateral Agent and such title insurance company;

 

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(c)               ALTA mortgagee title insurance policies, issued by a title insurance company acceptable to the Collateral Agent, with respect to such Real Property, assuring the Collateral Agent that the Mortgage covering such Real Property creates a valid and enforceable, first priority mortgage lien on such Real Property, free and clear of all Liens except Permitted Liens, which title insurance policies shall: (i) otherwise be in form and substance reasonably satisfactory to the Collateral Agent; and (ii) include such endorsements as are reasonably requested by the Collateral Agent and which are available at commercially reasonable rates in the jurisdiction where such Real Property is located;

 

(d)               evidence as to (i) whether such Real Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”), including, without limitation, life-of-loan flood hazard determinations, and (ii) if such Real Property is a Flood Hazard Property, (A) whether the community in which such Real Property is located is participating in the National Flood Insurance Program, (B) the applicable Loan Party’s written acknowledgment of receipt of written notification from the Collateral Agent as to (I)  the fact that such Real Property is a Flood Hazard Property, and (II)  whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, and (C) copies of insurance policies or certificates of insurance of the Loan Parties evidencing flood insurance on such Real Property, and improvements thereto and contents thereof, on such terms and in such amounts as required by Flood Insurance Laws, and as otherwise reasonably required by the Collateral Agent in order to comply with Flood Insurance Laws as interpreted by the Collateral Agent in its reasonable discretion, and naming the Collateral Agent and its successors and/or assigns as sole loss payee on behalf of the Secured Parties;

 

(e)               customary legal opinions of local counsel to the Loan Party granting the Mortgage on such Real Property in the jurisdiction where such Real Property is located, addressed to the Collateral Agent and the Secured Parties, in form and substance reasonably acceptable to the Collateral Agent;

 

(f)                with respect to any Real Property leased by the Loan Parties as of the First Amendment Effectiveness Date: (i) such estoppel letters, consents and waivers from the landlords of such Real Property as may be obtained by the Loan Parties after using, and causing their Subsidiaries to use, commercially reasonable efforts, as required by the Collateral Agent, which estoppel letters, to the extent obtained, shall be in the form and substance satisfactory to the Collateral Agent; and (ii) to the extent permitted by the applicable lease (after using commercially reasonable efforts as required by this Agreement), evidence that the applicable lease, a memorandum of lease with respect thereto, or other evidence of such lease, in form and substance satisfactory to the Collateral Agent, has been, or will be, recorded in all places to the extent necessary, in the reasonable judgment of the Collateral Agent, so as to enable the Mortgage encumbering such leasehold interest to effectively create a valid and enforceable, first priority Lien (subject to Permitted Liens) on such leasehold interest in favor of the Collateral Agent for the benefit of the Secured Parties; and

 

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(g)               with respect to any Real Property subject to a Mortgage, evidence reasonably satisfactory to the Collateral Agent that all filing fees and all Taxes due and payable in connection with such Mortgage have been paid in full.

 

Recipient” means the Administrative Agent, the Collateral Agent, any Lender, any L/C Issuer, or any other recipient of any payment to be made by, or on account of, any obligation of any Loan Party hereunder.

 

Register” has the meaning specified in Section 11.06(c).

 

Regulation T” means Regulation T of the FRB, as from time to time in effect, and all official rulings and interpretations thereunder or thereof.

 

Regulation U” means Regulation U of the FRB, as from time to time in effect, and all official rulings and interpretations thereunder or thereof.

 

Regulation X” means Regulation X of the FRB, as from time to time in effect, and all official rulings and interpretations thereunder or thereof.

 

Reimbursement Date” has the meaning specified in Section 2.03(c).

 

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

 

Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment.

 

Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, for the purpose of recommending a benchmark rate to replace LIBOR in loan and credit agreements similar to this Agreement.

 

Relevant Sale” has the meaning specified in Section 2.05(b)(ii).

 

Remedial Action” means: (a) “remedial action”, as such term is defined in CERCLA, 42 U.S.C. §–9601(24); and (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, abate or otherwise take corrective action to address any Hazardous Material in the Environment, (ii) prevent the Release or threat of Release, or minimize the further Release of any Hazardous Material so it does not migrate or endanger, or threaten to endanger, public health, welfare or the Environment, or (iii) perform studies and investigations in connection with, or as a precondition to, clauses (b)(i) or (b)(ii) above.

 

Removal Effective Date” has the meaning specified in Section 10.06(b).

 

Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the thirty (30) day notice period has been waived.

 

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

 

Requisite DDTL Lenders” has the meaning specified in Section 11.01(a)(viii).

 

Requisite Lenders” means, at any time, Lenders having more than fifty percent (50.0%) of the sum of: (a) the aggregate amount of the Revolving Commitments, or, after the Revolving Loan Maturity Date or the date that the Revolving Commitments have otherwise terminated pursuant to the terms of this Agreement, the Revolving Credit Exposure; (b) the aggregate Outstanding Amount of all Term A Loans and Add-On Term Loans; and (c) the unused amount of the Aggregate Delayed Draw Term Loan Commitments that are undrawn, plus the aggregate Outstanding Amount of all Delayed Draw Term Loans. The unfunded Commitments of, and the outstanding Loans, held, or deemed held, by, any Defaulting Lender shall be excluded for purposes of making a determination of Requisite Lenders.

 

Requisite Revolving Lenders” has the meaning specified in Section 11.01(a)(vii).

 

Resignation Effective Date” has the meaning specified in Section 10.06(a).

 

Resolution Authority” means an EEA Resolution Authority, or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

Responsible Officer” of any person means: (i) any executive officer or Financial Officer of such person, and any other officer or similar official thereof with responsibility for the administration of the obligations of such person in respect of this Agreement; (ii) solely for purposes of the delivery of incumbency certificates pursuant to Section 5.01, the secretary, or any assistant secretary, of a Loan Party; and (iii) solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party, so designated by any of the foregoing officers in a notice to the Administrative Agent, or any other officer or employee of the applicable Loan Party designated in, or pursuant to, an agreement between the applicable Loan Party and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party. To the extent requested by the Administrative Agent, each Responsible Officer will provide an incumbency certificate and, to the extent requested by the Administrative Agent, appropriate authorization documentation, in each case, in form and substance reasonably satisfactory to the Administrative Agent.

 

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Restricted Payment” means: (a) any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests or Equity Rights in any Loan Party or Subsidiary; (b) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interests or Equity Rights in any Loan Party or Subsidiary, or on account of any return of capital to such Person’s stockholders, partners or members (or the equivalent Person(s) thereof) (other than, in each case, with respect to any Permitted Convertible / Exchangeable Indebtedness, any Permitted Bond Hedge Transactions, and any Permitted Warrant Transactions); (c) any payment in cash to holders upon conversion or exchange of any Permitted Convertible / Exchangeable Indebtedness in excess of the original principal (or notional) amount thereof, and interest thereon, made at the option of the Borrower or the Parent Guarantor instead of the delivery of Equity Interests or other securities or property deliverable thereunder; and (d) any cash payment made in connection with the settlement of a Permitted Warrant Transaction solely to the extent that the Parent Guarantor has the option of satisfying such payment obligation through the issuance of shares of common stock.

 

Revolving Availability Period” means, with respect to the Revolving Commitments, the period from, and including, the Effectiveness Date to, but excluding, the earliest of: (a) the Revolving Loan Maturity Date; (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06; and (c) the date of termination of the commitment of each Lender to make Loans, and of the obligation of each L/C Issuer to make L/C Credit Extensions, pursuant to Section 9.02, Section 9.03 or Section 9.04, as applicable.

 

Revolving Commitment” means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01(a), (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in each case of the foregoing clauses (a) through (c), in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule I, in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, or in the Increase Joinder pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

 

Revolving Commitment Fee” has the meaning specified in Section 2.09(a).

 

Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Loans, and such Lender’s participation in L/C Obligations and Swing Line Loans at such time.

 

Revolving Lender” means a Lender with a Revolving Commitment or an outstanding Revolving Loan, in its capacity as such.

 

Revolving Loan” has the meaning specified in Section 2.01(a).

 

Revolving Loan Maturity Date” means July 12, 2023.

 

Revolving Note” has the meaning specified in Section 2.11(a).

 

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

 

S-X Filing Regulation” means 17 C.F.R. §–210.3-16, as from time to time in effect, or any successor or replacement provision, and all official rulings or interpretations thereunder or thereof.

 

Sale and Leaseback Transaction” has the meaning specified in Section 8.13.

 

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Sanction(s)” means any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant applicable sanctions authority.

 

Scheduled Unavailability Date” has the meaning specified in Section 3.03(c).

 

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

 

Second Extended DDTL Availability Expiration Date” has the meaning specified in the definition of “Delayed Draw Term Loan Availability Period” above.

 

Second Extension Period” has the meaning specified in the definition of “Delayed Draw Term Loan Availability Period” above.

 

Secured Obligations” has the meaning specified in the Security Agreement.

 

Secured Parties” means, collectively, the Loan Document Secured Parties and the 2026 Noteholders.

 

Securitization Transaction” means, with respect to any Person, any financing transaction, or series of financing transactions (including factoring arrangements), pursuant to which such Person, or any Subsidiary thereof, may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment and related assets, in each case, to a special purpose subsidiary or affiliate of such Person.

 

Security Agreement” means that certain pledge and security agreement, dated as of the First Amendment Effectiveness Date, executed in favor of the Collateral Agent, for the benefit of the Secured Parties, by the Parent Guarantor, the Borrower, and Spirit AeroSystems North Carolina, Inc., a North Carolina corporation.

 

Significant Subsidiary” means: (a) any Subsidiary of the Parent Guarantor (other than the Borrower) that would be a “significant subsidiary” as defined in Article 1, Rule 1–02 of Regulation S–X, promulgated pursuant to the Securities Act of 1933 (as amended), as such Regulation is in effect on the Effectiveness Date; and (b) any Subsidiary of the Parent Guarantor (other than the Borrower) which, when aggregated with all other Subsidiaries of the Parent Guarantor (other than the Borrower) that are not otherwise Significant Subsidiaries and as to which any event described in Section 9.01(i) has occurred and is continuing, would constitute a Significant Subsidiary under clause (a) above.

 

Sixth Amendment” means that certain Sixth Amendment to Second Amended and Restated Credit Agreement, dated as of the Sixth Amendment Effectiveness Date, by and among the Loan Parties, the Lenders party thereto, and the Administrative Agent.

 

Sixth Amendment Effectiveness Date” means July 31, 2020.

 

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SOFR” means, with respect to any day, the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source), and, in each case, that has been selected or recommended by the Relevant Governmental Body.

 

SOFR-Based Rate” means: (a) SOFR; or (b) Term SOFR.

 

Specified Customer Loans and Advances” means, solely at all times during the CSAG Period, collectively: (a) those certain loans and/or advances from customers listed on Schedule 8.02–CSAG in an aggregate amount outstanding as of the First Amendment Effectiveness Date equal to Ten Million Dollars ($10,000,000); and (b) any Indebtedness incurred pursuant to Section 8.02(b)(xxii).

 

Specified Event of Default” means an Event of Default arising under Section 9.01(a) or Section 9.01(i).

 

Specified Loan Party” has the meaning specified in Section 4.08.

 

Specified Representations” means the representations of the Loan Parties contained in Section 6.01, the lead-in to Section 6.02 (that is, execution, delivery and performance by each Loan Party of this Agreement and each other Loan Document to which it is a party, the borrowing of the Add-On Term Loans, and the use of the proceeds thereof are within each Loan Party’s corporate, partnership or comparable powers, as the case may be, have been duly authorized by all necessary corporate, partnership or comparable and, if required, stockholder action, as the case may be), Section 6.02(a) and Section 6.02(b), Section 6.03 (with respect to the Investment Company Act only), Section 6.04, Section 6.08 (insofar as it relates to the execution, delivery and performance of the Loan Documents), Section 6.14, Section 6.17 and Section 6.19.

 

Specified Swap Contract” means any Swap Contract in favor of any Loan Party that is in existence on the Fourth Amendment Effectiveness Date.

 

Subsidiary” means, with respect to any Person, (a) any corporation of which more than fifty percent (50.0%) of the outstanding Equity Interests having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether, at the time, Equity Interests of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is, at the time, directly or indirectly, owned by such Person, by such Person and one (1) or more other Subsidiaries of such Person, or by one (1) or more other Subsidiaries of such Person, (b) any partnership of which more than fifty percent (50.0%) of the outstanding Equity Interests having the power to act as a general partner of such partnership (irrespective of whether at the time any Equity Interests other than general partnership interests of such partnership shall or might have voting power upon the occurrence of any contingency) are, at the time, directly or indirectly, owned by such Person, by such Person and one (1) or more other Subsidiaries of such Person, or by one (1) or more other Subsidiaries of such Person, or (c) any limited liability company, association, joint venture or other entity in which such Person, and/or one (1) or more Subsidiaries of such Person, have more than a fifty percent (50.0%) Equity Interest at the time; provided, that, so long as (i) it is managed as a tenancy-in-common, (ii) it is engaged solely in the purchase of natural gas on behalf of the Borrower and the other partners and activities incidental thereto, and (iii) it does not amend its Organizational Documents in a manner materially adverse to the Administrative Agent, the Collateral Agent or the Lenders, Kansas Industrial Energy Supply Company shall be deemed not to be a Subsidiary of any Loan Party for purposes of Article VI, Article VII (other than Section 7.01) and Article VIII. Unless otherwise indicated, when used in this Agreement, the term “Subsidiary” shall refer to a Subsidiary of the Parent Guarantor or another Loan Party, as applicable.

 

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Supported QFC” has the meaning specified in Section 11.20.

 

Swap Bank” means (a) any Person that is a Lender, or an Affiliate of a Lender, at the time that it becomes a party to a Swap Contract with any Loan Party or Subsidiary (whether or not such Loan Party or Subsidiary was a Loan Party or Subsidiary at such time), and (b) any Person that, at the time it (or its Affiliate) becomes a Lender, is party to a Swap Contract with any Loan Party or Subsidiary in existence as of such date (even if such Person (or its Affiliate) ceases to be a Lender); provided, that, in the case of a Guaranteed Swap Contract with a Person who is no longer a Lender (or an Affiliate of a Lender), such Person shall be considered a Swap Bank only through the stated termination date (without extension or renewal) of such Guaranteed Swap Contract.

 

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

 

Swap Obligations” 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.

 

Swap Termination Value” means, in respect of any one (1) or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts: (a) for any date on or after the date on which such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s); and (b) for any date prior to the date referenced in clause (a) above, the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one (1) or more mid-market  or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or an Affiliate of a Lender).

 

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Swing Line Lender” means, as the context may require: (a) Bank of America, in its capacity as provider of Swing Line Loans, and its successors in such capacity; (b) any other consenting Revolving Lender approved by the Administrative Agent and the Borrower in its capacity as provider of Swing Line Loans, and its successors in such capacity; and (c) collectively, all of the foregoing.

 

Swing Line Loan” has the meaning specified in Section 2.04(a).

 

Swing Line Loan Notice” means a notice of a Borrowing of Swing Line Loans pursuant to Section 2.04(b), which shall be substantially in the form of Exhibit 2.04(b) or such other form as approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.

 

Swing Line Note” has the meaning specified in Section 2.11(a).

 

Swing Line Sublimit” means an amount equal to the lesser of: (a) Seventy-Five Million Dollars ($75,000,000); and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments.

 

Synthetic Lease” means any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing arrangement, whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease, or does not otherwise appear on a balance sheet under GAAP.

 

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

 

Term A Lender” means a Lender with a Term A Loan Commitment or an outstanding Term A Loan, in its capacity as such.

 

Term A Loan” means the Loan made pursuant to Section 2.01(b). As of the First Amendment Effectiveness Date, the aggregate outstanding amount of the Term Loan A Loan was One-Hundred Ninety-Five Million Nine-Hundred Thirty-Seven Thousand Five Hundred Dollars ($195,937,500.00). As of the Sixth Amendment Effectiveness Date, the aggregate outstanding amount of the Term A Loan was One-Hundred Forty-Six Million Two-Hundred Thirty-Five Thousand Four-Hundred Sixty-Three Dollars and Seventy-Nine Cents ($146,235,463.79).

 

Term A Loan Commitment” means, with respect to each Term A Lender, the commitment of such Lender to make a Term A Loan hereunder on the Effectiveness Date, expressed as an amount representing the maximum principal amount of the Term A Loan to be made by such Lender hereunder, as the same may be reduced from time to time pursuant to the provisions of this Agreement. The amount of each Lender’s Term A Loan Commitment is set forth in Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Term A Loan Commitment, as applicable. As of the First Amendment Effectiveness Date, the aggregate amount of the Term A Lenders’ Term A Loan Commitments available to be drawn was Zero Dollars ($0.00).

 

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Term A Note” has the meaning specified in Section 2.11(a).

 

Term Loan Commitment” means any Term A Loan Commitment, Delayed Draw Term Loan Commitment, and/or Add-On Term Loan Commitment.

 

Term Loan Maturity Date” means July 12, 2023.

 

Term Loans” means the Term A Loan, each Delayed Draw Term Loan, and each Add-On Term Loan.

 

Term SOFR” means the forward-looking term rate for any period that (a) is approximately (as determined by the Administrative Agent) as long as any of the Interest Period options set forth in the definition of “Interest Period” above, (b) is based on SOFR, and (c) has been selected or recommended by the Relevant Governmental Body, in each case of the foregoing clauses (a) through (c), as published on any information service as selected by the Administrative Agent from time to time in its reasonable discretion.

 

Test Period” means the four (4) consecutive complete Fiscal Quarters of the Parent Guarantor then last ended for which financial statements have been delivered pursuant to Section 7.01(a) or Section 7.01(b) for the applicable Fiscal Quarter or Fiscal Year.

 

Threshold Amount” means: (a) with respect to the Asco Acquisition, $375,000,000; and (b) with respect to the Bombardier Acquisition, $630,000,000.

 

Total Cash Consideration” has the meaning specified in Section 2.05(b)(v).

 

Total Credit Exposure” means, as to any Lender hereunder at any time, the unused Commitments, Revolving Credit Exposure and outstanding amount of all Term Loans of such Lender at such time.

 

Total Leverage Ratio” means the ratio of: (a) Consolidated Indebtedness as of such date; to (b) Consolidated EBITDA for the last ended Test Period.

 

Total Revolving Outstandings” means the aggregate Outstanding Amount of all Revolving Loans, all Swing Line Loans, and all L/C Obligations.

 

Transaction Expenses” has the meaning specified in Section 2.05(b)(v).

 

Treasury Management Agreement” means any agreement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation, reporting and trade finance services, supply chain finance programs, cash pooling arrangements and other cash management services.

 

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Treasury Management Bank” means: (a) any Person that is a Lender, or an Affiliate of a Lender, at the time that it becomes a party to a Treasury Management Agreement with any Loan Party or Subsidiary (whether or not such Loan Party or Subsidiary was a Loan Party or Subsidiary at such time); and (b) any Person that, at the time (it or its Affiliate) becomes a Lender, is a party to a Treasury Management Agreement with any Loan Party or Subsidiary in existence as of such date (even if such Person (or its Affiliate) ceases to be a Lender).

 

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

 

UCP” means, with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).

 

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

 

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

 

Undisclosed Administration” means the appointment of a receiver, custodian, conservator, trustee, administrator or similar Person by any regulatory authority acting in such a capacity under, or based on, the Law in the country where such Lender, or such parent company, is subject to home jurisdiction, if the applicable Law requires that such appointment not be disclosed.

 

United States” and “U.S.” mean the United States of America.

 

Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

 

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

 

U.S. Special Resolution Regime” has the meaning specified in Section 11.20.

 

U.S. Tax Compliance Certificate” has the meaning specified in Section 3.01(e)(ii)(B)(III).

 

Voting Stock” means, with respect to any Person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such Person.

 

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Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the then outstanding principal amount of such Indebtedness; by (b) the sum of the total of the products obtained by multiplying (i) the amount of each scheduled installment, sinking fund, serial maturity, or other required payment of principal, including, without limitation, payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth (1/12)) that will elapse between such date and the making of such payment.

 

Welfare Plan” means a “welfare plan”, as such term is defined in Section 3(1) of ERISA, that is maintained, or contributed to, by a Loan Party or Subsidiary, or with respect to which a Loan Party or Subsidiary could incur liability.

 

Wholly Owned Subsidiary” means, with respect to any Person, any Subsidiary of such Person of which all of the Equity Interests (other than, in the case of a Foreign Subsidiary, directors’ qualifying shares, to the extent legally required) are, directly or indirectly, owned and controlled by such Person, or by one (1) or more Wholly Owned Subsidiaries of such Person. Unless otherwise indicated, when used in this Agreement, the term “Wholly Owned Subsidiary” shall refer to a Wholly Owned Subsidiary of the Parent Guarantor or another Loan Party, as applicable.

 

Write-Down and Conversion Powers” means: (a) 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; and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it, or to suspend any obligation in respect of that liability, or any powers under that Bail-In Legislation that are related to or ancillary any of those powers.

 

1.02           Other Interpretive Provisions.

 

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

 

(a)               The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “, without limitation,”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise: (i) any definition of or reference to any agreement, instrument or other document (including any Organizational Document) 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 or in any other Loan Document); (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns; (iii) the words “hereto”, “herein”, “hereof” and “hereunder”, and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety, and not to any particular provision thereof; (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear; (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law, and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time; and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect, and to refer to, any and all real and personal Property and tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

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

 

(c)               Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

(d)               Any reference herein to a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company or limited partnership, or an allocation of assets to a series of a limited liability company or limited partnership (or the unwinding of such a division or allocation), as if it were a merger, transfer, consolidation, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company or limited partnership shall constitute a separate Person hereunder (and each division of any limited liability company or limited partnership that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

 

1.03           Accounting Terms.

 

(a)             Generally. Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided, that, (i) calculations made on a Pro Forma Basis shall be made as provided in clause (c) below, and (ii) calculations of attributable indebtedness under any Synthetic Lease (the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, if such lease were accounted for as a Capital Lease) or the implied interest component of any Synthetic Lease shall be made by the applicable Person in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease.

 

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(b)             Changes in GAAP. If, at any time, any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Requisite Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Requisite Lenders); provided, that, until so amended or the request for amendment has been withdrawn, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein, and (ii) to the extent requested by the Administrative Agent, the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement, or as requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. Notwithstanding anything to the contrary in the foregoing, for all purposes of this Agreement (including, without limitation, the provisions of Article VII (including, without limitation, the Financial Covenants)), leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above.

 

(c)               Calculations. Notwithstanding anything to the contrary in the above, the parties hereto acknowledge and agree that, for purposes of determining compliance by the Loan Parties with any financial covenant, ratio, or test described herein (including, without limitation, the Total Leverage Ratio, the First Lien Leverage Ratio, the Interest Coverage Ratio, and minimum Liquidity, and in calculating Consolidated Total Assets and Consolidated Net Income, and, in each case, any financial calculations or components required to be made or included therein), all such compliance calculations shall be made on a Pro Forma Basis by the Borrower acting reasonably and in good faith.

 

(d)               FASB ASC 825 and FASB ASC 470–20. Notwithstanding anything to the contrary in the foregoing, for purposes of determining: (i) compliance with any covenant (including, without limitation, the computation of any applicable Financial Covenant) contained herein, Indebtedness of the Parent Guarantor and its Subsidiaries shall be deemed to be carried at one hundred percent (100.0%) of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded; and (ii) any applicable calculations set forth in this Agreement, the principal amount of Permitted Convertible / Exchangeable Indebtedness shall be the outstanding principal (or notional) amount thereof, valued at par.

 

1.04           Rounding.

 

Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one (1) place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

 

1.05           Times of Day.

 

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

 

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1.06           Letter of Credit Amounts.

 

Unless otherwise specified herein, the amount of a Letter of Credit, at any time, shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that, with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one (1) or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

 

ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

 

2.01           Commitments.

 

(a)               Revolving Loans. Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “Revolving Loan”) to the Borrower in Dollars from time to time on any Business Day during the Revolving Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided, that, after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Revolving Commitment. Within the limits of each Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this clause (a), prepay under Section 2.05, and reborrow under this clause (a). Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein.

 

(b)               Term A Loan. Subject to the terms and conditions set forth herein, each Term A Lender severally agrees to make its portion of a term loan (the “Term A Loan”) to the Borrower in Dollars on the Effectiveness Date in an amount not to exceed such Lender’s Term A Loan Commitment. Amounts repaid on the Term A Loan may not be reborrowed. The Term A Loan may consist of Base Rate Loans or Eurodollar Rate Loans or a combination thereof, as further provided herein.

 

(c)               Delayed Draw Term Loans. Subject to the terms and conditions set forth herein, each Delayed Draw Term Loan Lender severally agrees to make its portion of a term loan (each, a “Delayed Draw Term Loan”) to the Borrower in Dollars in up to two (2) Delayed Draw Term Loan Borrowings, each on any Business Day during the Delayed Draw Term Loan Availability Period, and in an aggregate amount not to exceed such Delayed Draw Term Loan Lender’s Delayed Draw Term Loan Commitment. Amounts repaid on the Delayed Draw Term Loans may not be reborrowed. Each Delayed Draw Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, or a combination thereof, as further provided herein.

 

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(d)               Borrower Request. The Borrower may, from time to time during the Incremental Funds Availability Period, by written notice to the Administrative Agent, elect to increase the existing Revolving Commitments and/or institute an Add-On Term Loan by an amount not in excess of Seven-Hundred Fifty Million Dollars ($750,000,000) in the aggregate as follows:

 

(i)              Increase in Revolving Commitments. The Borrower may, from time to time solely during the Incremental Funds Availability Period, by written notice to the Administrative Agent, request to increase the Revolving Commitments. Each such notice shall specify the date (each, an “Increase Effective Date”) on which the Borrower proposes that the increased Revolving Commitments shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as the Administrative Agent may agree in writing) after the date on which such notice is delivered to the Administrative Agent; provided, that, any existing Lender approached to provide all, or a portion, of the increased Revolving Commitments may elect or decline, in its sole discretion, to provide such increased Revolving Commitment, and the Borrower shall not be obligated to offer all, or any portion, of the increased Revolving Commitments to any existing Lender.

 

(A)             Conditions. The increased Revolving Commitments shall become effective as of such Increase Effective Date; provided, that:

 

(I)                        each of the conditions set forth in Section 5.02 shall be satisfied or waived in accordance with the terms hereof;

 

(II)                        any such increase shall be in a minimum principal amount of Twenty-Five Million Dollars ($25,000,000) and in integral multiples of One Million Dollars ($1,000,000) in excess thereof;

 

(III)                        no Default or Event of Default shall have occurred and be continuing or would result from the borrowings made on the Increase Effective Date, if any;

 

(IV)                        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

 

(V)                        any Person providing any portion of the increased Revolving Commitments that is not an existing Lender must be: (1) an Eligible Assignee; and (2) reasonably acceptable to the L/C Issuer and the Swing Line Lender.

 

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(B)              Terms of New Revolving Loans and Commitments. The terms and provisions of Revolving Loans made pursuant to increased Revolving Commitments shall be identical to the Revolving Loans. The increased Revolving Commitments shall be effected by a joinder agreement (the “Increase Joinder”) executed by the Borrower, the Administrative Agent, and each Lender making such increased Revolving Commitment, in form and substance reasonably satisfactory to each of them. Any such Increase Joinder may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as are mutually agreed by the Borrower and the Administrative Agent to effect the provisions of this clause (d)(i). In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to increased Revolving Commitments made pursuant to this Agreement.

 

(C)              Adjustment of Revolving Loans. Each of the Revolving Lenders having a Revolving Commitment prior to such Increase Effective Date (the “Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Commitment on the Increase Effective Date (the “Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in L/C Obligations and Swing Line Loans outstanding on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in L/C Obligations and Swing Line Loans will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to such increased Revolving Commitments.

 

(D)             Equal and Ratable Benefit. The Revolving Commitments established pursuant to this clause (d)(i), if any, shall constitute Revolving 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 Guaranty.

 

(ii)                        Institution of Add-On Term Loan. The Borrower may, solely at all times during the Incremental Funds Availability Period, by written notice to the Administrative Agent, institute one (1) or more additional term loans (each, an “Add-On Term Loan”). Each such notice shall specify the date (the “Add-On Term Loan Effective Date”) on which the Borrower proposes that the Add-On Term Loan shall be advanced, which date shall be not less than five (5) Business Days (or such shorter period as the Administrative Agent may agree in writing) after the date on which such notice is delivered to the Administrative Agent; provided, that, any existing Lender approached to provide all, or a portion, of the Add-On Term Loan may elect or decline, in its sole discretion, to provide such Add-On Term Loan, and the Borrower shall not be obligated to offer all, or any portion, of such Add-On Term Loan to any existing Lender.

 

(A)             Conditions. The institution of the Add-On Term Loan shall be subject to the following conditions:

 

(I)                   each of the conditions set forth in Section 5.02 shall be satisfied or waived in accordance with the terms hereof;

 

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(II)                    no Default or Event of Default shall have occurred and be continuing or would result from the Add-On Term Loan made on the Add-On Term Loan Effective Date, if any;

 

(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;

 

(IV)                   any Person providing any portion of the Add-On Term Loan that is not an existing Lender must be an Eligible Assignee;

 

(V)                    any institution of the Add-On Term Loan shall be in a minimum principal amount of Fifty Million Dollars ($50,000,000), and in integral multiples of Ten Million Dollars ($10,000,000) in excess thereof;

 

(VI)                   other than with respect to any Add-On Term Loan the proceeds of which shall be used to finance a Permitted Acquisition or any other Investment permitted under Section 8.04, a Responsible Officer of the Borrower shall deliver to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that the Borrower would be in compliance with all applicable Financial Covenants in effect at such time on a Pro Forma Basis, recomputed as of the last day of the last ended Test Period; and

 

(VII)                   the Applicable Rate, fees and scheduled principal amortization payments under each Add-On Term Loan shall be as set forth in the Add-On Term Loan Lender Joinder Agreement.

 

(B)              Terms of the Add-On Term Loan. As contemplated above, some of the terms and provisions of Add-On Term Loan shall be effected by the applicable Add-On Term Loan Lender Joinder Agreement executed by the Borrower, the Administrative Agent and each Lender making an Add-On Term Loan, in form and substance reasonably satisfactory to each of them. Any such Add-On Term Loan Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as are mutually agreed by the Borrower and the Administrative Agent to effect the provisions of this clause (d)(ii). In addition, unless otherwise specifically provided herein, all references in Loan Documents to Loans shall be deemed, unless the context otherwise requires, to include references to the Add-On Term Loans.

 

(C)              Equal and Ratable Benefit. The Add-On Term Loans made pursuant to this clause (d)(ii) 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 Guaranty.

 

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Notwithstanding anything to the contrary in the foregoing or in Section 5.02(a), if the proceeds of any Add-On Term Loan are being used to finance a Permitted Acquisition made pursuant to an acquisition agreement, binding on the Borrower or its Subsidiary, entered into in advance of the consummation thereof (an “Acquisition Agreement”), and the Borrower has obtained, on or prior to the closing thereof, binding commitments of Lenders to fund such Add-On Term Loan (“Acquisition Financing Commitments”), then the conditions to the funding and incurrence of any such Add-On Term Loan shall be limited as follows: (A) the condition set forth in Section 5.02(a) shall apply only with respect to Specified Representations; (B) the representations and warranties in the Acquisition Agreement made by, or with respect to, the target that are material to the interests of the Lenders providing such Add-On Term Loan shall be true and correct in all material respects, but only to the extent that the Borrower or applicable Subsidiary has the right to terminate its obligations under the Acquisition Agreement or not consummate such Permitted Acquisition as a result of a breach of such representations and warranties in such Acquisition Agreement; and (C) the reference to “no Default” in Section 5.02(b) shall mean (I) the absence of a Default at the date the applicable Acquisition Agreement is executed and delivered, and (II) the absence of a Specified Event of Default at the date the applicable Permitted Acquisition is consummated. For purposes of clarity, increases in the Aggregate Revolving Commitments shall not be subject, at any time, to the Incremental Funds Certain Provisions. Nothing in the foregoing constitutes a waiver of any Default or Event of Default under this Agreement, or of any rights or remedies of Lenders, the Administrative Agent and the Collateral Agent under any provision of the Loan Documents. The provisions of this paragraph are collectively referred to in this Agreement as the “Incremental Funds Certain Provision”.

 

For purposes of determining compliance on a Pro Forma Basis with any Financial Covenants or other ratio requirement under this Agreement, or whether a Default or Event of Default has occurred and is continuing, in each case, in connection with the consummation of an Acquisition using proceeds from an Add-On Term Loan that qualifies to be subject to the Incremental Funds Certain Provision, the date of determination shall, at the option of the Borrower, be the date of execution of such Acquisition Agreement, and such determination shall be made on a Pro Forma Basis, and, for the avoidance of doubt, if any such Financial Covenant or other ratio requirement is subsequently breached as a result of fluctuations in the ratio that is subject of such Financial Covenant or other ratio requirement (including due to fluctuations in Consolidated EBITDA of the Borrower or the EBITDA of the target), at or prior to the consummation of such Acquisition (and the other transactions to be entered into in connection therewith), such Financial Covenant or other ratio requirement will not be deemed to have been breached as a result of such fluctuations solely for the purpose of determining whether such Acquisition (and the other transactions to be entered into in connection therewith) constitutes a Permitted Acquisition; provided, that, (i) if the Borrower elects to have such determination occur at the time of entry into the applicable Acquisition Agreement (and not at the time of consummation of the Acquisition), the Add-On Term Loan to be incurred shall be deemed incurred at the time of such election (unless the applicable Acquisition Agreement is terminated without actually consummating the applicable Permitted Acquisition (in which case, such Acquisition and related Add-On Term Loan will not be treated as having occurred)) and outstanding thereafter for purposes of calculating compliance, on a Pro Forma Basis, with any applicable ratio requirement in this Agreement (even if unrelated to determining whether such Acquisition is a Permitted Acquisition) (but not, for purposes of clarity, in calculating compliance with the Financial Covenants), and (ii) EBITDA of the target shall be disregarded for all purposes under this Agreement, other than determining whether such Acquisition is a Permitted Acquisition until the consummation of such Permitted Acquisition.

 

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2.02           Borrowings, Conversions and Continuations of Loans.

 

(a)               Each Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Loan Notice. Each such notice must be received by the Administrative Agent not later than 11:00 a.m.: (i) three (3) Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans; and (ii) on the requested date of any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower pursuant to this clause (a) must be confirmed promptly by delivery to the Administrative Agent of a Loan Notice. Each Borrowing of, conversion to, or continuation of Eurodollar Rate Loans shall be in a principal amount of Two Million Dollars ($2,000,000), or a whole multiple of One Million Dollars ($1,000,000) in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(c), each Borrowing of, or conversion to, Base Rate Loans shall be in a principal amount of One Million Dollars ($1,000,000), or a whole multiple of Five-Hundred Thousand Dollars ($500,000) in excess thereof. Each Loan Notice and each telephonic notice shall specify: (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans; (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day); (iii) the principal amount of Loans to be borrowed, converted or continued; (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted; and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one (1) month.

 

(b)               Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding paragraph. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 2:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds, or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and acceptable to) the Administrative Agent by the Borrower; provided, that, if, on the date of a Borrowing of Revolving Loans, there are L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to the Borrower as provided above.

 

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(c)               Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Requisite Lenders, and the Requisite Lenders may demand that any or all of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.

 

(d)               The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

 

(e)               After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than ten (10) Interest Periods in effect with respect to all Loans.

 

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

 

2.03           Letters of Credit.

 

(a)               The Letter of Credit Commitment.

 

(i)               Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (I) from time to time on any Business Day during the period from the Effectiveness Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with clause (b) below, and (II) to honor drawings under the Letters of Credit, and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued for the account of the Borrower or its Subsidiaries and any drawings thereunder; provided, that, after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (2) the Revolving Credit Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, and (3) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. Furthermore, each Revolving Lender acknowledges and confirms that it has a participation interest in the liability of each applicable L/C Issuer under the Existing Letters of Credit in a percentage equal to its Applicable Percentage of the Revolving Loans. The Borrower’s reimbursement obligations in respect of the Existing Letters of Credit, and each Revolving Lender’s obligations in connection therewith, shall be governed by the terms of this Agreement.

 

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(ii)            No L/C Issuer shall issue any Letter of Credit if:

 

(A)             subject to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Requisite Revolving Lenders have approved such expiry date; or

 

(B)              the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving Lenders have approved such expiry date.

 

(iii)           No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

 

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

 

(B)              the issuance of such Letter of Credit would violate one (1) or more policies of such L/C Issuer applicable to letters of credit generally;

 

(C)              except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than Five-Hundred Thousand Dollars ($500,000);

 

(D)             such Letter of Credit is to be denominated in a currency other than Dollars; or

 

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(E)              any Revolving Lender is at that time a Defaulting Lender, unless such L/C Issuer has entered into arrangements, including the delivery of Cash Collateral, satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.15(a)(iv)) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole discretion.

 

(iv)            No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit in its amended form under the terms hereof.

 

(v)            No L/C Issuer shall be under any obligation to amend any Letter of Credit if: (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof; or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

 

(vi)           Each L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities: (A) provided to the Administrative Agent in Article X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article X included each L/C Issuer with respect to such acts or omissions; and (B) as additionally provided herein with respect to each L/C Issuer.

 

(b)               Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.

 

(i)           Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the applicable L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to the applicable L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five (5) Business Days (or such later date and time as the Administrative Agent and the applicable L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to the applicable L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail reasonably satisfactory to such L/C Issuer: (I) the Letter of Credit to be amended; (II) the proposed date of amendment thereof (which shall be a Business Day); (III) the nature of the proposed amendment; and (IV) such other matters as such L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to each L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as any L/C Issuer or the Administrative Agent may require.

 

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(ii)             Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, the applicable L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the applicable L/C Issuer has received written notice from any Revolving Lender, the Administrative Agent or any Loan Party, at least one (1) Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one (1) or more applicable conditions contained in Article V shall not be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or the applicable Subsidiary or enter into the applicable amendment, as the case may be, in each case, in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the applicable L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.

 

(iii)            If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided, that, any such Auto-Extension Letter of Credit must permit the applicable L/C Issuer to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “Non-Extension Notice Date”) in each such twelve (12) month period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by the applicable L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) the applicable L/C Issuer to permit the extension of such Letter of Credit, at any time, to an expiry date not later than the Letter of Credit Expiration Date; provided, that, the applicable L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of Section 2.03(a)(ii), Section 2.03(a)(iii) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven (7) Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Requisite Revolving Lenders have elected not to permit such extension, or (2) from the Administrative Agent, any Lender or the Borrower that one (1) or more of the applicable conditions specified in Section 5.02 is not then satisfied, and, in each case, directing such L/C Issuer not to permit such extension.

 

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(iv)            Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment. In addition, no later than five (5) Business Days prior to the end of each calendar month, each L/C Issuer shall provide an activity report to the Administrative Agent listing the activity with respect to the Letters of Credit issued by such L/C Issuer and including the balance of Letters of Credit outstanding as of the date of such report.

 

(c)               Drawings and Reimbursements; Funding of Participations.

 

(i)              Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing under such Letter of Credit, the applicable L/C Issuer shall examine all documents purporting to represent a demand for payment under such Letter of Credit within the period stipulated by the terms and conditions of such Letter of Credit. After such examination, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), or if the Borrower receives notice of such drawing after 11:00 a.m. on the Honor Date, not later than 10:00 a.m. on the first (1st) Business Day following the Honor Date (each such date, a “Reimbursement Date”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by such time, the Administrative Agent shall promptly notify each Revolving Lender of the Reimbursement Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice) and provided, that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The Borrower shall pay the applicable L/C Issuer interest on any Unreimbursed Amount from the date of any payment by such L/C Issuer under a Letter of Credit, to the Reimbursement Date at the rate of interest then applicable to Base Rate Loans. Any notice given by any L/C Issuer or the Administrative Agent pursuant to this clause (c)(i) may be given by telephone if immediately confirmed in writing; provided, that, the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

(ii)            Each Revolving Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral provided for this purpose) to the Administrative Agent for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.

 

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(iii)            With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

 

(iv)           Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this clause (c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of such L/C Issuer.

 

(v)            Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this clause (c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person, for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this clause (c) is subject to the conditions set forth in Section 5.02 (other than delivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

 

(vi)            If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this clause (c) by the time specified in clause (c)(ii) above, then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation. A certificate of the applicable L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

 

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(d)               Repayment of Participations.

 

(i)              At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Percentage thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s L/C Advance was outstanding) in the same funds as those received by the Administrative Agent.

 

(ii)             If any payment received by the Administrative Agent for the account of any L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by the applicable L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)               Obligations Absolute. The obligation of the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

 

(i)              any lack of validity or enforceability of such Letter of Credit, this Agreement or any other Loan Document;

 

(ii)             the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

(iii)           any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

 

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(iv)            waiver by such L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Borrower or any waiver by such L/C Issuer which does not in fact materially prejudice the Borrower;

 

(v)             honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

 

(vi)            any payment made by such L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the ISP or the UCP, as applicable;

 

(vii)           any payment by such L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

 

(viii)          any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.

 

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will promptly notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice is given as aforesaid.

 

(f)                Role of L/C Issuer. Each Revolving Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Requisite Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, that, this assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Administrative Agent, any of their respective Related Parties, nor any correspondent, participant or assignee of any L/C Issuer, shall be liable or responsible for any of the matters described in clauses (e)(i) through (e)(viii) of Section 2.03; provided, that, anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against any L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit unless such L/C Issuer is prevented or prohibited from so paying as a result of any order or directive of any court or other Governmental Authority. In furtherance and not in limitation of the foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Each L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

 

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(g)               Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), the rules of the ISP shall apply to each standby Letter of Credit. Notwithstanding anything to the contrary in the foregoing, no L/C Issuer shall be responsible to the Borrower for, and no L/C Issuer’s rights and remedies against the Borrower shall be impaired by, any action or inaction of the applicable L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the applicable L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade – International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

(h)               Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance, subject to Section 2.15, with its Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each standby Letter of Credit equal to the Applicable Rate times the daily maximum amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be: (i) computed on a quarterly basis in arrears; and (ii) due and payable on the first (1st) Business Day after the end of each March, June, September and December, commencing with the first (1st) such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, if (A) (I) any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), or (II)  an Event of Default under Section 9.01(i) shall be continuing, or (B) if any amount (other than principal of any Loan) is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise (and, with respect to this clause (h)(B) only, the Requisite Revolving Lenders have so requested), in each case, all Letter of Credit Fees shall accrue at the Default Rate.

 

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(i)                 Fronting Fee and Documentary and Processing Charges Payable to L/C Issuers. The Borrower shall pay directly to the applicable L/C Issuer for its own account a fronting fee with respect to each standby Letter of Credit, at the rate per annum specified in (A) (I) the Bank of America Fee Letter, with respect to Bank of America, in its capacity as an L/C Issuer, (II) the Mizuho Fee Letter, with respect to Mizuho Bank, Ltd., in its capacity as an L/C Issuer, and (III) the Citibank Fee Letter, with respect to Citibank, in its capacity as an L/C Issuer, and (B) as specified in written agreements between the Borrower and the applicable L/C Issuer, with respect to any L/C Issuer other than Bank of America, in its capacity as L/C Issuer, computed on the actual daily maximum amount available to be drawn under such Letter of Credit (whether or not such maximum amount is then in effect under such Letter of Credit) and on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first (1st) payment), commencing with the first (1st) such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the applicable L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

(j)                 Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

 

(k)               Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

 

(l)                 Replacement of the L/C Issuer. Any L/C Issuer may be replaced, at any time, by written agreement among the Borrower, the Administrative Agent, the replaced L/C Issuer and the successor L/C Issuer. The Administrative Agent shall notify the Lenders of any such replacement of an L/C Issuer. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced L/C Issuer pursuant to clauses (h) and (i) above. From and after the effective date of any such replacement, (i) any successor L/C Issuer shall have all the rights and obligations of an L/C Issuer under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “L/C Issuer” shall be deemed to refer to such successor or to any previous L/C Issuers, or to such successor and all previous L/C Issuers, as the context shall require. After the replacement of an L/C Issuer hereunder, the replaced L/C Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an L/C Issuer 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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2.04           Swing Line Loans.

 

(a)               Swing Line Facility. Subject to the terms and conditions set forth herein, each Swing Line Lender, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, shall make loans (each such loan, a “Swing Line Loan”) to the Borrower in Dollars from time to time on any Business Day during the Revolving Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided, that, (i) after giving effect to any Swing Line Loan, (A) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and (B) the Revolving Credit Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, (ii) the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (iii) no Swing Line Lender shall be under any obligation to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from each Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Swing Line Loan.

 

(b)               Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the Borrower’s irrevocable notice to the applicable Swing Line Lender and the Administrative Agent, which may be given by (A) telephone or (B) a Swing Line Loan Notice. Each such notice must be received by the applicable Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of Five-Hundred Thousand Dollars ($500,000) and integral multiples of One-Hundred Thousand Dollars ($100,000) in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the applicable Swing Line Lender and the Administrative Agent of a Swing Line Loan Notice. Promptly after receipt by the applicable Swing Line Lender of any Swing Line Loan Notice, such Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, such Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the applicable Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing such Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first (1st) proviso to the first (1st) sentence of Section 2.04(a), or (B) that one (1) or more of the applicable conditions specified in Article V is not then satisfied, then, subject to the terms and conditions hereof, such Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower.

 

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(c)               Refinancing of Swing Line Loans.

 

(i)              Each Swing Line Lender, at any time in its sole discretion, may request, on behalf of the Borrower (which hereby irrevocably requests and authorizes each Swing Line Lender to so request on its behalf), that each Revolving Lender make a Base Rate Loan in an amount equal to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the conditions set forth in Section 5.02 (other than the delivery of a Loan Notice) and provided, that, after giving effect to such Borrowing, the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments. The applicable Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Revolving Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the applicable Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable Swing Line Lender. In addition, no later than five (5) Business Days prior to the end of each calendar month, each Swing Line Lender shall provide a monthly activity report to the Administrative Agent listing the activity with respect to the Swing Line Loans made by such Swing Line Lender and including the balance of Swing Line Loans outstanding as of the date of such report.

 

(ii)             If, for any reason, any Swing Line Loan cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.04(c)(i), the request for Base Rate Loans submitted by the applicable Swing Line Lender as set forth herein shall be deemed to be a request by such Swing Line Lender that each of the Revolving Lenders fund its risk participation in the relevant Swing Line Loan and each Revolving Lender’s payment to the Administrative Agent for the account of such Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

 

(iii)           If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this clause (c) by the time specified in Section 2.04(c)(i), such Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such Swing Line Lender in accordance with banking industry rules on interbank compensation. A certificate of any Swing Line Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c)(iii) shall be conclusive absent manifest error.

 

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(iv)                      Each Revolving Lender’s obligation to make Revolving Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this clause (c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against any Swing Line Lender, the Borrower or any other Person, for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, that, each Revolving Lender’s obligation to make Revolving Loans pursuant to this clause (c) is subject to the conditions set forth in Section 5.02. No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein.

 

(d)               Repayment of Participations.

 

(i)                        At any time after any Revolving Lender has purchased and funded a risk participation in a Swing Line Loan, if any Swing Line Lender receives any payment on account of such Swing Line Loan, such Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender’s risk participation was funded) in the same funds as those received by such Swing Line Lender.

 

(ii)                       If any payment received by any Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by such Swing Line Lender under any of the circumstances described in Section 11.05 (including pursuant to any settlement entered into by such Swing Line Lender in its discretion), each Revolving Lender shall pay to such Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of any Swing Line Lender. The obligations of the Revolving Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

(e)               Interest for Account of Swing Line Lender. Each Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Revolving Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section 2.04 to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the applicable Swing Line Lender.

 

(f)                Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the applicable Swing Line Lender.

 

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2.05             Prepayments.

 

(a)               Voluntary Prepayments.

 

(i)                        Revolving Loans, Term A Loan, Delayed Draw Term Loans and Add-On Term Loans. The Borrower may, upon delivery of a Notice of Prepayment and/or Reduction / Termination of Commitments to the Administrative Agent, at any time or from time to time, voluntarily prepay Revolving Loans, the Term A Loan, Delayed Draw Term Loans and/or any Add-On Term Loan (in whole or in part, without premium or penalty, subject to Section 3.05), provided, that: (A) such notice must be received by the Administrative Agent not later than 11:00 a.m. (I) at least three (3) Business Days prior to any date of prepayment of Eurodollar Rate Loans, and (II) on the date of prepayment of Base Rate Loans; (B) any such prepayment of Eurodollar Rate Loans shall be in a principal amount of Two Million Dollars ($2,000,000), or in a whole multiple of One Million Dollars ($1,000,000) in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (C) any prepayment of Base Rate Loans shall be in a principal amount of One Million Dollars ($1,000,000), or in a whole multiple of Five-Hundred Thousand Dollars ($500,000) in excess thereof (or, if less, the entire principal amount thereof then outstanding). Each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and whether the Loans to be prepaid are the Revolving Loans, the Term A Loan, any Delayed Draw Term Loan and/or any Add-On Term Loan. Subject to payment of breakage costs (if any) in accordance with Section 3.05, any such notice delivered by the Borrower may be conditioned upon the effectiveness of other transactions, in which case, such notice may be revoked or its effectiveness deferred by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, subject to any condition specified in such notice. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject to Section 2.15, each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages. Each such prepayment of the Term A Loan, any Delayed Draw Term Loan, or any Add-On Term Loan shall be applied to the Term A Loan, any Delayed Draw Term Loan, or any Add-On Term Loan as directed by the Borrower.

 

(ii)                        Swing Line Loans. The Borrower may, upon notice to the applicable Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans, in whole or in part, without premium or penalty, provided, that: (A) such notice must be received by such Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment; and (B) any such prepayment shall be in a minimum principal amount of Five-Hundred Thousand Dollars ($500,000), or in a whole multiple of One-Hundred Thousand Dollars ($100,000) in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

 

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(b)               Mandatory Prepayments of Loans.

 

(i)                        Revolving Commitments. If, for any reason, the Total Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall promptly prepay Revolving Loans and/or the Swing Line Loans, and/or Cash Collateralize the L/C Obligations, in an aggregate amount equal to such excess; provided, that, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this clause (b)(i) unless, after the prepayment in full of the Revolving Loans and the Swing Line Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.

 

(ii)                        Asset Sales. If, solely at all times during the CSAG Period, any Loan Party consummates an Asset Sale (other than an Asset Sale permitted by clauses (a) through (p) or by clause (s) of Section 8.05), and the Net Proceeds of such Asset Sale, when added to the Net Proceeds of all such Asset Sales by the Loan Parties consummated during the CSAG Period, in the aggregate, exceed Ten Million Dollars ($10,000,000), the Loan Parties shall, no later than five (5) Business Days after the actual receipt of the Net Proceeds of each such Asset Sale that results in such an excess, or an increase in such excess, prepay (or Cash Collateralize, as applicable) the Term Loans and the Revolving Loans in the manner set forth in clause (b)(vvii) below, in each case, in an aggregate amount equal to one-hundred percent (100.0%) of such excess, or such increase in such excess. Notwithstanding anything to the contrary in the foregoing, the Loan Parties shall not be required to make a prepayment pursuant to this clause (b)(ii): (A) with respect to the Net Proceeds of any Asset Sale that are not received during the CSAG Period; and (B) solely with respect to the Net Proceeds of any Asset Sale that are received during the CSAG Period (each, a “Relevant Sale”), if the Loan Parties advise the Administrative Agent, in writing, within five (5) Business Days after the date on which the Net Proceeds from such Relevant Sale were received, that the Loan Parties intend to reinvest all, or any portion, of such Net Proceeds in Property (other than current assets, unless incidental to the Property being purchased or reinvestment being made) useful in the business of the Loan Parties, solely to the extent that such Net Proceeds are in fact so reinvested within three-hundred sixty (360) days from the date of such Relevant Sale (and, to the extent that any of such Net Proceeds are not reinvested within such 360-day period, the Loan Parties shall promptly prepay (or Cash Collateralize, as applicable), the Term Loans and other Obligations in the amount, and in the manner, described in the first (1st) sentence of this clause (b)(ii)). If, solely at all times (I) during the CSAG Period, and (II) after the occurrence of a Relevant Sale, and prior to the Loan Parties reinvesting any applicable Net Proceeds in Property (other than current assets, unless incidental to the Property being purchased or reinvestment being made) useful in the business of the Loan Parties during the 360-day period provided in the preceding sentence, an Event of Default shall occur, then, upon the request of the Requisite Lenders, the Loan Parties shall be required to prepay (or Cash Collateralize, as applicable), within two (2) Business Days of the occurrence of such Event of Default, the Term Loans and other Obligations, in the amount, and in the manner, described in the first (1st) sentence of this clause (b)(ii).

 

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(iii)                      Debt Issuances. If, solely at all times during the CSAG Period, any Loan Party issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments, but excluding Indebtedness permitted under Section 8.02, the Loan Parties shall, within five (5) Business Days after the actual receipt of the Net Proceeds of such Indebtedness, prepay (or Cash Collateralize, as applicable) the outstanding portion of each Term Loan and other Obligations in the manner set forth in clause (b)(vvii) below, in each case, in an aggregate amount equal to one-hundred percent (100.0%) of the Net Proceeds of such Indebtedness.

 

(iv)                      Net Recovery Event Proceeds. If, solely at all times during the CSAG Period, any Loan Party (or the Administrative Agent on the behalf of the Loan Parties) receives any Net Recovery Event Proceeds that, when added to the Net Recovery Event Proceeds received by all Loan Parties (or the Administrative Agent on behalf of the Loan Parties) during the CSAG Period, in the aggregate, exceed Ten Million Dollars ($10,000,000), the Loan Parties shall, no later than five (5) Business Days after the date of actual receipt of such Net Recovery Event Proceeds that results in such an excess, or an increase in such an excess, prepay (or Cash Collateralize, as applicable) the Term Loans and the Revolving Loans in the manner set forth in clause (b)(vvii) below, in each case, in an aggregate amount equal to one-hundred percent (100.0%) of such excess, or such increase in such excess. Notwithstanding anything to the contrary in the foregoing, the Loan Parties shall not be required to make a prepayment pursuant to this clause (b)(iv): (A) with respect to any Net Recovery Event Proceeds that are not received during the CSAG Period; and (B) with respect to any Net Recovery Event Proceeds that are received solely at all times during the CSAG Period, if the Loan Parties advise the Administrative Agent, in writing, within five (5) Business Days after the date on which such Net Recovery Event Proceeds were received, that the Loan Parties intend to reinvest all, or any portion, of such Net Recovery Event Proceeds in Property (other than current assets, unless incidental to the Property being purchased or reinvestment being made) useful in the business of the Loan Parties, or to replace the Property in respect of which the Net Recovery Event Proceeds were received, solely to the extent that the reinvestment of such Net Recovery Event Proceeds has in fact commenced in good faith within three-hundred sixty (360) days from the date of receipt of such Net Recovery Event Proceeds (and, to the extent that the reinvestment of such Net Recovery Event Proceeds has not commenced in good faith within such 360-day period, the Loan Parties shall promptly prepay (or Cash Collateralize, as applicable), the Term Loans and other Obligations in the amount, and in the manner, described in the first (1st) sentence of this clause (b)(iv)). If, solely at all times (I) during the CSAG Period, and (II) after the receipt of any Net Recovery Event Proceeds, and prior to the Loan Parties commencing in good faith the reinvestment of such Net Recovery Event Proceeds in Property (other than current assets, unless incidental to the Property being purchased or reinvestment being made) useful in the business of the Loan Parties, or to replace the Property in respect of which the Net Recovery Event Proceeds were received, during the 360-day period provided in the preceding sentence, an Event of Default shall occur, then, upon the request of the Requisite Lenders, the Loan Parties shall be required to prepay (or Cash Collateralize, as applicable), within two (2) Business Days of the occurrence of such Event of Default, the Term Loans and other Obligations, in the amount, and in the manner, described in the first (1st) sentence of this clause (b)(iv). Notwithstanding anything to the contrary in this Section 2.05, no mandatory prepayment of proceeds from business interruption insurance shall be required pursuant to this clause (b)(iv).

 

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(v)                        Asco Acquisition and Bombardier Acquisition. In the event that the Asco Acquisition and/or the Bombardier Acquisition is not consummated on or prior to the outside termination date for consummation of such acquisition under the applicable purchase agreement (as such date may be extended from time to time in accordance with the terms thereof or by mutual agreement of the parties thereto, the “Outside Date” for such acquisition), or the applicable purchase agreement in respect of the Asco Acquisition and/or the Bombardier Acquisition is terminated in accordance with the terms thereof or by mutual agreement of the parties thereto on or prior to the applicable Outside Date, or the Asco Acquisition and/or the Bombardier Acquisition is consummated on or prior to the applicable Outside Date for total cash consideration (including any deferred or contingent cash payments and/or purchase price adjustments, in an amount reasonably determined in good faith by the Borrower to be payable in connection with such acquisition (together, the “Deferred Amounts” for such acquisition)) (collectively, the “Total Cash Consideration” for such acquisition; it being understood that the payoff by the acquirer of the target’s existing debt in connection with the closing of any such acquisition would constitute part of the Total Cash Consideration for such acquisition) that is less than the applicable Threshold Amount, then the Borrower shall prepay the Obligations in the manner set forth in clause (b)(vii) below in an amount equal to, as applicable, (A) for each such acquisition that is not consummated on or prior to the applicable Outside Date, or in respect of which the applicable purchase agreement is terminated in accordance with the terms thereof or by mutual agreement of the parties thereto on or prior to the applicable Outside Date, seventy-five percent (75.0%) of (I) the applicable Threshold Amount for such acquisition, minus (II) the costs and expenses (including any legal, financial advisory, consulting, accounting and/or other advisory expenses) directly related to such acquisition that are paid, or are to be paid, to third parties after the Sixth Amendment Effectiveness Date, as reasonably estimated in good faith by the Borrower, minus (III) any reasonable reserves or provisions relating to such acquisition or the termination thereof (all such costs and expenses referred to in the foregoing clauses (A)(II) and (A)(III), collectively, the “Transaction Expenses” for such acquisition), and (B) for each such acquisition that is consummated on or prior to the applicable Outside Date for Total Cash Consideration that is less than the applicable Threshold Amount, seventy-five percent (75.0%) of the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for such acquisition, so long as, in the case of this clause (b)(v)(B), such difference is greater than $50,000,000 (when taken together with the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for the other such acquisition, if such other acquisition was consummated first); provided, that, to the extent that any Deferred Amounts are subsequently determined by the Borrower not to be required to be paid in connection with such acquisition, then the Borrower shall prepay the Obligations in an amount equal to seventy-five percent (75.0%) of such Deferred Amount that is not actually paid in connection with such acquisition (solely to the extent that such prepayment would have been required if such Deferred Amount had not been included in the determination of Total Cash Consideration for the applicable acquisition). Any such prepayment shall be made within five (5) Business Days following: (A) with respect to each such acquisition that is not consummated on or prior to the applicable Outside Date (but in respect of which the applicable purchase agreement has not previously been terminated), the applicable Outside Date; (B) with respect to each such acquisition in respect of which the applicable purchase agreement has been terminated in accordance with the terms thereof or by mutual agreement of the parties thereto on or prior to the applicable Outside Date, the date of such termination; (C) with respect to each such acquisition that is consummated on or prior to the applicable Outside Date for Total Cash Consideration that is less than the applicable Threshold Amount and for which the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for such acquisition was greater than $50,000,000 (when taken together with the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for the other such acquisition, if such other acquisition was consummated first), the date of the consummation of an acquisition as a result of which such $50,000,000 threshold is first surpassed or, if such $50,000,000 threshold has already been surpassed as a result of the consummation of the other such acquisition for less than the applicable Threshold Amount (with the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for such other acquisition being greater than $50,000,000), then the date of consummation of such acquisition; and (D) with respect to any Deferred Amounts that are subsequently determined by the Borrower in good faith not to be required to be paid in connection with the Asco Acquisition or the Bombardier Acquisition and that are required to be applied to prepay the Obligations, the date that is five (5) Business Days after the date on which the Borrower reasonably first determines in good faith that such amount is not payable in connection with the applicable acquisition. For purposes of clarity, (A) any such prepayment resulting from the consummation of either the Asco Acquisition or the Bombardier Acquisition for Total Cash Consideration that is less than the applicable Threshold Amount, with the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for such acquisition being greater than $50,000,000 (when taken together with the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for the other such acquisition, if such other acquisition was consummated first), shall be based on seventy-five percent (75.0%) of such difference, and not solely the amount of such difference in excess of $50,000,000; (B) if both the Asco Acquisition and the Bombardier Acquisition are consummated for less than their applicable Threshold Amounts and, when taken together, the difference between the Threshold Amounts (for both acquisitions, taken together) minus the sum of the Total Cash Consideration and the Transaction Expenses (in each case, for both acquisitions, taken together) is greater than $50,000,000, then the amount of such mandatory prepayment shall be based on seventy-five percent (75.0%) of such difference, and not solely the amount of such difference in excess of $50,000,000; and (C) in the event that (I) the applicable purchase agreement in respect of one (1) of such acquisitions is terminated in accordance with the terms thereof or by mutual agreement of the parties thereto on or prior to the applicable Outside Date, and (II) the other such acquisition is consummated on or prior to the applicable Outside Date for Total Cash Consideration that is less than the applicable Threshold Amount, then the $50,000,000 threshold shall apply to the other such acquisition, and, for purposes of clarity, a mandatory prepayment shall only be required with respect to such acquisition if the difference between the applicable Threshold Amount minus the sum of the Total Cash Consideration and the Transaction Expenses for such acquisition is greater than $50,000,000.

 

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(vi)                        Equity Issuances. If, solely at all times from, and including, the Sixth Amendment Effectiveness Date to, but excluding, the Collateral and Subsidiary Guaranty Release Date, any Loan Party sells or issues any of its Equity Interests (whether common, preferred or otherwise, but excluding (A) any Excluded Equity and (B) any Equity Interests sold or issued to another Loan Party), the Loan Parties shall, within five (5) Business Days after the actual receipt of the Net Proceeds therefrom, prepay (or Cash Collateralize, as applicable) the outstanding portion of each Term Loan and other Obligations in the manner set forth in clause (b)(vii) below, in each case, in an aggregate amount equal to seventy-five percent (75.0%) of the Net Proceeds of such Equity Issuance.

 

(vii)                        (v) Application of Mandatory Prepayments. All amounts required to be paid pursuant to clause (b)(i) above shall be applied ratably to the Revolving Loans and Swing Line Loans, and, after all Revolving Loans and Swing Line Loans have been repaid, to Cash Collateralize L/C Obligations (without a corresponding permanent reduction in the Aggregate Revolving Commitments). All amounts required to be paid pursuant to clauses (b)(ii) through (b)(ivvi) above shall be applied:

 

(A)             first, pro rata to the Term Loans (and to the principal installments thereof on a pro rata basis (including the final installment of each Term Loan)); and

 

(B)              second, ratably to the Revolving Loans and Swing Line Loans, and, after all Revolving Loans and Swing Line Loans have been repaid, to Cash Collateralize L/C Obligations (without a corresponding permanent reduction in the Aggregate Revolving Commitments).

 

Prepayments shall be applied, first, to Base Rate Loans, and then, to Eurodollar Rate Loans in direct order of Interest Period maturities. AllSubject to Section 3 of the Sixth Amendment solely with respect to those Lenders party thereto, all prepayments of Eurodollar Rate Loans under this clause (b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid to the date of prepayment.

 

(c)               Liquidity Bridge Facility Limitation. Notwithstanding anything to the contrary in this Section 2.05 or in any Loan Document, no mandatory prepayments shall be required to be made by any Loan Party pursuant to Section 2.05(b)(iii) until such time as: (i) all Term Loans (as defined in the Liquidity Bridge Credit Agreement) under the Liquidity Bridge Credit Agreement have been paid in full; and (ii) all Commitments (as defined in the Liquidity Bridge Credit Agreement) under the Liquidity Bridge Credit Agreement have expired or terminated.

 

2.06           Termination or Reduction of Aggregate Revolving Commitments and Aggregate Delayed Draw Term Loan Commitments.

 

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(a)               Optional Reductions. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments or the Aggregate Delayed Draw Term Loan Commitments, or from time to time permanently reduce (i) the Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving Loans, Swing Line Loans and L/C Obligations, or (ii) the Aggregate Delayed Draw Term Loan Commitments; provided, that, (A) any such notice shall be received by the Administrative Agent not later than 12:00 p.m. (noon) three (3) Business Days prior to the date of termination or reduction, (B) any such partial reduction shall be in an aggregate amount of Two Million Dollars ($2,000,000), or in any whole multiple of One Million Dollars ($1,000,000) in excess thereof, and (C) the Borrower shall not terminate or reduce (I) the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate Revolving Commitments, (II) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, or (III) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit. Any such notice may state that it is conditioned upon the effectiveness of other transactions, in which case, such notice may be revoked or its effectiveness deferred by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

 

(b)               Mandatory Reductions. If, after giving effect to any reduction or termination of Revolving Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swing Line Sublimit exceed the Aggregate Revolving Commitments at such time, the Letter of Credit Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess. The unfunded Delayed Draw Term Loan Commitments shall automatically terminate at the expiration of the Delayed Draw Term Loan Availability Period.

 

(c)               Notice. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit, Swing Line Sublimit, the Aggregate Revolving Commitments or the Aggregate Delayed Draw Term Loan Commitments under this Section 2.06. Upon any reduction of the Aggregate Revolving Commitments, the Revolving Commitment of each Lender shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving Commitments accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination. Upon any reduction of the Aggregate Delayed Draw Term Loan Commitments, the Delayed Draw Term Loan Commitment of each Delayed Draw Term Loan Lender shall be reduced by such Delayed Draw Term Loan Lender’s Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Delayed Draw Term Loan Commitments accrued until the effective date of any termination of the Aggregate Delayed Draw Term Loan Commitments shall be paid on the effective date of such termination.

 

2.07             Repayment of Loans.

 

(a)               Revolving Loans. The Borrower shall repay to the Revolving Lenders on the Revolving Loan Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date.

 

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(b)               Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of: (i) the date within one (1) Business Day of demand therefor by the applicable Swing Line Lender; and (ii) the Revolving Loan Maturity Date.

 

(c)               Term A Loan. The Borrower shall repay the outstanding principal amount of the Term A Loan on the last Business Day of each Fiscal Quarter, commencing with the first (1st) Fiscal Quarter of 2019, in the amount of $2,578,125.00, with the then Outstanding Amount of the Term A Loan due on the Term Loan Maturity Date (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant to Section 9.02, Section 9.03 or Section 9.04, as applicable.

 

(d)               Delayed Draw Term Loan. The Borrower shall repay the outstanding principal amount of the Delayed Draw Term Loan on the last Business Day of each Fiscal Quarter, commencing with the first (1st) Fiscal Quarter of 2019, in each case, in an amount equal to one and one-quarter percent (1.25%) of the outstanding principal amount of the Delayed Draw Term Loan as of the last day of the first (1st) Fiscal Quarter of 2019 (subject to adjustment for Delayed Draw Term Loan Borrowings during the First Extension Period and the Second Extension Period, as described below); provided, that, (i) the Borrower shall repay any advances under the Delayed Draw Term Loan made during the First Extension Period commencing with the first (1st) full Fiscal Quarter ending after the First Extended DDTL Availability Expiration Date in each case, in an amount equal to one and one-quarter percent (1.25%) of the outstanding principal amount of each such Delayed Draw Term Loan as of the First Extended DDTL Availability Expiration Date, and (ii) the Borrower shall repay any advances under the Delayed Draw Term Loan made during the Second Extension Period commencing with the first (1st) full Fiscal Quarter ending after the Second Extended DDTL Availability Expiration Date, in each case, in an amount equal to one and one-quarter percent (1.25%) of the outstanding principal amount of each such Delayed Draw Term Loan as of the Second Extended DDTL Availability Expiration Date (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05), with the then Outstanding Amount of the Delayed Draw Term Loan due on the Term Loan Maturity Date (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant to Section 9.02, Section 9.03 or Section 9.04, as applicable.

 

(e)               Add-On Term Loan. The Borrower shall repay the outstanding principal amount of each Add-On Term Loan in the installments on the dates and in the amounts set forth in the applicable Add-On Term Loan Lender Joinder Agreement (as such installments may hereafter be adjusted as a result of prepayments made pursuant to Section 2.05), unless accelerated sooner pursuant to Section 9.02, Section 9.03 or Section 9.04, as applicable.

 

2.08             Interest.

 

(a)               Subject to the provisions of clause (b) below: (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such Interest Period, plus the Applicable Rate for Eurodollar Rate Loans; (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate, plus the Applicable Rate for Base Rate Loans; and (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate, plus the Applicable Rate for Base Rate Loans. To the extent that any calculation of interest or any fee required to be paid under this Agreement shall be based on (or result in) an amount that is less than zero, such amount shall be deemed to be zero for purposes of this Agreement.

 

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(b)                

 

(i)                        If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such overdue amount of principal shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

(ii)                       If any amount (other than principal of any Loan) is not paid when due (after giving effect to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Requisite Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

(iii)                      If an Event of Default under Section 9.01(i) shall be continuing, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

 

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

 

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

 

2.09             Fees.

 

In addition to those certain fees described in Section 2.03(h) and Section 2.03(i):

 

(a)               Revolving Commitment Fee. The Borrower shall pay to the Administrative Agent, for the account of each Revolving Lender in accordance with its Applicable Percentage, a commitment fee (the “Revolving Commitment Fee”) at a rate per annum equal to the product of: (i) the Applicable Rate; times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the sum of (A) the Outstanding Amount of Revolving Loans, and (B) the Outstanding Amount of L/C Obligations, subject to adjustment as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swing Line Loans shall not be counted towards or considered usage of the Aggregate Revolving Commitments for purposes of determining the Revolving Commitment Fee. The Revolving Commitment Fee shall accrue at all times during the Revolving Availability Period, including at any time during which one (1) or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first (1st) such date to occur after the Effectiveness Date, and on the Revolving Loan Maturity Date; provided, that, (A) no Revolving Commitment Fee shall accrue on the Revolving Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender, and (B) any Revolving Commitment Fee accrued with respect to the Revolving Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender, and unpaid at such time, shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender. The Revolving Commitment Fee shall be calculated quarterly in arrears, and, if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

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(b)               DDTL Commitment Fee. The Borrower shall pay to the Administrative Agent, for the account of each Delayed Draw Term Loan Lender in accordance with its Applicable Percentage, a commitment fee (the “DDTL Commitment Fee”) at a rate per annum equal to the product of (i) the Applicable Rate, times (ii) the actual daily amount by which the Aggregate Delayed Draw Term Loan Commitments exceed the Outstanding Amount of Delayed Draw Term Loans, subject to adjustment as provided in Section 2.15. The DDTL Commitment Fee shall accrue at all times during the Delayed Draw Term Loan Availability Period, including at any time during which one (1) or more of the conditions in Article V is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first (1st) such date to occur after the Effectiveness Date, and on the expiration or early termination pursuant to Section 2.06(a) of the Delayed Draw Term Loan Availability Period, provided, that: (A) no DDTL Commitment Fee shall accrue on the unfunded Delayed Draw Term Loan Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting Lender; and (B) any DDTL Commitment Fee accrued with respect to the unfunded Delayed Draw Term Loan Commitment of a Defaulting Lender during the period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be payable by the Borrower so long as such Lender shall be a Defaulting Lender. The DDTL Commitment Fee shall be calculated quarterly in arrears, and, if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

 

(c)               Fee Letter. The Borrower shall pay all fees required to be paid under the Fee Letters in accordance with the terms thereof, respectively. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever.

 

2.10            Computation of Interest and Fees.

 

All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of three-hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that, any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one (1) day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

 

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2.11             Evidence of Debt.

 

(a)               The Credit Extensions made by each Lender shall be evidenced by one (1) or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each such promissory note shall: (i) in the case of Revolving Loans, be in the form of Exhibit 2.11(a) (a “Revolving Note”); (ii) in the case of Swing Line Loans, be in the form of Exhibit 2.11(b) (a “Swing Line Note”); (iii) in the case of the Term A Loan, be in the form of Exhibit 2.11(c) (a “Term A Note”); (iv) in the case of the Delayed Draw Term Loans, be in the form of Exhibit 2.11(d) (a “Delayed Draw Term Loan Note”); and (v) in the case of each Add-On Term Loan, be in the form of Exhibit 2.11(e) (an “Add-On Term Note”). Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

 

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

 

2.12             Payments Generally; Administrative Agent’s Clawback.

 

(a)               General. All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of “Interest Period” in Section 1.01, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

 

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(b)                

 

(i)                        Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 p.m. (noon) on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of any Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) 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 in immediately available funds with interest thereon, for each day from, and including, the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at: (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

(ii)                        Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer 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 each applicable L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or each applicable L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from, and including, the date such amount is distributed to it to, but excluding, the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

 

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A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause (b) shall be conclusive, absent manifest error.

 

(c)               Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

 

(d)               Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 11.04(c).

 

(e)               Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

 

2.13            Sharing of Payments by Lenders.

 

If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it (excluding any amounts applied by any Swing Line Lender to outstanding Swing Line Loans) resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and sub-participations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided, that:

 

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

 

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(ii)                        the provisions of this Section 2.13 shall not be construed to apply to: (A) any payment made by, or on behalf of, the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender); (B) the application of Cash Collateral provided for in Section 2.14: or (C) any payment obtained by a Lender as consideration for the assignment of, or sale of, a participation in any of its Loans, or sub-participations in L/C Obligations or Swing Line Loans, to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section 2.13 shall apply).

 

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

 

2.14            Cash Collateral.

 

(a)               Certain Credit Support Events. If (i) any L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation, for any reason, remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to any provision of Article IX, or (iv) there shall exist a Defaulting Lender, the Borrower shall within two (2) Business Days (in the case of clause (a)(iii) above), or within one (1) Business Day (in all other cases), following any written request by the Administrative Agent or the applicable L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (a)(iv) above, after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender).

 

(b)               Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of each applicable L/C Issuer and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other Property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c). If, at any time, the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the applicable L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon written demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one (1) or more Controlled Accounts or in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

 

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(c)               Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.14 or Section 2.03, Section 2.04, Section 2.05, Section 2.15 or Section 9.02 in respect of Letters of Credit shall be held and applied in satisfaction of the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such Property as may otherwise be provided for herein.

 

(d)               Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender) (or, as appropriate, its assignee following compliance with Section 11.06(b)(vi)), or (ii) the determination by the Administrative Agent and the applicable L/C Issuer that there exists excess Cash Collateral; provided, that, (A) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (B) the Person providing Cash Collateral and the applicable L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

 

2.15           Defaulting Lenders.

 

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

 

(i)                        Waivers and Amendment. Such Defaulting Lender’s right to approve or disapprove of any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Requisite Lenders” in Section 1.01 and in Section 11.01.

 

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(ii)                        Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amount received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article IX or otherwise), or received by the Administrative Agent from a Defaulting Lender pursuant to Section 11.08, shall, in each case, be applied at such time or times as may be determined by the Administrative Agent as follows, first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuers or Swing Line Lenders hereunder, third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.14, fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (I) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, and (II) Cash Collateralize each L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.14, sixth, to the payment of any amounts owing to the Lenders, the L/C Issuers or Swing Line Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any L/C Issuer or any Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations under this Agreement, and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (A) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (B) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 5.02 were satisfied or waived, such payment shall be applied solely to the payment of the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to clause (a)(iv) below. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this clause (a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(iii)                        Certain Fees.

 

(A)             No Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) or Section 2.09(b) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

 

(B)              Each Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.14.

 

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(C)              With respect to any fee payable under Section 2.09(a) or Section 2.09(b) or any Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clauses (a)(iii)(A) or (a)(iii)(B) above, the Borrower shall: (I) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (a)(iv) below; (II) pay to each L/C Issuer and Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s or such Swing Line Lender’s Fronting Exposure to such Defaulting Lender; and (III) not be required to pay the remaining amount of any such fee.

 

(iv)                        Reallocation of Applicable Percentages to Reduce Fronting Exposure. All, or any part, of such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment), but only to the extent that: (A) no Default has occurred and is continuing; and (B) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.19, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

 

(v)                         Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under applicable Law: (A) first, prepay Swing Line Loans in any amount equal to the Swing Line Lenders’ Fronting Exposure; and (B) second, Cash Collateralize each L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section 2.14.

 

(b)               Defaulting Lender Cure. If the Borrower, the Administrative Agent, each Swing Line Lender and each L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided, that, (i) no adjustments will be made retroactively with respect to fees accrued or payments made by, or on behalf of, the Borrower while that Lender was a Defaulting Lender, and (ii) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.

 

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ARTICLE III

 

TAXES, YIELD PROTECTION AND ILLEGALITY

 

3.01             Taxes.

 

(a)               Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.

 

(i)                        Any and all payments by, or on account of, any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion of the Administrative Agent or any Loan Party, as applicable) require the deduction or withholding of any Tax from any such payment by the Administrative Agent or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon the basis of the information and documentation to be delivered pursuant to clause (e) below.

 

(ii)                        If any Loan Party or the Administrative Agent shall be required by the Internal Revenue Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding Taxes, from any payment, then: (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to clause (e) below; (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Internal Revenue Code; and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that, after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01), the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(iii)                        If any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Internal Revenue Code to withhold or deduct any Taxes from any payment, then: (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to clause (e) below; (B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws; and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that, after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01), the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

 

(b)               Payment of Other Taxes by the Loan Parties. Without limiting the provisions of clause (a) above, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or, at the option of the Administrative Agent, timely reimburse it for the payment of, any Other Taxes.

 

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(c)               Tax Indemnifications.

 

(i)                        Each of the Loan Parties shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on, or attributable to, amounts payable under this Section 3.01) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf, or on behalf of a Lender or an L/C Issuer, shall be conclusive absent manifest error. Each of the Loan Parties shall, and does hereby, jointly and severally indemnify the Administrative Agent, and shall make payment in respect thereof within ten (10) days after demand therefor, for any amount which a Lender or an L/C Issuer, for any reason, fails to pay indefeasibly to the Administrative Agent as required pursuant to clause (c)(ii) below.

 

(ii)                       Each Lender and each L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within ten (10) days after demand therefor: (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender or such L/C Issuer (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so); (B) the Administrative Agent and the Loan Parties, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(d) relating to the maintenance of a Participant Register; and (C) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender or such L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender and each L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender or such L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (c)(ii).

 

(d)               Evidence of Payments. Upon request by any Loan Party or the Administrative Agent, as the case may be, after any payment of Taxes by any Loan Party or by the Administrative Agent to a Governmental Authority as provided in this Section 3.01, each Loan Party 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 any return required by applicable Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.

 

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(e)               Status of Lenders; Tax Documentation.

 

(i)                        Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two (2) sentences, the completion, execution and submission of such documentation (other than such documentation set forth in clauses (e)(ii)(A), (e)(ii)(B) and (e)(ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

 

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

 

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

 

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

 

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(I)                        in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party: (1) with respect to payments of interest under any Loan Document, executed copies of IRS Form W–8BEN or W–8BEN–E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty; and (2) with respect to any other applicable payments under any Loan Document, IRS Form W–8BEN or W–8BEN–E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

 

(II)                        executed copies of Internal Revenue Service Form W–8ECI;

 

(III)                      in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code: (1) a certificate substantially in the form of Exhibit 3.01–1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”); and (2) executed copies of IRS Form W–8BEN or W–8BEN–E; or

 

(IV)                        to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W–8IMY, accompanied by IRS Form W–8ECI, IRS Form W–8BEN or W–8BEN–E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.01–2 or Exhibit 3.01–3, IRS Form W–9, and/or other certification documents from each beneficial owner, as applicable; provided, that, if the Foreign Lender is a partnership and one (1) or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit 3.01–4 on behalf of each such direct and indirect partner;

 

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

 

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

 

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(iii)                        Each Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

 

(f)                Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case may be. If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01, it shall pay to the Loan Party an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that, the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (f), in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this clause the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This clause (f) shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to any Loan Party or any other Person.

 

(g)               Survival. Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Commitments and the repayment, satisfaction or discharge of all other Obligations.

 

3.02           Illegality.

 

If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case, until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans, and (B) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

 

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3.03           Inability to Determine Rates.

 

(a)               If, in connection with any request for a Eurodollar Rate Loan, or a conversion to or continuation thereof, (i) the Administrative Agent determines that (A) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (B) (I) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or in connection with an existing or proposed Base Rate Loan, and (II) the circumstances described in clause (c)(i) below do not apply (in each case with respect to this clause (a)(i), “Impacted Loans”), or (ii) the Administrative Agent or the Requisite Lenders determine that, for any reason, the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurodollar Rate Loan, then, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (A) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods), and (B) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case, until the Administrative Agent (or, in the case of a determination by the Requisite Lenders described in clause (a)(ii) above, until the Administrative Agent, upon instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods), or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

 

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(b)               Notwithstanding anything to the contrary in the foregoing, if the Administrative Agent has made the determination described in clause (a)(i) above, then the Administrative Agent, in consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans, in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until: (i) the Administrative Agent revokes the notice delivered with respect to the Impacted Loans under clause (a)(i) above; (ii) the Administrative Agent or the Requisite Lenders notify the Administrative Agent and the Borrower that such alternative interest rate does not adequately and fairly reflect the cost to such Lenders of funding the Impacted Loans; or (iii) any Lender determines that any applicable Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any such Lender or its applicable Lending Office to make, maintain, or fund Loans whose interest is determined by reference to such alternative rate of interest, or to determine or charge interest rates based upon such rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing, and such Lender provides the Administrative Agent and the Borrower with written notice thereof.

 

(c)               Notwithstanding anything to the contrary in this Agreement or in any other Loan Documents, but without limiting clauses (a) or (b) above, if the Administrative Agent determines (which determination shall be conclusive and binding upon all parties hereto, absent manifest error), or the Borrower or Requisite Lenders notify the Administrative Agent (with, in the case of the Requisite Lenders, a copy to the Borrower), that the Borrower or Requisite Lenders, as applicable, have determined (which determination likewise shall be conclusive and binding upon all parties hereto, absent manifest error), that:

 

(i)                        adequate and reasonable means do not exist for ascertaining LIBOR for any requested Interest Period, including, without limitation, because the LIBOR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary;

 

(ii)                        the administrator of the LIBOR Screen Rate or a Governmental Authority having, or purporting to have, jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR, or the LIBOR Screen Rate, shall no longer be made available, or used for determining the interest rate of loans, provided, that, at the time of such statement, there is no successor administrator that is satisfactory to the Administrative Agent that will continue to provide LIBOR after such specific date (such specific date, the “Scheduled Unavailability Date”); or

 

(iii)                        syndicated loans currently being executed, or that include language similar to that contained in this Section 3.03, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR;

 

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then, reasonably promptly after such determination by the Administrative Agent, or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and the Borrower may amend this Agreement to replace LIBOR with (A) one (1) or more SOFR-Based Rates, or (B) another alternate benchmark rate giving due consideration to any evolving, or then existing, convention for similar U.S. dollar denominated syndicated credit facilities for such alternative benchmark, and, in each case of the foregoing clauses (c)(A) and (c)(B), including any mathematical or other adjustments to such benchmark, giving due consideration to any evolving, or then existing, convention for similar U.S. dollar denominated syndicated credit facilities for such benchmarks, which adjustment, or method for calculating such adjustment, shall be published on an information service, as selected by the Administrative Agent from time to time in its reasonable discretion, and may be periodically updated (such adjustment, the “Adjustment”; and any such proposed rate, a “LIBOR Successor Rate”). Any such amendment shall become effective at 5:00 p.m. on the date that is five (5) Business Days after the date on which the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower, unless, prior to such time, Lenders comprising Requisite Lenders have delivered to the Administrative Agent written notice that, (I) in the case of an amendment to replace LIBOR with a rate described in clause (c)(A) above, such Requisite Lenders object to the Adjustment, or (II) in the case of an amendment to replace LIBOR with a rate described in clause (c)(B) above, such Requisite Lenders object to such amendment; provided, that, for the avoidance of doubt, in the case of clause (c)(I) above, the Requisite Lenders shall not be entitled to object to any SOFR-Based Rate contained in any such amendment. Such LIBOR Successor Rate shall be applied in a manner consistent with market practice; provided, that, to the extent that market practice is not administratively feasible for the Administrative Agent, such LIBOR Successor Rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

 

(d)               If no LIBOR Successor Rate has been determined and the circumstances under clause (c)(i) above exist, or the Scheduled Unavailability Date has occurred, as applicable, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter: (i) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to the extent of the affected Eurodollar Rate Loans or Interest Periods); and (ii) the Eurodollar Rate component shall no longer be utilized in determining the Base Rate. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods), or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans (subject to the foregoing clause (d)(ii)) in the amount specified therein.

 

(e)               Notwithstanding anything else to the contrary herein, any definition of LIBOR Successor Rate shall provide that: (i) at any time that is prior to the termination of all Specified Swap Contracts, if the LIBOR Successor Rate would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; and (ii) at any time that is after the termination of all Specified Swap Contracts, if the LIBOR Successor Rate would be less than three quarters of one percent (0.75%), such rate shall be deemed to be three quarters of one percent (0.75%) for purposes of this Agreement.

 

(f)                In connection with the implementation of a LIBOR Successor Rate, the Administrative Agent will have the right to make LIBOR Successor Rate Conforming Changes from time to time, and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such LIBOR Successor Rate Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

 

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3.04           Increased Costs.

 

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

 

(i)                        impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against any Property of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate) or any L/C Issuer;

 

(ii)                        subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of “Excluded Taxes” in Section 1.01, and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

 

(iii)                        impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate 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, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

 

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

 

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(c)               Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in clauses (a) or (b) above and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within ten (10) days after receipt thereof. Notwithstanding anything contained in this Section 3.04 to the contrary, the Borrower shall only be obligated to pay any amounts due under this Section 3.04 if, and a Lender shall not exercise any right under this Section 3.04 unless, the Lender certifies that it is generally imposing a similar charge on, or otherwise similarly enforcing its agreements with, its other similarly situated borrowers.

 

(d)               Delay in Requests. Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation; provided, that, the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than four (4) months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (provided, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the four (4) month period referred to above shall be extended to include the period of retroactive effect thereof).

 

3.05           Compensation for Losses.

 

Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

 

(a)               any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

 

(b)               any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or

 

(c)               any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 11.13;

 

including any loss or expense arising from the liquidation or reemployment of funds (but excluding loss of anticipated profits) obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.

 

For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.

 

Notwithstanding anything to the contrary in this Section 3.05, each of the Lenders that were lenders under the Existing Credit Agreement hereby waive the requirement that the Borrower reimburse such Lender for any break funding costs incurred or arising in connection with the amendment and restatement of the Existing Credit Agreement pursuant to this Agreement.

 

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3.06            Mitigation Obligations; Replacement of Lenders.

 

(a)               Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional amounts to any Lender, any L/C Issuer or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the request of the Borrower such Lender or such L/C Issuer shall, as applicable, 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 or such L/C Issuer, such designation or assignment: (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or Section 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable; and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.

 

(b)               Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01 or any Lender notifies the Borrower and Administrative Agent that it is unable to fund Eurodollar Rate Loans pursuant to Section 3.02 or Section 3.03, and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a), the Borrower may replace such Lender in accordance with Section 11.13.

 

3.07           Survival.

 

All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent.

 

3.08           Withholding Taxes.

 

For purposes of determining withholding Taxes imposed under FATCA, from and after the Effectiveness Date, the Borrower and the Administrative Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) the Loans under this Agreement as not qualifying as a “grandfathered obligation” within the meaning of Treasury Regulation Section 1.1471–2(b)(2)(i).

 

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ARTICLE IV

GUARANTY

 

4.01           The Guaranty.

 

(a)               Each Guarantor hereby jointly and severally guarantees to each Lender, each Swap Bank, each Treasury Management Bank, and the Administrative Agent as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization, or otherwise) strictly in accordance with the terms thereof. Each Guarantor hereby further agrees that, if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization, or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that, in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration, as a mandatory Cash Collateralization, or otherwise) in accordance with the terms of such extension or renewal. The Borrower hereby guarantees any Additional Obligations (determined before giving effect to this Section 4.01 and Section 4.08) under the Guaranty.

 

(b)               Notwithstanding any provision to the contrary contained in this Agreement or any other Loan Document: (i) the Guaranty of each Guarantor (other than the Parent Guarantor) provided pursuant to this Article IV shall be limited to the payment of the Obligations as described in clause (a) above if, and to the extent that, such Obligations become due or payable solely at all times during the CSAG Period; and (ii) Swap Contracts or Treasury Management Agreements, the obligations of each Guarantor and the Borrower under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state Law.

 

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4.02           Obligations Unconditional.

 

The obligations of each Guarantor under Section 4.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Loan Documents, Swap Contracts or Treasury Management Agreements, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of, or, solely at all times during the CSAG Period, security for, any of the Obligations, and, to the fullest extent permitted by applicable Law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (other than payment in full of the Obligations), it being the intent of this Section 4.02 that the obligations of each Guarantor hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Borrower or any other Guarantor for amounts paid under this Article IV until such time as the Obligations have been paid in full (other than contingent indemnification obligations that are not then due and payable) and the Commitments have expired or terminated. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by applicable Law, the occurrence of any one (1) or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

 

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

 

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

 

(c)               the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Loan Documents, any Swap Contract between any Loan Party and any Swap Bank, or any Treasury Management Agreement between any Loan Party and any Treasury Management Bank, or any other agreement or instrument referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements shall be waived, or any other guarantee of any of the Obligations, or, solely at all times during the CSAG Period, any security therefor, shall be released, impaired or exchanged, in whole or in part, or otherwise dealt with;

 

(d)               any Lien granted to, or in favor of, the Administrative Agent or any Lender as security for any of the Secured Obligations shall fail to attach or be perfected; or

 

(e)               any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of a Loan Party) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of a Loan Party).

 

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against any Person under any of the Loan Documents, any Swap Contract between any Loan Party and any Swap Bank, or any Treasury Management Agreement between any Loan Party and any Treasury Management Bank, or any other agreement or instrument referred to in the Loan Documents, such Swap Contracts or such Treasury Management Agreements, or against any other Person under any other guarantee of, or, solely at all times during the CSAG Period, security for, any of the Obligations.

 

4.03           Reinstatement.

 

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

 

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4.04           Certain Additional Waivers.

 

Each Guarantor agrees that such Guarantor shall have no right of recourse to security, if any, for the Obligations at any time, except through the exercise of rights of subrogation pursuant to Section 4.02 and through the exercise of rights of contribution pursuant to Section 4.06.

 

4.05           Remedies.

 

Each Guarantor agrees that, to the fullest extent permitted by applicable Law, as between such Guarantor, on the one hand, and the Administrative Agent and the Lenders, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 9.02. Section 9.03 and Section 9.04 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 9.02) for purposes of Section 4.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person, and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by such Guarantor for purposes of Section 4.01. The Guarantors acknowledge and agree that, solely at all times during the CSAG Period, their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Collateral Agent, on behalf of the Secured Parties, may exercise remedies thereunder in accordance with the terms of this Agreement and thereof.

 

4.06           Rights of Contribution.

 

Each Guarantor and the Borrower agree that, in connection with payments made hereunder, each Guarantor and the Borrower shall have contribution rights against each other as permitted under applicable Law. Such contribution rights shall be subordinate, and subject in right of payment, to the obligations of each Guarantor and the Borrower under the Loan Documents, and neither any Guarantor nor the Borrower shall exercise such rights of contribution until all Obligations have been paid in full (other than contingent indemnification obligations that are not then due and payable) and the Commitments have expired or been terminated.

 

4.07           Guarantee of Payment; Continuing Guarantee.

 

The guarantee in this Article IV is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising; provided, that, upon the Collateral and Subsidiary Guaranty Release Date, all Guarantors, other than the Parent Guarantor, shall be automatically released from the Guaranty provided by this Article IV.

 

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4.08           Keepwell.

 

Each Loan Party that is a Qualified ECP Guarantor at the time the Guaranty in this Article IV by any Loan Party that is not then an “eligible contract participant” under the Commodity Exchange Act (a “Specified Loan Party”) becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Article IV voidable under applicable Debtor Relief Laws, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 4.08 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full (other than contingent indemnification obligations under the Loan Documents that are not then due or claimed). Each Loan Party intends this Section 4.08 to constitute, and this Section 4.08 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each Specified Loan Party for all purposes of the Commodity Exchange Act.

 

4.09           Appointment of Borrower.

 

Each Loan Party hereby appoints the Borrower to act as its agent for all purposes of this Agreement, the other Loan Documents, and all other documents and electronic platforms entered into in connection herewith, and agrees that: (a) the Borrower may execute such documents, and provide such authorizations on behalf of such Loan Party, as the Borrower deems appropriate in its sole discretion, and such Loan Party shall be obligated by all of the terms of any such document and/or authorization executed on its behalf; (b) any notice or communication delivered by the Administrative Agent, an L/C Issuer, or a Lender to the Borrower shall be deemed delivered to such Loan Party; and (c) the Administrative Agent, the L/C Issuers, or the Lenders may accept, and be permitted to rely on, any document, authorization, instrument or agreement executed by the Borrower on behalf of such Loan Party.

 

ARTICLE V

 

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

 

5.01           Conditions of Initial Credit Extension.

 

This Agreement shall become effective upon, and the obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of, the following conditions precedent:

 

(a)               Loan Documents. Receipt by the Administrative Agent of executed counterparts of this Agreement and the other Loan Documents to be entered into as of the Effectiveness Date, each properly executed by an authorized officer of the signing Loan Party and, in the case of this Agreement, by each Lender.

 

(b)               Opinions of Counsel. Receipt by the Administrative Agent of customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, dated as of the Effectiveness Date.

 

(c)               No Material Adverse Effect. Since December 31, 2017, there shall not have occurred a Material Adverse Effect.

 

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(d)               Litigation. There shall not exist any action, suit, investigation or proceeding pending, or, to the knowledge of the Loan Parties, threatened, in any court, or before an arbitrator or Governmental Authority, that would reasonably be expected to have a Material Adverse Effect.

 

(e)               Organizational Documents, Resolutions, Etc. Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals):

 

(i)                        copies of the Organizational Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Loan Party to be true and correct as of the Effectiveness Date;

 

(ii)                        such certificates of resolutions or other action, incumbency certificates and/or other certificates of authorized officers of each Loan Party as the Administrative Agent may reasonably require, evidencing the identity, authority and capacity of each authorized officer thereof authorized to act as an authorized officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; and

 

(iii)                        such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in good standing, and qualified to engage in business in its state of organization or formation.

 

(f)                Closing Certificate. Receipt by the Administrative Agent of a certificate, signed by a Responsible Officer of the Borrower, certifying that the conditions specified in Section 5.01(c), Section 5.01(d), Section 5.02(a) and Section 5.02(b) have been satisfied as of the Effectiveness Date.

 

(g)               Existing Credit Agreement. Receipt by the Administrative Agent of evidence that: (i) all obligations owed to lenders under the Existing Credit Agreement who are not Lenders hereunder, if any, shall have been paid in full; and (ii) the obligations owed to lenders under the Existing Credit Agreement who are Lenders hereunder shall be paid to the extent necessary so that the Obligations owed to such Lenders hereunder do not exceed their respective Commitments.

 

(h)               KYC Information.

 

(i)                        Upon the reasonable request of any Lender made at least ten (10) days prior to the Effectiveness Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each case, at least five (5) days prior to the Effectiveness Date.

 

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(ii)                        At least five (5) days prior to the Effectiveness Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification.

 

(i)                 Fees. Receipt by the Administrative Agent, the Arrangers, and the Lenders of any fees required to be paid on or before the Effectiveness Date.

 

(j)                 Out-of-Pocket Expenses and Attorney Costs. Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable out-of-pocket expenses of the Arrangers and the Administrative Agent and all fees, charges and disbursements of counsel to the Administrative Agent (limited to one (1) primary counsel for the Administrative Agent and, if deemed reasonably necessary by the Administrative Agent, of one (1) special and/or local counsel to the Administrative Agent in each applicable jurisdiction or regulatory counsel retained by the Administrative Agent) to the extent invoiced at least three (3) Business Days prior to the Effectiveness Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred, or to be incurred, by it through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

 

Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required thereunder to be consented to or approved by, or acceptable or satisfactory to, a Lender, unless the Administrative Agent shall have received notice from such Lender prior to the proposed Effectiveness Date specifying its objection thereto.

 

5.02           Conditions to all Credit Extensions.

 

Subject to Section 2.01(d)(ii) and the Incremental Funds Certain Provision, if applicable, the obligation of each Lender or each L/C Issuer, as applicable, to honor any Request for Credit Extension (excluding any conversion or continuation of Loans) is subject to the following conditions precedent:

 

(a)               The representations and warranties of each Loan Party contained in Article VI or any other Loan Document, or which are contained in any agreement, certificate or notice furnished at any time under, or in connection, herewith or therewith, shall be true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case, they shall be true and correct in all material respects (provided, that, any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date; provided, that, for purposes of this Section 5.02, the representations and warranties contained in Section 6.05(a) and Section 6.05(b) shall be deemed to refer to the most recent statements furnished pursuant to Section 7.01(a), Section 7.01(b) and Section 7.01(c), respectively.

 

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(b)               No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.

 

(c)               The Administrative Agent and, if applicable, the applicable L/C Issuer and/or the applicable Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

 

(d)       The Loan Parties and Subsidiaries shall be in compliance with all applicable Financial Covenants in effect at such time, after giving effect to the incurrence of such Credit Extension and the application of the proceeds thereof on a Pro Forma Basis.

 

Each Request for Credit Extension submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Section 5.02(a) and Section 5.02(b) have been satisfied (or waived in accordance with the terms hereof) on and as of the date of the applicable Credit Extension.

 

ARTICLE VI

 

REPRESENTATIONS AND WARRANTIES

 

In order to induce the Lenders and the Administrative Agent to enter into this Agreement, and to extend credit hereunder and under the other Loan Documents on the Effectiveness Date, the Loan Parties, jointly and severally, make the representations and warranties set forth in this Article VI and upon the occurrence of each Credit Extension thereafter (provided, that, (A) the representations and warranties set out in Section 6.03(a), Section 6.04(b), Section 6.09(a), Section 6.09(b), Section 6.10(c), Section 6.20, Section 6.21, Section 6.22, and Section 6.24, in each case, are made only on the First Amendment Effectiveness Date, upon the occurrence of each Credit Extension, and as may otherwise be agreed in writing by the Loan Parties, in each case, during the CSAG Period, and (B) the representations and warranties set out in Section 6.03(b) and Section 6.09(c) are made only upon the occurrence of each Credit Extension not during the CSAG Period and as may otherwise be agreed in writing by the Loan Parties):

 

6.01           Organization, Etc.

 

Each Loan Party (a) is a corporation or other form of legal entity, and each of its Subsidiaries is a corporation, partnership, or other form of legal entity (i) validly organized and existing, and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the Laws of the jurisdiction of its incorporation or organization, as the case may be, (b) is duly qualified to do business, and is in good standing as a foreign corporation or foreign partnership (or comparable foreign qualification, if applicable, in the case of any other form of legal entity), as the case may be, in each jurisdiction where the nature of its business requires such qualification, (c) has full power and authority to (i) enter into, and perform its obligations under, this Agreement and each other Loan Document to which it is a party, and (ii) own, or hold under lease, its property, and to conduct its business substantially as currently conducted by it, and (d) holds all requisite governmental licenses, permits and other approvals to (i) enter into, and perform its obligations under, this Agreement and each other Loan Document to which it is a party, and (ii) own, or hold under lease, its property, and to conduct its business substantially as currently conducted by it, except, in the case of clauses (a)(ii), (b), (c)(ii) and (d) above only, where the failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

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6.02           Due Authorization, Non-Contravention, Etc.

 

The execution, delivery and performance by each Loan Party of this Agreement and each other Loan Document to which it is a party, the borrowing of the Loans, the use of the proceeds thereof, and the issuance of the Letters of Credit hereunder are within each Loan Party’s corporate, partnership or comparable powers, as the case may be, have been duly authorized by all necessary corporate, partnership or comparable and, if required, stockholder action, as the case may be, and do not:

 

(a)